Thank you, integralmath, for your recent video response to my video on gay marriage. Although it is well argued and comprehensive, it does not actually respond to what I said, or to a well articulated libertarian position, especially not one set in the context of America’s federal system.
Instead, you argue with this fellow here:
The Straw Man Libertarian, into whose mouth you put the following weak and foolish claims:
So why would you make an irrelevant response to my argument? I can only speculate, but here’s what I think:
You have an awful lot to say on the topic of gay marriage -- at least 27 minutes’ worth --, which is excellent, because any contribution of yours to any topic is worth listening to, I reckon. And when my video showed up in your YouTube feed, it reminded you of the many objectionable things that you heard or read, and reminded you of all things that you'd like to say in response to them. The fact that I myself did not actually say those things wasn't really inconvenient, because, if nothing else, you got to put what you wanted to say front and centre.
And as long as all this serves to shine light on the topic, I’m perfectly happy to play along with the cut-and-thrust of response videos; however, in the interest of fairness, integralmath, I object to your attributing to me an uncharitably weak argument.
All that said, it is ironic that your response video actually supports the libertarian position that the government, be it federal or state, should not be involved in marriage. In my video I said that there might be a case to be made for states’ rights in America; what you show by citing instances of bigoted legislation at the state level with respect to marriage is that marriage should be a matter neither for federal government nor state government.
You see, in your eagerness to show how bigoted the opponents of compulsion by federal mandate are, you blithely ignore the fact that attempts to liberalise marriage at the federal level give great impetus to conservatives to fight for traditional marriage in the only arena available to them, states’ rights.
Now, you have good reason to disagree with the current situation where a homosexual couple married in one state runs into all sorts of problems in another state where their union is not recognised. And it’s not purely for personal reasons that your reasoning is valid; your reasons and objections are valid regardless of who states them.
Is this a reason to compel the state governments of millions of Americans, who through the democratic process, and out of sincerely held beliefs, object to the issuing of a licence to people who don’t satisfy their state governments' stipulated criteria? Notice I didn’t say “recognise gay marriage” or “decriminalise gay marriage” or anything like that, because, as you know, there is nothing in law to prevent a gay couple in the most conservative state from going to a secular celebrant or a Unitarian church, signing a contract, and living out their lives together.
There are two matters here:
However, no person, company, or government body, has the right to invalidate a legal contract between two adults of sound mind. Not only does this violate centuries if not millennia of contract law, it is also a clear violation of the American Constitution, which as you correctly explained, sets out the basic rules by which all citizens and states must abide:
From what I have read, courts in the US have become more liberal with protecting and enforcing contracts, which is a terrible precedent, and if people are going to protest outside the Supreme Court it should be over this, but that's a topic for another day.
The fact that you, an extremely intelligent fellow, conflate these chalk-and-cheese problems -- state governments refusing to recognise legally formed contracts between adults of sound mind on the one hand, and states exercising their Constitutional right not to issue marriage licences to people who don’t meet their criteria on the other hand -- illustrates my point better than I could.
So here is a brief articulation of the libertarian position for gay marriage in the context of America’s federal system. The federal government has no right to interfere with the lives of individuals or communities; its job is to establish the ground rules. If any government is going to take an active concern in people's personal lives, it should be at the state level. And no state should be compelled to recognise a licence issued by another state -- it's usually in everyone's interest to do so, but states, like people should have the right to make bad decisions too.
However, states have to operate within certain legal parameters, one of the most important of which is enforcing legal contracts between adults of sound mind. And if marriage is recognised as a private contract between two adults of sound mind, nothing more nothing less, no state should have the right to refuse to recognise its validity or enforce it.
My reckoning is that if marriage was not a matter of issuance of licence at either the federal or state level, then the impetus to repudiate gay marriage would all but evaporate. Why? Because even the most ardent anti-gay conservatives would live in a society where their objection to gay marriage wouldn’t matter at any level beyond the individual or community. Only the pettiest bigots would oppose, for instance, someone inheriting his or her life-partner's estate if it is in the will -- again, a violation of contract law -- or even if it is not mentioned in a will, but is clearly to be inferred from a significant period of de facto life partnership.
And to return to the main point, there would be no perceived threat to their way of life either at the state, or more infuriatingly for them, at the federal level.
And just to be clear, I said “perceived threat”. That you don’t think gay marriage constitutes a threat to them -- I don’t think so either -- is besides the point. You know that unless you frame the issuance of a marriage licence as a civil right -- and that argument is nonsensical -- in a democracy, the majority has the right to set the criteria by which issuance of a marriage licence is determined.
So let’s be crystal clear what my position is.
If there were no marriage licences at all, the only major issue left would be simplification of your ridiculous tax code. And that's something everyone can support, conservative or Leftist, gay or straight.
Instead, you argue with this fellow here:
 |
| The Straw Man Libertarian |
The Straw Man Libertarian, into whose mouth you put the following weak and foolish claims:
- That an American state has, or should have, the right under the American Constitution not to treat all citizens as equal before the law.
- That an American state has, or should have, the right to reject the validity of a legal contract between two adults of sound mind.
So why would you make an irrelevant response to my argument? I can only speculate, but here’s what I think:
You have an awful lot to say on the topic of gay marriage -- at least 27 minutes’ worth --, which is excellent, because any contribution of yours to any topic is worth listening to, I reckon. And when my video showed up in your YouTube feed, it reminded you of the many objectionable things that you heard or read, and reminded you of all things that you'd like to say in response to them. The fact that I myself did not actually say those things wasn't really inconvenient, because, if nothing else, you got to put what you wanted to say front and centre.
