DOMA and Prop 8: The Government Should Get Out Of the Marriage Business


The Defense of Marriage Act (DOMA), California's Proposition 8, and same-sex marriage in general have now made it all the way to the Supreme Court (PolicyMic has been providing excellent analysis and live coverage all week). As usual, the libertarian position has been either been ignored or drowned out by Left-Right bickering and partisan politics but I can sum it up briefly: get the state out of the marriage business.

It may sound over simplistic, but both the liberal and conservative position on marriage prove that the libertarian argument is a moral and practical alternative. Conservatives argue that traditional marriage is an institution that must be protected by the state, while liberals believe that the state ought to recognize same-sex relationships equally. But both sides fundamentally believe that it is the government's job to define marriage.

The question rarely asked, however, is why the government should have anything to do with marriage and how government's role in marriage came to be. Marriage used to be solely a private and personal matter with no state control or regulation. Some couples chose to marry under religious customs, while others chose common-law arrangements.

But that all changed in the late 19th century. Most American states had laws that forbid interracial couples from getting married. But many states began to allow different races to marry if they received a marriage "license." Not only is the concept of needing permission from the state to enter into a private contract abhorrent to a free society, Black's Law dictionary -- the most widely used law dictionary in the U.S. — defines a marriage license as "A license or permission granted by public authority to persons who intend to intermarry … By statute in most jurisdictions, it is made an essential prerequisite to lawful solemnization of the marriage [emphasis added]."

Bans on interracial marriages were finally overturned in 1967 by the Loving v. Virginia case, but for some reason state-granted marriage certificates remain.

Like nearly all government interventions into civil society, the state creates injustice and favoritism. As much as I sympathize with the liberal position on same-sex marriage, it is astonishing to me that they would look to the state as a solution.

State involvement in marriage was born out of racism; now this same institution is denying gay people their rights, and the solution is to get on our knees and ask permission from this Leviathan of force and oppression to exercise a natural right? No thanks.

This is why the language of the Left frustrates me when they argue for "marriage equality." Equality is an abstraction that tends to leave me very suspicious, and historically has been the banner of bloody French revolutions and communist purges rather than freedom and justice. Gay marriage is fundamentally about liberty: the freedom to enter into a private, consensual contract and of all the legal rights that comes with it (inheritance, hospital visits, inheritance, etc.)

This is because individual rights are not things granted by the state; they exist in perpetuity because of our humanity. If anything, states only take rights away. Even if the exercising of these rights may displease others, in a free society, we should be tolerant and respectful of everyone's individual rights so long as they don't infringe on anyone else's right to exercise theirs.

Do gay marriages prevent straight people from getting married in churches? Of course not. State intervention into marriage distorts this principle of classical liberalism, and its effects live on to this day.

Now I understand that the federal and state governments will not do the right thing and privatize and deregulate marriage tomorrow. Given the current political reality, I think that same-sex couples should receive the same legal "benefits" and tax credits straight couples receive (or how about a flat tax? Now there's some equality I can get behind!).

The solution to same-sex marriage, like nearly all problems that plague society, is to get the state out of the marriage business. This does, however, require a proper understanding of what individual liberty and true tolerance means. Unfortunately, liberals and conservatives have yet to understand this.