Of marriage privatization, libertarians and ahistoricism
I hope you’ve all been watching the gay marriage stuff in the media. I’ve sent off my response to the consultation. And I hope you do too.
It’s all jolly good fun and japes, having consultations and voting over whether or not to grant equal rights. And, of course, the Church and the Campaign for Marriage and so on are looking like utterly despicable fools.
Anyway, in amongst all this, if you go out on to the wilds of the Interwebs, or occasionally amongst political commentators and academics, you might get wind of the libertarian reaction to marriage equality, which can be summed up with the slogan “the state shouldn’t be in the marriage business”.
If you haven’t come across this argument, some examples of this: Michael Kinsley is one example from a non-libertarian perspective, and David Boaz comes at it from a libertarian perspective. I know Cass Sunstein has advanced a similar argument. For a broad overview, see Wikipedia which labels it “marriage privatization”, which I guess is as good a term as any.
Incidentally, Michael Sandel often uses it as an example when illustrating Aristotelian moral theory, and it’s a good example for that. According to the Guardian, Sandel doesn’t endorse the argument, instead thinking that the state has a duty to promote virtue, and letting same-sex partners marry does that.
What ought we make of people like Kinsley and Boaz? Obviously, they aren’t homophobes or bigots. As Boaz points out, he would vote for same-sex marriage at a state level, while believing that marriage ought to be a function that isn’t handled by the state. Nothing in the argument commits you to the view that gay people are second-class citizens or any other overtly homophobic view. And, well, as Stephen Fry might say, that’s nice. I’d rather live in a world where people are having a polite debate about whether or not the state should be in the marriage business than in a world where they are denying gay people their rights and dignity. So, yeah, that’s nice.
Intellectually, I don’t know whether I agree with the argument, because ethically, I’m rather unsure about my fundamental ethical starting points. When I was a full-on libertarian, I’d have an easy, off-the-shelf answer to these kinds of problems. (Then, of course, I finished puberty and realized that perhaps the world was more complicated than libertarian writers made it out to be.)
There’s definitely intellectual merit to the argument, and some practical merit too. If widely accepted, it’d solve a shit ton of problems: it’d obviously mean there wouldn’t be any inequality between heterosexual and homosexual people over marriage, it’d also mean that similar kinds of unions could be available for polyamorous/polygamous people, and there would be no downside to not being married. That is, the state wouldn’t really be able to offer some benefit only to those who are married. There’d be no state-level discrimination between a bunch of people living in a commune and a straight monogamous couple that are currently married.
There is, of course, an Aristotelian critique of this kind of thing, and I’d point interested readers towards communitarian critiques of liberalism—Sandel, MacIntyre, Etzioni, etc. If you have the full-on libertarian blinders on like I used to, you’ll just dismiss that kind of moral reasoning out of hand. But I’m not really going to discuss that much, because frankly that’s not the primary objection I have to it (I haven’t read enough communitarian moral theory to know whether or not I endorse that approach). The Aristotelian objection can be stated rather snarkily like this: “Oh, you want to privatize marriage? You know that marriage is rather a different kind of thing from a telecommunications company, right?”
There are practical objections to marriage privatization: if marriage were privatized, the state would still be doing a bunch of functions that it currently does for married people—pension provision and regulation, access to healthcare services, access to private records, regulations on banking for joint accounts, and other benefits or services provided to married people differently from non-married people. Without marriage or with privatized marriage, the state would have to decide how to provide those services and under what conditions: simply saying that the state is out of the marriage business doesn’t mean the state doesn’t have to decide which types of marriage-like unions are deserving of special status. There’s a whole barrel of worms there, some of which can only be answered with Yet More Libertarianism. (Remember, in libertarian logic, the answer to problems with libertarianism is always more libertarianism, the answer to market failures is even freer markets.)
But my concern isn’t even the practical ones, although those are tough. The issue I have is a very simple political one.
Even if this view is correct, and even if it’s convincing, it’s completely irrelevant. It isn’t a viable political alternative to the status quo. However compelling free market marriage or “getting the state out of the marriage business” is, it isn’t going to happen. It’s taken a boatload of hard work since the 1960s to convince people that gay people deserve rights, and we are actually on the cusp of getting marriage equality… but instead, we—actual human beings who care about gay rights—shouldn’t be bothering, and instead fighting for marriage privatization.
Instead of having to convince the heterosexual majority of equal rights, we need to persuade them that they need to stop being married altogether and start having denationalized contracts or whatever one might call these non-state-endorsed cluster of marriage-esque things.
Because you know what they’ll say? Yeah, go fuck yourself. Okay, they might be a bit more polite. Either way, politically, it’s impossible. Intellectually, it’s an interesting thing to discuss, but politically it’s a no-hoper.
This is one of the issues with libertarian argument: it is often ahistorical, it just derives policy from a bunch of a priori commitments. Which is fine, but we aren’t ahistorical, we are real, existing people in a particular region of space and time, with historical backgrounds, with real interests in this world. Marriage privatization might be lovely, but given that there are real, existing gay people who are being put at a disadvantage now by not having marriage equality, “hey, there’s a wonderful libertarian solution to this” sounds good, except it isn’t actually a solution, it’s just rhetoric.
To suggest to gay people who are fighting for marriage equality to stop and instead fight for marriage privatization is asking a historically marginalized group of people to give up the fight for a practical real-world change that can improve their lives—our lives—now in order to fight for a pie-in-the-sky libertarian policy proposal that has absolutely no hope of ever going anywhere.
Perhaps in 50 years time, people will come around to marriage privatization and we’ll have formally disestablished the Church of England, and then we’ll just have a world of rational actors wandering around freely entering into contracts with one another, stopping only momentarily from servicing their rational self-interest in order to offer a moment’s thanks to Ayn Rand. Maybe in a libertarian society, gay people will be treated with exactly the same liberty as everybody else. Great. But we don’t live in Libertopia, we live in this world, in this reality, with this government. And marriage equality makes that reality less awful by making it so marriage recognizes gay relationships and gay love as equal.
You want marriage privatization? Convince the existing married straight people. Make it a real, live political option, then we’ll talk. But until that point, don’t expect gay people to give up on the fight for marriage equality in order to support marriage privatization.
Postscript If you wish to see a good example of a “marriage privatization” advocate that has grappled with the issues well, try Russell Blackford. Blackford seems to understand that an intellectual consent to the privatization argument isn’t enough, and it isn’t some kind of Solomonic third way in the gay marriage debate. The problem with the marriage privatization argument isn’t that it’s wrong or a bad approach, it’s that rushing towards it now is being done at the expense of real-world steps that can increase equality (like, say, full marriage equality for same-sex couples).
