Like many states before them, earlier this year, North Carolina voters approved a measure that banned same-sex marriage. Subsequent reaction largely followed conventional political wisdom. Conservatives mostly applauded the marriage ban, liberals mostly derided the ban, but I noticed a more muddled and mixed reaction from my libertarian friends. Nearly everyone was appalled at the infringement of individual liberty but some still viewed the ban as properly constitutional, while others viewed the ban as grossly unconstitutional. How can well-intentioned libertarians disagree over the dynamics of federalism and basic constitutional interpretation?
Ron Paul and other Libertarian Party elites (Gary Johnson, Jim Gray, etc.) talk rather flippantly about constitutional interpretation, framing the document as clear, obvious, or simplistic. The mixed reaction from libertarian adherents to the NC marriage ban hints at a deeper complexity beyond the surface-level purity that libertarianism routinely exhibits. The crux of this complexity lies in the inherent constitutional contradiction that simultaneously grants both individual freedom and states’ rights, and the fact that those two principles [individual freedom and states’ rights] oftentimes conflict with each other.
In short, when it comes to personal privacy issues some libertarians favor the individual freedom implied in the 9th and 14th Amendments, while others favor 10th Amendment states’ rights even when it restricts individual freedom, such as with the NC marriage ban. Put another way, some viewed the NC measure as an unconstitutional affront to individual liberty (i.e. favor 9th and 14th Amendments), while others viewed it as a proper constitutional exercise in state sovereignty (i.e. favor 10th Amendment).
Take another example, the landmark Supreme Court case Lawrence v. Texas (2003), which declared anti-sodomy laws unconstitutional, effectively liberating homosexuals from criminalizing Texas statutes. Is there a “pure” or “correct” libertarian reaction to this ruling? Probably not.
Some libertarians might champion the Lawrence decision on constitutional grounds that the 9th and 14th Amendments properly limit states’ rights and guarantee individual freedom to engage in private sexual behavior. That is to say, an individual’s right to engage in private sexual behavior supercedes the 10th Amendment’s right of the states to regulate sexual behavior. Conversely, other libertarians might deride the Lawrence decision on “principled” 10th Amendment grounds. Anything that is not explicitly mentioned in the constitution should – always and everywhere – remain the purview of the states. Thus, many libertarians would accept punitive governmental restriction that occurs at the state-level. Because “sodomy” is not explicitly listed as a federally protected right (e.g. sodomy is not explicitly listed in the Bill of Rights) then states have the right to regulate and criminalize individual behavior at will.
One basic truism in American politics is that states’ rights is not tantamount to expanding individual freedom (think about Jim Crow segregation or militarized sodomy police squads), and libertarians will continue to exude muddled constitutional interpretation when these two principals inevitably collide. Some will side with individuals while others with the states. The idea that there exists one universally pure libertarian way to interpret the constitution is myth.
As a libertarian, I find the topic somewhat befuddling. As far as marriage goes, in my interpretation, there should be 0 (zero) government involvement in any marriage. As long as the rights of both participants are not infringed (shotgun/forced wedding), there should be no bars, barriers or otherwise to a happy union.
The word marriage may be a non-starter for a lot of people who are more than happy to support a same-sex union, without changing the meaning of the word, “marriage”. I am from a place, philosophically, that says that gays/straights should have an equal share of misery/happiness that marriage/union brings.
But the issue is how far the 10th Amendment can stretch constitutionally. Should North Carolina be able to restrict individual freedom under the purview of the 10th Amendment because “marriage” is not explicitly listed as a fundamental right in the Bill of Rights?
Some libertarians take a more “progressive” approach to constitutional intepretation and favor the 9th and 14th Amendments that limit states’ rights in the name of individual freedom and privacy (see also Lawrence v. Texas). Other libertarians take a more “conservative” approach and favor the 10th Amendment right of states to limit individual freedom as they see fit.
Well, if we have to work within the framework already established for marriage, I come down on the 10th amendment side. It is not specifically noted in the Constitution, the rights belong to the states and people thereof. If a state decides it is wrong for same sex marriages, then a couple may move to another state that is more in line with their ideals. That is one of the great things about the way America was set up. If you don’t like the laws of your state you can leave. Once this overtaken by the federal government, there is nowhere else to move.
The problem with this scenario, though, is what happens when a couple gets married in a same-sex marriage state and then moves to a non same-sex marriage state. How are benefits handled? Do they have a marriage penalty or not? Do they have power of attorney over each other?
The above scenario is only a problem because the government got involved with marriage in the first place. Undue that mess and a whole lot of problems disappear. Just my 2 cents.
Fair enough. We agree the problem was that the federal government got involved with marriage in the first place, but if the government is involved then I tend to support individual freedom over states’ rights. I tend to see marriage decisions as private enough to be covered under the 9th and 14th Amendments.
The 9th Amendment claims there exist more fundamental individual freedoms that are not explicitly listed in the Bill of Rights. The 9th Amendment has been used to expand individual freedom in cases like Griswold v. Connecticut and Lawrence v. Texas. Just as the courts have found a fundamental individual right to condoms (see Griswold) and sodomy (see Lawrence), I believe there is a fundamental right to privacy to marry your partner.
There should be federal protection for homosexuals because they are a minority group that needs protection! Because homosexuals only constitute 10 – 15% of the population, they will nearly always get outvoted by the heterosexual majority. Indeed, nearly ALL states have banned homosexual marriage and will continue to do so until there is federal protection for equal homosexual rights.
My thinking on this has changed over time. I have met dozens of amazing homosexual couples that have deep commitment and desire nothing more than equal citizenship rights. Teresa’s situation certainly did the most to increase my support of marriage rights. More recently, Sally Ride’s partner of 30 years was denied her Social Security benefits because they were not officially married.
No one pursues the argument that gay marriage bans violate the constitutional principle of equal protection of the law: a Marriage is a contract entered into by two parties of the age of legal consent. The genders of the parties are not germane to nor legally restricted by any other contract law I know of-
Btw, nice talking with you in my beer alley – who’s ya favorite Nola bartender?