Thursday, July 2, 2015
Let's get the standard disclaimer out of the way right off the bat, even though it's not the point of this post: Issuing marriage licenses, determining who may, or may not marry, or distributing benefits or levying penalties based on such licenses, is not a proper function of a minimal state. The only moral state is one that is not a "state" at all, i.e., one that is entirely a voluntary organization, which cannot claim any authority to grant or deny licenses over the activities of any non-consenting person. The remainder of this post reacts to what an inherently immoral outfit - the state - has done, in reaction to those - the statists - who legitimize its exercise of authority, so don't expect to encounter any Platonic forms there. There will remain an itch that has not quite been scratched, after you are finished reading.
While obviously not based on libertarian principles at its root, the Obergefell opinion is worthy of acknowledging positively (if not celebrating) by libertarians for at least two general reasons: (1) a majority of the Court cited liberty as a protectable interest that justifies extending access to state-granted licenses to traditionally excluded people, and (2) abundant schadenfreude, irony and instruction are provided by the explosion of passionate dissents from the conservative justices, hypocrites who have proven they are quite willing to do what they condemn, ergo, to rule from the bench, when it suits them. That's not to say the opinion couldn't lead to much less libertarian rulings down the road -- but such outcomes are the natural tendency of the statists anyway. Philosophy aside, a big practical plus of the ruling is that all of us can now now have our 1-on-1 marriages recognized, if we wish, whatever our sexual preferences. I have friend and relatives who are relieved about that, which makes me glad.
Some libertarians, however, may view the increasing acceptance of same-sex marriage as cultural decadence, with some dread. The forsaking of old traditions may feel that way, but there are often clear distinctions between tradition and morality. Same-sex marriage, with or without state license, is one such case. Marriage as a state of intimacy and legal commitment between two or more people, entered into and subsisting voluntarily, is either entirely neutral when it come to decadence, or tends to oppose it. War, greed, selfishness, injustice, coercion, domination, sloth, fraud, oppression, hatred of one's own species: all of these things (and other vices) increase decadence. But the very demons of hell could all marry each other, and it would not increase the decadence of hell one iota. Indeed, the Evil One might find it an alarming development.
To use a more prosaic example, when LGBT people or others settle down and marry, we can confidently assume there will be some decrease in promiscuity among them. If one supposes that sexual activity is immoral unless done for some limited purpose -- such as, for example, reproduction or family-building -- then more LGBT marriages will necessarily cause a decrease in decadence. Some portion of these marriages will involve the raising of children, and thus some portion of the sex will be sanctified, however imperfectly, by the accompanying obligations of family and parenthood. Even if one believes that certain sexual practices can never be sanctified at all, no matter its underlying purpose (which position creates another set of logical problems), the simple decline in promiscuity suffices: same-sex marriage must decrease decadent sex, and thus, cannot be opposed for moral reasons. On the other hand, if sex between consenting adults is never immoral for any reason, then there is no basis for regarding homosexual activity as any more decadent than sex between a man and a woman, in the first place. Under either view, it would be illogical to regard homosexual marriage as increasing decadence, in and of itself.
If extending marriage as a social institution cannot logically be blamed for increasing cultural decadence, what explains the discomfort of some libertarians at the increasing acceptance of homosexuality as a normal aspect of the human condition? Although in some traditions homosexuality was (or in some cases is) firmly regarded a crime worthy of death, the passing of such beliefs from the mainstream of Western culture is no more to be mourned or regarded as decadent than the passing of chattel slavery, or the cessation of sacrificing virgins to gods. One cannot hold to the non-aggression principle, while advocating for the criminalization of any sexual activity between willing adults not motivated by coercion or fraud. No libertarian indulges in such advocacy, and none mourn the passing of these ancient theocratic attitudes.
A libertarian might reasonably believe, however, that some forms of non-criminal conduct or conditions constitute social vices or spiritual sins, for example: sloth, gluttony, greed, envy, and other sins, without amounting to tortious conduct or crime. To such a list, a libertarian might add certain sexual or economic behaviors, including adultery, lasciviousness, masturbation, fetishes of various kinds, sodomy, distribution or consumption of pornography, prostitution, and many other behaviors with an erotic tinge, with or without good reason. There is no point in debating moral preferences of this sort here; we shall assume that decadence (like beauty) is in the eye of the beholder. That is, decadence can only be measured against some cultural standard held by some person or group of persons, which cultural norms we know from hard experience to be about as uniform and predictable as the ischial callosities of a baboon. Nonetheless, if one believes (for example) that gluttony is sinful, then it is rational for the anti-glutton to make a connection between growing social protections or esteem for the obese, and cultural decadence. By the same logic, a socially conservative libertarian can reasonably make a similar connection concerning the growing social acceptance of same-gender sexual behavior, of which the Obergefell opinion is merely a notable signpost. So can a theocratic social conservative, for that matter.
The libertarian social conservative, however, faces a tension that the theocrat does not. The libertarian must acknowledge that sinners of all types must enjoy equal protection under the non-aggression principle. Moral or religious beliefs cannot excuse the initiation of aggression, without negating the non-aggression principle. The theocrat, in contrast, is commanded to initiate aggression to the point of death, for any reason written in the Qur'an, Torah, or other hallowed book or teaching. One cannot hold the literal meaning of Leviticus or the Qur'an regarding penalties for homosexuals, for example, while also holding to the non-aggression principle. Something's got to give. No one can serve two masters. One either observes the non-aggression principle, or one does not.
It follows that one cannot be a libertarian, while at the same time adopting the penalties proscribed in holy writings such as Leviticus or the Qur'an for homosexuality. What these writings teach on that subject is plainly contrary to the non-aggression principle. These traditional authorities must either be rejected as literal standards for present-day social conduct, or must be followed in every respect, in aggressive theocratic fashion.
Let us postpone the moral debate between theocracy and liberty until the Last Judgement, or at least until a later post. Until then, there are debates aplenty to be settled between the puritanical, prudish libertarians and the licentious, lascivious libertarians. And perhaps even between the lascivious prudes and the licentious puritans. There are enough varieties of decadence afoot to keep us all busy decrying for a long while. But whatever moral preferences you defend, or decadence you decry, do not fail to notice that -- just like that other libertarian you are sniping at -- your preferences are subservient to your forbearance from initiating aggression for political or social purposes. That unifying principle is worth celebrating, and no oligarchic ruling of five robed justices declaring a license of the state to be a fundamental liberty can hold a candle to it.