New York is no hero in same-sex marriage vote

BY GUEST OPINION | JULY 05, 2011 7:20 AM

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“New York,” reports BBC News, “has become the sixth and most populous US state to allow same-sex marriage.”

New York’s new law reignites the contentious issue of same-sex marriage, providing an occasion to reconsider some of the arguments of both sides. Since the application of the market anarchist prohibition against the use of force may seem to be difficult on this issue, it’s necessary to heed practical nuances of what “gay marriage” actually means.

Though there’s significant overlap between them, the two spheres of “marriage” have always remained discrete within society. Even before gay marriage was legalized — warranting recognition from the state — individual churches, for example, went ahead and settled upon their own practices regarding who could be joined in holy matrimony.

No one suggests that something like a commitment ceremony, existing outside the purview of the state, ought to be outlawed. The controversy therefore isn’t so much about marriage — at least not in any holistic sense — as it is about a certain very specific set of legal rights granted by the state.

When considering the issue, we must take great care to preserve the distinction between spiritual or religious senses of marriage and “civil marriage,” the important legal benefits that emanate from a marriage license. As a matter of principle, market anarchists would like to free marriage altogether from the coercive clutches of the state, to erase the entire arbitrary, state-created legal framework around wedlock.

Autonomous adults ought to be able to marry or not marry whomever they choose and to enter into whatever kinds of consensual relationships they’re inclined toward without the state acting as referee. A question thus arises as to why a market anarchist would advocate for gay marriage instead of against state involvement.

But the two positions aren’t mutually exclusive, and, given the special benefits allowed to married couples, notions of legal fairness — i.e., fairness under the law — require the extension of civil marriage to gays.

Ideally, of course, society wouldn’t exist inside of a scaffolding that weaves marriage into the layers of rules about things such as taxes, property, and health-care rights. Insofar as this is the case, however, philosophical anarchism does not demand that gay people be relegated to second-class citizens.

As long as the state is issuing legal instruments that entitle their holders to a host of very valuable legal protections and perks, it’s untenable to suggest that gays ought to be denied those rights simply because no one should be accorded them. Market anarchists don’t ignore the subtlety of the question before us by insisting that any lengthening of the state’s reach falls on the wrong side of a bright line rule.

Even if we did insist on such a rule, it isn’t clear that denying gays the right to a civil marriage isn’t more statist; it unfairly encumbers gays with what are actually legal handicaps.

New York deserves no applause or adulation for what has done. Though the state treats it as such, basic human dignity is something we’re born with, not something that rulers give us. Still, it’s a step toward equality under the law — even if the law shouldn’t exist.

David D’Amato is a market anarchist, a lawyer, and a news analyst with the Center for a Stateless Society.

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