16 Jul 2015

More Divisive Thoughts on the Supreme Court and SSM

Bryan Caplan, SSM, Steve Horwitz 65 Comments

[UPDATE: I made a few edits to my original version. The substantive changes are adding the points about Sheldon Richman’s and Bryan Caplan’s recent posts.]

I really thought I was done writing on this topic, but the further comments by many libertarians compel me to speak. In the interest of brevity, I’m going to fire off points, which will start off very conciliatory and then get more critical:

==> I had an epiphany on why we are having such fights over this. I realized that when I hear someone use the term “illegals,” my brain instantly shuts down. I don’t care about the person’s policy argument; I simply hear, “Poor Mexicans make me uncomfortable, I would rather not be around them.” So, by the same token, I think many cosmopolitan libertarians simply shut down when they hear someone use the term “traditional marriage.” I’m not saying whether these reactions are fair or proper, I’m just stating facts.

==> As a Christian and a libertarian, I am appalled that gay people–especially kids at school–would be bullied or worse. I can remember how bad things were even when I was younger. For example, when I was pretty young my friend from school proudly told me how some “f*ggot” had tried to approach his dad in a bathroom, so his dad knocked him out. Presumably the story was BS, but the point is, that’s how my friend thought he would impress others. Even at that time I was nonplussed, since this attitude was so foreign to me.

==> I don’t think she fully appreciates the dangers that I perceive in this ruling, but Ali Havens had a very balanced take on this issue.

==> Shikha Dalmia opens her Reason piece with this statement: “By advocating for limited government that stays out of the bedroom, we libertarians have played a crucial role in the American victory for same-sex marriage.” That statement is utterly bizarre, bordering on Orwellian. If libertarians had waged a PR campaign to get local voters to overturn a local statute that criminalized sodomy, then THAT would be an example of libertarians playing a crucial role in advocating for limited government that stays out of the bedroom. But her language does not at all describe the federal government forcing lower levels of government to follow certain rules when issuing marriage licenses.

==> If you don’t share my above shock at Dalmia’s statement, it’s because you think the people who oppose SSM are crazy. Well, the definition of marriage is one of the things that is under dispute here. If the Supreme Court ruled that state universities couldn’t teach about evolution without ALSO teaching about Intelligent Design, presumably the folks at Reason wouldn’t call that “limited government staying out of religion.”

==> If the Supreme Court invalidated state or city government minimum wage laws, on the grounds that the Constitution gave every worker the right to earn a living, I would object to that as an unwarranted expansion of federal power. If you ever catch me being a hypocrite on the matter of federalism, by all means point it out.

==> Sheldon Richman defends the principle of SSM flowing from equality before the law, by asking us to imagine a world where some states barred black people from driving on interstate highways. OK, and now let me ask you to imagine a world where states barred children from driving on interstate highways–in other words, our world right now. That doesn’t horrify people. It’s because people think, “It makes sense to discriminate against child drivers, but not against black drivers.” So, look where that puts us: It’s consistent with equality before the law for state governments to not issue marriage licenses to same-sex couples, so long as you think it makes sense to do that. In other words, “equality before the law” has no bearing on this issue, if the opponents of SSM really don’t think it even makes sense to talk of a man marrying another man, i.e. that such language misconstrues what marriage is.

==> When people guffaw at the above type of argument from definition, opponents of the ruling often ask, “OK then, if this is really just about personal autonomy and subjective preferences, then are we going to issue marriage licenses to polygamists? What about…” and then they go on to list other, more provocative things, which causes defenders of the ruling to go nuts, saying, “Oh, so you think gay people are just like _____ do you?!” Well, Bryan Caplan is on record supporting polygamy without even a caveat, so the first step isn’t a strawman.

==> (Yes, I know there is polygamy in the Bible. I’ve read the book.)

==> Many libertarians loved it when David Boaz claimed that libertarians supported gay marriage back in the 1970s. Specifically Boaz wrote: “In 1976 the Libertarian Party issued a pamphlet calling for an end to antigay laws and endorsing full marriage rights.”

Now I read that and was extremely skeptical. Surely even the Libertarians wouldn’t have been so tone-deaf as to go out on a limb, on an issue that hardly flowed directly from their principles, in a way that would guarantee electoral suicide at that time? Well, if you click the link, it goes to a Ralph Raico essay titled, “Gay Rights: A Libertarian Approach.” As I certainly expected, it focused on protecting vulnerable minorities from State violence as punishment for consensual acts, positions which clearly do flow naturally from libertarian principles. Raico’s essay has ONE OCCURRENCE of the word “marriage,” and here it is (when Raico summarized the positions in the 1976 pamphlet): “Repeal of legislation prohibiting unions between members of the same sex, and the extension to such unions of all legal rights and privileges presently enjoyed by partners in heterosexual marriages.”

At first it sounds like the Libertarian candidates in 1976 were all campaigning on a platform of gay marriage, doesn’t it? But read it again. That’s not what it says. Rather, it says members of the same sex should be legally allowed to form unions which enjoy the same legal rights and privileges afforded to heterosexuals when they marry.

People who are older than me can tell me I’m wrong, but I’m reading that as saying something like, “The State shouldn’t impose a higher tax burden on two men who want to be romantic partners for life, than for a man and woman who are married.” I don’t see that saying, “The Justice of the Peace should issue a marriage license to two men who request it.”

==> I saw several libertarians–ranging from younger “cool kids” to older icons–mock those who worried that the Supreme Court ruling would lead to a loss of liberty for Christians. Well, check out Felix Salmon’s thoughts, and the principles he espouses (not just his particular policy recommendation).

