Gay Marriage, from a Constitutional Perspective

New York Daily News: “The moral and constitutional case for a right to gay marriage,” by Robert A. Levy


7 Responses to “Gay Marriage, from a Constitutional Perspective”

  1. Mr. Levy makes a really strong case. But I wonder how much we should work for “privatization” of marriage. If the government were not involved, it would not be an issue at all. But since it is, can the government say that only some people qualify for marriage, and not others? I think that Mr. Levy makes a principled libertarian case for equality and I applaud him and the Cato Institute for doing it.

    I also wonder how many people know that he is the same person who restored to Americans the right to keep and bear arms!

  2. The government should abolish marriage. There is no sense anymore in having marriage as a part of law. If people want to marry before church, mosque, synagogue or in Disneyland it is their individual right and preference to express their love to their partner. Why should government interfere with that?

  3. Tom Palmer


    I don’t think your words quite reflect your thoughts. Marriage as an institution should not be abolished by government, as marriage (in many forms) has existed without the state for a very long time. It ought to be “privatized,” i.e., considered a relationship entered into freely by persons. There are, however, two considerations that may make this a bit different from other cases of private agreements.

    1. Marriages often create children. (Children also are created without marriage, but the normal approach is that the creation of the children creates some legal relationship among the adults, as well.) Those children are not willing participants in the agreement. They’re just there. What rights do they have? It’s not just a matter of specifying that in the agreement among the adults who created them. They can’t (or shouldn’t), for example, simply say that neither has any responsibilities and the children should die. The birth of a child creates some responsibilities on the part of the parents.

    2. The states of the United States do establish certain relationships of marriage, including both rights and obligations (a lot of obligations), but only some people are allowed to enter into them. Others are not allowed. If the state were to say that only Christians could enter such relationships, but Jews, Muslims, or followers of other religions could not, classical liberals should find that a form of invidious discrimination; it is especially odious when some of the rights and obligations are deeply important to people (such as the right to visit one’s partner on his or her hospital bed, which is reserved for “relatives,” but denied to “partners” who are not married) and would be created privately if they could be, but cannot be in the absence of that state-sanctioned legal relationship. I think that Levy’s position makes the most sense, given the various constraints. It’s not the state’s business to discriminate among citizens without good reason (e.g., discriminating against the blind in choosing candidates for Air Force flight training).

  4. Mathieu Bédard

    A few years ago while I was with the Toqueville Fellowship in DC I suggested a denationalization of marriages to an evangelist policy group as a way of making each side happy. I interpreted their answer as some mix of “gee we never thought about that” and “that could be a venue we should investigate”, but I may be wrong.

  5. Thank you for your comment. I meant that marriage should be a purely private matter. In Belgium for instance you are not married until you are married in city hall where the mayor registers you in a little ceremony. My problem with this is that the state creates a legal difference between people who are married and couples who are not married. In law (for instance tax law) there are still differences between married couples and unmarried couples.

    Specifically on your first point I would like to comment/ask: what is the difference between children from a married and an unmarried couple? Marriage is just a ceremony of two (or even more) people who love each other and want to make an ‘eternal’ commitment. Having a child does not change that or that ceremony does not make it easier to have a child. It also does not create obligations towards a child since giving birth creates that obligation (also for the father)

    I see marriage as a folkloristic ceremony between two people who love each other and want to show their commitment to each other by this ceremony. It is nothing more than things like baptism or communion so why having marriage in the law book? Being baptized does not create any right or obligation for me (actually it does in church law but that is something else). What might be helpful for indeed stuff like hospital visits, testaments etc, is provide an option in civil law for people to declare themselves as legally living together.

  6. What’s significant about marriage isn’t so much the ceremony and eternal (lol!) commitment. That’s the Care-Bear vision of marriage. Those things may be very important to many people, but they’re not it’s key function.

    Marriage is the act of signing a contract where both parties’ heritage/patrimony are consolidated, and where each party is made solidary of each other. It’s about giving each other a mutual reciprocal degree of legitimacy over decisions regarding their property and their self.

    At least that’s how I see it 🙂

  7. I’m in favour in principle of privatising marriage, but there would be problematic results if that reform weren’t accompanied by others. Example: one way to become a u.s. citizen is to marry one. If marriage were privatised, would that way of becoming a citizen be abolished?

    I guess that puts me in the position of saying we shouldn’t privatise marriage until we have open borders. That sounds a bit like a view I DON’T accept, namely that we shouldn’t have open borders until we abolish the welfare state. But what justifies the difference between the two, as I see it, is that in each case I favour the policy that most limits the ability of government to screw up innocent people’s lives.

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