Same-Sex Marriage: are you Libertarian or Egalitarian?

[MarkD]

In Federalist Paper #51, James Madison wrote, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. ... If a majority be united by a common interest, the rights of the minority will be insecure." When I read that statement, I see Madison espousing a libertarian view first, followed by an egalitarian view. On the one hand, protecting the society from the oppression of its rulers is libertarianism, and on the other hand, protecting minorities from majority rule is egalitarianism. Libertarianism is much more concerned with individual rights, whereas egalitarianism is much more concerned with group rights. Libertarians are very suspicious of the power of government; "Laissez faire has never been more than a slogan in defense of the proposition that every extension of state activity should be examined under a presumption of error." (Aaron Director, The Parity of the Economic Market Place, 7 J.L. & Econ. 1,2 (1964).) Egalitarians are much more trusting in the power of government, but are suspicious about why people get treated differently from one another, both by government and by private actors. Indeed, Egalitarians are perfectly willing to use government power to control discrimination undertaken by private actors.

Which philosophy should have been used, in your opinion, by the courts when they legalized same-sex marriage? Should the courts have emphasized a libertarian message or an egalitarian message?

1) Libertarianism -- government should have virtually no business at all in telling people who can get married to whom else (with possibly the exception of regulating the minimum age at which people can get married). Getting married to another adult of your choice is a fundamental right; see Loving v. Virginia, (1967), Section 2; Zablocki v. Redhail, (1978); and Turner v. Safley, (1987). When government does not allow gay couples to get married, it is violating their basic, human rights.

2) Egalitarianism -- no one should ever be allowed to discriminate against gay people for any reason. Discrimination against gay people is based on nothing more than "the untenable and discredited moral prejudice of bygone centuries which vindictively punishes hapless, and innocent, gay people" (paraphrasing Justice William Brennan's dissenting opinion in Labine v. Vincent, (1971)). Gay people should always be treated as the equal of straight people. Laws banning same-sex marriage discriminate against gay people. The courts should have struck down "Don't Ask, Don't Tell" years before Congress repealed it. (Also, Congress should pass The Equality Act so gay people don't suffer discrimination in housing and public accomodations.)

[beesley]

I'm more inclined towards libertarian purely on a constitutional rather than ethical basis, but I wonder if according to that philosophy and sticking to that only would in turn render the Equality Act unconstitutional.

[Ferguson97]

I prefer the egalitarian philosophy, but the libertarian one is valid as well.

[MarkD]

I'm not at all surprised that more Atlas posters would vote for egalitarian than for libertarian. But I am quite surprised that even more of you voted for "both." Are you really sure that you want to endorse libertarianism too? Are laws that ban polygamy and incestuous marriage constitutionally suspicious to you?

[Kingpoleon]

Allowing the government to discriminate on the basis of sex for a right like marriage - which is the cornerstone of human society, as vital to such as air is to life - is a clear violation of the text of the Equal Protection Clause.

[AGA]

Libertarian

[John Dule]

Egalitarianism is based on a false premise.

[H.E. VOLODYMYR ZELENKSYY]

Egalitarianism is based on a false premise.

What is it?

[John Dule]

Egalitarianism is based on a false premise.

What is it?

The notion that everyone is equal. I am all for complete equality under the law, but there are numerous groups that we simply cannot treat with the same standard as everyone else. This includes people with severe mental disorders and underage people.

[Kingpoleon]

The notion that everyone is equal. I am all for complete equality under the law, but there are numerous groups that we simply cannot treat with the same standard as everyone else. This includes people with severe mental disorders and underage people.

That view of egalitarianism is flawed - I have never heard any advocate suggest treating underage people as though they were fully adults.

The Equal Protection Clause is egalitarian and constitutional - the Liberty Before All Clause is libertarian and not constitutional.

[TheReckoning]

Libertarian is the only one that really makes sense when you get to the nitty gritty.

[ultraviolet]

Egalitarianism is based on a false premise.

What is it?

The notion that everyone is equal. I am all for complete equality under the law, but there are numerous groups that we simply cannot treat with the same standard as everyone else. This includes people with severe mental disorders and underage people.

Just a question cause I know you’re a little unconventional, what do you think should be considered underage?

