A Signatory Explains His Position on Same-Sex Marriage … Sort of — Richard Epstein

 

I am one of the people who chose to sign on to the statement (which I did not draft) that carries with it the title “Freedom to Marry, Freedom To Dissent: Why We Must Have Both.” I have received some questions as to why I chose to participate. Here are the basic points.

I think that the efforts to drive people like Brendan Eich from his professional employment via a blizzard of pious statements about the need for universal tolerance, some from Mozilla itself, are themselves representative of a peculiar form of intolerance, which treats this issue as one on which there can be no debate. This effort to drown out disagreement may be legal, but that is beside the point for issues of social discourse. It would have been intolerable for individuals who opposed same-sex marriage to try to silence their opposition in this fashion, and the principle remains the same in the reverse.

 I am not a person who comes to this issue with a deep, life-long commitment on the subject. Indeed, my own views of the issue are rather complex, because I have always thought that it is difficult to resolve the conflict between my libertarian views on freedom of association and my views on the importance of continuity and tradition in social life. 

More precisely, I think there are meaningful differences between traditional and same-sex marriage that defenders of the latter too infrequently acknowledge. The simplest point is that no society could have operated if they switched the rules around, so that same-sex marriage was legal but heterosexual marriage was not. The procreation of children may not be the only function of marriage, but it is whistling in the wind to pretend that it is not a major — indeed the major — reason for the institution of marriage. To be sure, we have all sorts of rules that allow for childless opposite-sex couples to marry, but none of those arrangement make it more difficult for the procreative function to take place.  An argument could be made that same-sex marriage could not function without modern technology and, even today, increases the cost of reproduction, so that if we had to ban one form of marriage and allow another, we know which way we would have to go.

The defenders of traditional marriage therefore are correct to point to important distinctions. But it does not follow that, because these distinctions can be made, they ought to dominate the moral argument. In this regard, the key point to note is that marriage is in fact a relationship that may have preceded the state, but it is also an institution that is today regulated by the state — a state that enjoys a monopoly of force within its jurisdiction. 

The central problem of libertarian theory is that it has to explain why a state monopolist can regulate without limiting the liberties of the people whom it regulates. In that regard, any effort to find harms resulting from from same-sex marriage are subject to the usual difficulties that follow any excessive reading of the harm principle, so that it includes factors such as the offense that people take from the actions of others. That offense extends not just to gay marriage, but also to polygamy, and I actually think that the efforts to legaly suppress that form of relationship (which has obvious procreative potential) is singularly misguided. 

Indeed, one of the intellectual Achilles’ heels of the same-sex marriage movement is its systematic effort to distance itself from the polygamy issue, which has to be addressed. If the limitation of marriage between one man and one woman is subject to attack, so too is the limitation of marriage to two people. Can it go to three? Or 10? Can it involve four men and six women? My own tentative answer to these questions is “Sure, let people do it if they want.”  Underlying that view is the supposition that there are very few people who will choose this alternative. Perhaps if some people do choose to embrace polygamy, we’ll develop a better understanding of why they do it. But possible absurdity is a bad reason to ban particular practices.

There is a further element in the equation, however. The legal recognition of same-sex marriage only neutralizes the force of public opinion to control selective grants of the right to marry. But there are clear limitations there.The first is that we should never, ever, think that freedom of association can be abridged by forcing individuals and groups to recognize these marriages in their private capacities. Firms should be able refuse to hire individuals in same-sex marriages, just as they can do for people in traditional heterosexual marriages. The principle of freedom of association that drives the state to recognize these unions also drives it to respect to the autonomy of all people, all firms, and all religions not to recognize them if they choose not to do so. 

Indeed, my own view is that Title II of the Civil Rights Act, dealing with public accommodations, is misguided  except when used as a counterweight to monopoly power, a point that I defended many years ago in my book Forbidden Grounds: The Case Against Employment Discrimination Lawswhere I called for the repeal of Title VII, prohibiting employment discrimination in competitive markets—a position with which most of my co-signatories disagree. 

