In episode 8 of the Law Talk podcast, Richard Epstein made several statements about gay marriage that were interesting.
If you're the slightest bit libertarian then the last thing you would want to do on intimate relationships is to simply clamp down on what other people do because it turns out it offends your high level of moral sensibilities.
And then this:
by prohibiting intimate relationships on the one hand, or by forcing them on the other hand, that's the road to social perdition.
When you really start to live your life being offended about how other people live their lives simply because you don't like what they're doing, they're not forcing you into these services, at that particular point you ought to essentially go back to the fundamental libertarian proposition that offense that you take against other individuals is never a ground, standing alone, for prohibition on what it is that they do with their own lives.
Now, I've heard these arguments before, and I agree with them. These are great arguments to be made against bigots, haters, or moralizers. There are big problems, though.
- These arguments don't address those of us who think that marriage serves a valid public purpose, and that not not all relationships have anything to do with this purpose (indeed that there is only one relationship that does have an impact on the public purpose). We don't have any political interest in how people live their lives; we don't want to make laws prohibiting love, sex, cohabitation, pooling of interests or whatever combination that individuals can dream up.
- Banning gay marriage (such an inaccurate term; preserving marriage is so much better, imho) is not the same thing as "clamping down on what other people do" or "prohibiting intimate relationships" or "prohibition on what other people do with their lives". Gay couples or polygamous relationships ('tuples' as coined by Midge) are free to live as they choose - no one is stopping them. They can do this whether or not they are allowed to marry, even whether or not any formal marriage institution exists at all.
Now here's the troubling and frustrating part. Richard Epstein is a learned and intelligent man.Is he really unable to see the distinction between the public interest in "official" marriage on the one hand and the disinterest in how people live their lives on the other? Has no one ever made the case to him that marriage in the public sense isn't about how people live their lives, rather it is about an interest that the public has in a particular relationship?
So, is it that my argument just hasn't gained traction yet, or is it that it's so utterly defeatable that it's not even worth considering anymore? I'm not above admitting error - even colossal error - so if I'm utterly wrong then it would be nice to hear the argument so that I can adjust my opinion and move on. But when I make the argument I never get engagement on it; I either get yet another restatement of my fellow conversant's view or I get a repeat of the charge that this is bigotry on the order of opposition to mixed race marriage (obviously I have a deep antagonism to the concept of equality under the law and the gay lifestyle - there's no other possible reason for me to oppose gay marriage, apparently). Won't anyone set me straight?