Why libertarians should oppose Obergefell v. Hodges

On June 26, the Supreme Court announced its decision in the case of Obergefell v. Hodges, which decided whether same-sex marriage is a constitutionally guaranteed right. The justices decided by a 5-4 vote that “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

The majority opinion was delivered by Justice Anthony Kennedy and was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas each filed a dissenting opinion, each of which was joined by Scalia and Thomas.

This development has been hailed as a victory for human liberty by many libertarians, but there is a strong case to be made that it is not. Let us examine the reasons why Obergefell v. Hodges is actually anti-libertarian and detrimental to gay rights.

1. This decision was a top-down, authoritarian approach which will prolong the conflict rather than resolve it. Rather than allow public opinion on the issue to continue the course toward recognition of same-sex marriages, as was happening, the Supreme Court stepped in and forced recognition of same-sex marriages upon the governments of all 50 states. Curiously, it was Justice Ginsburg who said in 2013 that Roe v. Wade, the case that established abortion rights, “seemed to have stopped the momentum on the side of change.” Ironically, she is now part of a decision which is likely to have a similar effect.

2. The federal government is now in the business of defining what should be a private institution. By inserting itself into the same-sex marriage issue, the Supreme Court has assumed for the federal government the power of determining what does or does not constitute a marriage, a power to be found nowhere in the enumerated powers of the federal government. The problem that state governments were interfering with the right of freedom of contract is not solved by having the federal government do so in a way that does not abolish such interference.

3. This decision does not create a fundamental right to same-sex marriage, but rather a government-granted privilege. The decision requires states to license same-sex marriages and to recognize marriages licensed in other states. But a license is actually antithetical to a fundamental right. A system of licensing actually means that an activity is prohibited unless the licensor grants permission, and that the source of legitimacy for an activity is the licensor rather than providence or logic. (And what makes the licensor legitimate?) Now that the federal government has assumed for itself the power to define marriage, this power could just as easily be used for the purpose of attacking homosexuals in the future, should the political winds change. After all, the government that is powerful enough to give you what you want is also powerful enough to take what you have.

4. This decision furthers the illusion that government is a protector and guarantor of liberty. Government cannot be a protector and guarantor of liberty because it violates liberty by its very operation, but this is not news to any consistent libertarian. But to a gay person who has gained many protections and privileges as a result of this decision, government can certainly seem to be benevolent and the democratic process can certainly seem to be a path to liberty. Whatever good this decision may do will ultimately make government more palatable to some people, which will make it harder to eliminate.

5. Freedom of religion and freedom of association will come under attack next. While the majority opinion does say, “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” it is silent on the issue of whether people will be able to continue to act upon such advocations, convictions, and precepts. This leaves open the possibility that churches and businesses will be forced to participate in and cater to same-sex marriages, and this is already being advocated in the sort of indirect manner that the government would have to use (and does routinely use) in order to evade constitutional restrictions on its power. We also know that governments are fundamentally opposed to freedom of association because they force their citizens to associate with the state. And while current tax laws would not allow for a church to lose tax-exempt status for opposing same-sex marriage, the IRS is notorious for breaking its own rules or enforcing them very selectively.

6. These attacks will cause a backlash. When people are forced to associate with other people against their will and forced to condone practices which they find to be abhorrent, they tend not to respond well. Those whose freedom of religion and freedom of association are attacked when these rights are pitted against the newfound “right” to a same-sex marriage will become more homophobic, not less. Not only that, but this new degree of homophobia will be justifiable because rather than disliking homosexuals because an ancient text says they should, they will now be disliking homosexuals for using state power to commit acts of aggression against them, such as forced labor. This will help to prolong rather than resolve the conflict, as per point #1.

7. This decision expands government handouts. Some of the most pervasive arguments against liberty take the following form: “It would be nice if Evil X were not present, but that is the way things are and will be for the foreseeable future. Therefore, we should have Evil Y as well to ameliorate the ill effects of Evil X.” And of course, it never stops there. There will be some Evil Z proposed to ameliorate the ill effects of Evil Y, and so on until an imprisoning web of evil is spun. But the truth is that two wrongs cannot make a right. The answer is not to support Evil Y, but to work tirelessly and exclusively toward the goal of ending Evil X. Unfortunately, many libertarians seem not to have recognized this on the matter of government benefits for married couples. In this case, Evil X is government involvement in marriage, Evil Y is the extension of government benefits to same-sex couples, and Evil Z is some combination of increased taxation, national debt, and currency debasement, as this is how all increases in government spending are funded.

8. What good this decision has done for same-sex couples could have been done better by other means. It is certainly true that governments have interfered with the rights of homosexuals to freedom of contract, as well as many other protections that opposite-sex couples have. But these rights violations could have been ended by less authoritarian means, such as challenges to the individual laws that deny these protections as well as the creation of alternative institutions to overcome government failures. From a libertarian standpoint, many of the protections that opposite-sex couples have should be abolished rather than extended further, and those which a free society should respect would be better provided through voluntary competition than through the dominance of nine people in black costumes.

Support The Zeroth Position on Patreon!