==> Steve Horwitz had a piece in USA Today where he laughed at people warning of social decay from SSM, going back to those who worried in the past whenever society’s notion of marriage changed. Horwitz writes: “It’s true that the divorce rate has risen since the 1950s, but it leveled off in the 1980s and has slowly fallen over the past two decades as people have adjusted to changes in gender roles and marriage.”

What’s weird, though, is that if you click the link, you’ll see it’s to a piece announcing a new study that says Horwitz’s description is false, and that when the researchers in the new study “controlled for changes in the age composition of the married population…they found that the age-standardized divorce rate has actually risen by an astonishing 40 percent” since the 1980s. Here’s the graphic from the article Horwitz linked to, in a piece making fun of people who warned in the past that marriage was in trouble:

Boomers Divorce

As this chart shows, people aged 55-59 had a failed-marriage rate (specifically, percentage of ever-married who were ever divorced or separated) of about 18% in 1970, but about 46% in 2010. That’s an increase of more than 150%. What would have had to happen to validate the fears of people who didn’t like Elvis shaking his hips on national TV? Would the divorce rate of his fans have had to triple? (The article also explains that the rate among younger people hasn’t continually risen, but only because they are shacking up now instead of getting married.)

==> Please do not interpret my reaction to Horwitz’s column as an endorsement of colored vs. white water fountains, etc. I am simply pointing out that the level of argument I’ve seen on this topic has been quite low (which is why I feel I have to say something). If progressives had started the hashtag “#HealthWins” after the SCOTUS ruling on ObamaCare, I’m sure the people at Reason et al. would understand why that was a rather useless way to frame the policy dispute. So at least you know how some of us feel when we were bombarded with “#LoveWins.”

65 Responses to “More Divisive Thoughts on the Supreme Court and SSM”

  1. E. Harding says:

    If you don’t share my above shock at Dalmia’s statement, it’s because you think the people who oppose SSM are crazy.

    -Or you believe in unintended consequences….

  2. E. Harding says:

    Also, the image wasn’t uploaded properly, or something.

  3. E. Harding says:

    If progressives had started the hashtag “#HealthWins” after the SCOTUS ruling on ObamaCare, I’m sure the people at Reason et al. would understand why that was a rather useless way to frame the policy dispute. So at least you know how some of us feel when we were bombarded with “#LoveWins.”
    -Excellent zinger.

  4. Z says:

    “As a Christian and a libertarian, I am appalled that gay people–especially kids at school–would be bullied or worse. I can remember how bad things were even when I was younger. For example, when I was pretty young my friend from school proudly told me how some “f*ggot” had tried to approach his dad in a bathroom, so his dad knocked him out. Presumably the story was BS, but the point is, that’s how my friend thought he would impress others. Even at that time I was nonplussed, since this attitude was so foreign to me.”

    Bob, the idea that it is conservatives who were going around bullying gay people is largely a fantasy. The people who did that, including, I’m willing to bet, the guy you are talking about, were not in any way conservative, from my recollection of my own childhood years. People who did that were largely womanizers, going around sleeping with every female body they could find. In fact if you were some sort of Christian who decided to save yourself for marriage, they’d make fun of you as well, even paradoxically calling you a faggot!

    • E. Harding says:

      In fact if you were some sort of Christian who decided to save yourself for marriage, they’d make fun of you as well, even paradoxically calling you a faggot!

      -Well, homosexuals are overrepresented among Catholic clergy.

  5. Major.Freedom says:

    “Surely even the Libertarians wouldn’t have been so tone-deaf as to go out on a limb, on an issue that hardly flowed directly from their principles.”

    Could you elaborate? It sounds like you’re saying two same sex adults consenting to marrying each other is something that hardly flows from libertarian principles.

    “Well, the definition of marriage is one of the things that is under dispute here.”

    Wait, isn’t people fighting each other over definitions exactly what Orwell warned us against?

    If you define marriage as one man and one woman, whereas someone else defines marriage as between either of one man and woman, or one man and one man, or one woman and one woman, then seriously, neither are right or wrong. Definitions are not objective statements about the world as it is.

    Please don’t tell me that you’re buying into the notion that there is a rational legitimacy in there being a battle over a freaking definition!

    Insisting that heterosexual life partners should define their relationship as a marriage, whereas homosexual life partners should use the definition “union”, is to engage in linguistic warfare, of special interest groups having privileges in nomenclature that the other group does not. I don’t buy the defense of this tactic that consists of analogies such as “Oh please, would you call me Orwellian if I insisted that we define a duck as such and such and a cat by this and that? What, are you saying that I am granting some sort of privilege to the cats that I deny the ducks?”. I don’t buy it because I know damn well that the main reason people are fighting over the definition of marriage has nothing to do with the pragmatic justification such as using the commonly accepted definitions of cat and duck so that we can have a conversation about them, but rather because of an ideological battle of recognizing homosexual life partners as on an equal ontological, and emotional, field of legitimate sexual/romantic relationships.

    Those fighting against homosexual life partnerships being defined as marriages are doing so because they want heterosexual partnerships to be ” better”, more “special”, more ” legitimate” than the homosexual partnerships. Hence “marriage” for us and “union” for you.

    That is I think Orwellian.

    • Gil says:

      Indeed if some fellow in a prominent position thinks marriage should be only be between a man and woman of the same race then does mean all interracial marriages become invalidated?

