Friday, August 21, 2009

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 ( 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



Anonymous Anonymous said...

Since I helped found the California Libertarian Party and attended the national convention held in San Francisco (1980), I think I am acquainted with "libertarianism."

Liberalism, as distinct from "Libertarianism," establishes human flourishing as the SAME purpose (or "complete end") that the State and Individuals must promote. The instrumental means to that "supreme good" of the "general welfare" and "human flourishing" (which are the SAME) are the virtues, liberal principles, constitutional democracy, liberty, human rights, maximal freedom to pursue one's own conception of the "good life," with minimal intrusion by the State (polis) in order to promote social order and cohesion.

The mistake ALL Libertarians make is confusing instrumental means (or proximate ends) for the "complete end." Charles Murray (in "Why I Am a Libertarian" and the national party) demonstrate this mistake with making an instrumental means (liberty) the supreme good, and non-coercion the instrumental means. Liberals point to the error, but the dogmatists insist their mistake is the only possible scenario in Libertarianism.

Perhaps, the voter understands this better than the partisans, since no Libertarian candidate -- despite appealing to liberal principles -- has amassed more than 2% of the vote. Even Anderson in 1980 and Perot in 1992 succeeded far beyond any "category mistake" Libertarian.

The "supreme good" is human flourishing, which BOTH the Individual and the State establish. All the liberal principles, ethical prescriptions, and Harm Principle proscriptions are the "instrumental means" to that supreme "complete end." Maybe Aristotle's Nicomachean Ethics (at least Book I) should be read by Libertarians before they become irrelevant.

10:16 AM  
Anonymous Anonymous said...

Far be it from me to disabuse a social conservative of "libertarian" views, but when Californian's were presented with Proposition 22 in 2000, the only libertarian view I encountered was that the State should not be in the "marriage business." Not one libertarian endorsed "marriage equality." As readers probably remember, Prop. 22 won in a landslide. It's only claim was that "marriages" of same-sex partners would not be recognized in California. As a plebiscite, only the Legislature had the gall to try and end-run the Proposition by legislative fiat. Governor Schwarzenegger is more savvy than that. Besides, the Legislature knew the Governor's position, so passing an unconstitutional law by the Rabbi from San Francisco was an exercise in futility and folly.

Now, I find it very interesting that those under the age of 30 overwhelmingly support marriage equality, while those over the age of 65 overwhelmingly oppose it. What's odd, is that these are the "baby boomers" that came of age during the Summer of Luv on acid and pot. Apparently, they are hypocrites that our youth recognize as folly. Those seeking to reverse Proposition 8's victory by 2% now understand that FOUR years will be immensely more satisfactory than another TWO years. As Beloved argues, just because we're gay does not mean we have to be stupid.

But some Rabbis think they pull the wool over their constituents' eyes. I have no doubt that marriage equality will come in FOUR years, as people become increasingly more comfortable with gay men and lesbians who have come out since the Seventies. It is being comfortable around gay men, that even straight men in San Francisco enjoy. Of course, the women love us (maybe not so much the queers, but that's a different species altogether. They'd never contemplate marriage.)

1:15 PM  
Blogger Dyneslines said...

"Since I helped found the California Libertarian Party and attended the national convention held in San Francisco (1980), I think I am acquainted with "libertarianism.""

With all due respect to my friend at Gay Species, I do not think that these accomplishments qualify one to make definitive pronouncements about Libertarian principles and practices.

The Libertarian Party (as distinct from its California affiliate) was formed on December 11, 1971. I first became acquainted with its program as I explored the excellent library of a Danish friend with whom I was staying in 1973. Not long after I joined a gay chapter of the New York Libertarian Party.

As my friend's library showed, Libertarian ideas were in circulation long before the official founding of the Party. These views, regardless of whether they were officially espoused by the Party, have had a significant formative influence on my thinking, but I have evolved since. Still, I have no difficulty putting myself back in a Libertarian frame of mind.

In my view the comments expressed fail to grapple with the core idea of Libertarianism, namely that its principles are absolute and override any other particular allegiance. This inflexibility is both the strength and the weakness of Libertarianism.

Thus, if one believes that hard drugs should be prohibited by law, one should abandon this view because it conflicts with the core beliefs of Libertarianism. On the other hand, there is room for disagreement on abortion.

