Regarding the debate about homosexual marriage, a common libertarian position — which I have shared — is that marriage should be taken out of the hands of the state and made a private, contractual relationship. Christopher Tozzo (a.k.a. KipEsquire) of A Stitch in Haste argues against that stance and for legal recognition of the homosexual union as a form of marriage:

As for the hyper-anarcho-libertarians [and many minarchists as well: ED] who try to short-circuit the entire gay marriage debate by moaning that “government should get of the marriage business altogether,” well, even if such a lament somehow helped the real-world quest for equal treatment of gays (I don’t see how it does), it’s also, quite frankly, an unacceptably naive and simplistic worldview.

The great thing about marriage, qua legal status, is that it eliminates the need for the (extremely complicated) “bundle of strictly private contracts” that radical libertarians and defenders of theoretical polygamy…seem to think is such a “neat-o!” idea. Ask any gay couple who has actually tried to do it — I guarantee you they’ll say it’s not so “neat-o.”

Stated differently, marriage, qua legal status, is extremely efficient economically. It saves time. It saves resources (e.g., lawyers drafting documents). It saves money. It saves grief over lost, destroyed or badly-drafted contracts. In an (admittedly Rawlsian) sense, the shortcut of marriage, qua legal status, does the greatest good for the greatest number. It’s simply a smart idea in a modern society.

Tinker around the edges all you want. Should there be a “marriage penalty” within the federal income tax? I doubt it. Should there be a spousal benefit under Social Security? I seriously doubt it. But these are overlays that don’t go to the core of marriage qua legal status. The real meaning of marriage in modern society — automatic property rights, automatic inheritance rights, automatic child custody rights, automatic healthcare rights, automatic decision-making rights of all kinds, these all derive not from some abstract “bundle of contracts” concept of marriage, but from the legal status concept.

But…polygamists need not apply:

And they [“automatic rights”] require that marriage be limited to two people.

If consensual polygamists want to try to build a bird’s nest from the individual twigs and strings of contractual arrangements, then by all means they have a right to do so (assuming no externalities, especially to the children of such arrangements). But the assertion that to draw the line at two-person marriage is “arbitrary” is nonsense.

Well, it’s no more “nonsense” than the assertion that marriage — as recognized by the state — should be limited to the union of a man and a woman. If KipEsquire were truly interested in the equal treatment of citizens, it seems to me that he would could suggest a way to extend the same “automatic rights” to polygamists that he would extend to homosexual partners. (Or is he prejudiced against polygamists? Heaven forbid!) For example, the law would merely have to specify that, in the absence of valid documentation to the contrary, all survivors of a polygamous relationship share-and-share-alike in the property of a deceased member of that relationship.

As for the “efficiency” argument — which is really about cost-avoidance for homosexual partners — the “automatic rights” that legally married heterosexuals “enjoy” aren’t all that “neat-o.” Many, many heterosexual couples must spend lots of money on lawyers to carve out exceptions to those “automatic rights” bestowed so sweepingly by the state. Where’s the “efficiency” for those heterosexuals? And where’s the “efficiency” for not-legally-married heterosexuals, whom KipEsquire seems to have overlooked? Or are they, like polygamists, to be left entirely to their own devices?

KipEsquire seems to be more interested in the legalization of homosexual marriage than he is in the real effects of legalization on society’s well-being. To put it in the form of a question: What’s really at risk if society — acting through the state — undermines the privileged status of heterosexual marriage by bestowing equal benefits on other forms of marriage, and even on temporary relationships?

Well, Megan McArdle (a.k.a. Jane Galt) of Asymmetrical Information tried to address that question, at length, and for all her trouble KipEsquire misunderstood her point:

Jane cites four mini-case-studies — income taxation, public housing, welfare benefits and liberalized divorce — to argue what we all know already: that changing government policies changes people’s behaviors at the margin.

Um, so what?

The mile-wide blindspot in Jane’s tome is that all her examples are non-discriminatory.