    • skylien says:

      To me only this phrase

      “Repeal of legislation prohibiting unions between members of the same sex, and the extension to such unions of all legal rights and privileges presently enjoyed by partners in heterosexual marriages.”

      sounds like he does not want to engage into a discussion of what is a marriage. I mean the states interest in regulating marriages is for the sole reason of taxation and legal questions regarding property rights relating to the people involved etc,

      However isn’t that correct given the title “Gay Rights: A Libertarian Approach”. This should not be about definitions of words, but only about rights.

      Of course, MF, I am totally with you on your last paragraph.. I really think this IS the main issue for people who are against gay marriage.

    • Gene Callahan says:

      “but rather because of an ideological battle of recognizing homosexual life partners as on an equal ontological, and emotional, field of legitimate sexual/romantic relationships.”

      But they obviously aren’t ontologically equal: the male-female relationship is prevalent throughout the natural world and produces new life. Same-sex sexual relationships are much rarer and sterile. Declaring them “ontologically equal” is simply a wish that one’s whims be taken as reality.

      • Major.Freedom says:

        Procreation is not necessary in marriages.

        To say homosexual marriages are not ontologically equal to heterosexual marriages on the basis of biological procreation being possible between the two people, implies that sterile females or males in heterosexual marriages are not actually married.

        Moreover, to say that they are not ontologically equal on the basis of mere statistical frequency, implies that a very tall heterosexual couple who believe they are married, are not really married because the number of very tall couples is statistically low.

        All you are doing Callahan is attempting to excuse your bigotry by grasping at claims that contradict your own beliefs.

        • guest says:

          But a vagina is preferable to an anus, as that Duck Dynasty guy said.

          And – there’s just no clean way to address this, by the way – for purposes of getting off, this is just physiologically the case. This is black and white.

          So, when a dude says that he prefers anuses, that’s a lie.

          What he, instead, prefers, is an unnatural relationship that affords him the opportunity to use the defensive coping strategy of adopting a “False Self”:

          The Meaning of Same-Sex Attraction
          http://www.narth.org/docs/niconew.html

          He opts for the False Self over the obviously more physically gratifying vagina.

          I find the lifestyle disgusting, but no one should force them to behave against their preferences on their own property.

          • guest says:

            I meant to say Fagina; Alotta Fagina.

          • Major.Freedom says:

            Ah yes, Joseph Nicolisi, peddler of the discredited, pseudoscientific “reparative theory.”

            Represented by the Liberty Counsel, the anti-LBGT organization founded by the bigot Jerry Falwell.

            He has encouraged, and his organization has been documented as causing, the internalized hatred and sexual and psychological repression of many impressionable individuals who themselves were taught by their bigot parents and teachers that what they desire is immoral and evil.

            Another dime a dozen bigot.

            And now you are whoring him out as a front to excuse your bigotry.

            The circle of hate continues with you.

            • guest says:

              “The circle of hate continues with you.”

              Go hateful, go proud (I did something there).

              But there’s no circle being completed, here. Shame is useful in some circumstances, as you and I might agree. We just disagree on this one.

              No doubt your accusation is meant to remind of past failures in the treatment of the non-disorder of hysteria.

              But my response actually claims to identify the real feelings involved. The attraction is real, but it’s actually based on the failures to assert the True Self.

              You speak of repression, but this is precisely Nicolisi’s point: Homosexual behavior allows people to cope with repression.

              From the article:

              “Most men cannot live perpetually in the False Self of the “Good Little Boy” and “Nice Guy” roles which are so common to homosexually oriented men. These are repressive, inauthentic and inhibited presentations of self to the world. In an effort at reparation, they then choose the opposite: the rebellious, shocking, “naughty,” offensive, “bad boy” and “sexual outlaw” roles.”

              So when Nicolisi refers to Reparative Therapy, notice that it is the homosexual, himself, that is doing the reparative work to himself.

              Rather than coping with repression with a kind of “Stockholm Syndrom-y” attitude, which I think you would agree would count as a “False Self”, the homosexual learns to deal with his repressions with courage.

              This is a self-empowering, thoughtful approach, not a repressive one.

        • Khodge says:

          M.F. Ad hominem attacks do not advance the discussion.

      • Major.Freedom says:

        According to your logic, interracial married heterosexual couples who biologically cannot procreate are not really married, because they are “rare” and “sterile”.

  6. Keshav Srinivasan says:

    “OK, and now let me ask you to imagine a world where states barred children from driving on interstate highways–in other words, our world right now. That doesn’t horrify people. It’s because people think, “It makes sense to discriminate against child drivers, but not against black drivers.”” Bob, I don’t think it’s just an issue of not making sense. I think the issue is that people don’t think of children as having the same rights as adults. To That lends legitimacy to prudence-based arguments concerning what we should allow children to do, in a way that prudence-based arguments concerning what we allow blacks to do are viewed as illegitimate.

    So for instance, even if it were true that African Americans were horrible drivers and get into accidents at ten times the rate that white people do, most people would still reject the argument “Interstate highways should be limited to whites because blacks are such bad drivers”, even if they would accept the argument “Interstate highways should be limited to adults because kids are such bad drivers.”

    • Bob Murphy says:

      Keshav wrote:

      “Bob, I don’t think it’s just an issue of not making sense. I think the issue is that people don’t think of children as having the same rights as adults.”

      OK Keshav, states also don’t issue driver’s licenses to blind people. So how do you explain that? Is it because people don’t think blind adults have the same rights as sighted adults, or is it because people often think practical arguments trump abstract rights-talk?