So too on gay marriage. One may conclude that the government should get entirely out of the marriage business, or one may say that under present circumstances the demands of SSM advocates should be acceeded to. Both positions, however, are consonant with "equality."

7:56 AM  
Anonymous Anonymous said...


You wrote to me that liberalism was confused, because it had TWO different ends: (1) liberty, and (2) equality (I saved your comments).

I wrote back, that such Libertarian misconstrual of "means" for "ends" is precisely the problem with Libertarianism.

No one denies that Liberty, Equality, and Justice under the Rule of Law are "good," they just are not the "complete good," the prism which Hayek and Popper both understood, even if Murray Rothbard did not. Unless and until the "complete good" of human flourishing is accepted, confusing "means" for "ends" IS the problem with Libertarianism. This is also the "oath" one must take to join the National and State Libertarian Parties (which I find offensive, as do I find their rejection of democracy for capitalist greed -- pay in advance to be a member).

BTW, Rothbard wrote the Liberty is supreme good, and non-coercion is the means. No wonder the confusion follows. If so, where do equality, democracy, autonomy, free speech, self-defense, fortitude, right to habeas corpus, speedy trial, due process, equal protection under the law, one person one vote, etc., etc., "fit" into the Libertarian scheme of things? Is Liberty the supreme good?

If liberty is the "supreme good," then all the instrumental goods [supra.] create untenable conflicts to the complete good of "human flourishing," which BOTH individual and society share as the purpose in life? At least our Founders understood THIS point (however inept they implemented it).

BTW, neither Hayek nor Popper were Libertarian. And if age goes before beauty, I think von Mises has us both beat. Even Robert Nozick recanted. Or are you claiming AGE is above rectitude?

3:13 PM  
Anonymous Anonymous said...

Using Hayek (but substituting "marriage equality")

NO way can one justify "same sex marriage." Even if it is "biologically normal," as philosophers and biologists insist, the State can establish "special interests" come before the "happiness" and the "general welfare."

But not according to our Declaration of Independence and Constitution. In both documents, "human flourishing" is that complete good (or, "criterion,") which which all other goods and "rights" promote.

Using Hayek's Universifiability Criterion (borrowing from his friend Karl Popper's Falsifiability Criterion) only those laws which are universalized, without exception, promote "equal protection under the law" can be considered "just, and applicable under the "rule of law."

Thus, we can claim a "right to marriage equality," whereas we cannot claim a right to "same-sex marriage." The former is a universal right, "equal protection demands," whereas the latter is a "special interest" legislation that violates the Rule of Law.

Read all State court decisions, which concur on this point (the federal judiciary is another matter -- that begot Plessy for heaven's sake). That a conservative attorney missed this point is hardly surprising. But anyone with "liberal" principles (Aristotle's "means") to the "liberal" complete and supreme good (of human flourishing, or "ends") should understand Hayek's and Popper's criteria.

If we cannot falsify a claim, in principle, we cannot verify it (Popper). If we do not universalize laws, in principle, we act unjustly and unequally (Hayek). Don't tell me I don't know my liberal theory. You can have your Libertarianism (all 2% of you).

Thank you for the opportunity to respond.

3:30 PM  
Anonymous Anonymous said...


If YOU want to appeal to AGE, when did the NY Libertarian Party gain ballot access? When did it achieve critical mass? Before 1974? If so, AGE does have its privileges. I could have sworn the CA party was the first to achieve that status, working with Santa Barbara's Reason Foundation, I'm sure of it.

TGS :-)

3:40 PM  
Blogger Dyneslines said...

Gay Species is confused. What he seems to have in mind is the The California Liberartarian Alliance. According to its current website, this group "was founded in 1969 by libertarians who split from Young Americans for Freedom. The CLA has had an i r r e g u l a r [emphasis added] existence since then, organizing educational conferences through 1977 and sponsoring other libertarian activism since then."

The history of libertarian/Libertarian origins is a complicated one, not easily reduced to bumper stickers. For help in sorting it all out see Brian Doherty's big book, "Radicals for Capitalism: A Freewheeling History of the Modern American Libertarian Movement," NY. 2007. The book is essential reading for anyone who seeks to reconstruct this complicated history.

5:49 PM  

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