[TheReckoning]

Egalitarianism is based on a false premise.

What is it?

The notion that everyone is equal. I am all for complete equality under the law, but there are numerous groups that we simply cannot treat with the same standard as everyone else. This includes people with severe mental disorders and underage people.

Just a question cause I know you’re a little unconventional, what do you think should be considered underage?

That’s the one question you should NEVER ask a libertarian.

[OSR stands with Israel]

Libertarian

[MarkD]

When I first created this thread, for a couple of days, there were 30 votes in the poll: three votes for "Libertarian," nine votes for "Egalitarian," fourteen votes for "both," and four votes for "neither." It surprised me there were so many votes for "both." Then a few days ago I bumped the thread and asked a question -- which nobody has answered. Bumping the thread resulted in 31 more votes being cast: eight more votes for "Libertarian," twelve more votes for "Egalitarian," just five more votes for "both," and six more votes for "neither." Now there's a distribution that I think is much more appropriate for Atlas users.

But I am still curious about all the votes for "Libertarian" and "both." How do all of you feel about the authority of state governments to ban polygamy and incestuous marriage?

Allowing the government to discriminate on the basis of sex for a right like marriage - which is the cornerstone of human society, as vital to such as air is to life - is a clear violation of the text of the Equal Protection Clause.

The fact that government has created minimum wage laws but has never created any minimum productivity laws means that government is favoring the minimum economic needs of the majority -- employees -- while simultaneously ignoring the minimum economic needs of a minority -- employers -- and that is a clear violation of the text of the Equal Protection Clause.

------

Lastly, BTW, my own vote in this poll is for "neither." I am firmly, resolutely, behind the view that marriage is not any kind of constitutionally-protected "right," and that equality between gay people and straight people was not the intended meaning of the Equal Protection Clause. Indeed, the Equal Protecion Clause was only intended to be a requirement that all races/nationalities be treated equally.

[BlueSwan]

Egalitarian.

Libertarianism runs into a ton of problems, given that the state cannot inferfere with any individual person or company's "right" to discriminate. There would be no problem with companies refusing to hire people of color, for instance. Or for refusing to serve gay people. Ironically, while libertarianism on the surface purports to be based on protecting individuals from the state, it ends up failing to protect individuals from each other.

Egalitarianism isn't without fault. Nothing is black or white here. But it is generally a far superior principle to use as a guideline for how to build a society.

[Tintrlvr]

I'm more inclined towards libertarian purely on a constitutional rather than ethical basis, but I wonder if according to that philosophy and sticking to that only would in turn render the Equality Act unconstitutional.

No, because the libertarian logic as applied to marriage does not necessarily carry over to other matters (such as employment or housing), where the stronger liberty interests can (and in my opinion, do) lie with the victims of discrimination. The libertarian argument in favor of same-sex marriage is an easy one because there genuinely is no countervailing liberty interest against same-sex marriage. That's not the case in situations of actual discrimination, where both sides have some degree of liberty interest, and libertarians have to choose which side's liberty interest they believe is stronger.

(I know this isn't the perspective most libertarians take, but I think libertarians themselves often have a short-sighted and self-serving view of liberty.)

[Tintrlvr]

I'm not at all surprised that more Atlas posters would vote for egalitarian than for libertarian. But I am quite surprised that even more of you voted for "both." Are you really sure that you want to endorse libertarianism too? Are laws that ban polygamy and incestuous marriage constitutionally suspicious to you?

In my mind, yes, there is some constitutional suspicion to such laws. The question is about balancing the harms of legalization with the liberty interest involved. That is, there are real potential social harms from legalization of both (both, in particular incestuous relationships but to a significant degree polygamous relationships as well, often (though not always -- and that's why it's a question at all) involve psychological and power abuse), at least without limitations, that can overcome even high levels of constitutional scrutiny for restricting a liberty interest. But it's fair that they be subject to that level of scrutiny because they do indeed impinge on liberty.

[beesley]

I'm more inclined towards libertarian purely on a constitutional rather than ethical basis, but I wonder if according to that philosophy and sticking to that only would in turn render the Equality Act unconstitutional.

