The Soulless Libertarian Strikes Back

I just had the other-worldly experience of listening to this short clip

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in which Dennis Prager, speaking to Peter Robinson on last week’s Ricochet Podcast, reflects on the issue of gay marriage and its relationship to the positions taken by “soulless libertarians,” of whom I suspect that I am one. The gist of the short exchange (available in its entirety here) started with his assertion that libertarians are mistaken in their general support for gay marriage, which Prager thinks should be rejected as inconsistent with Biblical commands that define marriage as the union of one man and one woman.

Mr. Prager is perfectly within his rights to articulate his own hardline views on marriage. He is equally correct to say that in the United States each church should be able to organize its internal affairs in just the way it chooses. But the rest of his screed is intellectual mishmash. Yes, the United States was organized on the principle that a neutral state was the best assurance for a system of civil liberties. And yes, it would be unwise to let the federal government take a position that is intentionally meant to echo the precepts of certain preferred religions.

One well-known difficulty with the twin religion clauses of the First Amendment—free exercise and establishment—is that they are in tension with each other. Between them they tend to cover the entire landscape, so that once anyone moves beyond libertarian values they offend one or the other of these two clauses. If we subject religious employers to an anti-discrimination law, we deny their free exercise of religion in how to regulate their own affairs. But if we exempt them from an anti-discrimination law, then the preference could count as an establishment of religion. Keep the state out of all employment relations, and the issue disappears, because every employer can, for any reason, hire or fire any prospective employee, just as an employee can decide to work or not work for any employer for any reason at all.

That logic carries over to the risk of state involvement in same-sex marriage. Why do we want to use explicitly religious reasons to ban same-sex marriage as a matter of law? Or, for that matter, why do we want to use explicit secular reasons to force churches to ordain women or supply contraceptives to female employees? The only way to have a steady neutrality is to minimize the scope of federal involvement in private affairs is to minimize the scope of government activities in the first place.

Does taking that position make libertarians soulless? Only if you think, as Prager seems to assume, that the scope of social relations between ordinary people is defined exclusively by legal rules. But no sane libertarian believes that all there is to life is avoiding the use of force and fraud, or keeping promises. Where soul, as it were, comes into play is in answering the question of what people should do when they have the right not only to sell, but to give, and the right not only to form businesses, but to form marriages, religious congregations, friendly societies and charitable organizations. How then should they exercise their liberties within the boundaries set by law?

The answer is that they create — not for all society, but at the very least for their members — dense social networks that first allow for, and then facilitate, compassion, companionship, corporation, and a whole host of other virtues that no state can, or should, try to force upon them. They can pick the people about whom they care and ignore the rest — just as everyone else can. They can decide to give aid within their own religion or they can decide reach out to help others whose religious beliefs differ from their own.

There is absolutely nothing in the libertarian political philosophy that frowns upon or belittles this wide array of organizations, many of which will embrace inconsistent ideals. In fact, quite the opposite. This legal position facilitates the creation of a wide range of voluntary organizations that can serve as a buffer between the individual and the state. In this world, the types of preferences we all hold have to matter, for they determine which organizations we join and why.

Indeed, it is worth stressing that civil society surely matters in our day-to-day life far more than the general legal prohibitions that kick in only on an extraordinary basis. Where the sentiments in civil society turn malignant, the libertarian legal rules will crumble under the onslaught of narrow and bigoted groups who take control of the organs of the state. No defender of small government should abandon the libertarian banner in setting the proper limits on government power. But, by the same token, no responsible person or citizen will define the limits of his or her social responsibility by the legal rules of the ideal libertarian state.

Prager does a disservice to anyone who cares about the fabric of society by deriding the only political philosophy that works to maximize the prospects for a self-reliant individuals in a prosperous and stable society. He should rethink his harsh words.

  1. DrewInWisconsin
    Richard Epstein: Mr. Prager is perfectly within his rights to articulate his own hardline views on marriage.

    Is his view really “hardline”? That word connotes “extremist” to me.

  2. Mollie Hemingway
    C

    I don’t think you need to be religious to recognize that marriage is the institution that societies — across all time, place and history and what not — have bracketed around the reality of sexual complementarity.

    You don’t even have to be a scientist.

    It’s far easier to dismiss this knowledge of how men and women are different and how they relate to each other in society if it can be derided as the work of a hardliner or extremist, but that’s ill-advised, no?

  3. Trace

    Hardline merely connotes unyielding and inflexible and seems entirely appropriate in this context. Thank you for this post Richard. I’ve been finding the air inside the Ricochet big tent extremely close lately. This was refreshing and welcome from a big-C contributor.

  4. Trace

    @Mollie – Richard’s use of the term hard line is entirely accurate in this context. Rather it is Prager’s use of the term “soulless” that is demeaning and deserving of editorial admonishment.

  5. Douglas

    Libertarianism has become an amoral creed. As such it has become completely incompatible with the vision of the founding fathers, who repeatedly stated in many ways that there was no way for a Republic to survive without a moral base. They didn’t want a state church, but it’s absolute madness to suppose they would have supported things like gay marriage. Even Jefferson at his most radical would have thought the very idea ridiculous. Prager’s right.

