California Gay Marriage Law Overturned: What Should Libertarians Think?

Legal System, Victimless Crimes
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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.

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Erecting Entry-preneurial Barriers

Business, Protectionism, Victimless Crimes
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The caption accompanying this NY Times article picture of a street vendor selling bottled-water reads “Many sidewalk peddlers are doing record business, though the city considers it against the law to sell water without a license.”

I think Brad Spangler’s timely Facebook status update expresses how one should react to this:

Note carefully that states will be glad to bust down doors, “sweep streets” and so on in order to combat the problem of child prostitution. What states will not do is stop making the only choice for many prostitution or starvation, by impoverishing the populace with taxes, regulation and the sclerotic choking off of economic opportunities other than prostitution.

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IP, Black Markets, Praxeology & Violence

(Austrian) Economics, IP Law, Libertarian Theory, Technology, Victimless Crimes
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Mises.org has recently published an article that I co-wrote with Daniel Coleman where we attempt to answer why unlike every other black market, “info-trafficking” remains peaceful:

Unlike most black markets, the black market for information is characterized by peace and stability. There is a near-perfect harmony between the supply and the demand for movies, music, songs, and other digital content that falls under the control of intellectual-property legislation.

In the market for information, we do not see the kinds of conflicts that are rampant in other black markets. There are no turf wars between gangs for the right to offer the latest pop hit or blockbuster movie; there are no robberies committed by would-be users who need the money to get their fix. The vast majority of copyright violators go about their business without harming anyone.

In fact, those who upload, host, and share illegal content are not in any significant danger at all. What sets the black market in information apart from other black markets? Why is it nonviolent?

Enjoy the article.

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In Defense Of Lindsay Lohan

Drug Policy, Pop Culture, Victimless Crimes
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Wild child Lindsay Lohan is apparently not a fan of staying out of trouble — nothing but private and public battles with family members, lovers, the media and, lately, the state (see here, here, here, here, here and here). In my opinion, her life is a mess. Yet I must come to her rescue — if only ideologically. You see, LiLo is a victim.

If you thought prohibition was repealed, think again. From minimum drinking age laws to laws that prohibit even parents, in some states, from responsibly introducing alcohol to kids, the state still manages to control not just the alcohol industry but those consuming it. Indeed, if you consume alcohol in places and times that the state deems “illegal,” you will be treated like cattle — literally. Indeed, Lohan has been in the past required to wear an alcohol monitoring bracelet. She has also been required to forcibly attend rehab (let’s see: a chain, involuntary migration — yep, sounds like a form of slavery to me) and comply with various others threats by the state.

The support for the war on drugs is sickening. From what I can tell, almost everyone has been bashing Lohan and praising the judge and the almighty legislation that makes these atrocities happen. Sure, if Lohan committed a real crime against someone else’s property or body, then she’d be guilty. However, the government’s gauntlet was thrown because she had the audacity to say no. There is no obligation to show up in court. LiLo’s record ought to be expunged. Set her free at once.

Repeal the drinking age. Legalize drunk driving. Repeal the war on drugs. Abolish the prisons. Why not repeal the state while we are at it.

Oh, and regarding the judge who sentenced an innocent person? I agree with Lohan’s sentiments:

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Cultural preconditions for liberty

Police Statism, Victimless Crimes
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Four women and eleven men have been convicted of “mingling” at a party, in Saudi Arabia. Sentence? According to the AP, “flogging and prison terms.”

The men, who are between 30 and 40 years old, and three of the women, who are under the age of 30, were sentenced to an unspecified number of lashes and one or two year prison terms each.

The fourth woman, a minor, was sentenced to 80 lashes and was not sent to prison.

We don’t really need to ask why this was done. We all know. The Sauds follow the Old Time Religion, and it’s pretty darn strict. (The AP explains it as follows: “Saudi Arabia follows a strict interpretation of Islam that prohibits unrelated men and women from mingling.”) It is also amazingly illiberal, in almost all of the senses of the word.

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