Regardless of how the Supreme Court rules on California’s Proposition 8 and ultimately the Defense of Marriage Act, the libertarian solution is the most tolerant of marriage equality. The two basic positions surrounding the upcoming SCOTUS ruling are that gays should either be allowed to enter into a state-sanctioned relationship, or they shouldn't. Libertarians believe that all individuals have inalienable rights that cannot be challenged by the state or electorate. So, regardless of what the 2008 voting electorate decided in California or if SCOTUS nullifies DOMA, there are still some pressing details that deserve attention.
Let’s start with defining marriage. Marriage has traditionally applied to heterosexual relationships in which a husband holds legal authority over the wife, making the libertarian position all the more favorable for females. Libertarians don’t believe that the state should have any inherent role in regulating relationships, and the antiquated patriarchal ideals of dowry or women and children becoming a man’s property definitely don’t hold merit. These ideals have been around longer than the existence of government — marriage used to be performed as a religious function to declare faith and bear children. Libertarians recognize that marriage contracts should be negotiated through contractual obligations between parties, but these contracts don’t necessarily need oversight from the state or church. This would also address the inequality that polygamous relationships encounter as these individuals could foreseeably enter into a private marriage contract.
Some proponents of gay marriage make the argument that equal rights are being jeopardized. It is believed that certain marital benefits like Social Security, immigration rights, and taxes should be extended legally to all couples. They cite the Equal Protection Clause of the Fourteenth Amendment: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." A libertarian would argue that private contracts could also accomplish this without the need for state intervention. Invoking the Equal Protection Clause identifies the need to nullify the Federal Defense of Marriage Act (DOMA), since it mandates that the federal government supersedes the power of a state’s electoral procedure.
Here’s where some conservatives defend the virtues of Tenth Amendment. These conservatives claim that if we just followed the Constitution, the 50 states could independently decide on how they want to regulate the institution of marriage. This argument neglects the impact of the voting majority as we saw in 2008, when California voters decided that marriage should only be defined between a man and woman. No matter what the Constitution advises, it’s never moral for the voting majority to dictate its will on the minority.
The most adequate way to promote marriage equality, including equality for polygamous and non-traditional relationships, is to abolish government’s oversight completely. Invoking the Constitution or demanding SCOTUS simply legalize gay marriage is the wrong way to move towards equality. The best technique to promote marriage equality would be to enter into a private contract and opt out of any state-sanctioned union.