  6. DrewInWisconsin

    Twenty, perhaps even just ten years ago, there would be nothing strange about someone articulating that marriage should be limited to the old-fashioned man/woman version. Now we use language to suggest that this traditional (call it “natural”) view is somehow extreme.

    These endless discussions seem like little more than a reflection of the zeitgeist — and temporary. (And of course, the cynic in me is convinced that all this focus on “guns and gays” is really just a way to keep from talking about the economy or foreign policy.)

  7. Mollie Hemingway
    C
    Trace: @Mollie – Richard’s use of the term hard line is entirely accurate in this context.

    It’s the inability to refute the actual arguments of those who uphold marriage as the institution that brackets the reality of sexual distinctions — and their replacement with straw men — that is less than ideal, in my view.

  8. rosegarden sj dad

    Thanks, Richard for the post. I was made very uncomfortable listening to  Prager’s anti-gay marriage rant as well, and kind of wondered what tent I had wandered into. When listening to the (yes) hardline supporters of traditional marriage get increasingly harsh, I can’t decide which unnerves me the most: 1.) The extreme leaps of logic implicit in their argument (that by *expanding* the definition of marriage we are destroying it–huh? Wouldn’t that be strengthening the idea by making it more popular?) or 2.) The foolhardiness of making a big deal out of an issue that effects only a tiny, tiny minority but has widespread support in the culture. Guys:  choose your battles, choose your hills, and quit aiming rifle at foot.

    And thank you James L, who nicely tried to get Dennis to even consider the idea that expanding the concept of marriage, etc. to gay couples might be a smart move if you believe in the value of committed relationships, etc. Too bad Dennis didn’t take him up on the concept.

  9. Merina Smith

    You really don’t need religion to make a case against redefining marriage.  In order to survive, our nation needs men and women to get married and produce children together, then stick around to raise them.  Redefining marriage takes children out of the picture entirely–marriage just becomes something that unites two people who love each other.  Sure, some people will still have children, but we should expect birth rates to drop–perhaps drastically. We need children to survive.  It’s that simple. 

    Here are the relevant questions:

    Does gender matter?  Are men and women the same?  Since children come in boys and girls, doesn’t it make sense to have one of each in the home?  Can some people be socialized toward homosexuality?Do we want our children to be socialized from the youngest ages that it doesn’t matter whether you fall in love with a person of the same sex or the opposite sex (and hence, whether or not you have children?) How will this affect free speech and religion?

    Of course civil society matters–which is why the left is trying to crush it–but the law is also a teacher that shapes the body politic.

  10. Tuck
    What I find most mystifying is that the social conservatives seem not to understand that by opposing gay marriage and demonizing libertarians, they’re doing the work of the socialists who have established their quasi-religion as the established church of the land. Just as Ross Perot divided the conservative electorate when running against Pres. Bush, and therefore allowing Clinton to win the election, so the social conservatives are dividing the right over this issue, and living up to the worst stereotypes the socialists have of them.  They assure themselves of marginalization.

    Is the plan to wind up on a Masada of opposition to gay marriage?  Having finalized their loss on every other issue, they’ll be left satisfied that at least everyone understands their opposition to gay marriage? 

    What a pyrrhic victory that will be…

    The logical approach would be to join with libertarians, and attempt to beat back the attempts of the socialist state to stamp out Liberty and eliminate the freedom of religion that’s necessary for Christianity, for that’s surely what it’s doing.  If they SoCons think they’ll have freedom of religion at the end of this process, they’re sorely mistaken.

  11. Merina Smith
    rosegarden sj dad:  1.) The extreme leaps of logic implicit in their argument (that by *expanding* the definition of marriage we are destroying it–huh? Wouldn’t that be strengthening the idea by making it more popular?) or 2.) The foolhardiness of making a big deal out of an issue that effects only a tiny, tiny minority but has widespread support in the culture. Guys:  choose your battles, choose your hills, and quit aiming rifle at foot.

    This is my problem with libertarians. They can’t admit that law and public attitudes affect how people think and understand the world and consequently what they do.  Not all, but many are so simplistic. This kind of change would affect the whole of society–socialization of children, freedom of speech and religion, understanding of gender, and many other aspects of culture in drastic ways–as we can already see in states where it is legal.  You have to have blinders on not to see this, and yet you refuse to engage in the conversation by saying it will make little difference.  

  12. Astonishing
    Richard Epstein: I just had the other-worldly experience of listening to this short clip . . . in which Dennis Prager . . .  reflects on  . . . the positions taken by “soulless libertarians,” of whom I suspect that I am one.  . . .

    . . . Prager  . . . derid[es] the only political philosophy that works to maximize the prospects for a self-reliant individuals in a prosperous and stable society.

    If Prager made someone, who suspects himself to be a ”soulless libertarian,” have an “otherworldly experience,” then that’s a good start.