  7. Keshav Srinivasan says:

    “If progressives had started the hashtag “#HealthWins” after the SCOTUS ruling on ObamaCare, I’m sure the people at Reason et al. would understand why that was a rather useless way to frame the policy dispute. So at least you know how some of us feel when we were bombarded with “#LoveWins”. Bob, in the case of Obamacare there were clearly plenty of people on both sides of the debate who dared about health. But SSM supporters believe that the vast majority of their opponents are motivated by bigotry, snd that most SSM opponents genuinely do not support (romantic) love between a man and a man and a woman and a woman. Even if your disagree with this, can you at least understand how from their point of view it makes sense to see this as a debate of Love vs. Hate?

    • Keshav Srinivasan says:

      *cared about health

    • Matt M says:

      I would also add that although it wasn’t QUITE as brazen as #LoveWins, there were PLENTY of posts after the ACA was signed that were basically something to the effect of “FINALLY poor people in this country are allowed the right to live!” or “about time we as a nation started saying that we care about the health of the poor” or “My grandma would still be alive today if the ACA had been passed ten years ago” and ridiculous stuff like that which obviously ignored the greater debate.

    • Andrew Keen says:

      “. . . love between a man and a man and a woman and a woman.”

      Wait, I was under the impression that this decision did not legalize polygamy.

      • guest says:

        I see what you did there. Groovy, baby.

      • Harold says:

        Oh, for the Oxford comma.

  8. Levi Russell says:

    A related issue no libertarian is tackling is that Red, Southern states trying to separate marriage and state completely.

    • Andrew_FL says:

      Amen. Many people don’t seem to be aware that marriage licensing itself is a relatively recent invention. We can denationalize marriage, that worked fine for the vast majority of the history of marriage.

  9. Levi Russell says:

    are trying*

  10. Harold says:

    “It’s consistent with equality before the law for state governments to not issue marriage licenses to same-sex couples, so long as you think it makes sense to do that.”

    It is important to have a valid reason for your discrimination – that puts in the “choosing between categories” definition of discrimination rather than the “unfair and irrational” definition. In this context, the criterion is whether the discrimination is allowed by the constitution.

    Long vs Virginia (1967) established unanimously that the States could not constitutionally decide any arbitrary definition of marriage. The constitution prevented mixed race marriages from being banned. This was ruled not to apply to SSM in Baker vs Nelson (1971) because procreation and child rearing were said to becentral to the constitutional protection given to marriage. In Obergefell vs Hodges (2015) the SC said that the reasons given (in Baker) for allowing States to prevent SSM was not actually the case since marriage is protected regardless of children. Childlessness is not a theoretical side effect, it is a central aspect to many marriages. Once they had decided that, they had to rule that SSM be treated the same as mixed race marriage. Now they could I suppose have overruled Long vs Virginia, and allowed States to ban mixed race marriage. Instead they overruled Baker vs Nelson and prevented States from banning SSM.

    “Yes, I know there is polygamy in the Bible. I’ve read the book.” Is it better than the film? they usually are.

    • Harold says:

      Clarification to the above “Once they had decided that, they had to rule that SSM be treated the same as mixed race marriage.” OR find some other constitutionally allowed reason to discriminate.

      I presume the constitution treats minors differently from adults, so allows discrimination on those grounds. The SC could find no reason to allow the discrimination and comply with both the due process and equal protection clauses of the 14th amendment.

      • Josiah says:

        Harold,

        That was precisely Bob’s point. If treating different types of unions differently violates equal protection *unless you have an acceptable reason for doing so* then equal protection isn’t really doing any work.

        Also, age is only one of many restrictions placed on marriage. You’re not going to be able to justify them all by saying that the people restricted don’t have constitutional rights (unless you think no one has constitutional rights).

        • Harold says:

          Well, I said “constitutional” rather than “acceptable”. I assumed the constitution of the USA said something about children, allowing for there to be different treatment – is that the case? Maybe I assumed wrong. What is the constitutional justification for not issuing driving licenses to children? A quick google search does not reveal the answer.

          “Also, age is only one of many restrictions placed on marriage.” Is it? Surely States can define marriage within broad terms, as long as that definition does not breach the constitution. Defining it as only between same race was deemed unconstitutional. Now defining it as being between different sex couples has also been. However that does not mean the other restriction are unconstitutional. It is between two people only, but that does not discriminate against anyone in particular – nobody is being treated differently because of how they are (e.g. race or gender). I suspect there is similar defence for incest. Only people, but again that is in the constitution. Not sure what other restrictions you mean, I may be missing the obvious.

          • Josiah says:

            Harold,

            The way it works is that ordinarily it’s constitutional for the law to treat people differently for any reason. There are, however, certain specifically recognized categories (e.g. race) where the state is only allowed to treat people differently if they have a compelling reason and if the law is “narrowly tailored” to advance this reason. One of the odd things about the Supreme Court’s decisions about gay issues is that it says sexual orientation is not one of the specially protected categories, but it decides cases as if it was.

            It is between two people only, but that does not discriminate against anyone in particular – nobody is being treated differently because of how they are (e.g. race or gender).

            This was precisely the argument used to defend the interracial marriage ban in Loving: the ban applied to everyone equally, regardless of their race.

            • Harold says:

              “ordinarily it’s constitutional for the law to treat people differently for any reason.”

              Certainly it is legal for *individuals* to treat anyone differently for any reason except those specified by law -race, sex, religion or sexual orientation. But does not the equal protection clause say that *laws* must apply equally to everyone? The equal protection clause itself does not mention race, although it was inspired by the Civil Rights Act of 1866, which did mention race specifically..