By these principles, the endorsement of the legality of same-sex marriage need not be understood as a personal approval of the relationship. It should be understood as a duty to recognize these unions whether or not you approve of how other people live their lives. Remember, you don’t ever have to tolerate the practices with which you agree.  You only have to tolerate those with which you disagree, a proviso that applies to majorities and minorities alike.

That is the way in which I think about this issue from a public policy point of view. I might also add in closing that the question of civility in discourse is not confined to the marriage issue. We have just seen the very strong dissenting views of Justice Sonia Sotomayor in the Michigan case of Schuette v. BAMN, which upheld, by a fractured set of opinions, the Michigan referendum that introduce a state constitutional amendment for colorblind college admission. 

What is so striking is the vehemence with which Justice Sotomayor expresses her views on a set of issues that are legally a real tangle (to say the least), and on which I come down in favor of the state. Once again, there is a tension between what I think is right (which is to allow affirmative action programs of limited extent at state institutions) and what is constitutional. But as one who is on both sides of the issue, I just don’t get how anyone could think that the defenders of the referendum, however misguided, are latter day defenders of Jim Crow. They are emphatically the opposite. Here again, civility is the major casualty of that dissenting opinion, the fury of which undercuts the strength of its intellectual arguments.  

Libertarians are often accused of being insensitive to the soft rules that keep society together. One purpose of the “Freedom to Marry” statement was to try to make it clear to anyone with ears to listen that we are not collectively guilty of that sin. All too often, our opponents are.

There are 34 comments.

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  1. FloppyDisk90 Member
    FloppyDisk90
    @FloppyDisk90

    There is a discussion here on Ricochet that views this letter as a thinly veiled attempt to marginalize opposition to SSM.  In particular it sees the letter as condescending and implying that the signatories are giving opposition a “grace period” to dissent after which debate will no longer be tolerated.

    I mention this merely to point out that while this may have been done with good intentions it’s already generated a fair amount of misunderstanding.

    • #1
  2. Gaius Member
    Gaius
    @Gaius

    I don’t think that a discussion of libertarian theory and the harm principle makes any sense in regard to the “ban” on gay marriage. How can gay marriage be considered to be “illegal” in anything close to the same sense in which prostitution or drug use is considered illegal? In those cases a particular activity is made punishable by law whereas gay marriages are simply denied recognition by the state. Without an actual prohibition there can be no coercion leaving libertarian theory with nothing to say on the matter.

    Furthermore, how does a “right to marry” (i.e. to have one’s relationship  recognized by the state) constitute anything other than the  kind of positive rights dogma that classical liberals, believing in negative rights, are supposed to deplore?

    Remove the misleading language of coercion from this argument and the case for SSM is greatly weakened.

    • #2
  3. Gaius Member
    Gaius
    @Gaius

    Also, why let the cultural Marxists get their hands on the word “Marriage?” What serious issue concerning discrimination against same-sex couples could not be solved with civil unions?

    • #3
  4. FloppyDisk90 Member
    FloppyDisk90
    @FloppyDisk90

    Gaius:

    Also, why let the cultural Marxists get their hands on the word “Marriage?” What serious issue concerning discrimination against same-sex couples could not be solved with civil unions?

     Civil unions were floated as a compromise at the beginning of this debate and fought with the same vehemence and uncompromising rigidity of the current opposition because it was feared that it would be a “gateway drug” to full on recognition.  So, understandably, the gay lobby is now arguing for the whole enchilada.

    • #4
  5. Z in MT Member
    Z in MT
    @ZinMT

    I can respect Richard’s position outlined here. 
    Unfortunately, the LGBT industrial grievance complex won’t respect the right of free association. 
    Even George Will won’t defend the right of association as his, “Just bake the cake.” statement on FNS a few weeks ago showed.

