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Live and Let Live (The Libertarian Case For Gay Marriage)
The Wall Street Journal ^ | July 13, 2004 | RICHARD A. EPSTEIN

Posted on 07/13/2004 8:11:13 AM PDT by presidio9

Two recent developments have returned same-sex marriages to center stage. At one pole lies the conservative effort to steer a Family Marriage Amendment, banning same-sex marriages, through Congress; and at the other, the implementation of the Massachusetts decision in Goodridge v. Department of Health, which requires equal treatment for same-sex marriages.

These two parallel episodes offer powerful evidence of an unhappy wedge between the majoritarian and libertarian wings of conservative legal thought. Generally -- and here the illiberal FMA is a jarring exception -- conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes, in the separate states. The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. Both sides struggle to accommodate the rival impulse: All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?

Conservatives regard the Goodridge decision as unprincipled meddling of the worst sort. After all, current canons of constitutional interpretation require judicial deference to legislation. The courts must uphold any statute, however unwise, as long as a rational basis can be discerned. But after Lawrence v. Texas last year, in which the Supreme Court struck down a longstanding Texas antisodomy law, social conservatives are right to ask why -- if such laws are struck down as unconstitutional -- the prohibitions on same-sex marriages won't be next on its agenda, notwithstanding the Court's own disclaimers on this explosive question.

Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals. Those justifications might include stopping pollution and cartels, but they cannot include the offense that the majority takes to practices they regard as contrary to public morals. Their remedy is to refrain from participation in the practices they dislike, not to stop others from doing as they please.

When President Bush, for example, talks about the need to "protect" the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people. Let the state argue that gay marriages are a health risk, and the answer is that anything that encourages monogamy has the opposite effect. Any principled burden of justification for the ban is not met.

(Excerpt) Read more at online.wsj.com ...


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; Miscellaneous; News/Current Events; Philosophy; Politics/Elections
KEYWORDS: anarchy; culturewar; hedonism; homosexualbehavior; lawlessness; mockinggod; mtvculture; popculture; promarriage; romans1; secularhumanism; spiritualbattle; vicenotvirtue
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To: cinFLA
Govm't has no right to define what is fraud whatsoever. The must recognize what the culture determines fraud is."

That's correct. It's deceit and the meaning predates history.

81 posted on 07/13/2004 12:46:14 PM PDT by spunkets
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To: steve-b
Well, then, you are saying that marriages that are absolutely confirmed to be sterile should be dissolved by the state.

I think you're trying to find a logical flaw in an issue that is rooted in human nature. Take a step back and look at it.

Every culture in history, every culture, has developed the institution of marriage. Every tribe in every jungle, every clan on every mountain.

Why?

Because, as a broad issue, it is the only way to produce a certain result. That result is to raise children to repopulate that culture. Does each hetero couple produce happy, stable, productive citizens? Of course not. We don't need the potential of each couple to pan out, we just need the tradition to be set and upheld, and enough will be produced.

This has zero, and I mean zero, to do with gay marriage.

Thus, the logic of your argument would make an ironclad agreement to pursue at least one adoption a prerequisite for permitting a sterile couple to marry.

Not at all.

First off, most people don't know they're infertile until they try.

Second, every potential family doesn't need to pan out. We still need to protect the institution. See above.

I notice that most of your responses to me involve taking my positions to an extreme absolute. So, in some extreme cases, my position may sound absurd. For instance.

Hetero couples can produce unhappy people who become mass murderers. Thus, it could be said that since I advocate hetero couples, I advocate mass murder.

Rather than take my postions on hetero marriage to their illogical conclucions, and put words in my mouth, why don't we discuss the concept of gay marriage. The case for gay marriage is absurd on its face, it requires no distortion.

82 posted on 07/13/2004 12:47:35 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: The Green Goblin
Good point. Correction to my #76. The state should not endorse the relationship if there are NO children involved, and never will be. An elderly couple who has children, grandchildren, etc. from past relationships could make a case for the state to endorse it, if they were involved in, or intended to be involved in, the raising of grandchildren, etc.
(I know, your post wasn't to me, but you raised a good question.)
83 posted on 07/13/2004 12:49:55 PM PDT by BMiles2112
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To: BMiles2112

I don't think the state should be involved in endorsing any relationship whatsoever, but my poiint was that those who are arguing for selective endorsement on the basis of children are being horribly inconsistent, and well as more than a little foolish (and irrelevant) in light of contemporary culture.