              The mixed race case was decided because anyone should be able to make the same contract as a white person – in this case they should be able to marry a white person. Extending this, everyone should be able to make the same contract as a white man, the should be able to marry a man.

              There is a parallel with education. Single sex schools are permitted, although presumably the State cannot require single sex education. Yet single race schools are not permitted. Both sex and race are protected under anti-discrimination law. Should not single sex schools be banned in the same way as single race schools? Is there specific exemption?

              • guest says:

                Contracts are discriminatory. They are also voluntary.

                Laws against discrimination contradict laws for equal right to make contracts.

              • Harold says:

                I am trying to figure out what the law is, not what it should be.

                As far as I can figure, in the absence of anti-discrimination law, anyone can contract with whoever they want and discriminate however they want. However, the constitution prevents *laws* from being discriminatory due to the 14th ammendment. You cannot have a law that says black people can not do things a white person can do, for example. So any person may decide to discriminate and not marry a black person. But no State may have a law that prevents a black person marrying a white person, as long as the State allows white people to marry white people.

                One way out of this that would please libertarians is for States to get out of marriage altogether, but that is not on the cards at the moment.

                Anti discrimination legislation interferes with people rights to make contracts with who they want. Not sure why they contradict laws for equal rights to make contracts.

      • Andrew_FL says:

        The words “minor” “age of majority” etc. etc. never appear anywhere in the Constitution. The 14th amendment uses the words citizen and person. Equal Protection in particular refers to persons. Clearly laws barring minors from various things are plain violations of the 14th amendment.

        The only specifications about age, are restrictions on holding offices, and one amendment (26th) which prohibits states from denying voting rights to anyone over 18 because of their age.

        Of course that does meant hat prior to then, states were allowed to set the voting age as high as they wanted. And it does imply states are allowed to prohibit anyone under 18 from voting for reasons of age.

        Other than that, if you want to argue from the text alone, as Kennedy et al. did with the 14th Amendment, you’re on very shaky ground insisting states may deny minors any rights other than the right to vote. And yet they do, on many things. Strangely this has yet to be challenged, hey progress marches on, we’ll get there eventually, right? #YouthWIns

        If you want to argue that the framers of the Constitution, or the writers of the 14th Amendment, clearly did not think they were enshrining rights to minors of this kind, you’re making Scalia’s argument.

        • Harold says:

          It is strange this has not been more widely challenged. There have been several challenges but these have never reached the Supreme Court. In every case the court upheld that children’s rights were not the same as adult’s, even though they were “persons” in terms of the constitution. Something of a mystery, and I get the point. My assumption that the different treatment of children was based on something specific in the constitution does seem to be unfounded.

          Some more details:
          “Challenges have been mounted to some curfew laws on the basis that they violate juveniles’ First Amendment rights to free speech and association. One recent example involved a curfew law imposed by the city of Rochester, New York. The New York Court of Appeals struck down that law as unconstitutional, but a number of other curfew ordinances have been upheld after being challenged in court.” Apparently some curfew laws specifically exclude young people whilst exercising first ammendment rights – so carry a sign objecting to the curfew and you are OK to go out at night.

          District courts have ruled that children’s status under the constitution is not the same as adults. “”In responding to the constitutional rights claims of the
          affected minors, the court held that the “constitutional rights of adults and juveniles are not coextensive,” although children are “persons” within
          the meaning of the Constitution.”
          How did the court arive at this conclusion? We don’t seem to know. This ruling has been repeated by other district courts – children do “not enjoy the full measure of personal liberties enjoyed by adults.” “The Johnson court acknowledged that although children are constitutional persons, their rights “are not coextensive with those of adults.”” etc etc.

          In Belloti vs Baird, the court ruled “the position held by children and their families is unique and requires a sensitive and flexible application of constitutional
          principles that will account for the “special needs” of both parents and children.’ The Court’s plurality then held that the rights of children cannot be equated with those of adults for three reasons: “the peculiar
          vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”

          So it does seem that if the court believes you are sufficiently vulnerable and ill informed the constitution does not apply equally to you. Who’d of thunk it.

  11. Daniel Kuehn says:

    I did not think Dalmia’s write up was very good at all and was disappointed to see so many positively recommending it.

  12. Tel says:

    I realized that when I hear someone use the term “illegals,” my brain instantly shuts down. I don’t care about the person’s policy argument; I simply hear, “Poor Mexicans make me uncomfortable, I would rather not be around them.”

    Not so long ago I remember you banging on about the importance of the law. Now, not so much. I know you draw a distinction between “law” and “legislation” but that does sound suspiciously similar to drawing a distinction between “laws I like” and “laws I don’t like”. Let’s suppose you follow exactly those laws you think are right and correct, which is to say, you do the things you think you should do, or in other words you do what you would have done anyway, with or without laws to tell you what to do.

    You know it’s pretty easy to believe in the law, when you get to decide what that includes and what it doesn’t.

    If libertarians had waged a PR campaign to get local voters to overturn a local statute that criminalized sodomy, then THAT would be an example of libertarians playing a crucial role in advocating for limited government that stays out of the bedroom.

    Well I for one was saying that I was opposed to DOMA (Defense of Marriage Act) on the basis that it gave too much power to central government, and that marriage as an institution should belong to the churches. I’ve also said many times that the Gay lobby should keep away from marriage, and carefully avoid going out of their way to piss off the Christians. This is because there’s a lot more Christians than there are gays, and anyway of all the religions Christians are pretty tolerant compared to notable others.