The mile-wide blindspot in KipEsquire’s response is that Jane’s examples aren’t meant to be about discrimination. Nor is their effect on “marginal” behavior to be dismissed simply because KipEsquire wants to dismiss it. The examples illustrate the danger of the slippery slope: that many bad things that can happen when standards are relaxed — just a “bit” — for the sake of attaining a particular objective that seems “good” or “decent” or “fair” or simply attainable through raw political power.

So let’s return to the real issue, which isn’t — or shouldn’t be — cost-avoidance for homosexual partners, or fairness or decency or other such easily deployed phrases. The real issue is whether or not the state, by recognizing homosexual marriage, will undermine heterosexual marriage, with generally bad consequences for society. For I am a consequentialist libertarian:

Fundamentalist (or “natural right“) libertarians say that humans inherently possess the right of liberty. Consequentialists say that humans ought to enjoy liberty because, through liberty, humans are happier and more prosperous than they would be in its absence….(For more about this debate, read the online symposium, The Transformation of Libertarianism?.)

I stand with the consequentialists. Fundamentalist libertarianism reduces liberty to a matter of faith. If libertarianism cannot stand on more than faith, what makes it any better than, say, socialism or the divine right of kings?

The virtue of libertarianism, [which I explicate here, here, here, and here], is not that it must be taken on faith but that, in practice, it yields superior consequences. Superior consequences for whom, you may ask. And I will answer: for all but those who don’t wish to play by the rules of libertarianism; that is, for all but predators and parasites.

For the sake of argument, I will accept a point on which Jane Galt and KipEsquire agree, which is that, in KipEsquire’s words,

the hyper-anarcho-libertarians who try to short-circuit the entire gay marriage debate by moaning that “government should get of the marriage business altogether”…[offer], quite frankly, an unacceptably naive and simplistic worldview.

Or as Jane puts it:

There are a lot of libertarians who dismiss arguments about gay marriage with the declaration that the state shouldn’t be in the business of sanctifying marriage anyway. I don’t find that a particularly satisfying argument. It’s quite possibly true that in some ideal libertarian state, the government would not be in the business of defining marriages, or would merely enforce whatever creative contracts people chose to draw up. That’s a lovely discussion for a libertarian forum. However, we are confronting a major legal change that is actually happening in the country we live in, where marriage is, and will continue to be for the foreseeable future, an institution in which the government is intimately involved.

Okay, now that the state is a central player in this drama, let’s see where that takes us.

Enter libertarian Jennifer Roback Morse (no pseudonym), writing in “Marriage and the Limits of Contract” (Policy Review Online, April-May 2005):

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state…..

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage….

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm….

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state….

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise….We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes….

Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints….

We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government….

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it….

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law….

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

Moreover, it is clear that the kind of marriage a free society needs is heterosexual marriage, which — a Morse explains — is a primary civilizing force. I now therefore reject the unrealistic (perhaps even ill-considered) position that the state ought to keep its mitts off marriage. I embrace, instead, the realistic, consequentialist position that society — acting through the state — ought to uphold the special status of heterosexual marriage by refusing legal recognition to other forms of marriage. That is, the state should refuse to treat marriage as if it were mainly (or nothing but) an arrangement to acquire certain economic advantages or to legitimate relationships that society, in the main, finds illegitimate.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We’ve seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.) The recognition of homosexual marriage by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down that slope. When the state, through its power to recognize marriage, bestows equal benefits on homosexual marriage, it will next bestow equal benefits on other domestic arrangements that fall short of traditional, heterosexual marriage. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

But many — KipEsquire among them — will say that the state’s refusal to legitimate homosexual marriage simply isn’t “fair.” And I will ask, “unfair to whom, to the relatively small number of persons who seek to assuage their pride or avoid paying a lawyer to document the terms of their relationship, or generally unfair to members of society (of all sexual proclivities), whose well-being is bound to suffer for the sake of homosexual pride or cost-avoidance?”

I’d rather maintain my stance that the government ought to keep its mitts off marriage. But Megan McArdle, Christopher Tozzo, and Jennifer Roback Morse have convinced me that I oughtn’t to do so. So I won’t.

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.

(Thanks to my son for pointing me to Morse’s article.)