Marriage Equality Does Expand Liberty

The Foundation for Economic Education presented a debate on marriage equality. Richard Lorenc, from FEE, argued that marriage equality expands liberty. His opponent, Richard Esposito spends a lot of time spewing out "facts" that are half-truths and often out of context. FEE asks people to vote for the best one at the cost of $1 each, which says nothing about quality of arguments, only intensity of feelings about gay marriage.

Gay people and their supporters are passionate about this and so are anti-gay people. Most fall into neither camp and don't feel strongly. Those at the extreme "anti" side of the spectrum tend to be religious and obsessed with this. They outnumber gay people by about 4 to 1. In that sense, the FEE debate asking for $1.00 per vote is more likely to favor the anti-gay marriage side of the debate.

Let me first comment on Mr. Lorenc's case. His arguments are sound in theory, though short on fact, choosing to focus on the principles alone. Esposito, however, makes a lot of factual claims, but is weak on theory and his factual claims are often taken out of context, or are at best half truths.

Lorenc notices the argument for same-sex marriage has "distinct Hayekian undertones." He is correct about this and we present a more-in depth Hayekian analysis at the link.

Lorenc says "legalizing gay marriage simply expands the number of potential marriage licenses, removing the arbitrary limit that an opposite-sex definition creates." It does expand the number of people who may marry, but does much more than that as well. Currently, the state can deny marriage contracts—at least those of legal consequence—from gay couples. When we pass marriage equality, we remove that power from the state. Marriage, when one looks at what it does, also reduces the amount of control the state has over a couple. The amount of revenue it can extract from them is significantly reduced. In fact, anti-gay conservatives actually raised this issue before the Iowa Supreme Court, complaining that allowing gays to marry would reduce tax collections, and thus reduce their subsidies to straight couples. The Court mentioned this argument in their ruling in Varnum v. Brien: "due to our laws granting tax benefits to married couples the State of Iowa would reap less tax revenue if individual taxpaying gay and lesbian people were allowed to obtain a civil marriage." (p. 60.)

Under immigration laws, the federal government has the power—which is not the same as the right—to exclude people from moving here. That power is reduced significantly when a couple marries because ability to deny immigration rights to the spouse of a citizen is significantly less than what is applied in general. Allowing gay couples to marry reduces this power. Allowing same-sex marriage does more than expand the number of people who marry, it also expands the number of people who can legally claim freedoms from the state."

In contrast, Mr. Esposito claims marriage disburses "benefits and privileges that should not be disbursed at all." Among those "benefits and privileges" is the assumption of inheritance from a spouse if said spouse dies intestate, the case in just over half the deaths in this country. Absent a will, who should inherit?

Should an American be able to sponsor a foreign-born spouse for citizenship? Mr. Esposito says that is either a "benefit or privilege" that shouldn't be handed out to anyone. Should spouses be forced to testify against one another? Apparently so.

He says, "Marriage licenses have been a favorite tool of much state-imposed misery...It hits close to home for me too, since I'm a white guy and my [second] wife is Asian." Even in the absence of licenses, his relationship with his wife would have been illegal at one time in our history. Many US states had alternative forms of marrying, where no license was required —a fact I suspect Mr. Esposito did not know. Even if they chose to simply move in together and declare themselves married, it would have been illegal.

Interracial relationships were criminalized regardless of marital status. Anti-miscegenation laws in the US went back to the beginning, existing in states where wedding banns, instead of licenses, were allowed to establish a legal marriage. Marriage licenses had nothing to do with these laws. While he speaks of people being unable to marry a person of another race, the entire relationship was illegal, not just the marriage part. It was a crime to cohabit with a person of another race, married or not. Getting rid of marriage licenses, or even the legal state of marriage, wouldn't have solved the problem he says hits so close to home.

This is shown in the history of gay relationships. Gay couples could NOT get married in any state before Massachusetts in 2004. But all gay relationships were a crime in every state prior to 1961, and in a majority of states, when Massachusetts legalized same-sex marriage. In other words, married or not, gay couples faced criminal sanctions under sodomy laws. These laws existed even before marriage licenses existed. Esposito seems to think licenses allowed this to happen, but ignores that it happened regardless of licenses.

