Marriage, contracts and special rights


The ruling on Utah’s Gay Marriage Amendment (Amendment 3) came down yesterday from the 10th Circuit Court. This ruling said that marriage is a fundamental right and that the state cannot prevent two consenting adults, no matter their gender, from being married.

Many of my politically “conservative” friends are wringing their hands over this while my liberal friends are jumping for joy. It’s ironic to me, because my “conservative” friends generally oppose government intrusion into people’s lives. Amendment 3 was a major intrusion into people’s lives. They should be rejoicing. However, my definition of conservative (as in Constitutionally conservative) and theirs (socially conservative) is very, very different.

This is where my statement that only libertarianism is intellectually consistent plays out.

The truth is, my attitude about the ruling is mixed.

I am concerned that the doomsday scenarios of granting special rights to minority parties will continue to play out and the fall of Amendment 3 will make it difficult for business owners to follow their conscience by refusing service to gay couples. I know my liberal friends get really up in arms over this, but the ability to choose who you will provide services to is a fundamental property right. I am very troubled by court cases that rule that individuals cannot refuse to serve groups – generally gays. It violates personal property rights. From a purely personal perspective, I would like the ability to patronize or avoid business whose attitudes are in line with my own. I’d like to know if the owner of the bakery I buy from on a regular basis is bigoted or not. The free market lets me do this. Of course, this limitation on personal property rights is nothing new. It’s the expansion of the limitations that concerns me.

On the other hand, I do appreciate the expansion of enumerated rights. It’s important to remember that rights come from nature and nature’s God, not from the government or society/the collective. Just because something is unenumerated in the state and federal constitutions does not mean that you do not have a right to do it. Your rights are violated every. single. day. So I really appreciate when a court takes a step back and reaffirms basic rights.

However, my enthusiasm is extremely tempered by the fact that the Supreme Court has not forced states out of the marriage business all together.

Let me explain:

Legal marriage is a contract. It is a contract between two individuals, consenting adults. It should be no more and no less than a legal arrangement. However, legal marriage is also heavily conflated with religious marriage and it creates a special set of protections and guarantees for those who have entered into this kind of contract.

In other words: modern legal marriage creates a protected class of people.

Think about it – not only do most employer-sponsored insurance plans offer to cover a spouse, they usually offer that insurance at a subsidized rate. That’s a result of the special class legal marriage establishes. There are many other places where business over perks to married couples. However, employers and business are generally private companies and can – well, could, prior to Obamacare – do what they want with their insurance plans and other offerings. This is called the free market.

The real danger of this special classification is where the government gets involved. Social Security death benefits are offered to surviving spouses, “underage” children and, in some cases, exes. These benefits are not extended to whoever you chose. Just whoever the government has defined – essentially the other person with whom you enter into the protected class with and the persons who are a product of that protected status.

Another example of this protection is in a court of law. You may not be compelled to testify against your spouse, even though your children and your spouse’s siblings and parents are required to testify. I’m not really excited to think that I might have to testify against my husband in a court of law, but I’m equally opposed to testifying against my parents or my siblings (or someday my children, though Monkey is not nearly old enough for that yet).

I could go on, but this post is already getting quite long.

The problem is not that the government “allows” people enter into a legal contract we call legal marriage (although thinking the government has to allow us to do this is a problem). The problem is that by entering into this contract the government grants additional protections ancillary to that contract to some which are not extended to others.

None of these special protections are critical to the actual core of legal marriage. Unfortunately, the one element that IS critical to legal marriage – usually a contract which says “as long as you both shall live” – is rarely enforced by the legal system anymore. (I’m not advocating that we make divorce impossible, but no other contract I know of is so easily dissolved as the marital contract).

Government should be in the business of enforcing the terms of contracts between two (or more) competent, consenting adults, whatever the terms of the contract are. They should not be in the business of granting special protections to a group of people who enter into a certain kind of contract.


About laceyluwho

I'm a common-sense, call it like I see it girl who has just one too many opinions for her own good. I was raised by politically involved parents who encouraged me to develop my own thoughts and instilled a sense of civic responsibility.

One response »

  1. I just found you! So I am late to the party so to speak. I have been looking for a Libertarian Mormon hippie-type blogger for years and only recently stumbled across you.

    I thought I would comment here:

    I have had similar thoughts in regards to same-sex marriages. I personally think that same-sex marriage (or any marriage) without infringement on other’s rights is impossible without a truly libertarian society. The problem is right now we are far from that.

    I have mixed emotions about SSM in that I really hate the lack of recognition of the freedom of conscience with all these “discrimination” claims against bakers, photographers, florists, and so on that refuse to provide services for these SSM or unions. I also tend to believe that doesn’t make them bigoted if they don’t want to participate in these unions. They should have the same right as a doctor to refuse to perform or an RN to refuse to participate in an abortion, outside of the life of the mother (such as a tubal pregnancy). I’m not sure, but I may part ways with you if I read your post correctly, in that regard. Otherwise I think we are on the same page. I further believe that we could soon be looking at situations in which parents are forced to teach their children (per government education without op-outs) that SSM and SSA is “normal” and any thought outside of that, including religious thought is bigoted, and this concerns me as a parent and the right that I have to teach my children my religious beliefs without that being infringed (whatever the topic).

    I do believe in a live and let live society…you stay out of my business and I’ll stay out of yours. The reality is, I don’t really care what anyone’s sexual attraction is, except for my own spouse.

    How to resolve that is the question at hand. Do you really think that if government gets out of the business of marriage, that we won’t have these types of problems? Considering the current social climate, I encounter more people than not that don’t really truly understand the concept of individual rights and responsibilities. I certainly could be wrong and really hope I am, but I don’t see society trending very libertarian (classic liberal) but more towards a fascist-like, I like to call it “fascalism” (a socialist fascist hybrid). At least that is the trend I am seeing both politically and culturally.

    What do you think?

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