84 posted on 07/13/2004 12:56:42 PM PDT by The Green Goblin
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To: The Green Goblin
I won't attempt to argue with your opinion that the gov't should remove itself entirely from the business of marriage. That's consistent with libertarian thought. (I don't agree with it, but no need to get into that now.)
you'll be deemed a kook, and rightly so....
I've been deemed much, much worse for being pro-life, so I can live with that. I'd like to know why you would agree with them. If I take the conservative position that the encouragement of the institution of marriage is a legitimate role of gov't, what should be my reason or it's involvement, if not to encourage couples to bring children into, and raise them in, a proven, stable environment?
85 posted on 07/13/2004 1:01:47 PM PDT by BMiles2112
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To: The Green Goblin
Okay, one more time -

The institution of marriage broadly exists for all men and women, because men and women can potentially have children. This is a social construct that exists because civilization cannot exist without a constant supply of people. We protect marriage and make it special because it is an investment in the future of humanity.

NOT EVERY MARRIAGE needs to produce children for the institution to be valuable. NOT EVERY MARRIAGE will produce happy, well adjusted, productive citizens. Still, the institution works fine, because it produces enough.

Gay marriage has zero potential to produce children. None. They confer no potential benefit to society.

So, a million hetero couples could produce five million new people.

A million gay couples would produce none.

If some hetero couples produce more or less than others, no big deal, so long as a sufficient supply is kept up. Letting all men and women willing to accept the responsibility of marriage do so strengthens the institution. In some cases it won't pan out in the short term, but long term, keeping marriage special, honored and protected is worth it.

86 posted on 07/13/2004 1:01:48 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: The Green Goblin

Where have I been inconsistent?


87 posted on 07/13/2004 1:06:04 PM PDT by BMiles2112
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To: Steel Wolf

Gay marriages will in no way prevent heterosexuals from having children, both in and out of wedlock as they now do. Not will it prevent heterosexuals who wish to marry, stay together and raise children from doing so. Thus your argument is unsound.


88 posted on 07/13/2004 1:18:48 PM PDT by The Green Goblin
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To: The Green Goblin
.. but my poiint was that those who are arguing for selective endorsement on the basis of children are being horribly inconsistent, and well as more than a little foolish (and irrelevant) in light of contemporary culture.

1. The raising of well adjusted, moral, productive citizens is neither foolish nor irrelevant in any culture, no matter how contemporary.

2. Broad rules that protect the institution of marriage may fail the consitancy check in some cases. That does not invalidate the need for marriage, or for its protection.

3. Gay marriage is unproductive every time, and thus does not warrant special protection.

89 posted on 07/13/2004 1:20:36 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: BMiles2112
If I take the conservative position that the encouragement of the institution of marriage is a legitimate role of gov't, what should be my reason or it's involvement, if not to encourage couples to bring children into, and raise them in, a proven, stable environment?

If that's your position, then you are guilty of discriminating against taxpaying gay citizens by unjustly denying them the benefits of marriage. That's the problem--not the "kids in a stable environment" part...

90 posted on 07/13/2004 1:23:03 PM PDT by The Green Goblin
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To: Steel Wolf
Broad rules that protect the institution of marriage may fail the consitancy check in some cases.

That's completely unacceptable and immoral, as it is discrimination against taxpaying gay citizens.

91 posted on 07/13/2004 1:28:26 PM PDT by The Green Goblin
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To: The Green Goblin
Gay marriages will in no way prevent heterosexuals from having children, both in and out of wedlock as they now do. Not will it prevent heterosexuals who wish to marry, stay together and raise children from doing so. Thus your argument is unsound.

There are financial benefits to be had by being married. This is only logical, since families are an investment in our future.

Everyone that gets married creates a burden on their employers, the government, and, indirecly, the taxpayer/consumer. More marriages would burden this sytem.

The logical response would either be higher costs, or less benefits. That would be a tangible cost, especially as marriages become increasingly frivious and common. Another tangible problem: more marriages of the unserious variety would lead to more clogging of our courts. That ain't free.

There are intagible costs, as well. Divorce is already a problem in America. Children being born out of wedlock is a problem. If we weaken the concept of marriage even further, it will not result in more stability. Gay marriage is pushing in the absolute wrong direction.

