At Catallarchy, Randall McElroy argues that libertarians ought to endorse the expansion of the legal institution of marriage to include same sex couples. One of his arguments is that in an imperfect world we should favor and pursue equality under the law:
In the long run, this is not the best solution. The government has no proper role in marriage. Ultimately we want to roll back its powers far, far beyond this area. But in the meantime, equality before the law and a little bit of pragmatism should be our guides.
McElroy and others continue the argument for equality under the law in comments to the piece.
That argument fails on more than one level. In the first place, the legal institution of marriage is intended and designed to produce inequality under the law. If single individuals were equal to married individuals under the law, then there would be no reason to raise this argument in the first place.
“But Kennedy”, some will argue, “there is no issue of inequality between single individuals and married individuals, because singles are free to legally marry.” Yes, that’s true, but gays are also free to legally marry, they’re just not free to legally marry members of their sex. In fact, there are gays who are legally married to members of the opposite sex.
“But that’s not fair, because straights are free to legally marry someone with whom they are sexually compatible while gays are not”, comes the reply. That’s also true, but if it’s not fair to legally require gays to jump through a hoop they don’t want to jump through to qualify for benefits given to others, then how is it fair to require any single person to jump through the hoop of legal marriage to qualify for the same benefits?
Legally married gays may be legally equal to legally married straights, but they will enjoy legal benefits and privileges exceeding those of single individuals. Those legal benefits and privileges over single individuals are what is being sought. Expanding a pool of legally privileged individuals does not produce equality under the law. Legal marriage, by it’s nature, produces inequality under the law, it produces privileges and benefits which cannot be justified.
Libertarians arguing for “equality under the law” are also forgetting how such “equality” will be used to directly attack individual liberties. Micha Ghertner tugs at the heart strings with this story:
There were two older men at the bookstore last night, both of whom were in their mid-70�s. They had been �married� for over 50 years. And yet they understood the political reality of the situation and realized that even if things go as the gay rights movement hopes for, chances are they will not have an opportunity to marry within their lifetimes. In my mind, whether you think extending marriage to homosexuals will strengthen or weaken the government�s role in the institution, at a certain point you just have to look at and sympathize with the people who are suffering from this unequal treatment under the law.
But what about these people?
Atlanta’s Human Relations Committee has ruled that a local country club is in violation of the city’s anti-discrimination ordinance by refusing to allow domestic partners the same rights as member spouses.
Atlanta Mayor Shirley Franklin has 30 days in which to react to the ruling, and according to the Atlanta Journal-Constitution, she may well pull the country club’s city licenses unless they come into compliance with the law.
Two members of the Druid Hills Country Club filed a complaint after repeatedly asking the club to change its “family-only” policies. Although psychologist Lee Kyser and lawyer Randy New both paid the $40,000 startup fee and are writing monthly checks of $475, neither of their partners is considered a member. While heterosexual spouses have full run of the club, including free green fees, neither Lawrie Demorest nor Russell Tippins can join their significant others on the links without being considered guests.
The case is a carbon copy of a dispute at Bernardo Heights Country Club in Southern California. There, Birgit Koebke joined the club in 1987, and tried unsuccessfully to enroll her partner, Kendall French, for many years. Koebke was obliged to exhaust her guest privileges and pay green fees for French, while her straight friends enjoyed unlimited golf with their wives and husbands. Koebke’s case is being pursued by Lambda Legal, and is under appeal in California state court.
Although the Atlanta case might be the first pro-gay ruling in a golf club discrimination matter, the decision follows a line of related gay rights victories. When institutions and organizations condition benefits on marriage, gay partners often find themselves on the short end of the stick.
Such legal inroads against freedom of association are happening even in advance of the legal recognition of gay marriage, but who can doubt the process will accelerate with it’s recognition?
I don�t see how the current inequality can be justified, nor can I see how using people as means can be justified.
But aren’t the private owners of the Druid Hills Country Club being used as a means to the end he seeks, and by his very argument of “equality under the law”?
I realize it may be convenient to dismiss them as bigots, but should libertarians actively endorse the use of the state to to benefit some individuals at the expense of the rights of others?