In the wake of the Supreme Court ruling in Obergefell v. Hodges that same sex marriage is now legal nationwide, prominent liberty advocates offered a variety of reactions. Senator Rand Paul, who is known as the most libertarian Republican presidential candidate, believes the government should respect contracts between consenting adults, but stop defining marriage. Although Paul trends libertarian compared to his colleagues, he leans more toward conservatism than other pro-liberty individuals on the broader ideological spectrum. His reaction to the marriage ruling reflects that nuance.
As Paul explained at TIME:
“While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract.
The Constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington …
… Marriage, though a contract, is also more than just a simple contract.
I acknowledge the right to contract in all economic and personal spheres, but that doesn’t mean there isn’t a danger that a government that involves itself in every nook and cranny of our lives won’t now enforce definitions that conflict with sincerely felt religious convictions of others.”
Senator Paul’s position mirrors a sentiment that can now be seen in action in states such as Alabama, Mississippi, Louisiana, and Texas. As David Simpson, a libertarian-leaning State Representative from Longview, Texas has stated:
“In light of the Supreme Court’s actions, I believe that the best way to protect marriage is to divorce marriage from government. I am asking the governor to recall the legislature so that legislation may be immediately considered to remove state and local officials from the process of issuing marriage licenses. In its place, the process of issuing a certificate of marriage will be performed by any willing clergy member consistent with their conscience and in respect for our culture and our heritage. For those who do not wish to have a religious ceremony, any authorized notary may approve a certificate.”
Congressman Justin Amash, another prominent libertarian-leaning Republican, took a similar approach to both Paul and Simpson ideologically. However, Amash deferred more to the court’s ruling from an equal protection standpoint than did Senator Paul.
“What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.
Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.
To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority.”
David Boaz, Executive Vice President of the libertarian think-tank Cato Institute, defended the Obergefell logic more forcefully than many of his fellow ideological travelers. Said Boaz:
“Here and now, or more specifically last week, when many states were discriminating against gay people in marriage, did you think that was OK, at least until marriage is — some day, maybe — fully privatized? And if so, back in 1965, when the government was discriminating against interracial couples in marriage, did you think THAT was OK? Do you think the Court should have refused to strike down laws against interracial marriage, and we should have waited until government got out of marriage entirely? And if you’re a libertarian and believe that government shouldn’t run the schools, what would you say if government ran schools only for white Christian kids? Should libertarians oppose that policy, or just insist on full privatization of schools with no intermediate remedies?”
Other libertarians were less moved by the 14th amendment equal protection argument, expressing concern that the centralization of power necessary to justify the Supreme Court’s ruling is a threat to liberty, despite an agreeable outcome. Channeling sentiments similar to Rand Paul’s, Independent Institute’s Research Fellow Melancton Smith, penned a reaction entitled “Libertarians Should Be Cautious in Celebrating Obergefell.” In it, he makes several specific points.
Smith contends that issues such as marriage, child custody, and divorce have always been dealt with on a local and state level. He argues that because there is no federal power delegated to deal with them in the Constitution that the Supreme Court’s ruling threatens self-government. He also believes that when judges – who are unelected – expand the plain meaning of the Constitution, even if we agree with their opinions, we risk centralizing power to a dangerous extent and exposing ourselves to tyranny we would oppose in the future. Smith finally concludes by agreeing with Chief Justice Roberts that gay marriage likely would have been instituted in this country through democratic means, and posits that allowing the Supreme Court to take on the role of legislator will ultimately spell doom for various libertarian policy measures.
Generally, libertarians span the left-right spectrum in terms of personal social views, and opinions on the matter of gay marriage reflect this. One can be a devout social conservative or an extreme “libertine,” and still believe that the government has very little or no right to regulate the personal behavior of consenting adults who aren’t harming others.
Ultimately, most libertarians tend to agree that in a perfect world, two adults would not have to ask government for permission to be married. Many see it as a strictly religious institution, or one that can be dealt with on a civil level without hijacking the term marriage. The point that Rand Paul and other privatization advocates make, is that there’s no reason benefits such as spousal rights surrounding inheritance, visitation, custody, etc. could not be worked out through mutually agreed upon contracts, absent one overarching federal definition of marriage.
Paul and others argue that since marriage itself does not need to be recognized by government for the appropriate social and legal benefits it ought to confer to exist, it could revert to being a matter dealt with by religious institutions. This would allow both gay and straight couples equal civil rights under the law, while protecting the sanctity of marriage and religious liberty. As states continue adjusting to nationwide marriage equality, it will be interesting to see to what extent the libertarian argument of marriage privatization takes hold legislatively. Today, the question remains as to whether this vision can become a policy reality.