California Gay Marriage Law Overturned: What Should Libertarians Think?

According to breaking news, a federal district court has overturned Proposition 8, a ballot proposition that amended the California Constitution to prohibit same-sex marriage. Prop. 8 was meant to overturn the California Supreme Court’s ruling in In re Marriage Cases that same-sex couples have a constitutional right to marry. (Although none of the numerous reports I’ve seen note the name of the case, it is Perry v. Schwarzenegger; PDF.)

Gay rights advocates filed lawsuits to have the constitutional amendment declared unconstitutional. I predicted they would lose. First, they could not prevail on state constitutional grounds since Prop. 8 actually amended the California Constitution. You can’t argue a provision of the constitution is unconstitutional. So the question is whether this provision of the California Constitution violates the Fourteenth Amendment of the U.S. Constitution (see my The Libertarian Case Against the Fourteenth Amendment). In my view, it clearly does not; any argument that such a law violates equal protection is ludicrous–there is no way the equal protection clause at the time of the ratification of the Fourteenth Amendment (1868) was understood to be so broad as to prohibit state laws that treated same-sex unions differently than traditional, heterosexual ones. As for due process–this was a validly enacted constitutional amendment, following regular legal procedures. So it was not a violation of due process (as for the doctrine of “substantive due process“–well this is a ridiculous, obviously dishonest, invented concept; process is, um, procedural).

And yet the federal court has found a way to get its result, by twisting the law to fit its ruling–like the Supreme Court did in Bush v. Gore, with its absurd application of equal protection.

But what should libertarians think of this? Well, it is troubling when the federal courts exceed their powers in this way. Moreover, the reasoning the court used to overturn the prohibition on gay marriage could also be used against the lack of gay marriage laws in every other state. This ruling, if it stands, would most likely force every state to protect same-sex marriage. But as Jacob Huebert argues regarding the recent McDonald gun-rights case,

The reality is that the Supreme Court long ago assumed the power to strike down state and local laws that violate certain rights, and it’s not going to lose that power anytime soon no matter what. The only question now is whether it will use that power in a way that benefits liberty, and here it did so. [see also chapter 8 of his Libertarianism Today]

In any case, let’s accept the federal power to review state laws as a fait accompli and ask if the ruling does or does not make unlibertarian law more libertarian. And I think it does. The states should get out of marriage, but so long as they monopolize the field in my view of regulating and enforcing civil aspects of relationships they have a duty to not leave out in the cold gays who want certain legal protections to accompany their voluntary relationships (this goes for polygamists, groups, cohabiting siblings, or whatever, as well, of course). If the State itself insists that it must use the word “marriage” in the caption of the statute into which it pigeonholes the legal protection of civil aspects of romantic or other relationships, then it needs to extend that protection, whatever it calls it, to people that it prevents by its monopoly from accessing any other legal system’s protection.1

So, I’m glad for this ruling, even though its legal reasoning is flawed and dishonest. I’m glad the conservative yahoos in California will be disheartened that “marriage” now includes same-sex relationships–that’s what you get for endorsing the legitimacy of the state and turning such decisions over to it. And in the other states: hey, that’s what you get from participating in patriotic jingoism, saying the Pledge of Allegiance, sending your kids to government schools, voting, putting your hand over your heart during the Star Spangled Banner, wooping and hollering like Wayne’s World morons while watching US military bombs fall on Iraqi targets on CNN, and endorsing a “muscular” central state in order to fight evil wars and impose domestic tyranny in the form of taxation, the war on drugs, and the welfare state. As comedienne Judy Tenuta used to say, “Suffah, Pope, Suffah!”  (As for those who whine that gay marriage “threatens marriage”–hey, it doesn’t threaten mine. I don’t care what people do in private or what words they use to describe it. It’s a free country. Well, it used to be. Okay, not really, but … it should be.)

However, my prediction is this will be short-lived. (But keep in mind my last prediction was wrong.) This will no doubt be appealed, eventually to the U.S. Supreme Court. And I think the Supremes will probably overturn the district court and restore Prop. 8, because there is simply no basis to construe the Fourteenth Amendment that way.2 Caveat: if Obama replaces a conservative Justice before the case is heard, they could just rubber stamp the ruling, using makeweight Bush v. Gore type reasoning.

Update: In reply to Sheldon Richman’s post Why the Evasion on Same-Sex Marriage?, I wrote:

Sheldon, as I argue in California Gay Marriage Law Overturned: What Should Libertarians Think?, I think the equal protection/legalistic argument here is very weak. But I support gay marriage, and the result reached here, anyway. One need not pretend the Constitution is libertarian. It’s not. Many–most?–of the provisions of the Constitution are ambiguous and have no clear, objective meaning. After all, they are not real law, but for the most part just artificially constructed plans and dictates of a committee of statist bureuacrats and politicians, resulting from compromise etc. So why would the words be expected to have an unambiguous objective interpretation — or one that is libertarian? I agree largely w/ Hasnas’s Myth of the Rule of Law. But I think it is wrong to say those who disagree with the court’s obviously makeweight and shoddy reasoning have no good faith objections and are merely being evasive. I would love it if the Constitution were more libertarian, instead of the statist centralizing cover for crime that it is. But since it’s not, I am happy if a court just does libertarian justice despite the strictures of the Constitution, as I noted in Higher Law.