    • #5
  6. user_753171 Member
    user_753171
    @LincWolverton

    There is one factor that plays into the issue of same-sex, opposite-sex or polygamous marriage, and that is the concept of household, particularly for tax purposes. For such purposes, the government has the right to define how many adults it will consider for tax benefits, such as joint filings. Is it necessary to go beyond taxpayer and spouse?

    • #6
  7. Nick Stuart Member
    Nick Stuart
    @NickStuart

    The gracious words of the letter will be cold comfort to the public school teacher who is fired, or the public school student who is suspended for advocating the male-female conjugal view of marriage as being right and same sex marriage as wrong (the letter uses “wrong” so I’m just following its lead).

    It won’t help the small business owner who’s sued or hauled before a human rights tribunal for refusing to provide goods or services in support of a same-sex marriage event.

    The letter is essentially devoid of any practical utility. I suspect the signatories are simply disturbed by the forces they’ve helped unleash and want to think they’ve tried to do something to rein them in.

    Good luck with that. Setting a fire is a lot easier than controlling it once it gets going.

    • #7
  8. TerMend Member
    TerMend
    @TeresaMendoza

    Is Richard Epstein saying that traditional marriage advocates (of which I am one) are motivated by “offense taken at the actions of others,” i.e., same-sex marriage and “disapproval” and “intolerance” of the way gay people live their lives?  If so, he really doesn’t get our side of the argument.

    • #8
  9. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Nick Stuart:

    The letter is essentially devoid of any practical utility. I suspect the signatories are simply disturbed by the forces they’ve helped unleash and want to think they’ve tried to do something to rein them in.

    Good luck with that. Setting a fire is a lot easier than controlling it once it gets going.

    Agreed. I’m afraid the good professor suffers a terminal case of intellectual elitism. He chooses to ignore that there are non-consenting individuals in most family formation who may, theoretically, be harmed by lacking either a father or a mother. Namely, children.

    If libertarianism is committed to “first, do no harm,” SSM as a radical “moral” innovation is a funny way to show it — an experiment on the most vulnerable in society.

    I don’t know a single traditionalist who would outlaw same-sex relationships. But, as an (another) attack on the family, most I know are morally outraged by the recently unthinkable notion of sanctioning them as “marriage.” I’m among them. What makes these intellectual elites think they’re morally superior to every moral thinker who ever came before, including Maimonides and Jesus himself? Stunning arrogance.

    • #9
  10. Nick Stuart Member
    Nick Stuart
    @NickStuart

    Western Chauvinist:

    Agreed. I’m afraid the good professor suffers a terminal case of intellectual elitism. 

    Well, he does need to get out more. Get a breath of fresh air clear of  the confines of the symposium [from the Greek word for drinking party BTW], faculty lounge, law court, and groves of academe.

    • #10
  11. Klaatu Member
    Klaatu
    @Klaatu

    Richard Epstein: The first is that we should never, ever, think that freedom of association can be abridged by forcing individuals and groups to recognize these marriages in their private capacities.

     Then why should we force them to recognize these marriages in their collective capacity as the state?

    • #11
  12. MJBubba Member
    MJBubba
    @MJBubba

    From the Public Statement:

    A culture of free speech created the social space for us to criticize and demolish the arguments against gay marriage and LGBT equality.

    Professor Epstein,  I don’t recall the arguments against gay marriage being “demolished.”  In fact, I don’t recall much serious engagement at all.  The Pro-SSM vanguard has evaded intellectual engagement in favor of ad-hominem attacks, appeals to emotions, and a favorable media that never cared for arguments but cared very much about promoting heroes and tarring villains.  Signing on to this statement seems to me to be a sign that one is intellectually un-serious about any real debate on the topic.

    • #12
  13. MJBubba Member
    MJBubba
    @MJBubba

    From the Public Statement:

    “Kameny devoted his life to fighting back. He was both tireless and confrontational in his advocacy of equality, but he never tried to silence or punish his adversaries.”

