Libertarianism and gay marriage

Dale Carpenter is a brilliant law professor whose most important issue is gay marriage. He’s for it--as a social conservative. Some will regard this stance as wayward and anomalous, but I find it refreshing. (Disclosure: Dale has been a sparring partner of mine on the Internet for some years.)

At any rate, Carpenter has an interesting background piece at the Volokh Conspiracy site (volokh.com) for August 19. I reproduce the part pertaining to Libertarians:

“[It seems that by and large[ libertarians support gay marriage. I think that's descriptively true: libertarians are far more likely than traditional conservatives to support same-sex marriage. But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us to lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc. In part because of its channelling and traditionalizing potential, same-sex marriage is a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this.
“So what explains libertarian support for SSM? Libertarians have been more willing than traditional conservatives to oppose government-sponsored discrimination against gays and lesbians. Libertarians are also less likely to allow their religious views to dictate their public-policy preferences and are also less likely to presume that traditional practices should enjoy any presumption.

“These considerations might lead a libertarian to support same-sex marriage as long as state-sponsored marriage remains, as seems likely. But I would think that's a second-best world for most libertarians, who would prefer a more privately ordered state of, shall we say, affairs.

“It's also possible that some libertarians might support same-sex marriage as enlarging the "liberty" or choices of gay persons. But again this libertarian gain should be qualified: same-sex marriage is an induced choice to enjoy "liberty" within a very constrained and state-designed system of official recognition and obligation. In the popular conception, libertarianism is often confused with libertinism, perhaps because libertarians tend to support things like legalized prostitution and drug decriminalization. At the same time, gay marriage is sometimes identified with "sexual liberty," as one prominent academic supporter recently characterized it. But marriage would provide no sexual liberty gays do not already enjoy. Married gays are not really "free at last." They're more aptly described as unfree at last.

“So I would not identify support for same-sex marriage with libertarian squishiness, or libertarian firmness, or libertarian anything. That doesn't especially bother me, since I'm not a libertarian. I'm at most a conservative with libertarian leanings, a faint-hearted libertarian. But I am curious about how actual libertarians arrive at their support for same-sex marriage, at least on libertarian grounds.”

So far Dale Carpenter, succinct and persuasive as always.

For the record I regard myself as a libertarian with sanity. I do not agree with Harry Browne that a five-year old should be able to go into a drugstore and buy heroin. Children are Persons in Need of Supervision, and achieve full citizenship only when they become adults. To pretend otherwise is pure sentimentality.

The problem of standing (so to speak) does not end there. A problem of searing intensity is whether every adult is capable of acting as a fully rational being, as libertarians assume. To be sure, everyone should be encouraged to do so, but some will inevitably fall short. Given this disparity, does not libertarianism encourage a kind of elitism in which, when all is said and done, only some are chosen? If so, that prospect must be firmly embraced, even though it will not be popular to do so. In many instances, unpopularity (“defending the indefensible”) has not fazed libertarians in the past. This issue, though, may be an exception.

Depending on one’s point of view, libertarians seem at times quite adept at bending their principles. For the life of me I could not see how invading Saddam Hussein’s Iraq could be defended on libertarian grounds. But many soi-disant libertarians have done so. In the midst of the countless disasters that conflict has brought in its train is a drastically reduced sphere of liberty for women and for gays. The latter are now being hunted down by death squads.

To be sure there are a number of varieties of libertarianism. To me an attractive alternative to the libertarian absolutism of the five-year old buying heroin is what is called the night-watchman concept of the state. People are free to do as they please, but every once and while the night watchman has to step in. Moreover, his or her very presence will cause people to behave differently than they might otherwise do.

Since people are likely to continue to make marriage contracts, whether on religious grounds or not, it would seem that the state has the obligation--as a night watchman, if you will--to guarantee that such contracts are fair and equitable. This responsiblity should include the provision that such contracts are available to all, including gay and lesbian couples.

In all likelihood, we will never achieve the paradise--or nightmare, if you will--of Full Lib ertarianism. Looking back over our history, it would seem that the closest we came to this putative ideal was the era of the American Founding. And in that time, our first landmark document enjoined “life, liberty, and the p u r s u i t o f h a p p i n e s s.” Government cannot produce happiness; only individuals and affinity groups can do that. However, government must promote what my friend at Gay Species terms “human flourishing.”

Let me conclude these fragmentary observations with another example. When asked how I can continue to live in a cheap apartment covered by rent control, I reply that under present circumstances libertarians are entitled to take advantage of whatever benefits are available. In an ideal society things would be different. But we are not there. In the meantime libertarianism is not a suicide pact