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The Supreme Court’s Gay Marriage Decision was Completely Avoidable

in Liberator Online, Marriage and Family, News You Can Use by Jackson Jones Comments are off

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On Friday, the Supreme Court issued an opinion in Obergefell v. Hodges, holding that the Equal Protection Clause of the Fourteenth Amendment requires states to license marriages between two people of the same sex.

wedding couplesMost expected at least a narrow ruling in favor of same-sex couples that would require states with prohibit same-sex marriage to recognize same-sex marriages conducted in other states. If a same-sex couple had gotten married in Massachusetts, for example, Georgia, which had one of the strongest bans on same-sex marriage by even refusing to recognize civil unions, would have been required to recognize the license, though still allowed to deny in-state licenses for same-sex marriages.

The logic behind this is because during oral arguments back in April, Justice Anthony Kennedy expressed concerns about extending marriage rights to same-sex couples because the definition of marriage – between one man and one woman – “has been with us for millennia.”

Still, Kennedy, who authored the majority opinions in Windsor (2013) and Lawrence (2003), has been seen as one of the Court’s biggest proponents of “gay rights.” So his opinion isn’t exactly a surprise, per se, though his dissent in Hollingsworth (2013) was a defense of voter-driven ballot initiatives, specifically California’s same-sex marriage ban, Proposition 8. The majority on the Court held that the plaintiffs didn’t have standing to defend the initiative in the absence of the State of California, which refused to do so.

“In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around,” Kennedy wrote in his dissent, which was joined by Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor. “Freedom resides first in the people without need of a grant from government.”

Nevertheless, Kennedy, whose opinion in Windsor laid the groundwork for Obergefell, made the connection that the Equal Protection Clause of the Fourteenth Amendment requires states to license same-sex marriages, despite states having voter-approved constitutional amendments or ballot measures prohibiting the practice.

“It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right,” Kennedy wrote in Obergefell. “The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

Commentators, while philosophically correct, have criticized Kennedy’s opinion. Writing at The New Republic, Brian Beutler, a leftist journalist, called the opinion “a logical disaster.” Similarly, Ilya Somin, a law professor at George Mason University who contributes to the libertarian-leaning Volokh Conspiracy, called the outcome “a great result, but based on dubious reasoning.”

“Ultimately, Kennedy does not clearly conclude that either the Due Process Clause or the Equal Protection Clause by itself creates a right to same-sex marriage,” Somin explained. “Rather, his claim is that the combination of the two somehow generates that result, even if neither can do so alone.”

“If a sufficiently important right (Due Process Clause) is denied for discriminatory reasons (Equal Protection), then the Fourteenth Amendment has been violated. However, both the criteria for what makes the right important enough, and the criteria for proving discrimination seem extremely vague. Thus, it is difficult to tell what – if, indeed, any – implications this ruling will have for future cases,” he added.

Somin, by the way, co-authored a brief to the Supreme Court urging justices to strike down state same-sex marriage bans.

The reaction to the ruling, as some might expect, has been predictable. Opponents of same-sex marriage (now accurately called “marriage,” without the qualifier) are calling for a constitutional amendment to define marriage as one man and one woman. Others, including many conservatives and libertarians, have wondered aloud about any government involvement in marriage.

“For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage,” wrote Rep. Justin Amash, R-Mich.) in a Facebook post on Friday. “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,” he continued, adding “we shouldn’t blame the Supreme Court for where things stand.”

Amash’s words are sobering, and perhaps he’s correct. Maybe government shouldn’t be involved in the marriage business. If only Republicans had realized that in 2004 rather than further meddling in people’s personal lives for political gain.

Is Spanking Your Child a Form of Aggression?

in Children's Rights, Liberator Online, Libertarian Answers on Issues, Marriage and Family by Mary Ruwart Comments are off

(From the Ask Dr. Ruwart section in Volume 19, No. 13 of the Liberator Online. Subscribe here!)

QUESTION: It seems to me that spanking your child is a form of aggression. Would libertarians agree?

SpankingMY SHORT ANSWER: Many do, but some do not. I personally see spanking as an utter last resort, only suitable for situations where the child might otherwise be greatly harmed or do great harm to another. For example, with a child who keeps running out in traffic, despite taking away TV privileges or using other deterrents, physical censure might save his or her life. Most of the time, though, a parent has better options; for example, keeping a child inside until he or she recognizes the dangers of traffic.

When we spank or beat a child, we are teaching that might makes right. We are also teaching that hurting someone smaller and weaker can be a “loving” gesture. Surely, as parents, we should be able to come up with a better teaching tool almost all of the time. Some psychologists — rightly, I believe — fear that any kind of physical punishment can create grave problems later (see for example, http://alice-miller.com/video.php). Punishing a child with verbal abuse creates problems too.