    Kameny did in fact try to silence adversaries, with amazing success due to duplicitous collaborators.   If he had had the political leverage to attempt it, I have no doubt he would have meted out punishment also.
    Signing on to a Statement that lauds Kameny as a paragon of civil discourse is another sign that a signatory is un-serious about intellectual debate on this topic, or at least unprepared.

    • #13
  14. PracticalMary Member
    PracticalMary
    @

    Everyone was at liberty to marry if one was a woman and one was a man.

    I am really thinking Social Libertarianism should be called Regressivism as it is the flip side of the coin, Progressivism.

    Prof. obviously can also debate himself all the way to ‘Free To Be a Slave’.

    • #14
  15. user_517406 Member
    user_517406
    @MerinaSmith

    Professor Epstein,  I am ever amazed that libertarians’ focus on liberty is so narrow and short-sighted.  I think this is a result of a problem you allude to at the end of your piece–insensitivity to the soft rules that keep society together.  This combined with libertarian reliance on the seemingly coherent but actually incoherent harm principle are a lethal combination.  

    Many libertarians supported gender-neutral marriage on the theory that no one would be harmed.  I’m going to ignore right now the lack of imagination that was unable to foresee likely harm to children and focus on the fact that the statement itself is an admission that the signatories were caught off-guard by some entirely foreseeable harms related to how the not-so-soft rules of political correctness could be manipulated to crush freedoms of association and religion. 

    This is why the harm principle is useless.  Who is to be the arbiter of what constitutes “harm”?  Furthermore, given the interaction of law and social convention, no one, least of all some arbitrary principle, is able to control unintended consequences.  I suppose this is why libertarians misguidedly support all kinds of things that actually diminish liberty.

    • #15
  16. johnlisker Member
    johnlisker
    @johnlisker

    Sorry, those same homosexual marriage supporters who say the people cannot vote on homosexual marriage say they can vote on whether the Second Amendment applies.  In any event homosexual marriage was illegal and not considered any right when both the Constitution was ratified and the 14th Amendment was ratified.

    • #16
  17. PracticalMary Member
    PracticalMary
    @

    At the very least the whole SSM debacle should have notified Libertarians on the political dangers of siding with the Left on social issues at this time. Plus many Libertarian media/writers did not give sophisticated, legalistic arguments or just say, ‘why do we even have to know?’, but used the same ‘friends & feelings’ rants as the Left. Reality:  more liberty was not the result.

    So-Called, So-Cons are told over and over to shut up when perhaps it’s Social Libertarians who should cool it before even MORE liberty results (now it’s the imperative issue of ‘Drinking Age’, not to mention Open Borders/One Worlders).

    • #17
  18. PracticalMary Member
    PracticalMary
    @

    Perhaps if some people do choose to embrace polygamy, we’ll develop a better understanding of why they do it. But possible absurdity is a bad reason to ban particular practices.

    As with marriage there is the history of the world to ‘understand’ as humans haven’t really changed. How I’ve wished Libs would view Social History the same way they view Market History in terms of spontaneous order, but with the addition of the true meaning of inalienable rights meaning not that an individual is their own private property (an object), but MORE than that. 

    In the next sentence we have the usual ‘slippery slope’ warning. I’ve noticed we are warned away from this argument quite a bit-ignore the lessons of the past and don’t apply them to the future- and then next thing you know we’re there! In this case the absurd future  is already here in the form of the personhood movement…which includes that non-slippery-slope of devaluing human life leading from the freedom of abortion to all kinds of utilitarian ‘death rights’. Once again, Libertarians are on the Left’s side…

    • #18
  19. TG Thatcher
    TG
    @TG

    FloppyDisk90:

    Civil unions were floated as a compromise at the beginning of this debate and fought with the same vehemence and uncompromising rigidity of the current opposition because it was feared that it would be a “gateway drug” to full on recognition. So, understandably, the gay lobby is now arguing for the whole enchilada.

