EQUALITY : RIGHT ON : [lpsf-discuss] TONIGHT: Marriage Equality rally & march

Hi David,

OK. One more round.

1. Is marriage a right or a privilege?

Marriage is a right. But you seem to make a distiction: you seem to think that civil marriage is a privilege. But if there is a right to contract, then there should be a right to civil marriage which, after all, is just a contract between two people.

You seem to think that this right exists in today's political and civil society, but I disagree. There are hundreds of subtle and not so subtle ways that being (legally) married and not being married can never be the same; even with the expenditure of any amount of legal fees. Even if every non-government institution treated a legally-single "married couple" the same way as a legally married one (which they do not; which I would like, but do not claim a right to), there is always the various levels of government. Governments use the coercive power of the State to suppress the rights of single people. Stealing more from them. Preventing certain relationships and contracts. Etc.

For instance, the protection of the fifth amendment about testifying against oneself protects married couples, who obviously have a special intimate knowledge of each other's affairs, from having to incriminate each other in court. This seems very reasonable, otherwise, communication between spouses would be stifled. That protection does not extend to legally unmarried couples, no matter their 'personal' relationship, powers of attorney, etc. I can be thrown in jail for not testifying against my partner of 20 years, if asked to.

All this 'drawing up of papers' begs the question, is legal marriage a right if you have to pay for it? Would freedom of religion be a right if you were taxed for it? What if the government said I could have a church, but only in a town 400 miles away? Then one could make the same argument: "Well, you can have your religion, you just have to drive further to practice it, but you have the same 'rights' as everyone else. (Quit complaining.)" I think any reasonable judge would say that there was an infringement on my right to practice my religion, in that case, since I am not allowed to set up a church in my own town. This is just like saying: "Well, you can 'simulate' marriage by hiring a lot of lawyers and drawing up papers covering every contingency of death, separation, property ownership, etc., so you have the same 'rights' as everyone else." (So what if your employer, your hospital, your children's school, your state government and the federal government, etc. don't recognize that private 'marriage' contract you keep waving in their faces. Quit complaining.)

State governments offer a "standard" contract for marriage. Being a standard, getting married is a much easier and surer thing. Can my partner and I use that contract? No! We tried to sign-on to the California version on Feb 16, 2004, but on August 19th, 2004, the government cancelled our contract, without consulting (or even so much as notifying) us. So, our right to enter into a contract was denied by the State.

Finally, don't forget that several states are going even further. They are passing laws and constitutional amendments that specifically prohibit gays from any of the 'benefits of marriage'. These laws are being used to eliminate any type of 'marriage' or 'domestic partner' benefits previously granted in those states, such as insurance for employees' partners and equal parenting rights (another good example of where legal marriage is different from single-with-lawyers).

2. Equality

David, we both would rather see rights expanded rather than contracted when moving towards equality. So, the question is: Is allowing same-sex marriage both improving equality and increasing rights, or the opposite, or is there a conflict between the two?

As previously pointed out, we are talking of equality under the law, not to be confused with equality of outcomes.

I would contend that allowing same-sex marriage moves both towards greater equality under the law and towards greater liberty.

Consider two cases for me and my partner: a) our only option is being single, and b) we have the choice of being single or married. Now, if we thought that being married was a poor choice, we wouldn't have to take it under option 'b'. We can always choose to stay single, which is our only possibility under option 'a', so our liberty is hardly being decreased. We only get married under b) if we think it is to our advantage, therefore our liberty is being increased. Since most every other group in society is being offered option 'b', then by offering it to gays, equality is also being increased.

Ask the question: Would [L]libertarians be for putting the miscegenation laws back on the books? Would this increase or decrease liberty? Would this increase or decrease equality? This is really the same as the same-sex marriage question, but with a different set of actors; otherwise no different. If you would not be comfortable with re-outlawing inter-racial marriage, then why would you consider the outlawing of same-sex marriage OK, but for a different set of biases?

Rich

BTW, I don't equate 'same-sex marriage' and 'big-government libertarianism', as implied per your Rothbard article reference. In one case we are increasing liberty and the other reducing it. I am not asking for higher taxes, higher government spending, more war, more regulation, or anything of the sort. I just want lower taxes, lower regulation, etc. Now, don't try to say that my (potentially) lower taxes are a decrease in your liberty... I won't buy into that argument.

