Should Marriage Licenses Be Restricted to Heterosexuals?

One of the hot button issues in recent years has been gay marriage. Socially conservative people may well object to calling a gay union “marriage. That is, of course, completely understandable. Marriage and religion have been closely intertwined, and the most popular religions in the world today do not generally regard a same sex union as a marriage. I was considering the various positions taken by libertarians on gay marriage. I have seen opinions from libertarians that marriage licenses should not be issued to gays because a state marriage license enables aggression against third parties. That is true. Also, some, such as Stephan Kinsella, argue that it is a good that gays get the legal protections which come with a marriage license.

Second bests are divisive issues for libertarians. We all wish for the state to leave people alone, but we are all too painfully aware that it frequently does not, and that there are political debates raging around us where policies are promoted which have real world consequences for us all. Many of us seek to minimize the harmful effects of these policies by stating a preference of one over the other. Such is the case with gay marriage. Libertarians of varying stripes, mutualists, paleolibertarians, anarcho-capitalists, all agree that the state should get out of the way and not interfere with free interactions among people. Yet different ideologies among libertarians often cause us to differ wildly on what state policy we would prefer, from the likely choices being supported by the public.

I have long been of the opinion that state licensing should be extended to the point that it is meaningless. However, a license which allows aggression against others should give any libertarian pause. In order to consider the problem more effectively, I did a thought experiment involving a much more severe form of aggression than those normally associated with a marriage license: murder.

Imagine a world in which the state issues licenses to kill, to murder, without fear of prosecution. Imagine that this license is such that if a licensed killer targets a complete innocent, and that innocent target defends himself, the targeted person is actually guilty of an assault or murder against the aggressor. Clearly, this license would be an enabler of aggression. Suppose even further that subsets of the population, such as a particular ethnic group, or friends of specific politicians, were the ones likely to get such barbaric licensure. The libertarian ideal would be the get the state out of the business of issuing such licenses. But what would be a good second best?

It seems apparent to me that having a subset of the population being the only ones who are authorized to commit crimes is a dangerous thing. Belief in asymmetrical rights incentivizes criminal behavior. If a subset of the population has a license to murder, and the state justice system recognizes such a “right,” and adds its own enforcement to that so-called right, then there are two terrible effects which are likely: the licensees are likely to be ennobled in their aggressive tendencies, and the victims are unlikely to physically defend themselves against such aggression. This will almost certainly cause more people to be killed.

Imagine, on the other hand, that the state hands out these licenses to kill to anyone and everyone. In that case, the victims have the natural right to retaliate restored, and they will be emboldened to use that right. The aggressors will be deterred, since they no longer have a moral sanction which sets them apart, and they have no additional state support in cases where their victims retaliate. This essentially returns us to a natural state of anarchy, where there are equal powers among all members of the public.

Licensing is a very common request for those who value the state as a protector (For example). Even in this extreme case of licensed murder, it is desirable for a state license to have less meaning. The only way for a state license to have less meaning is for it to be less restricted. When state licenses are meaningless, a market solution, developed among equals, is the natural solution. In the case of gay marriage, I suspect that religious organizations and other promoters of traditional marriage would have to develop private methods for distinguishing the marriages they regard as valid over those they do not. A lessening of faith in the state framework, and an increase in reliance on private solutions would become necessary. This enhancement of the importance of private solution and the diminution of the importance of state solutions strikes me as a second best I can support.