    ******
    Someone who has a better memory or reference system help me out, here:  Didn’t California have civil unions at the time of the Prop 8 referendum?  If that is so, would that fact support the interpretation that the “gay lobby” needed to pursue “the whole enchilada” in self-defense?  Would that fact not, rather, support the interpretation that civil unions were only a step in the intended process?

    • #19
  20. iDad Member
    iDad
    @iDad

    “Libertarians are often accused of being insensitive to the soft rules that keep society together. One purpose of the “Freedom to Marry” statement was to try to make it clear to anyone with ears to listen that we are not collectively guilty of that sin.”

    Are you kidding?

    • #20
  21. user_517406 Member
    user_517406
    @MerinaSmith

    Let me just say that I really appreciate this post.  It is thoughtfully written and acknowledges many of the issues I wish we had been debating as a nation for the past several years.  I know we have debated the subject to death here, but we should have been exploring these issues as a nation before we reached the sad state of affairs that we’re in now.

    • #21
  22. TG Thatcher
    TG
    @TG

    Richard Epstein:

    The defenders of traditional marriage therefore are correct to point to important distinctions. … the key point to note is that marriage is in fact a relationship that may have preceded the state, but it is also an institution that is today regulated by the state — a state that enjoys a monopoly of force within its jurisdiction.

    The central problem of libertarian theory is that it has to explain why a state monopolist can regulate without limiting the liberties of the people whom it regulates. In that regard, any effort to find harms … are subject to the usual difficulties that follow any excessive reading of the harm principle … That offense extends … also to polygamy, and I actually think that the effort to legally suppress that form of relationship (which has obvious procreative potential) is singularly misguided.

    … the polygamy issue, which has to be addressed. … My own tentative answer to these questions is “Sure, let people do it if they want.” Underlying that view is the supposition that there are very few people who will choose this alternative. Perhaps if some people do choose to embrace polygamy, we’ll develop a better understanding of why they do it. …

    Libertarians are often accused of being insensitive to the soft rules that keep society together. …

    *******
    Polygamy has existed in past cultures that we recognize as antecedent to our own, so we are not solely limited to our imaginations in considering how it might work and why people might do it.  [Aside:  We could probably do with a post and discussion on polygamy].

    Marriage, in our present culture, is not merely a private contract, but is affected by our collective understanding about it.  (This seems evident to me, does it need to be argued?)

    Legally sanctioning polygamous marriage will have effects beyond the direct effects on those persons who choose to do it.  I can foresee/imagine subtle harms to our society as a whole as well as harms to  individuals as effects of legally sanctioning polygamous marriage.  That you can’t/don’t may mean that you are more optimistic about human nature than I am, or it may mean you have not directed a great deal of thought to the issue?

    • #22
  23. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    TG:

    FloppyDisk90:

    Civil unions were floated as a compromise at the beginning of this debate and fought with the same vehemence and uncompromising rigidity of the current opposition because it was feared that it would be a “gateway drug” to full on recognition. So, understandably, the gay lobby is now arguing for the whole enchilada.

    ****** Someone who has a better memory or reference system help me out, here: Didn’t California have civil unions at the time of the Prop 8 referendum? If that is so, would that fact support the interpretation that the “gay lobby” needed to pursue “the whole enchilada” in self-defense? Would that fact not, rather, support the interpretation that civil unions were only a step in the intended process?

     Yes, I believe you are correct. I meant to comment similarly when I first read it.

    • #23
  24. user_5186 Member
    user_5186
    @LarryKoler

    Interesting post, Mr. Epstein. I think that many of the people above have helped me understand that this is a bit of a fig leaf but still interesting nonetheless. Like Nick Stuart says: 

     I suspect the signatories are simply disturbed by the forces they’ve helped unleash and want to think they’ve tried to do something to rein them in.

    Good luck with that. Setting a fire is a lot easier than controlling it once it gets going.