Okay, I guess we will have to agree to disagree on
this topic. I see you brought up many of your previous
points yet again and I still remain unconvinced.

Some additional counter points though, for what
they're worth-

- On the technicality of the term 'rights'.. I would
agree that marriage or any other type of contractual
agreement is a 'negative' type right, as in - one has
the right to do whatever one pleases as long as it
doesn't initiate force. My distinction on rights vs.
privileges are that privileges are a positive type
right, or given by a higher power. (i.e. the right to
health care or government marriage)

- marriage vs. civil contract...if you get the same
level of privilege by letters of incorporation or
civil marriage as you would conventional marriage,
what is the difference other than in name? The cost?
Seems like seniors and kids get a break on everything
though. Hence my comment on envy.

Now your comment on testifying against a spouse gave
me pause since I hadn't thought about that specific
aspect. But my response would be - why should a spouse
get spousal privilege? They don't get it in divorce
court. In fact, aren't doctors and some attorneys now
getting this privilege revoked?

http://www.uexpress.com/coveringthecourts/?uc_full_date=19990818

- I suspect some of the 'subtleties' of singlehood vs.
marriage that you speak of are more from social
oppression than actual identifiable oppressions by
government.??

-on your comment "is legal marriage a right if you
have to pay for it?" I think you just strengthened my
argument with this point. You DO have to pay for
marriage! In SF it costs $83!! More reasoning that
it's a privilege.

- on the equality question overall... The analogy I
want to make here is - Basically, imagine we are all
in prison and very hungry. Finally the food comes and
the guards give the redheads beef and the blondes
chicken. In your perspective, you want all the
prisoners to have the choice of chicken or beef. In my
view - I want to bust everyone out of the joint so we
can cook whatever we want! That's what I mean by
getting screwed equally. I'm not against the people
who don't like chicken, I just want to escape.

So I don't want more laws created for equalities sake.
In fact, the so called cold, brutal honesty of it all
is = people are _not_ equal and never will be....and
that's a good thing! To be considered equal requires
that a higher power judge equality and I abhor the
concept of that. This is the main point that Rothbard
was making in his article. It wasn't so much about
higher taxes and more war, but the fallacy of mixing
libertarianism and egalitarianism. But maybe you

Basically, my motive is to reduce laws, not create and
change laws to apply to all infinitely subjective
situations. In fact, I think you slightly skew the
meaning of 'equal under the law'. I believe it to mean
we are all punished as equals - not that all laws must
apply to every conceivable abstract label. If that
were true, maybe drunks should be allowed the drive??
I will consult with my attorney friends on this.

All good stuff..

David

My quote for the day -

"Government is incapable of giving freedoms, it can
only take it away. 'Choices' and privileges granted by
the state are really the golden chains of corruption."

--- Richard Newell <richard@...> wrote:

Hi David,

OK. One more round.

1. Is marriage a right or a privilege?

Marriage is a right. But you seem to make a
distiction: you seem to think that civil marriage
is a privilege. But if there is a right to
contract, then there should be a right to civil
marriage which, after all, is just a contract
between two people.

You seem to think that this right exists in today's
political and civil society, but I disagree. There
are hundreds of subtle and not so subtle ways that
being (legally) married and not being married can
never be the same; even with the expenditure of any
amount of legal fees. Even if every non-government
institution treated a legally-single "married
couple" the same way as a legally married one (which
they do not; which I would like, but do not claim a
right to), there is always the various levels of
government. Governments use the coercive power of
the State to suppress the rights of single people.
Stealing more from them. Preventing certain
relationships and contracts. Etc.

For instance, the protection of the fifth amendment
about testifying against oneself protects married
couples, who obviously have a special intimate
knowledge of each other's affairs, from having to
incriminate each other in court. This seems very
reasonable, otherwise, communication between spouses
would be stifled. That protection does not extend
to legally unmarried couples, no matter their
'personal' relationship, powers of attorney, etc. I
can be thrown in jail for not testifying against my
partner of 20 years, if asked to.

All this 'drawing up of papers' begs the question,
is legal marriage a right if you have to pay for it?
Would freedom of religion be a right if you were
taxed for it? What if the government said I could
have a church, but only in a town 400 miles away?
Then one could make the same argument: "Well, you
can have your religion, you just have to drive
further to practice it, but you have the same
'rights' as everyone else. (Quit complaining.)" I
think any reasonable judge would say that there was
an infringement on my right to practice my religion,
in that case, since I am not allowed to set up a
church in my own town. This is just like saying:
"Well, you can 'simulate' marriage by hiring a lot
of lawyers and drawing up papers covering every
contingency of death, separation, property
ownership, etc., so you have the same 'rights' as
everyone else." (So what if your employer, your
hospital, your children's school, your state
government and the federal government, etc. don't
recognize that private 'marriage' contract you keep
waving in their faces. Quit complaining.)