    Hey, one of my feet is not exactly equal in size to the other one, what can I do about that? Hmmm, I know, I’ll get this shotgun and just even them up a bit. That’ll work.

    I might also say that Christians should be honest with themselves, they have had a pretty good run at being able to influence government in their own favour. It probably isn’t real smart for fringe lifestyle groups to attempt to do the same, but you can see the temptation. A real true Christian would be very cautious about getting into bed with big government; personally I don’t believe Christ would have been enthusiastic about it, on the other hand St Peter did it, but anyway that’s a very long discussion, probably better to skip that one for today.

    When people guffaw at the above type of argument from definition, opponents of the ruling often ask, “OK then, if this is really just about personal autonomy and subjective preferences, then are we going to issue marriage licenses to polygamists?

    Yes, I would say that we are going to issue marriage licenses to polygamists.

    The concept of a marriage “license” bothers me a lot more than the concept of a man shacking up with a bunch of females (or males, or mixed), in as much as it is ridiculous for any type of lifestyle to be “licensed”. The concept of a church approving of some lifestyles and not others doesn’t bother me at all, because that’s the general idea of why you would have a church in the first place.

    Finally, from my perspective we don’t need to fiddle around with the meaning of words. Marriage has a well defined meaning, polygamy also has a well defined meaning and we all know that “gay” really means homosexual. We don’t need government to help define what our language is… quite the contrary, we use language to define what government it.

    • Matt M says:

      “This is because there’s a lot more Christians than there are gays, and anyway of all the religions Christians are pretty tolerant compared to notable others.”

      The second part of your statement is why the first doesn’t matter. Yeah, there are a lot more Christians, but most of them seem content to sit quietly and take all of the abuse that’s being heaped upon them by the LGBT lobby.

      The dirty little secret here is that the LGBT movement is among the least tolerant groups of people in all of society, while Christians are among the most. Which comes across as weakness they are more than willing to exploit.

      • Tel says:

        The second part of your statement is why the first doesn’t matter. Yeah, there are a lot more Christians, but most of them seem content to sit quietly and take all of the abuse that’s being heaped upon them by the LGBT lobby.

        I disagree, it does matter. From time to time in history large numbers of Christians have suddenly become less tolerant. Just because they are Christian doesn’t make them saints… remember, God will forgive them afterwards.

        • Levi Russell says:

          Your reference to the crusades is hilariously ignorant of the historical record.

        • Matt M says:

          But it’s too late now. While Christians may outnumber LGBT activists by 10:1, they DON’T outnumber “average person who believes whatever TV tells them to believe” by a significant number.

          So while the Christians were all resting on their laurels, safe in the knowledge that they outnumbered the militant activists, the militant activists were doing missionary work, subverting pop culture, and recruiting the “silent majority” to their side. And now it’s too late. Even if all denominations of committed, churchgoing Christians came together and decided to become really active about this, it wouldn’t matter now. Mainstream opinion is completely and totally against them.

    • Gil says:

      Why? What are Christians going to do? Re-criminalise homosexuality? Make male homosexuality a capital offence as per the Bible? Beat up and kill homosexuals knowing the jury will be stacked with fellow Christians who will never convict a fellow Christian?

    • Bob Murphy says:

      Tel wrote:

      Not so long ago I remember you banging on about the importance of the law. Now, not so much.

      No Tel, you’ve got this backwards. The reason the phrase “illegals” bothers me so much, is that this is THE ONE INSTANCE where people use the term.

      If the Heritage Foundation featured a talk by Oliver North titled, “President Obama: Today’s Neville Chamberlain,” do you think the MC would introduce him to the crowd with, “Let’s give a warm DC welcome to our favorite illegal from the Reagan Administration, Colonel North!” ?

      • Tel says:

        Let’s give a warm DC welcome to our favorite illegal from the Reagan Administration, Colonel North!

        Lol, I’d love to see it.

        Hopefully the Democrat convention introduced Hillary the same way.

        Realistically though, Oliver North officially got away with it (so will Hillary, just watch). They questioned him, they went through whatever handwaving procedure you like and he walked out just fine. Personally, I don’t have a shadow of a doubt the CIA is involved in drug smuggling, but I can’t prove it, and certainly nothing I do will lead to any conviction. By official and recognized due process of the law both Oliver North and Hillary are not illegal at all.

        That’s how it is *shrug*. Don’t hate the players.

  13. Jeffrey S. says:

    Major.Freedom says,

    “Those fighting against homosexual life partnerships being defined as marriages are doing so because they want heterosexual partnerships to be ” better”, more “special”, more ” legitimate” than the homosexual partnerships. Hence “marriage” for us and “union” for you.

    That is I think Orwellian.”

    Ha!

    The only thing Orwellian is claiming, as the homo lobby has been claiming for the past 10+ years, that 2 plus 2 equals 5!!! There is an ontological reality behind marriage — nominalism is false. When we begin with that reality of course we can discriminate against gays — they can no more get married than a man can marry his dog or a woman can marry her mother. The very concept is silly because marriage is about the complementary sexes coming together to produce and raise children. The fact that some couples don’t achieve this ideal doesn’t mean a thing — some people are born without sight, that doesn’t mean eyes are not designed for seeing.

    • Major.Freedom says:

      “There is an ontological reality behind marriage”

      Marriage is a human construct, a choice, a thought, an action.

      No, marriage is not for the purposes of procreation, because for one thing, there are unmarried heterosexual couples who procreate, and another thing there are married heterosexual couples who do not procreate, and yet still another thing there are heterosexual couples who utilize surrogate mothers in order to raise children.

