Libertarians Should Be Cautious in Celebrating Obergefell

To no one’s surprise, five justices of the U.S. Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.” The full opinion is here.

For example, Robby Soave over at Reason blasts the dissent from Justice Scalia and observes that he is no friend to libertarians. Also, Ilya Shapiro at the Cato Institute gives a thumbs up to the Court’s decision. Undoubtedly many readers of this blog share these sentiments and cheer today that homosexual couples can marry just like opposite-sex couples. However, before you get caught up in celebrating this “victory” for liberty, think about several things.

First, that the main liberty on which this country is founded is the right to self-government. For that reason we seceded from the British Empire so that each colony/state could govern its own affairs. Via the Articles and later the Constitution the states combined for certain external matters such as national defense and international commerce, but as to their internal affairs they remained separate and sovereign. This was supposed to allow the states to govern themselves based on peculiar local circumstances and culture; keep the governors close to the people; and allow for the states to serve as laboratories of democracy. Domestic relations were always seen as a matter of state and local regulation. There is no power delegated to the federal government over marriage, divorce, child custody, etc. When the federal government (legislative, executive, or judicial) acts outside the delegated powers and assumes prerogatives left to the states or the people, this cherished right of self-government is threatened.

Second, although the majority sets forth many good policy arguments on why same-sex marriage ought to be allowed, they are just that—policy arguments. Neither the Constitution of 1787 nor the 14th Amendment speak to same-sex marriage. Sure, there is a Due Process Clause in the 14th Amendment, but that should be understood as a guarantee that certain procedures must be followed in judicial proceedings before a person is deprived of life, liberty, or property. For example, a warrant should be submitted to a neutral magistrate to determine probable cause before a search is undertaken or a jury should be empaneled to decide felony cases between the government and the accused. Giving it a substantive meaning—i.e., giving the courts the power to determine if certain non-judicial policies or laws are “acceptable” in the opinion of the Court—sets the judicial branch above the other branches and the people. Policy is not the business of the Courts. We elect legislatures to debate policy and enact laws based on policy preferences. Actually, that was going on and going rather favorably for the gay community before the Court intervened with this decision.

Third, well what about Equal Protection? The 14th Amendment has an Equal Protection Clause, and states that did not allow homosexual marriage were denying homosexuals equal protection of the laws. Almost every law discriminates and creates classifications. For instance, a law that allows 16 year-olds to drive, but not 15 year-olds, creates a classification: those above 16 can drive, those below 16 cannot. This is not an equal protection violation because the intent behind the clause was to ensure that blacks enjoyed the same rights as whites and because the classification has a basis in reason. Sure, some teens 15 and 14 might drive better than adults who are 40 or 50, but courts have typically looked only to see that the classification has some basis in reason. It is reasonable to conclude that as a general matter a person should be 16 years or older to drive because as a general matter such an age brings enough maturity that the person can be expected to handle a car. Same thing for state laws on marriage. The traditional definition of marriage is based on the state’s desire to channel potential procreative activity into a stable social and legal relationship: marriage. This is per se reasonable, although there are policy arguments that can be made for expanding the definition. Bottom line: the view of marriage that has existed for thousands of years across a variety of different cultures (even cultures that were open to homosexuality, such as ancient Greece) is not bereft of a reasonable justification. And we don’t—or at least shouldn’t want—unelected judges looking beyond reasonable justification lest they be tempted to force their personal opinions—good or bad—on us.

Fourth, as my friend David Theroux pointed out to me, nationalization of states’ laws seldom results in greater freedom. For arguments pointing out the dangers of nationalization, see this Independent Institute op-ed. We should ask ourselves, based on this ruling, whether the federal government can nationalize any state law that increases government power, such as compulsory schooling, confiscatory taxes, bans on soft drinks and meat, higher drinking ages, etc. In other words, can the feds nationalize any state law that is intrusive and even tyrannical? Does this nationalization power bring greater freedom?

Fifth, think about what the gay rights movement has lost with this resort to the federal courts. Chief Justice Roberts puts this nicely in his dissent: “Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.” Opponents of gay marriage will ever believe that the debate and contest about the meaning of marriage was stolen from them. This will increase bitterness and likely close minds rather than open them to reasoned discussion and debate. What use is a democratic government with a First Amendment to promote debate, give and take, and respect when the judiciary decides all issues and questions that it deems important?

Finally, what does this bode for the future? With this decision, nine unelected federal officers firmly take on the power of legislating. The majority’s opinion reads like a collection of aphorisms from a far eastern philosopher and has little, if anything, to do with the application of established legal principles to an actual case or controversy. Many libertarians like the result in this case, but what will these cheerleaders say when the Court finds a state flat tax or state decision to reduce public assistance benefits to be unacceptable (that is, against the Court’s policy preferences) and declares these laws unconstitutional on due process or equal protection grounds? This is not idle speculation. Many progressive law professors urge, for example, that the poor should be considered a suspect class and thus the Court should strictly examine all state laws that impact various benefits. Here’s an article discussing this.

The Supreme Court has gone far from the judicial role outlined for it in the Constitution. Be careful when cheering for a result that you like; the power is there to reach issues and results that no friend of liberty will applaud. And you have no vote—none whatsoever—if you want to remove these Platonic Guardians from office.

UPDATE: Note that is post was updated on 6/27/2015.