Tuesday, October 21, 2008

Proposition 8 from a Libertarian Perspective

I am no Libertarian, as popularly understood. Nonetheless, I advance here a purely libertarian defense of same-sex marriage that I regard as sufficient support both for supporting the California Supreme Court decision in re Marriage and for opposing the California Constitutional referendum Proposition 8.

There are two questions that a libertarian should consider: whether the judicial question was correctly decided, and whether there is a moral justification in overruling this.

The salient (and my opinion correct) reasoning of the California Supreme Court is firmly based i.a. on the following reasoning:

  1. The Legislature has disavowed a public policy objection against same-sex unions by voluntarily creating a legal equavalent in domestic partnerships and by estoppel cannot simultaneously argue a rational interest in favoring opposite-sex unions.
  2. Rational basis of discrimination is in any case insufficient because heightened scrutiny is the required test, since homosexuals are a suspect class (as a subclass of gender-related discrimination).
  3. A subordinate status of domestic partnership strictly less than marriage (i.e. separate and unequal) is well established from near-universal rejection of the alternative status by heterosexuals, vitiating contrary claims by same-sex marriage opponents.
  4. Even stipulating the primacy of child rearing as the primary purpose and effect of marriage, no compelling evidence has been admitted into evidence at trial that same-sex marriage is deleterious is this end. The burden of proof of any factual hypothesis remains with its asserter.
  5. Though not normative, existing precedent from Massachusetts and foreign jurisprudence reduces the hurdle of judicial novelty.

The moral basis for overturning this ruling has not (and I believe cannot) be established for the following reasons:

  1. Discrimination against homosexuals is well documented, and must be ethically presumed to be invidious barring compelling reason.
  2. Homosexuality is well documented in multiple species, across unrelated cultures, and throughout recorded history, despite strong sanction against it, and is therefore scientifically established as an innate orientation, not an intentional choice.
  3. Stipulating the assertion by same-sex marriage opponents that there exists a legal equivalent of marriage, and despite the countervailing trend of more permissive sexual opportunity, the broadbased expression of desire to marry by homosexuals must be accepted prima facie as evidence that homosexual orientation is not merely a sexual drive but a sexual identity. This facial presumption is reinforced by the near impossibility of psychological conversion, as accepted by the American Psychological and Psychiatric Associations.
  4. No evidence distinguishing homo- and heterosexual pair bonding in kind has been scientifically shown. In particular, no evidence exists that the desire or intention to procreate is the cause rather than effect of marriage. Suggestive evidence to the contrary would include an elevated divorce rate among infertile couples, widowed and postmenopausal adults, and couples with adult children.
  5. For libertarians, government involvement in interpersonal relations is inherently intrusive and should be narrowly tailored. In particular, laws fostering child rearing should be limited to those bearing children. Given the low cost of medical tests estabilishing parental relationship, this is a feasible limitation of government power.
  6. The (in my opinion vacuous) counterargument that private discrimination against homosexuals should not be hindered by government action is not relevant here, as same-sex marriage seeks governmental, not popular, support. Hypothetical and indeterminant "slippery slope" arguments are impossible to defend before they are advanced, and should be addressed only as they arise in particular.

I intend the above to be a sufficient reason to vote against Proposition 8, though it is certainly not a necessary one. Aristotle held that the law is reason devoid of passion. Pace Aristotle, I still believe that the most compelling reason is the non-legal one: it is the right thing to do. If you do not already believe this, then you are likely ill-equipped to distinguish rational argument from rationalization, and this post is probably a complete waste of both our time.

Still, I had to try...


Reuven said...

Some Evangelicals are starting to realize they've been duped and are recommending a no vote on Prop 8

Anonymous said...

You could call me a libertarian (although I prefer not to, as it implies supporting the Libertarian party, which I do not, for various reasons). I'm more of a totally free-market guy. I'm probably going to vote no on Prop 8, the other option being to not vote on it at all.The reason I wouldn't vote on it is, while I absolutely support gay people being treated equally to straight people, I don't think government should be involved in marriage in the first place. This shouldn't even be an issue. Marriage should be a completely private agreement. There's no reason for the government to be involved. If two men or two women want to get married, or a man and X women, or a woman and X men, or X men and X women, that shouldn't be anyone else's business but their own, least of all the government.

bjkeefe said...


It seems to me the best argument from your point of view would be to vote No (i.e., to keep same-sex marriage legal) since this would seem to minimize the government's involvement in marriage to the extent possible. Abstaining would seem, in this light, to be half a vote in favor of more government regulation.

Ideals are fine for the long-term, but day to day, we have to make the best of the available choices.