Another Victory for Same-Sex Marriage

by Liberty and Power

Well, another step on the road for legal equality for gays and lesbians as a Washington State judge has ruled the state's definition of marriage as between a man and a woman violates the state constitution's protection of substantive due process. The actual decision (PDF) is a very solid piece of legal reasoning that also makes good use of the social scientific arguments against heterosexual-exclusive marriage. And I'm always heartened by the invocation of substantive due process and fundamental, yet unenumerated, rights arguments. Three cheers for the Ninth Amendment!! Let us hope we see thsoe arguments extended to economic issues, as in the Lochner era. I'll plug Randy Barnett's new book on these issues, while I'm at it.

And yes, for my radical libertarian friends, perhaps the state should be out of marriage altogether, but in the world of the second best, it is a violation of equality before the law, also a key libertarian principle, that gays and lesbians are denied the same right to marry that heterosexuals have.

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Pat Lynch - 8/5/2004

That's clearer. Thanks - although I was starting to enjoy being a radical this morning - lol.

Steven Horwitz - 8/5/2004

Pat - I didn't mean "radical" in a negative way there. And I do agree that getting the state out (my preferred solution as well) is both the right/consistent libertarian view and more politically doable than most radical ideas. I was just trying to shield myself against the claim, made by some self-styled "radical" libertarians, that approval of same-sex marriage in the current state of affairs is tantamount to giving more people gov't benefits and the like. I agree with all you have to say in your comment.

Pat Lynch - 8/5/2004

Steve - I'd take issue with the idea that "radical" libertarians are the ones arguing for getting the state out of marriage. I don't think of myself in that way, and in fact would push you a bit on it. Political expediency is fine, but let's be honest, raising the question of why the state should regulate personal relationships is the moral and, I believe potentially, political high ground. Radical? It seems to me to be a fundamental libertarian position.