No, because the libertarian logic as applied to marriage does not necessarily carry over to other matters (such as employment or housing), where the stronger liberty interests can (and in my opinion, do) lie with the victims of discrimination. The libertarian argument in favor of same-sex marriage is an easy one because there genuinely is no countervailing liberty interest against same-sex marriage. That's not the case in situations of actual discrimination, where both sides have some degree of liberty interest, and libertarians have to choose which side's liberty interest they believe is stronger.

(I know this isn't the perspective most libertarians take, but I think libertarians themselves often have a short-sighted and self-serving view of liberty.)

Thanks for the response. My impression was that things like employment and housing would not be considered rights as such in the same way same-sex marriage was, and so the Equality Act might only be considered constitutional from an egalitarian basis (which is perhaps the perspective you referred to at the end.) I quite like the term 'liberty interest' that you used.

I suppose in considering polygamy and incest, because the Justices of the Supreme Court don't always invoke such philosophies when granting certiorari and tend to consider the 'public interest' more, they can get away with adopting a libertarian approach in places they want to, but not in others.

[If my soul was made of stone]

The libertarian argument makes more sense in terms of legal precedent, and I perhaps slightly favor it as someone who thinks that the state should have no business defining personal relationships, but both are valid. The hardened queer radical in me, however, is fundamentally opposed to the idea of straight people deciding the fate of same-sex marriage based on their own ancient and arcane principles and is frightened by conservative arguments in favor of same-sex marriage that position it as an issue of nuclear family worship and conservative communitarianism, so really I could vote for either or both option depending on what side of my reasoning predominates on any given day.

[The Undefeatable Debbie Stabenow]

Allowing the government to discriminate on the basis of sex for a right like marriage - which is the cornerstone of human society, as vital to such as air is to life - is a clear violation of the text of the Equal Protection Clause.

I tend to agree that this is the most straightforward line of reasoning.

[Fuzzy Bear]

Neither.

Having said that, SSM is a fait acompli.  On a secular level I do not support its repeal.

[John Dule]

Egalitarianism is based on a false premise.

What is it?

The notion that everyone is equal. I am all for complete equality under the law, but there are numerous groups that we simply cannot treat with the same standard as everyone else. This includes people with severe mental disorders and underage people.

Just a question cause I know you’re a little unconventional, what do you think should be considered underage?

Whatever age we pick is arbitrary by definition, but 18 is preferable.

[MarkD]

(Bumpity-bump-bump, ... bump-bump!)
(Let's see if anybody is interested in voting on this who hasn't voted before. Maybe we'll get over 100 votes in this poll.)

I'm not at all surprised that more Atlas posters would vote for egalitarian than for libertarian. But I am quite surprised that even more of you voted for "both." Are you really sure that you want to endorse libertarianism too? Are laws that ban polygamy and incestuous marriage constitutionally suspicious to you?

In my mind, yes, there is some constitutional suspicion to such laws. The question is about balancing the harms of legalization with the liberty interest involved. That is, there are real potential social harms from legalization of both (both, in particular incestuous relationships but to a significant degree polygamous relationships as well, often (though not always -- and that's why it's a question at all) involve psychological and power abuse), at least without limitations, that can overcome even high levels of constitutional scrutiny for restricting a liberty interest. But it's fair that they be subject to that level of scrutiny because they do indeed impinge on liberty.

I don't like the concept of courts of law using any balancing test, weighing society's needs against individual needs, because 1) I am certain far too many Supreme Court Justices will put their thumbs on the scales and will not weigh those interests fairly and objectively, and 2) there really isn't any constitutional mandate for courts to weigh society's interest against individual interests when unenumerated rights are at stake. Marriage is clearly not an enumerated right, and Justice William O. Douglas's effort to claim that it is an enumerated right (in Griswold v. Connecticut) was so ridiculously unpersuasive that Supreme Court law clerks were giggling and guffawing when they read the first draft of his opinion.

[pbrower2a]

Another: for law and order.

I became a militant supporter of LGBT rights after being threatened with being beaten for being gay, as the violent bigot thought I was. Whatever it takes to squelch the idea that real or imagined homosexuality is a valid pretext for beatings and murder is well worth it.  That means equality in marriage and adoption.