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The Supreme Court’s Marriage Decision was Completely Avoidable

in Marriage and Family by Jackson Jones Comments are off

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.

Most 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.

marriageThe 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.

Libertarianism and Forced Testimony in Courts

in Liberator Online Archives, Libertarian Answers on Issues by Mary Ruwart Comments are off

(From the Ask Dr. Ruwart section in Volume 19, No. 3 of the Liberator Online. Subscribe here!)

QUESTION: In a libertarian society, when marriage becomes a private institution, what will happen to the right of a person not to be forced to testify against their spouse in a court of law?

MY SHORT ANSWER: In a libertarian society, no peaceful person could be forced to do anything, including testify against another. Today’s government simply threatens people with prison and fines unless they give information, often at great cost to themselves (e.g., missing work).

Does this mean if you were charged with murder that the witness who could save you wouldn’t testify? Probably not. Witnesses could be reimbursed for lost work and other expenses for testifying, so their cost would be minimal. Withholding crucial information would likely be considered socially unacceptable. Few people would want to be embarrassed by a public announcement that they had done so — and caused an innocent person to suffer.

Even today, it’s almost impossible to force someone to testify truthfully. Witnesses lie to protect themselves and others, even under oath. That’s probably the real reason that spouses can’t be forced to testify today: they are the ones most likely to twist the truth for the benefit of their loved ones.

LEARN MORE: Suggestions for further reading on this topic from Liberator Online editor James W. Harris:

Free or Compulsory Speech“ by Murray N. Rothbard. The great libertarian thinker Murray Rothbard explores this issue with his characteristic vigor and consistency in this article, which first appeared in Libertarian Review in November 1978.

Excerpt: “The most flagrant example of continuing compulsory speech takes place in every courtroom in our land: the compulsory bearing of witness. Now surely each person is the absolute owner of his or her own body; as the owner of his own body, only the individual should decide on whether or not to speak in any given situation, and there should be no compulsion upon him to talk or not to talk. And yet in every court, witnesses are dragged in by force (the subpoena power) and compelled to bear witness for or against other people.”