Posted by Dale Carpenter: Libertarian Squishiness: http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250692393
This morning's Times has [1]a lengthy profile on how Ted Olson came to file a federal lawsuit challenging the constitutionality of Prop 8 and, by implication, all laws limiting marriage to one man and one woman. One interesting thing about the article is how few right-leaning commentators are cited as publicly criticizing Olson, a stalwart of the Federalist Society and the conservative/libertarian legal movement since the Reagan era. Robert Bork doesn't want to get into a public argument about it. He just wants to know why Olson joined the other team. William Bradford Reynolds mildly chides Olson for taking "a more assertive view of how one should interpret the Constitution than you would normally expect Ted to take." A quote from Stephen Calabresi implies that Olson's lawsuit might echo "a certain libertarian squishiness at the Office of Legal Counsel [in the Reagan Justice Department] under Ted." I take Calabresi's suggestion at two levels. First is the suggestion that libertarians are often more willing than conservatives to support the use of courts to enforce favored policy outcomes. That's debatable given the experience of recent years, but let's leave to one side the overlay of the judicial role specifically in bringing same-sex marriage. One could fully support same-sex marriage, for any number of reasons, libertarian or otherwise, and still not believe the judiciary should impose it. The second suggestion is to identify libertarians as supporters of gay marriage. I think that's descriptively true: libertarians are far more likely than traditional conservatives to support same-sex marriage. But as a substantive policy matter, it's hard to see same-sex marriage as a genuinely libertarian cause. It enlarges the empire of marriage, and thus of state regulation. It's true that one voluntarily enters this system of regulation, but the government offers many special advantages and inducements to enter it. From a libertarian perspective, marriage is a subsidy made available to encourage us lead a certain kind of life favored by the government, just as the state encourages us to own a home, go to college, contribute to charity, buy fuel-efficient cars, etc. In part because of its channelling and traditionalizing potential, same-sex marriage is [2]a conservative cause, in my view, though I appear to be one of about five people in the country who actually believes this. So what explains libertarian support for SSM? Libertarians have been more willing than traditional conservatives to oppose government-sponsored discrimination against gays and lesbians. Libertarians are also less likely to allow their religious views to dictate their public-policy preferences and are also less likely to presume that traditional practices should enjoy any presumption. These considerations might lead a libertarian to support same-sex marriage as long as state-sponsored marriage remains, as seems likely. But I would think that's a second-best world for most libertarians, who would prefer a more privately ordered state of, shall we say, affairs. It's also possible that some libertarians might support same-sex marriage as enlarging the "liberty" or choices of gay persons. But again this libertaraian gain should be qualified: same-sex marriage is an induced choice to enjoy "liberty" within a very constrained and state-designed system of official recognition. Married gays are not really "free at last." They're more aptly described as unfree at last. So I would not identify support for same-sex marriage with libertarian squishiness, or libertarian firmness, or libertarian anything. That doesn't especially bother me, since I'm not a libertarian. I'm at most a conservative with libertarian leanings, a faint-hearted libertarian. But I do wonder how actual libertarians arrive at their support for same-sex marriage. References 1. http://www.nytimes.com/2009/08/19/us/19olson.html?_r=1&hp 2. http://volokh.com/posts/chain_1131164649.shtml _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