He also claims Loving v. Virginia, which overturned laws against interracial marriage, was a "solution" [scare quotes are his own] that only extended "permission to miscegenate, while retaining the rest of the discrimination and the licensing scheme to enforce them." Again this is a half-truth. Yes, it retained the rest of discrimination, for instance, it did not abolish sodomy laws that made all relationships between same-sex couples illegal.  A tax cut doesn't abolish taxation, yet still expands liberty, and Mr. Esposito's argument is that increasing freedom for gay couples to marry does NOT expand liberty. Of course, a huge percentage of people who actually are gay, would beg to differ with the twice-married Mr. Esposito.

He also falsely assumes marriage is not a legitimate legal contract because the parties don't get to set all the terms. That argument would invalidate virtually every labor contract in the US, since government sets some terms of those contracts as well. In fact, the average married couple can set more terms of their marriage contract than the average employer/employee can theirs. There is almost nothing in the marriage contract that can't be modified by a pre-nuptial agreement, otherwise the contract covers things, such as inheritance, division of property if divorce occurs, and other similar matters. Employers can't set their own definitions of overtime, set a minimum wage below that established by law, can't determine working conditions for employees, can't choose employees on the basis of race, gender, etc. Marriage not only is a contract, but more of one, in terms of freedom to set conditions, than any other contract into which you are likely to enter.

Marriage licenses predate miscegenation laws. Licenses were a means of speeding up marriages, a form of deregulation, whether Mr. Espositio knows this or not—I suspect not. The wedding bann method of marriage slowed down the ability to marry and allowed more outside interference as to whether a marriage would be permitted or not.

If Mr. Esposito's argument is true, then there are NO legitimate contracts in the US at all, as virtually every contract of any import also has terms established by legislation, without consent of the parties in advance.  Like it or not, that is the case.

Mr. Esposito takes ample notice of how marriage accesses "privileges and benefits." Apparently, this is why gay couples want to marry. Mr. Esposito was married twice. Is that why, or are gay people just different than good Christian folk? In fact, calling the bundle that comes with marriage mere "privileges and benefits" shows lack of understanding regarding the marriage contract.

Esposito seems to intentionally define marriage as only granting "privileges and benefits" and completely avoids discussing rights. He just pretends there are no rights involved at all. Even from a libertarian view of rights, as opposed to a Progressive view, many rights are denied to couples who can't marry legally.

Consider the issue of taxation. From Mr. Esposito's radical anarchist perspective there is a right to not be taxed. Any heterosexual couple can avoid certain taxes by being married. Gay couples cannot. Consider the issue of health insurance provided by an employer that can cover one's spouse. In Mr. Esposito's case, if his employer offers health insurance for Mrs. Esposito, that benefit is tax free. Is Mr. Esposito receiving a "benefit" or a "privilege?" The ONLY options he offered in his argument were "benefits or privileges that should not be disbursed at all." In other words, if he understood what was involved with marriage he has to be saying that NOT taxing this health insurance is either a government benefit or a privilege that NO ONE is entitled to have. This puts him in the position, if he wishes to be consistent, of having to say that every health benefit given by employers to employee spouses OUGHT to be taxed. When a libertarian ends up in this sort of position I suggest they follow Ayn Rand’s advice and check their premises.

The case on DOMA before the Supreme Court, deals with a same-sex spouse who paid higher inheritance taxes than a straight married person would, when her partner died. Edith Windsor was legally married to her partner of 40 years, Thea Spyer in 2007. In 2009, Spyer died and Windsor was not recognized as the spouse because of DOMA. As a result she was required to pay $363,000 in federal taxes, and $200,000 in state taxes, that a heterosexual widow would not have been required to pay.  NOT paying taxes is a right. Libertarians would argue that being forced to pay taxes violates rights, so any move reducing taxes expands freedom. Allowing Same-sex marriage reduces the number of people forced to pay inheritance taxes, and by definition, expands freedom. Mr. Esposito pretends it does not. Perhaps, he is just a "me libertarian" who only worries about expanding freedom for people such as himself. There is no doubt that allowing gay couples to marry expands their freedom and little evidence—none in my view—that it infringes the rights of anyone else.

Mr. Esposito falsely claims the only purpose of marriage licenses is "to grant a host of special illiberal privileges to the licensees." I prefer to think he says this out of a lack of information, and not purely on ideological grounds. I assume as well that some magical reason exists why his marriage license is an exception that doesn't come with "special illiberal privileges." Certainly he didn't need a license to be married in his own eyes and he was free to draw up complex and expensive legal documents to deal with issues such as inheritance. Of course, none of this would give his spouse rights to his pension, or to US citizenship if foreign born, as well as a host of other rights denied gay couples.