“It seem clear that if government exists, then there is nothing wrong with courts thwarting the public or the legislature when either oversteps the limits we hope are set for government and violates liberty.”

This sounds okay for a typical “government” but this kind of language obscures the federal nature of the US. The federal government is not the same as the state governments. For example, the reasoning you use here would seem more controversial if you said:

“It seem clear that if the American and Peruvian governments exist, then there is nothing wrong with American courts thwarting the Peruvian public or the Peruvian legislature when either Peruvian agency oversteps the limits we hope are set for Peru’s government and violates liberty.”

Update:

Just found an old LewRockwell.com post of mine about a related issue:

Gay Marriage Amendment

Posted by Stephan Kinsella on February 24, 2004 02:31 PM

From an article on the proposed Gay Marriage Amendment: “Bush plans to endorse language introduced by Rep. Marilyn Musgrave (R-Colo.) that backers contend would ban gay marriage but not prevent state legislatures from allowing the kind of civil unions and same-sex partnership arrangements that exist in Vermont and California. …

“Musgrave’s proposal, called the Federal Marriage Amendment, states: ‘Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'”

This is bizarre. First, what would happen to bigamy statutes which prohibit one man marrying two women? One reading of the amendment would be that marriage is “defined” so that bigamy cannot exist–after all, it’s not just “a” man and “a” woman. So would bigamy now be decriminalized?Second, even this wording does not seem to prohibit “gay marriage”. Suppose Louisiana passed a law permitting gays to marry. They are not being required to do it by a judge or the feds; they just do it. Does this amendment mean that even a clear law letting gays marry can’t be “construed” to mean what it says? And what is “marital status”? Does it refer to the status that society confers upon marriage? If so, how can the Constitution affect it? Or does it simply refer to the *label* used in the state statutes? After all, even its drafters admit civil unions could be permitted–these could be identical to marriage in every way except the label used in the title of the statute.

In sum, this proposed amendment seems to do the following: it prevents judges from forcing states to include gays in their marriage laws. But it does not seem to prevent states from having civil unions, or even from enacting their own marriage laws.

Nor does it seem to do a good job at making it clear that one state’s gay marriage laws need not be given full faith and credit by others.

A better amendment would be simply: “No State may be required by the Federal government, including Federal judges, to recognize gay marriage, nor to give full faith and credit to gay marriage laws of Sister States.”

An even better amendment would be: “The Federal government shall have no power to tax.” Let’s keep our eyes on the ball, people!

N.B.: I am of course NOT calling for or endorsing a constitutional amendment or convention–I don’t trust any of these bozos.


  1. For more detail, see my posts Is Gay Marriage a Constitutional Right?, McElroy and Peron on Gay Marriage, and The Libertarian Case for Gay Marriage

  2. Note: Interestingly, even if this case had been heard in the California Supreme Court, it would still be appealable to the federal courts. But as I argue in The Appeal of States, even if the California Supreme Court were wrong on its interpretation of the U.S. Constitution, this should not be appealable to to the U.S. Supreme Court, legally speaking. This is because it simply does not violate the rights of any individual protected by that Constitution to interpret it more broadly than it should be; i.e., it does not violate the Constitution to read it the wrong way so long as you don’t use that wrong reading to violate anyone’s constitutional rights. But despite the illogical rationale behind the idea of federal judicial review of erroneous, overbroad interpretations of the federal Constitution by State Supreme Courts, such an appeal is perfectly legal under today’s law. 

Comments on this entry are closed.

  • For the state to grant so much privilege to the institution of marriage (mostly in the form of the tax code), I don’t see how they can justify denying that privilege to certain people. But, why am I surprised over hypocrisy from the government?

  • The equal protection clause surely is not the right clause to call upon in citing the 14th Amendment. The first clause of the Amendment is “privileges and immunities,” and this meant rights, at the time. This is a stretch, really, but, assuming the rights are retained by the people (9th), and the right to enter into marriage contracts is now being practiced by the people, and the state adds on privileges by regulating the marriage contract market, gay marriage would seem to be supported by the first clause of the 14th Amendment.

    Finally, a case might be made on the grounds of equal protection. The conceit of marriage regulation is to protect the population. Whereas, in times past, marriage regulation was set up to prevent, say, miscegenation, now we would say that the 14th Amendment prevents states from prohibiting miscegenation in their marriage regulations, on the grounds of equal protection. It is no great advance to apply the same logic to gay marriage.

    Of course, it s a mere conceit that state governments regulate marriage. I agree. But states must be held to their conceits, so that, perhaps one day, honesty will force them to honor their pious declarations of rights and liberties, and abandon their dishonest practices.

    The great danger is abandoning the pieties.

    As conservatives are now pushing, in this one case, at least.

    I do not think, by the way, that the Constitution should be interpreted solely on original intent. The plain meaning of the words should be used to conform to an understanding of rights that are compossible, and that means, basically, the use of the ninth and 14th amendments, in tandem, to institute progress in our mutual emancipation.