This One's not for Us

There has been much rejoicing in libertarian circles over the California Judiciary's recent decision that gay marriage is legal in California. I would like to politely suggest that some of this enthusiasm may be misplaced.

The California case is interesting for a number of reasons. Most importantly, the text of the decision makes clear that the Court is ruling, to some extent, on a matter of semantics.

Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a "marriage" whereas the union of a same-sex couple is officially designated a "domestic partnership."

In other words, the Court declines to say whether gays actually have equal partnership rights under the state Constitution, but merely notes that as California statutes have afforded them the same rights (California recognizes domestic partnerships - it was in fact the first state to pass such recognition through the legislature without being compelled to do so by a court order), it is impermissible to use distinct legal names for the unions of hetero- and homo-sexual couples. Put simply, if the state legislature had never bothered to create a domestic partner registry, there would be no basis for this ruling.

Another interesting point is that it goes out of its way to specify what the state constitutional "right to marriage" means. As this section goes on for nearly 100 pages, it would be difficult in the extreme to pick a representative section to quote. The basic idea, however, is that marriage is an important social institution for a number of reasons including, but not necessarily limited to, the establishment of meaningful familial bonds, the raising of children in a stable environment, providing a clear locus of responsibility for the care of incapacitated citizens, defining and maintaining familial relations, etc. Past California court decisions have ruled, on essentially this basis, that marriage is therefore something that the legislature is free to define, regulate, and to create incentives to promote (for this they rely primarily on McClure v. Donovan (1949) 33 Cal.2d 717, 728). Given that marriage is a bedrock social institution well-established by tradition and well-connected to the maintenance of the social relationships that help society function, Courts in California have concluded, based especially on sections 1, 7 and 9 of Article I of the state constitution (California's "Bill of Rights," actually), that it is a fundamental right, even though there is no explicit reference in California's state constitution to a "right to marry." Article I of California's state constitution is available online here, but for brevity it's reasonable to consider section 1 a restatement of the "inalienable rights" of the Declaration of Independence plus a right to "privacy," section 7 a guarantee of due process rights and equal protection before the law, and section 9 a guarantee of the sanctity of contracts.

A further interesting point is that this particular court decision not only adds to the list of reasons why marriage is a "fundamental right" emotional considerations, but also acknowledges that this is not grounded in precedent:

Although past California cases emphasize that marriage is an institution in which society as a whole has a vital interest, our decisions at the same time recognize that the legal right and opportunity to enter into such an officially recognized relationship also is of overriding importance to the individual and to the affected couple.

and

The ability of an individual to join in a committed, long-term, officially recognized family relationship with the person of his or her choice is often of crucial significance to the individual's happiness and well-being. The legal commitment to long-term mutual emotional and economic support that is an integral part of an officially recognized marriage relationship provides an individual with the ability to invest in and rely upon a loving relationship with another adult in a way that may be crucial to the individual's development as a person and achievement of his or her full potential.

The final interesting point of this decision is that it makes explicit that extending the designation "marriage" to the already established legal category of same-sex domestic partnerships will not endanger the traditional institution of marriage in any way. The reasoning here isn't stated as clearly as that for the other points, but it seems to be based on the first point: because legal statutes already afford same-sex domestic partnerships all the same legal privileges of heterosexual marriage, it is difficult to see how merely changing the name of these partnerships to include them in the former category would pose any threat to such a well-established (both legally and in civil/religious tradition) institution as marriage.

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Let me now set out some reasons why libertarians should be careful with this one.

(1) It affirms the state's right to define and regulate marriage. Obviously this one will be of the most concern to most libertarians. I believe strongly - and I think I share this convicton with most libertarians - that marriage is a private matter properly handled contracturally between the concerned individuals. To the extent that there is a fundamental right to participate in defining the terms of any contractural relationship into which one enters, it is completely improper for the government to go about regulating the terms of marriage. The government needs to get out of the business of telling people what their marriages mean. Its role here is simply to enforce the legal contracts that free citizens draw up between themselves. Naturally such contracts should be drawn up in accordance with state (and federal) laws governing the raising of children, disposal of property, etc. But that is precisely the point: any substantive issue that could legally constrain a marriage contract can be and in fact is already defined outside the context of marriage. There is simply no compelling interest that I can see for the government to create a legal category for "marriage" that it can then micro-manage. If entering into relationship is a "fundamental freedom," as the California State Supreme Court here says it is, that means the government needs to let people exercise their own judgment about the details of those relationships.

