The Libertarian Case Against Legalizing Licensed Same-Sex Marriage Through Supreme Court Rulings

In “The Libertarian Case for Legalizing Same-Sex Marriage,” Sheldon Richman from the Free Association argues that there is no libertarian case for the Supreme Court to have ruled against marriage equality. 

I don’t necessarily disagree with many of the points he makes. What troubles me is what he avoided discussing: This ruling likely means coercion and aggression will be employed against churches, religious and private organizations, and business owners to force them to support gay marriage. We have already seen this in my own state. 

There will be unspoken consequences (which marriage equality advocates are no doubt aware) that will impact people who don’t believe in gay marriage but aren’t looking to force their views down others’ throats; they just wish to be left alone.

They know what this ruling means, and they have a reason to be apprehensive.

Richman acknowledges this problem, sort of, but he quickly dismisses those concerns by saying that the the violators of people’s rights should be targeted (bold emphasis added).

Similarly, the prospect of the government’s compelling bakers and photographers to participate in same-sex weddings hardly constitutes a reason to ban same-sex marriages. Let’s target the actual rights violators and leave the innocent alone.

The offhand declaration is very bothersome and one wonders if he actually thought about what that means.

Does he not realize that the “rights violators” is the state? Does he not understand that the people who sue the baker and the florist would be powerless without the state?

It is not the gay couple who complain that have the power to shut down the baker or the florists. The state does. It is the law enforcement arm of the state that threatens violence, not the person who makes the phone call.

This doesn’t justify a ban on same-sex marriage, but it does provide legitimate reasons for people to oppose it if it means their rights will be violated as a result. Richman’s argument places one group of people’s rights at a higher priority and comes off as “Yes, some people’s rights will be violated for the sake of marriage equality, but let’s deal with that later. This is too important an opportunity to let it pass by.”

And thus the vicious cycle of using state coercion against one’s political opponents continues.

If you’re wondering where half the momentum from the anti-marriage equality crowd came from, it’s the reality that the marriage equality movement is a zero-sum game. As same-sex couples gain the right to marry, many of them expect and feel entitled to forcing everyone else to support them. They do not believe one has a right to withhold acceptance.

To make this clear, I am not saying that the Supreme Court should have ruled in favor of the traditional marriage model or maintained the ban on same-sex marriage – chiefly because it would be upholding state marriage licenses. My point is that the consequences from this ruling will not simply involve allowing same-sex couples to get a marriage license, tax and government benefits. This “right” will come at the expense of other people’s rights to their property and there are plenty of people who are more than eager to utilize this power. If the Supreme Court had simply abolished marriage licenses or permitted freedom of association while respecting people’s property rights, the entire matter would be moot.

But they didn’t; they just stuck their finger in the wound and festered it even further. No libertarian should rejoice or defend it.

There may not be a libertarian case against legalizing same-sex marriage, but there is certainly a libertarian case against legalizing same-sex marriage via a Supreme Court ruling when that right to marry also includes the ability to use state coercion and aggression against anyone who doesn’t have the same beliefs. Libertarians who carry on as though all that took place was allowing people to get married who otherwise couldn’t are either naive or suffering from cognitive dissonance.

Libertarians need to understand that the government did not surrender one iota of power in this ruling; in fact, by changing the definition of marriage to all 50 states through the will of just six people, they exercised authority not even granted to them by the Constitution. Libertarians may argue it doesn’t matter whether liberty is advanced through the Constitution or not, but liberty was not the victor in this battle. This was a power grab by the judicial branch.

As long as the state will maintain its illegitimate claim to licensing marriage, the conflict will not be remedied. And this, my friends, is why the solution to solving a problem is as important as solving the problem itself.

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14 Responses to The Libertarian Case Against Legalizing Licensed Same-Sex Marriage Through Supreme Court Rulings

  1. mattwilson32 says:

    I wonder what implications this decision will have on the 10th amendment? This decision seems like it renders the 10th meaningless, if all you have to do is declare something a “fundamental right” to get around it.


    • The Question says:

      This ruling was a huge blow to the 10th Amendment, but only if the states allow SCOTUS to get away with it. The best way for them to nullify this ruling is to get rid of their marriage licensing programs and allow true freedom of association. It is illogical for them to say people have a “fundamental right” to do something that you also have to get the government’s permission to do first.

      We also have to keep it mind a very important lesson: This ruling did not come out of nowhere. It is the result of not just prior federal laws meddling in marriage, such as Social Security and the income tax, but the states themselves when they passed marriage licensing laws to prevent interracial marriages. The lesson is very clear: Whatever power the states attempt to exercise themselves, even if it is allowed by the U.S. Constitution and their own constitution, the feds will inevitably attempt to usurp it.

      It’s also why I roll my eyes whenever Trad Cons or religious groups protest this ruling and talk about how it threatens the “sanctity of marriage.” Too many of them were blase when it came to marriage licenses, no-fault divorce, alimony, imputed income, and other government policies that deny people the right to determine the terms of their relationship for themselves. There’s nothing “sanctified” about the situation.

      Liked by 1 person

      • mattwilson32 says:

        And these will be the same people who will celebrate when concealed weapons permits get federalized using the same logic. Dangerously ignorant or hypocritical, not sure which


      • The Question says:

        Their problem is that they aren’t concerned so much with the method as they are with the end result. The method matters, because advancing freedom is like building a house. If the construction process is sloppy and the workers ignore procedures the house will lack structural integrity; it won’t be able to withstand the elements. If the Supreme Court federalized concealed gun permits and made it very easy to get a permit, too many on the Right would welcome the decision rather than protest it as a violation of the Second Amendment.

        We saw the same thing with the 1963 SCOTUS ruling on Brown v. Board of Education. No one mourns the end of state-enforced segregation in the classroom, but the ruling used a bizarre argument to avoid contradicting an earlier SCOTUS decision that said segregation was legal as long as it was “separate but equal.” Because of this, none of the problems they sought to solve have been rectified decades later.


      • mattwilson32 says:

        What a mess. This is exactly why the govt should not be involved in this stuff. I think we need to start educating people on the consequences of using the federal government as their personal enforcer in the political “gotcha” game they seem to be playing. It’s not going to end well for anyone

        Liked by 1 person

      • The Question says:

        I was thinking about your comment about concealed permits and looked into the 2010 McDonald v. City of Chicago in further detail. This court ruling concluded that the Second Amendment applies to the states as well as the federal government, using the Due Process Clause of the 14th Amendment. I haven’t looked further into the majority opinion for the gay marriage ruling, though I do know they used the 14th Amendment to justify it.

        I might write a follow-up post examining the majority opinion, because it seems they were all over the place in their argument in discussing the fundamental right to marry while upholding the concept of licensing marriages. I think it’s important for people to realize how much of a capricious, double-edge sword the judiciary is.

        Liked by 1 person

      • mattwilson32 says:

        For sure. I think I’m going to write about the racist history of marriage licenses and try to relate that to the gun control argument somehow. From the perspective of “just because you like the outcome doesn’t mean it’s right”, kind of thing


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