      Heterosexual couples do not need to, nor are they “ontologically” obligated to, sign a piece of paper or make some contractual formal promise to be faithful, before they can procreate.

      The only “ontological” claim you can make is concerning an egg, sperm, and insemination.

      Genders do not constrain child rearing.

      You’re silly.

  14. RPLong says:

    “If the Supreme Court invalidated state or city government minimum wage laws, on the grounds that the Constitution gave every worker the right to earn a living, I would object to that as an unwarranted expansion of federal power. If you ever catch me being a hypocrite on the matter of federalism, by all means point it out.

    Bob, it seems to me that you’re just being unreasonably obstinate here. From the sounds of it, if Congress attempted to pass a bill establishing anarcho-capitalism in the United States, you would object on grounds that Congress has no power to do so.

    Sometimes I think libertarians just won’t take yes for an answer.

    • Bob Murphy says:

      RPLong wrote:

      Bob, it seems to me that you’re just being unreasonably obstinate here.

      So then, RPLong, do you think every single person who talks about “States’ rights” etc., and opposed the Civil War, really is just a racist? That there actually isn’t a quite reasonable position opposing the federal government using its might in pursuit of noble goals?

      • RPLong says:

        Oops, I must have really bungled my comment if that’s what you’re saying is a logical extension of my point!

        My comment addresses the portion of your post that I quoted. Actually, I do happen to think that individual rights trump States’ rights, even when that fact runs afowl of federalism. For that matter, I’m surprised to hear you make a defense of federalism, but maybe I’m just not familiar with your views there.

    • Bob Murphy says:

      RPLong, suppose the federal government ruled that every public school had to assign my new book. Do you think I should applaud or oppose that?

      • RPLong says:

        I think context matters. I think if the context is “curriculum reform,” and the choice is (a) assign Robert Murphy’s book, or (b) assign yet another book penned by a quasi-socialist historian, I’d choose (a) every time.

        My reading of your blog post is that you’re essentially saying, “You guys shouldn’t be cheering for (a) because that’s an abuse of power.” But when the context is a choice between (a) and (b), and not (a), (b), and some hypothetical ideal (c), then I think libertarians are right to cheer for (a).

        But maybe I’m not looking at it the right way.

    • Matt M says:

      I feel like people try to “trap” libertarians with this line of reasoning far too often.

      Speaking only for myself (not for Bob) here, but I support federalism to the extent that it promotes freedom, and oppose it whenever it doesn’t.

      So yeah, I would support a federal ruling enforcing an-cap on every state (because within an-cap, people can still have voluntary agreements to create things roughly equivalent to minimum wage laws, etc.). But I do not support federal rulings that dictate things like “marijuana must be illegal in every state” because that results in less freedom, not more.

      I think the question of whether or not gay marriage leads to more or less freedom, on net, is very much up for debate. Many seem to just naturally assume the answer is “more” but my position is “ask all the Christian bakeries how that’s working out.” Tax breaks for gay couples, in and of themselves, might be a pro-freedom development, but it seems that such a development will inevitably be tied to a dramatic curtailing of religious freedom, freedom of association, and localized decision-making.

      • RPLong says:

        I’m certainly not trying to trap libertarians – I am one! I would emphatically favor any law that abolished minimum wages / legalized low-skill labor. To me the idea that doing so would give the state more power is counter-intuitive to say the least.

  15. Bob Murphy says:

    Guys, try this:

    ==> Back in 2002, it was a coherent (though arguably incorrect) position to say, “Even if you think it’s a good thing for Saddam Hussein’s regime to collapse, it is not good for the U.S. federal government to use its might to achieve this end.”

    ==> Back in 1860, it was a coherent (though arguably incorrect) position to say, “Even if you think it’s a good thing for the Southern states to free the slaves in their jurisdiction, it is not good for the U.S. federal government to use its might to achieve this end.”

    ==> Last month, it was a coherent (though arguably incorrect) position to say, “Even if you think it’s a good thing for states to issue marriage licenses to same-sex couples, it is not good for the U.S. federal government to use its might to achieve this end.”

    There is nothing weird or duplicitous or contorted about the above positions. I can certainly understand people disagreeing with them, but many long-time libertarians are acting like the third one is only a front put out by people who want to excuse their bigotry, even though just about all of these same people agreed with #1 and a chunk of them with #2.

    • Major.Freedom says:

      I don’t think those long-time libertarians are acting like the third one is ONLY a front put out by those who want to excuse their bigotry, just that the only reason that third one has become so prominent, so often referred to, so popularized, is because of the prevalence of people trying to excuse their bigotry.

      Bigots tend to hop on and latch onto arguments that are motivated for other reasons, so as to promote their bigotry as just another part of the conversation.

      Most of us have experienced this with our friends, families and loved ones, at least once. One’s neighbor for example may be referring to “state’s rights” as a front to excuse their homophobia bigotry. I can tell when it is a front when those same bigots ignore and reject other states rights that just so happen to be too inconvenient for their own selves.

      I’m not asking you to answer for any of the above, Murphy. What you said there, as it stands, is reasonable. It is a sterilized, boiled down point about logical consistency. OK, it makes sense. But out there in the world, where these types of arguments are made, very few people are thinking what you just wrote there. It is far more often motivated by bigotry.