(2) Even in affirming the state's right to define and regulate marriage, it wilfully ignores legislation passed on precisely this point. In 2000, California voters passed, with a 61.4% majority, Proposition 22, which limits marriage to a partnership between a man and a woman. Glenn Greenwald has tried to argue that as the California legislature has twice approved legislation requiring the adoption of a gender-neutral marriage bill, that in fact the Court is simply following recent public opinion trends in California in extending marriage to gays. But this is obviously disingenuous. Directly-elected state representatives may have passed such bills, but the equally directly-elected governor has vetoed them, and that on the grounds that it is a matter for a ballot initiative. If public opinion is as Greenwald says, then why haven't gay rights activists felt comfortable proposing a ballot initiative to overturn Proposition 22? 61.4% is a pretty convincing expression of the will of the majority, after all, and if circumstances have truly changed since 2000, the mechanisms are definitely in place in California for revisiting the question. What is unacceptable is a court that reserves to the government the right to define and regulate marriage but then refuses to allow regular governmental procedures to be followed in hammering out that definition. Greenwald's sophistry notwithsatnding, this is a classic case of "judicial activism."

(3) It gives arbitrary preference to some lifestyle choices over others. My major complaint about the gay marriage "struggle" in general is that gays are essentially arguing for the extension of marriage privileges to their group and not against the enterprise of restricting and regulating marriage itself. This is something that no libertarian should get excited about. Rights apply to everyone or no one at all. If there is a "civil right" to marriage, then why, one wonders, does it apply only to hetero- and (recently) homo-sexual couples and not to groups? There is, after all, no shortage of historical precedent for polygamous and polyandrous marriages playing all the useful social roles in society that the California Supreme Court enumerates as justification for state involvement in the marriage enterprise. I am sick to death of something being cast as a "civil rights" struggle that is, in reality, just about extending privileges to one's own group. It would be as if Martin Luther King Jr. had argued for equality for black people but told the government to do what it wanted about Jews. It just doesn't work. Either you're committed to the idea that any marriage is valid provided it performs (or at least has the potential to perform - since, let's face it, many individual heterosexual marriages are bad news for all involved, however conformant with tradition) the social functions the Court cites in its reasoning, or you're jockeying for special recognition for your own special interests. It is far from clear, using the Court's own logic, why it is only homosexual couples that the current statues discriminate against and not polygamous religious sects as well. After all, the right to exercise one's conscience in following his religion is actually written out in Article I of California's State Constitution, unlike the "right to marry," which has to be inferred. Certainly there is nothing anywhere in the California Constitution that limits marriage to couples, and it is disingenuous of the Court to play flexible with the language of precedent long enough to extend marriage to homosexual couples without extending it to any "useful social units."

(4) It recognizes a government interest in promoting "happiness" by official recognition of one's relationship status. I personally find this bit the most distasteful. Happiness is not a right, but rather something that must be pursued. When the framers wrote this into the Declaration of Independence, what they meant was that the government needs to get out of people's way in order to let them engage in this pursuit. They did not mean by any stretch of the imagination that it is the job of the government to rubber-stamp an official certificate of acknowledgment that one has achieved happiness. When the framers of California's State Constitution write, in Article I, section 1, that

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

I am equally sure that they did not have in mind a role for government as official contributor to people's individual happiness by officially approving their family relationships! What kind of an infantile individual needs the government to tell him when he's in a family and when he's not? No, this is not the government's job. The government can, should, and indeed has the duty of enforcing his property contracts with his spouse(s) and protecting the rights of his children, if he has any, but it is not there to grant him "the ability" to "join in a committed, long-term, officially recognized family relationship." Free individuals have this ability period - with or without the government's apparently-magical happiness-granting certificate. Gays who consider themselves married are, in fact, married in the relevant sense already. They do not need the government to make them happy, and I resent in the strongest terms the implication that anyone needs this.

In closing, let me say that I fully understand, and support, the property rights issues involved here. The most convincing reason that marriage needs to be taken out of the hands of government and returned to the realm of individual private contracts are exactly these. The right to designate heirs, dispose of one's property, grant power of attorney to individuals in the case where one is incapacitated (such as in making medical decisions when one is not conscious) - all of these things are RIGHTS THAT ARE, OR SHOULD BE, HELD INDEPENDENTLY OF MARITAL STATUS. As a single, heterosexual male who has no intention of marrying, I am a case in point. Why am I not afforded the same rights in determining what happens with my person and property as married individuals? Why is the power to issue such designations limited to people in intimate relationships - and only certain government-approved kinds of intimate relationships at that? There is a civil rights issue here, but it is much larger than the issue of whether gays should have legally recognized marriages. I am not interested in what the government thinks makes people happy, and I don't consider it the government's duty to make people happy. The government's job is to protect natural rights, nothing more or less. Happiness is an individual's own concern.

So I don't think libertarians should get too excitied about this ruling. It is not a bold step forward for liberty. Quite the contrary, it is a retrenchment of the state's authority to meddle in personal relationships in the odious form of extending, under the guise of "rights," privileges to a certain group while ignoring other groups that almost certainly have better claims, all the while carving out an "essential" role for the government in affirming individual happiness - a role it was never meant to assume - and this only after creative legal acrobatics have allowed the Court to affirm society's "right" to define and regulate marriage while blatantly disregarding what a clear majority of "society" has actually, and quite recently, said on the matter through established legal process. I'll pass.