State governments offer a "standard" contract for
marriage. Being a standard, getting married is a
much easier and surer thing. Can my partner and I
use that contract? No! We tried to sign-on to the
California version on Feb 16, 2004, but on August
19th, 2004, the government cancelled our contract,
without consulting (or even so much as notifying)
us. So, our right to enter into a contract was
denied by the State.

Finally, don't forget that several states are going
even further. They are passing laws and
constitutional amendments that specifically prohibit
gays from any of the 'benefits of marriage'. These
laws are being used to eliminate any type of
'marriage' or 'domestic partner' benefits previously
granted in those states, such as insurance for
employees' partners and equal parenting rights
(another good example of where legal marriage is
different from single-with-lawyers).

2. Equality

David, we both would rather see rights expanded
rather than contracted when moving towards equality.
So, the question is: Is allowing same-sex marriage
both improving equality and increasing rights, or
the opposite, or is there a conflict between the
two?

As previously pointed out, we are talking of
equality under the law, not to be confused with
equality of outcomes.

I would contend that allowing same-sex marriage
moves both towards greater equality under the law
and towards greater liberty.

Consider two cases for me and my partner: a) our
only option is being single, and b) we have the
choice of being single or married. Now, if we
thought that being married was a poor choice, we
wouldn't have to take it under option 'b'. We can
always choose to stay single, which is our only
possibility under option 'a', so our liberty is
hardly being decreased. We only get married under
b) if we think it is to our advantage, therefore our
liberty is being increased. Since most every other
group in society is being offered option 'b', then
by offering it to gays, equality is also being
increased.

Ask the question: Would [L]libertarians be for
putting the miscegenation laws back on the books?
Would this increase or decrease liberty? Would this
increase or decrease equality? This is really the
same as the same-sex marriage question, but with a
different set of actors; otherwise no different. If
you would not be comfortable with re-outlawing
inter-racial marriage, then why would you consider
the outlawing of same-sex marriage OK, but for a
different set of biases?

Rich

BTW, I don't equate 'same-sex marriage' and
'big-government libertarianism', as implied per your
Rothbard article reference. In one case we are
increasing liberty and the other reducing it. I am
not asking for higher taxes, higher government
spending, more war, more regulation, or anything of
the sort. I just want lower taxes, lower
regulation, etc. Now, don't try to say that my
(potentially) lower taxes are a decrease in your
liberty... I won't buy into that argument.

  From: David Rhodes
  To: lpsf-discuss@yahoogroups.com
  Sent: Monday, March 21, 2005 1:37 PM
  Subject: Re: EQUALITY : RIGHT ON : [lpsf-discuss]
TONIGHT: Marriage Equality rally & march

  Richard - Okay, I'm back. I was going to address
all
  your comments individually but I think it's better
if
  I just sum things up. It sounds like there are two
  main issues here-

  1. Is marriage a right or a privilege?
  2. Should Libertarians be concerned with
  egalitarianism and/or equality under the law?

  So to speak to the first issue, I think we have
used
  the term 'marriage' rather loosely thus far and I
  recommend that a distinction be made between the
  institution of marriage (the concept, word, and
state
  of being) and government sanctioned marriage (the
  legally binding version).

  As far as I know, the former is not illegal.
Anyone
  can walk around and claim to be married to
whomever
  and not get thrown in jail. (except on gov't forms
and
  by de facto in some states who don't allow
  cohabitation outside of marriage). They can also
  incorporate themselves contractually and claim
power
  of attorney, so the equivalent legal advantages
are
  not barred to certain either. Agreed?

  This is the reason I contend that the institution
of
  marriage is still free and that government
marriage is
  a privilege - albeit not with all options some may
  feel are equitably required. For example, my
sister
  has lived with her boyfriend for ten years now but
is
  not married. I can assure you this situation has
not
  diminished their love for each other. They even
have
  bought a house together. The fact that they don't
get
  a tax advantage is a statist perversity and has
  nothing to do with how they choose to live their
  lives.

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