And as long as all this serves to shine light on the topic, I’m perfectly happy to play along with the cut-and-thrust of response videos; however, in the interest of fairness, integralmath, I object to your attributing to me an uncharitably weak argument.
All that said, it is ironic that your response video actually supports the libertarian position that the government, be it federal or state, should not be involved in marriage. In my video I said that there might be a case to be made for states’ rights in America; what you show by citing instances of bigoted legislation at the state level with respect to marriage is that marriage should be a matter neither for federal government nor state government.
You see, in your eagerness to show how bigoted the opponents of compulsion by federal mandate are, you blithely ignore the fact that attempts to liberalise marriage at the federal level give great impetus to conservatives to fight for traditional marriage in the only arena available to them, states’ rights.
Now, you have good reason to disagree with the current situation where a homosexual couple married in one state runs into all sorts of problems in another state where their union is not recognised. And it’s not purely for personal reasons that your reasoning is valid; your reasons and objections are valid regardless of who states them.
Is this a reason to compel the state governments of millions of Americans, who through the democratic process, and out of sincerely held beliefs, object to the issuing of a licence to people who don’t satisfy their state governments' stipulated criteria? Notice I didn’t say “recognise gay marriage” or “decriminalise gay marriage” or anything like that, because, as you know, there is nothing in law to prevent a gay couple in the most conservative state from going to a secular celebrant or a Unitarian church, signing a contract, and living out their lives together.
There are two matters here:
- Issuing a licence to people who meet the requirements set by the government;
- Recognising the validity of a legal contract between two adults of sound mind.
However, no person, company, or government body, has the right to invalidate a legal contract between two adults of sound mind. Not only does this violate centuries if not millennia of contract law, it is also a clear violation of the American Constitution, which as you correctly explained, sets out the basic rules by which all citizens and states must abide:
- U.S. Const. Art. I, § 10 ("No State shallpass anyLaw impairing the Obligation of Contracts.").
- U.S. Const. Amend. V ("No person shall bedeprived oflibertywithout due process of law."). For more than one hundred years the courts applied this clause to protect the right to contract. See, e.g., Adair v. United States, 208 U.S. 161 (1908) (holding that an employer has the same right to prescribe terms on which to hire an employee as an employee has to prescribe terms on which he will sell his labor, and legislation which interferes with this right is an unjustified interference with liberty of contract).
- U.S. Const. Amend. XIV ("No State shalldeprive any person of libertywithout due process of law."). For fifty years the courts interpreted such liberty to include the general right to make a contract in relation to a business. See, e.g., Lochner v. United States, 198 U.S. 45 (1905).
From what I have read, courts in the US have become more liberal with protecting and enforcing contracts, which is a terrible precedent, and if people are going to protest outside the Supreme Court it should be over this, but that's a topic for another day.
The fact that you, an extremely intelligent fellow, conflate these chalk-and-cheese problems -- state governments refusing to recognise legally formed contracts between adults of sound mind on the one hand, and states exercising their Constitutional right not to issue marriage licences to people who don’t meet their criteria on the other hand -- illustrates my point better than I could.
So here is a brief articulation of the libertarian position for gay marriage in the context of America’s federal system. The federal government has no right to interfere with the lives of individuals or communities; its job is to establish the ground rules. If any government is going to take an active concern in people's personal lives, it should be at the state level. And no state should be compelled to recognise a licence issued by another state -- it's usually in everyone's interest to do so, but states, like people should have the right to make bad decisions too.
However, states have to operate within certain legal parameters, one of the most important of which is enforcing legal contracts between adults of sound mind. And if marriage is recognised as a private contract between two adults of sound mind, nothing more nothing less, no state should have the right to refuse to recognise its validity or enforce it.
My reckoning is that if marriage was not a matter of issuance of licence at either the federal or state level, then the impetus to repudiate gay marriage would all but evaporate. Why? Because even the most ardent anti-gay conservatives would live in a society where their objection to gay marriage wouldn’t matter at any level beyond the individual or community. Only the pettiest bigots would oppose, for instance, someone inheriting his or her life-partner's estate if it is in the will -- again, a violation of contract law -- or even if it is not mentioned in a will, but is clearly to be inferred from a significant period of de facto life partnership.
And to return to the main point, there would be no perceived threat to their way of life either at the state, or more infuriatingly for them, at the federal level.
And just to be clear, I said “perceived threat”. That you don’t think gay marriage constitutes a threat to them -- I don’t think so either -- is besides the point. You know that unless you frame the issuance of a marriage licence as a civil right -- and that argument is nonsensical -- in a democracy, the majority has the right to set the criteria by which issuance of a marriage licence is determined.
So let’s be crystal clear what my position is.
- I fully support the right of two consenting homosexual adults to be married by a secular celebrant or at a liberal church.
- I fully support the right of two consenting homosexual adults to enter into a legally binding contract and call it a marriage.
- I fully support the recognition and enforcement of that contract, and am convinced that it can and should be so, even in the most conservative parts of America, by virtue of the the sheer weight of both the common law of contracts and the American Constitution’s requirement that all citizens be equal in the eyes of the law.
If there were no marriage licences at all, the only major issue left would be simplification of your ridiculous tax code. And that's something everyone can support, conservative or Leftist, gay or straight.
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