Libertarians believe in making victims whole, not punishing the aggressor. If children hit a sibling, a better method of correction might be having the offender do something special for the one who was struck. Responsibility and discipline are important lessons for children to have, but it’s best to teach them as gently as possible. A correction with an overlay of aggression, belittling, or hostility, will eventually come back to haunt, not only the child, but those with whom he or she interacts.

SUGGESTIONS FOR FURTHER READING ON THIS TOPIC by Liberator Online editor James W. Harris:

* “Does Spanking Violate the Non-Aggression Principle?“ by Stefan Molyneux. Molyneux goes into lengthy analysis of this question in a thoughtful and provocative article worth reading no matter what your position.

EXCERPT: “It is only within the last few decades that serious moral and scientific objections to spanking have spread within society, and patience and persistence is the key to convincing others of this essential and actionable moral reality.

“That having been said, however, now that you have read this essay, you need to refute these arguments and disprove the science, or stop spanking. If you lacked knowledge and clarity before, you deserve sympathy. If you cannot refute these arguments, and continue to spank, you have no excuse anymore.”

* “The Natural Rights of Children“ by Walter E. Block, Ed Smith, and Jordan Reel.

Libertarian theorist Block and his co-authors explore this topic: “What does libertarian theory, Murray Rothbard’s theory in particular, tell us about the rights of children? The two foundational principles of Rothbardian libertarianism are the sanctity of private property and the rule of non-aggression. Persons, including children, are ‘self-owners’. Yet children, at a young age, are not yet capable of functioning fully as ‘self-owners.’” Spanking, and a number of other issues, are examined.

EXCERPT: “But children are different than adults. They are not (yet) full rights bearing entities. If we leave an adult to his own devices, he is presumably able to run his own life, at least to his own satisfaction. But if a child is not cared for, for example, a three-year old, he must perish, since he cannot (yet) care for himself. Paternalism is not justified for adults, but it is for such youngsters.”

VIDEO: Does Spanking Violate the Non-Aggression Principle?  Walter Block Debates Stefan Molyneux.” The authors of the above two papers debate in this one-hour video. 

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Short Answers to Tough QuestionsGot questions?  Dr. Ruwart has answers! If you’d like answers to YOUR tough questions on libertarian issues, email Dr. Ruwart

Due to volume, Dr. Ruwart can’t personally acknowledge all emails. But we’ll run the best questions and answers in upcoming issues.

Dr. Ruwart’s previous Liberator Online answers are archived in searchable form.

Dr. Ruwart’s latest book Short Answers to the Tough Questions, Expanded Edition is available from the Advocates, as is her acclaimed classic Healing Our World.

Who would make health decisions about children in a libertarian society: parents or medical professionals?

in Children's Rights, Healthcare, Liberator Online, Libertarian Stances on Issues, Marriage and Family by Mary Ruwart Comments are off

(From the Ask Dr. Ruwart section in Volume 19, No. 9 of the Liberator Online. Subscribe here!)

QUESTION: I just read about Boston Children’s Hospital taking children away from their parents if children's health decisions in a libertarian societythey don’t agree to treat their children the way the doctors recommend. Would this happen in a libertarian society?

MY SHORT ANSWER: In a libertarian society, a child’s guardians, normally the parents, would decide whether the treatment was worth the risk. No treatment works for everyone and every treatment has side effects in some people. Parents might not always make the optimal decision for their child, but doctors won’t always either. If the doctor feels strongly about a certain treatment, he or she should take the time to convince the parents of its worth, rather than use aggression to enforce their recommendation.

The article you cited indicated that children are taken from their parents most frequently “when doctors diagnose the child with a psychiatric disease, but the parents think the condition is a physical one.” Mental problems can be caused by physical factors, such as diet, genetic abnormalities, and certain vitamin deficiencies, which blur the distinction between psychiatric and physical. These factors are often downplayed or totally ignored in physician training. Licensing boards determine the medical school curriculum and reinforce the status quo, rather than cutting-edge or “politically incorrect” knowledge. Emphasis is placed on drug treatment instead of prevention or nutritional therapy, primarily due to FDA regulations. Since children often respond more negatively to psychiatric drugs than adults, forcing children to take them can actually be detrimental.

In a libertarian society, medical practice would be more diverse, since doctors would be certified instead of licensed and prevention wouldn’t be hampered by FDA regulations. Consequently, our medical science would be more advanced. In a society accustomed to using persuasion, rather than coercion, parents are likely to become better informed by doctors and make the best decision for their children.

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Short Answers to Tough Questions - Dr. Mary RuwartGot questions?  Dr. Ruwart has answers! If you’d like answers to YOUR tough questions on libertarian issues, email Dr. Ruwart

Due to volume, Dr. Ruwart can’t personally acknowledge all emails. But we’ll run the best questions and answers in upcoming issues.

Dr. Ruwart’s previous Liberator Online answers are archived in searchable form.

Dr. Ruwart’s latest book Short Answers to the Tough Questions, Expanded Edition is available from the Advocates, as is her acclaimed classic Healing Our World.