    And I also didn’t think this statement was very savvy: 

    I think that the efforts to drive people like Brendan Eich from his professional employment via a blizzard of pious statements about the need for universal tolerance, some from Mozilla itself, are themselves representative of a peculiar form of intolerance…. 

    The left specializes in just this kind of intolerance and it’s not peculiar at all. It’s perfectly normal for morally unlettered people to do exactly this and to do it every single day and never pay a price because all the posturings — “a blizzard of pious statements about the need for universal tolerance…” —  are simply lies. If you learn to accept this fact it won’t seem peculiar.

    • #24
  25. mask Member
    mask
    @mask

    The state does not have  monopoly on marriage.  Marriage is still a cultural and social institution.  Sure, it’s one in which the state has attached a lot of government benefits and some legal niceties but gay marriage is not illegal in any state.  Gay marriages can be formed in any state – the state may not choose to recognize them but doesn’t interfere otherwise.

    • #25
  26. Klaatu Member
    Klaatu
    @Klaatu

    mask:

    The state does not have monopoly on marriage. Marriage is still a cultural and social institution. Sure, it’s one in which the state has attached a lot of government benefits and some legal niceties but gay marriage is not illegal in any state. Gay marriages can be formed in any state – the state may not choose to recognize them but doesn’t interfere otherwise.

    The state does have a monopoly on civil marriage.  Civil marriage is civil society’s sanction of a relationship as worthy of special legal recognition.  The people of a political community grant this recognition through their government.  Absent that recognition, there is no marriage in the context of this debate.

    • #26
  27. mask Member
    mask
    @mask

    Is liberty at stake with SSM?
    I thought libertarians – which I consider myself to be – conceived of liberty as natural and based on the individual and not flowing from the state. If liberty is at stake in SSM because the state benefits are not present then everyone’s liberty is at stake who doesn’t have these benefits – the single, siblings, those who cohabitate etc. In other words if inheriting tax free and inheritance of Social Security benefits are civil rights then many people don’t have this “liberty”.

    • #27
  28. mask Member
    mask
    @mask

    Klaatu,
    This is a flirtation with the lefty formulation of rights. If the benefits of “civil marriage” are a right and the political process cannot define marriage (because it’s a right and not a state benefit) then it cannot correctly be denied anyone. Polygamists. Single people (who may want to pass on property and Social Security). Siblings who may not have romantic feelings but are otherwise joined in caring for an ailing parent/sibling (if it’s a right then romantic attachment cannot also be a gate on it’s access).

    Furthermore, the left does not constrain this debate to just “civil marriage” – they often claim that they are being denied dignity, their relationship etc. If the left and other SSM supporters want to dial back their histrionic rhetoric and just frame this debate as a political one over government benefits but otherwise stipulate that SSM marriage exists and is not illegal then I’ll play along.

    • #28
  29. Klaatu Member
    Klaatu
    @Klaatu

    The benefits of civil marriage are not a right.  They are granted on the condition of meeting the conditions the political community sets.
    The left assumes dignity is tied to the state’s recognition.  They are statists after all.

    • #29
  30. mask Member
    mask
    @mask

    Gaius:

    I don’t think that a discussion of libertarian theory and the harm principle makes any sense in regard to the “ban” on gay marriage. How can gay marriage be considered to be “illegal” in anything close to the same sense in which prostitution or drug use is considered illegal? In those cases a particular activity is made punishable by law whereas gay marriages are simply denied recognition by the state. Without an actual prohibition there can be no coercion leaving libertarian theory with nothing to say on the matter.

    Furthermore, how does a “right to marry” (i.e. to have one’s relationship recognized by the state) constitute anything other than the kind of positive rights dogma that classical liberals, believing in negative rights, are supposed to deplore?

    Remove the misleading language of coercion from this argument and the case for SSM is greatly weakened.

     Very well said (that’ll teach me to comment before reading all the other comments first).

    The left has also perverted “civil rights” to mean “positive rights”.

    • #30

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