New York is No Hero

“New York,” reports BBC News, “has become the sixth and most populous US state to allow same-sex marriage.” After the bill passed the New York legislature, the state’s Governor Andrew Cuomo made the bill law with his signature, prompting local Catholic bishops to describe the law as an attempt to “redefine [the] cornerstones of civilization.”

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 and denotations of “marriage” have always remained discrete as 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.

In many ways, then, the controversy over gay marriage in the United States has never been about marriage in and of itself, about whether or not extra-governmental social groups like churches would be allowed to marry same-sex couples. To the extent that the critiques of same-sex marriage fall short of urging for the illegality of strictly religious or social practices, their worries about the “undermining marriage and the family” are red herrings.

No one anywhere close to the mainstream of the debate 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 in our arguments 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 of special privilege that completely weaves marriage into every layer of rules about things like taxes, property and health care rights. Insofar as society does occupy such a scheme, however, philosophical anarchism does not demand that homosexuals be relegated to second-class citizens. While I have no use for the Constitution or its Equal Protection Clause, a stateless society built on voluntary exchange and cooperation would be, by definition, a society founded on the moral principle of equality.

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 on the basis of the claim that 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 assuming that we did insist on such a rule, it isn’t at all clear that denying gays the right to a civil marriage isn’t more statist in that it unfairly encumbers gays with what are actually legal handicaps. The State of 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.

Citations to this article:

Free Markets & Capitalism?
Markets Not Capitalism
Organization Theory
Conscience of an Anarchist