92 posted on 07/13/2004 1:31:24 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: The Green Goblin
You forgot discrimination against young heterosexuals not yet married. And polygamists, don't forget them.
Gays can marry someone of the opposite sex, the same as I can. Why should they get special rights, specific to their lifestyle?
93 posted on 07/13/2004 1:37:20 PM PDT by BMiles2112
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To: Steel Wolf
Everyone that gets married creates a burden on their employers, the government, and, indirecly, the taxpayer/consumer. More marriages would burden this sytem.

You immorally advocate denying benefits to gay taxpayers/consumers who are paying to support the system, so your concern for those groups is bogus...

94 posted on 07/13/2004 1:38:15 PM PDT by The Green Goblin
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To: The Green Goblin
Broad rules that protect the institution of marriage may fail the consitancy check in some cases.

That's completely unacceptable and immoral, as it is discrimination against taxpaying gay citizens.

No it's not. They are free to get married to a member of the opposite sex and enjoy all the benefits of marriage they want.

The 'discrimination' angle is a sham. Society shouldn't have to fund sexual hobbyists who are incapable of upholding their end of the marriage bargain.

We also discriminate against 10 year olds getting married, even with the consent of their taxpaying parents. It's discrimination based on age, and it may be a slippery slope, but I don't lose any sleep over it.

If this is the basis for the liberal / libertarian arguement, then we need an Amendment to settle this.

95 posted on 07/13/2004 1:40:42 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: BMiles2112
You forgot discrimination against young heterosexuals not yet married. And polygamists, don't forget them. Gays can marry someone of the opposite sex, the same as I can. Why should they get special rights, specific to their lifestyle?

That's why the government should not be involved at all where marriage and relationships are concerned; there is no way that it morally can be involved in such matters.

96 posted on 07/13/2004 1:42:39 PM PDT by The Green Goblin
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To: The Green Goblin

Are you trying to pull this discussion into a debate over the gov't being in/out of the business of marriage or do you honestly want "gay marriage"? I ask because, as you've stated, you want the gov't out, which is a fine position to take, but simply one that I honestly don't have the time to get into right now, and may be better debated on a different thread (Run-on, I know).If you're trying to argue that "gay marriage" should be endorsed by the state, then you've already contradicted yourself. I'm guessing it's the former, but I truly am curious.


97 posted on 07/13/2004 1:49:23 PM PDT by BMiles2112
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To: Steel Wolf
No it's not. They are free to get married to a member of the opposite sex and enjoy all the benefits of marriage they want The 'discrimination' angle is a sham. Society shouldn't have to fund sexual hobbyists who are incapable of upholding their end of the marriage bargain. We also discriminate against 10 year olds getting married, even with the consent of their taxpaying parents. It's discrimination based on age, and it may be a slippery slope, but I don't lose any sleep over it.

That argument is an absolute joke, and you know it. Gays are consenting adults, so let's stop all the bull about kids and pets, shall we? And since gays are not free to marry the person they love (such person being of the opposite sex by definition)they do not enjoy the same rights as heterosexuals under any rational definition.

98 posted on 07/13/2004 1:49:33 PM PDT by The Green Goblin
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To: The Green Goblin
You immorally advocate denying benefits to gay taxpayers/consumers who are paying to support the system, so your concern for those groups is bogus...

I know people that work for the government in a secure area called a SCIF. (Secure Compartmented Information Factility.)

You pay taxes for them. You support them. If you try to go one, you'll be sent away. If you try twice, you'll probably be arrested, and charged with things that won't look good on a resume.

Is that fair? You pay taxes for it! You should be allowed to enjoy it. Right? RIGHT?

Guess what? You do enjoy it. Your tax dollars fund an vital institution that, by nature of its operation, functions best without you. It preserves your society, and your way of life.

You can stomp your foot and cry 'foul'. It may not seem fair, but it's an issue of survival.

The tax dollars of gay people fund a vital operation that, by nature of its operation, functions best without them. It preserves their society, and their way of life.

They can stamp their feet and cry 'foul'. It may not seem fair, but it's an issue of survival.

Do you see the point of having a military? Because marriage defends the culture just the same as the military defends the country.

99 posted on 07/13/2004 1:51:01 PM PDT by Steel Wolf (What? Bread AND circuses, ... for free?!?)
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To: The Green Goblin

That's what I thought. Ignore #96.


100 posted on 07/13/2004 1:51:48 PM PDT by BMiles2112
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