    Seriously, regarding the assertion libertarianism is the “only political philosophy that works to maximize prospects for self-reliant individuals in a prosperous and stable society,” one must ask, “When and where on earth has libertarianism actually worked in practice, as distinct from abstract theory?” Indeed, libertarianism has never worked because it has never been put into practice. Libertariansim will never work precisely because it will never be put into practice. Libertarianism will never be put into practice because, to succeed in practice would require almost everyone be a libertarian, and not just a libertarian, but a virtuous libertarian.

    Libertarianism is an impractical philosophy that, in practice, only gives scale-tipping weight to demands of pornographers, druggies, debaucherers, etc.

  13. mask

    Why is support for SSM the general libertarian view?

    First of all, gay people can live to together and contract with each other.

    From the governmental view “gay marriage” is about conferring special status to private contracts (inheritance, tax law, and some anti-discrimination statutes) so why are libertarians behind expanding government influence and power?

    Want to hear a libertarian demand that citizens have a fundamental right to government entitlements?  Bring up gay marriage.

  14. J Climacus

    At least one thing I disagree with Prager about is his use of polygamy as an unacceptable consequence allowed through by the logic of gay marriage (as in “if you allow gay marriage, how do you not allow polygamy?”)

    Although I am against polygamy, polygamy at least has a long cultural history across traditions (even in Judaism) and is not per se against nature the way gay marriage is. Given the devil’s bargain, I’d take a culture that permits polygamy but not gay marriage vs one that permits gay marriage but not polygamy.

    With gay marriage, we are already at the end of line as far as the destruction of marriage goes – i.e. complete abstraction from any grounding in nature.

  15. Salamandyr

    As an atheist, I agree with you.  That’s why I despair of the number of social conservatives who base all their arguments on Biblical strictures.

    Why make an argument so easily defeated by one retort “But I don’t believe in the Bible”?

    Mollie Hemingway, Ed.: I don’t think you need to be religious to recognize that marriage is the institution that societies — across all time, place and history and what not — have bracketed around the reality of sexual complementarity.

    You don’t even have to be a scientist.

    It’s far easier to dismiss this knowledge of how men and women are different and how they relate to each other in society if it can be derided as the work of a hardliner or extremist, but that’s ill-advised, no? · 53 minutes ago

    Edited 53 minutes ago

  16. rosegarden sj dad
    Merina Smith

    This is my problem with libertarians. They can’t admit that law and public attitudes affect how people think and understand the world and consequently what they do.  Not all, but many are so simplistic. This kind of change would affect the whole of society–socialization of children, freedom of speech and religion, understanding of gender, and many other aspects of culture in drastic ways–as we can already see in states where it is legal.  You have to have blinders on not to see this, and yet you refuse to engage in the conversation by saying it will make little difference.   · 1 minute ago

    Merina: You sound like you’re arguing against giving women the vote.

  17. mask

    The only way to have a steady neutrality is to minimize the scope of federal involvement in private affairs is to minimize the scope of government activities in the first place.

    Ok, so how is expanding the definition of marriage accomplish this?

    Particularly when you know with 100% assurance that this expansion will be used to attack the actual civil liberties of others?

    It’s one thing to argue that the government has gone too far in conferring special legal status on marriage and private contracts but it’s something entirely different to argue that it’s gone too far but lets give it to more people.

    In any other arena of government and life libertarians will denounce the government creating rules, much less special rules but in the instance of gay marriage they are essentially arguing that such arrangements are civil rights.

  18. Jim Chase
    Tuck: What I find most mystifying is that the social conservatives seem not to understand that by opposing gay marriage and demonizing libertarians, they’re doing the work of the socialists who have established their quasi-religion as the established church of the land. …

    The logical approach would be to join with libertarians, and attempt to beat back the attempts of the socialist state to stamp out Liberty and eliminate the freedom of religion that’s necessary for Christianity, for that’s surely what it’s doing.  If they SoCons think they’ll have freedom of religion at the end of this process, they’re sorely mistaken. · 11 minutes ago

    Seems to me the trends are already manifest – SoCons are already marginalized, and it is only increasing.  So the solution is to deny why I believe for political expediency?  Because it’s logical?  No.

    Taking a stand by definition creates the conditions for potential marginalization.  I would rather be marginalized by standing for something than compromising my principles for the sake of temporary political gain.

    What mystifies me is the incessant push to dismiss the values of SoCons.  From people on the right side of the spectrum, too.

  19. Bereket Kelile
    Richard Epstein: 

    Prager does a disservice to anyone who cares about the fabric of society by deriding the only political philosophy that works to maximize the prospects for a self-reliant individuals in a prosperous and stable society. He should rethink his harsh words. 

    Does the libertarian approach really advance liberty in this case or is it inadequate in the face of those who advocate for legal SSM, especially because of a belief that gender distinctions are utterly artifical? I’ve always felt the libertarians have taken a naive position on this issue and are doing more to hurt than help. 

  20. Tuck

    “…as we can already see in states where it is legal.”

    I live in one of the states where it is legal, and work in another.  I see absolutely no difference. 

    Please provide some evidence to support your assertion.

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