That question has been asked on numerous occasions, especially in recent decades. Recently (here and here) I discussed why I was not fond of the Church handling the institution of marriage while at the same time maintaining that I do not think the State should have an active role in the issue. If there is a property dispute taking place, than civil courts and arbitration firms should surely participate. And of course, these are services that the Church should not be filling. Things are only confusing in modern society because the State has given itself a monopoly on all such services. That is to say, dispute resolution can, should, and historically has been available on the free market. But I digress.
Given that the State does in fact now have the sole responsibility for such problems and given the fact that it currently does actively oversee marriages, the current question is whether or not, for “equality’s sake,” the State should also “allow” same-sex marriage. In first order, we should always be careful to define things strictly. Since marriage was instituted by God it makes sense that we should follow His definition. Marriage is between man and woman. So then the debate is whether we should support the State in operating on a plurality of definitions, all (except one) of which do not stem from the Christian worldview.
Conservative Christians should support civil same-sex marriage. Why? Because the question of whether to allow civil same-sex marriage is a civil liberties question.[…]
But Christians need to take a second look at this issue. Gays and lesbians have built a pretty solid civil rights case in favor of why they should be allowed to marry. For one thing, Chief Justice Earl Warren of the U. S. Supreme Court once wrote, “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” For another, homosexuals are the only group of people in American society who are legally barred from marriage. As long as the state refuses to recognize same-sex marriage, they cannot legally marry the person they love.
I think that the reasoning here is highly flawed for a number of reasons. Firstly, it is not a civil liberties question. Liberty means that one can use his person and property in any way except where this use aggresses on the person and property of another individual. But what Irons is arguing here is that the state should recognize same-sex marriage for reasons of “liberty.” The problem is that the state does not owe anything to the civilians except justice, that is, giving someone what he is due.
But individuals are not “due” marriage. That is to say, marriage is not a “right,” contrary to Chief Justice Warren. If it were a “right,” then an individual would have the legal means to oblige someone else to marry him, or at least for the State to find him a spouse. “Rights” must be thought of as negative, not positive. What I mean by that is a right comes out of what people are not allowed to do to you (like murder or steal or trespass your property) and not out of what society must do for you. Positive rights, by which we mean obligations to the services or property of others do not exist, they are a Progressivist creation. This is the category of “rights” that we reject and are most popularly displayed in modern arguments for the “right to healthcare” or the “right to higher education.”
No one has a “right” to have their marriage regulated by the government.
This can be demonstrated by forgetting the same-sex debate altogether and only considering heterosexual marriage. Does a man have a “right” to a wife? Does the State owe it to him to recognize that marriage? I have written on this exact theme in another place:
Some libertarians want to impose a rigorous egalitarian and diversity standard on the [government] agency on the basis that the agency is public and therefore should not be allowed to discriminate. This desire sometimes trickles down to public services like State-owned university education. The standards for entry should focus, we are told, not necessarily on the individual merits of the students regardless of race, but rather on the diversity of the student body as a whole.
But it is my contention that all of this is profoundly misguided, a distortion of the demands of libertarian theory. Murray Rothbard addressed this issue during the early nineties when the Clinton administration sought the elimination of the ban on homosexuals in the military. Must the libertarian support this? Rothbard answers in the negative: “The military should be considered like any other business, organization, or service; its decisions should be based on what’s best for the military, and ‘rights’ have nothing to do with such decisions. The military’s long-standing ban on gays in the military has nothing to do with ‘rights’ or even ‘homophobia’; rather it is the result of long experience as well as common sense.”
In other words, it is not necessitated by libertarian theory, a political theory of property rights, that some public agency have a certain standard of employment. There is no “right” to be hired by a public agency like, say, the FDA. Even if this agency should not exist at all in a free society according to libertarian theory, there is no demand that in its existence it hires from every ethnicity or sexual orientation. While we hold that public colleges should not exist, it is not unlibertarian to have a preference that the college’s entrance standards focus on grades, test scores, and writing ability rather than the modern progressive-egalitarian standards of racial or sexual diversity. We breach no libertarian creed when we oppose the cultural-liberalism and moral subjectivism, the egalitarian-crusaderism, coming straight from the heart of the State-propaganda complex.
The State does not owe to a couple recognition of marriage. If the State, currently having a monopoly on dispute resolution and arbitration services, is doing an awful job in what is expected of it, let that be a case for competition, decentralization, and privatization of services.
One other mistake in the paragraph above is the claim that “…homosexuals are the only group of people in American society who are legally barred from marriage.” I don’t think this is accurate at all. Not only are the very young, the already married, and mentally incapable not allowed State recognition of marriage, there is something more basic in play here, which is that homosexuals are not actually barred from marriage. It should be said that homosexuals are legally barred from marrying each other. For there is no law which states that if one is attracted to members of his own sex, he cannot get married. Rather than being legally barred, it is more accurate to say that they must follow the same definitional parameters as every other marriage in society. Orientation, as it is called, is never even considered in the State’s definition.
It does not help the cause of liberty to give to the State more couples to oversee. Same-sex acceptance by the State is not demanded by libertarian rights-theory.
Now, this is of course not to say that the present framework of State involvement in marriage by way of official definitions and licensing and all the rest is agreeable either. Marriage is a private institution, upheld as good in society, but not made “official” by State approval. Surely it would be better if property disputes and legal resolution were handled by private agencies like on the early Western Frontier (see this book), but in the meantime, in the world of State-driven solutions, there is no libertarian demand that the State pursue “egalitarian” standards. Justice based on private property, not egalitarianism, should be our chief demand in this imperfect world.