      It is OK, you can call those who tout the Bible when hating on the gays “bigots” because they elicit the Bible for what others do in the bedroom, but conveniently ignore or reject the passages that say death to anyone who eats shrimp, or stoning death to a newlywed who isn’t a virgin, or the countless other horrors that even the homophobic bigots tiptoe around because oh all of a sudden now obeying the Bible all the way affects their own selfish a$$es, and now it’s OK to disobey what God commanded.

      Those of us who don’t use the Bible or State’s rights as a means to justify any of our convictions of what is right and wrong, are perhaps better equipped to notice when other people are merely using them to justify their bigotry, because we don’t take that ground for granted. We don’t default to the assumption that the person we’re talking to is just making a logical point like you did.

      In fact, even if someone did say what you just said there, there is still the risk that they are not being sincere. That they are just deferring to that sterile logical point as a cover for their bigotry. I’m not advocating any “witch hunt” there, but rather skepticism of anyone who uses a particular universal like the Bible or State’s Rights, as a means to justify ANYTHING they say. If you test that justification and stretch it and see how far the other person is willing to go, I know from my experience that there has never been anyone who did not crack and contradict the Bible or State’s Rights in some other context.

      • Tel says:

        The core of liberty is the ability to disagree with someone else’s lifestyle … peacefully of course. Basic right of association and consequentially right of non-association as well.

        In other words people are entitled to be bigots.

        At any rate, it’s practically impossible to not be a bigot about something. For example, I don’t believe in God, and I don’t go to church either, which implies I must think Christians (and other God oriented religions) are wrong. That doesn’t mean I hate them, just that I don’t accept a God fearing lifestyle.

        The only way to avoid bigotry would be to force everyone to accept the same lifestyle as everyone else, and that’s exactly what the current crop of socialists are attempting to do (in typical doublespeak manner, they do it under the guise of diversity). The only end result of socialism can be universal sameness.

        The whole point of liberty is to get away from universal sameness and allow people to be different, and that means bigotry.

        • Innocent says:

          Tel,

          For a heathen you have some mighty fine ideas I tell you what for. j/k

          Seriously nice thoughts, however I hope most people do not fear God. I do not think God punishes you for doing things incorrectly, He just does not let you into the party since you did not want associate with Him in the first place.

          A cool lesson I shared with my kids was in the middle of winter I turned on a fireplace and had my kids stand at different distances from the fire. I then explained that in this example the fire was God’s love and we could all chose how close we wanted to stand to it. Now God does not move, He does not change or make us come to Him. Rather it is ourselves that choose how close through our actions we wish to bring ourselves to Him.

          To demonstrate that you could even pretend that God did not exist I simply turned my back on the fire place and said. “Fire, what fire.” But simply because I chose not to perceive or walk toward it did not mean that it did not exist.

          Anyway, if you would ever like to warm yourself by the fire let me know. If not I understand, but seriously I hope most people you know do not fear God, I do not think that is how He works.

          • Tel says:

            The right to be a bigot stuff came from our Attorney-General, may not be perfect but at least he doesn’t send guns to Mexican drug gangs and then refuse to hand over documents when subjected to oversight. Small blessings accepted here!

            http://www.abc.net.au/news/2014-03-24/brandis-defends-right-to-be-a-bigot/5341552

            Seriously nice thoughts, however I hope most people do not fear God. I do not think God punishes you for doing things incorrectly

            Ever hammered in a nail while not paying attention to what you are doing? As an engineer I’ve noticed two things about God, he doesn’t miss the small details, and he does let you know about it when you mess up.

            With regards to the fire, getting too close has it’s own share of problems. Maybe the details are a bit personal, but just knowing it’s there in the distance is quite enough warmth for me thank you.

  16. Innocent says:

    Great Topic Bob,

    A lot of thoughtful analysis in this. I disagree with institutionalizing Same Sex Marriage. Simply because I think it is not worth giving societies blessing on.

    While I am religious in nature I use several methods of thought in order to determine if something is ‘moral’ or not. The simplest method I have ever used is the ‘What does society look like if everyone does it’ method. For instance if everyone committed murder what would society look like? Well to answer that it would be pretty much a mess.

    So when it comes to Same Sex Marriage or heck even Homosexuality the question is what would society look like if everyone engaged in it? The answer is it would not persist for very long. Hence the behavior is an immoral one.

    I suggest the same with divorce and a whole slew of other things. It does not mean that people do not engage and choose to engage in these behaviors only that they are selfish and not helpful to society. Now we all have faults and all have ‘sinned’ but that does not mean it is a good idea to encourage bad behavior. Which unfortunately is what, in my mind, making it so that people can marry one another of the same gender does. It means you are encouraging and supporting a poor societal circumstance.

    Now many people will say that Love, Love is worth doing ANYTHING for. Except here in lies the problem with that. I do not view sex as love. Nor do I view attraction as love. Charity is the pure love of Christ and is the best definition of love that I have ever seen… If you have never read it I highly suggest that you do. Homosexuality is not about ‘love’ it is about attraction and sex. Which people confuse with love because those are powerful emotions.

    By the way I also disagree with promiscuity and a whole slew of other things… Now do I hate or think we should shun people who engage in these behaviors. Of course not. Who did Christ visit? Those that did everything correctly? What of the Woman at the well with multiple husbands lol… anyway, just my two cents on the subject. Not that anyone really cares.

    • Khodge says:

      The topic is certainly timely but I can see Bob’s frustration…a lot of random arguing but it would be nice to see fair statements of the opposition with a random syllogism thrown in for fun.

      • guest says:

        Would it, now?

        Well, boo-frickety-hoo.

    • Harold says:

      ‘What does society look like if everyone does it’ method.”

      About time someone put those immoral monks straight.

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