Mr. Esposito wrongly claims a marriage license prohibits "sexual relations with a party not named on the license." Sorry, this is generally not the case. As marriage has continually been deregulated, that aspect of law has changed as well. Adultery may be grounds for divorce, but is rarely a criminal offense these days. The majority of states no longer have adultery laws on the books. Oddly, it is people opposing same-sex marriage, Mr. Esposito's allies on this issue, who are trying to keep adultery on the law books. At most, such issues turn up in divorce proceedings. Incidentally, this aspect of marriage is ONLY an issue if the other partner complains and makes it one. If they consent to it, this is not a problem.  I seriously doubt Mr. Esposito can point to very many cases in this century where someone was prosecuted for adultery committed with their partner's consent, or without it.

It should also be noted that once again Mr. Esposito is confused. Adultery would still be criminal in states where licenses were repealed. Adultery did NOT suddenly become a crime when marriage licenses came on the scene. It was a crime before marriage licenses in some cultures—such as the Christian West—but not in others. Social conservatives, Mr. Esposito's allies in the marriage debate, love to point out that adultery was a crime under Old Testament law, yet there was no such thing as a marriage license then. In fact, the penalty for adultery was death. I can assure readers that if only supporters of same-sex marriage were polled, adultery would NOT be a crime anywhere. However, if only those who oppose same-sex marriage were polled, I suggest it would remain a crime in most places. A marriage license per se has NOTHING to do with laws on adultery.

Esposito says marriage licenses in the US were "invented in Massachusetts" in 1639. Well, the Puritans didn't invent marriage licenses – they brought the idea with them. Marriage licenses are older than that, and the concept of civil marriage is even older yet – actually older than Christianity. The idea that marriage is a religious institution is much newer. He claims, "Not coincidentally, licensed marriage in Massachusetts began as one white man and one white woman." That is false. When the act of 1639 was passed there was no ban on interracial marriage. That only came into place 66 years later, in 1705, and was repealed in 1843.

Esposito also claims, "England and Wales did not get into the license game until Hardwcke's Marriage Act of 1753..." The citation Esposito gives does not actually make that claim. It says the Hardwicke Marriage Act "declared that all marriage ceremonies must be conducted by a minister in a parish church or chapel of the Church of England to be legally binding." In this link there is no mention of marriage licenses, which already existed as one means to marry. Shakespeare obtained his license from a consistory court in Worcester in 1582, which is 171 years before Mr. Esposito says England "got into the license game." I suggest one possible reason for these historical errors is Mr. Esposito had an ideological conclusion already in place and went searching for evidence to confirm what he already believed.

That is common to everyone, including my fellow libertarians, and I have sadly committed the same error in the past—on this very subject in fact. It was only after about a year of research that I felt competent to talk about the facts, though there is much more to learn yet. This is a vast topic. What I did discover when reading histories of marriage and marriage law was precisely the reason I abandoned my previous view, which was then similar to Mr. Esposito's view.

Mr. Esposito is right when he says: "Marriages are not plain old agreements like any other; they are much more intimate. It is not like a real-estate deal, it is something more special." As noted above, this is correct, except that married couples have more freedom to amend their contracts than do real estate agents and clients. Virtually any aspect of the marriage contract can be modified with a prenuptial agreement. What one does with property, however, is regulated by multiple levels of government and no contract gives one the right to use property in an illegal manner. It is because marriage contracts are much more intimate that the push of the last few centuries has been toward greater and greater freedom in terms of that contract—including terms of the gender of those involved in it.

Mr. Esposito also confuses his lack of knowledge with lack of facts. He asks: "Where is the libertarian argument for liberty in the general discussion about same-sex marriage? It is absent." His ignorance of such arguments is on par with his lack of knowledge about history and laws regarding marriage—something needing a bit more than a simple Google search. Numerous libertarians have made this argument, including on this site and at the Libertarians Concerned Facebook blog. In addition, Reason has published material, as has Cato, and Objectivists at the Atlas Society. Libertarian legal scholars, such as Richard Epstein, Ilya Somin, Randy Barnett and others have been involved in the gay marriage debate for some time, and the majority disagree with Mr. Esposito. He doesn't seem to realize they exist, or that any arguments contrary to his own exist within libertarian circles. It is quite telling that Mr. Esposito is unaware of these arguments. “A little learning is a dangerous thing.”