The Cato Institute has urged the Supreme Court for several years now to find that the exclusion of gay couples from legal marriage violates the equal protection clause of the Fourteenth Amendment to the Constitution. At the end of June, it did, in the case of Obergefell v. Hodges. Throughout the 20‐year debate over gay marriage, some libertarians have insisted that legal marriage should not be extended to include gay people; rather, government should get entirely out of the business of licensing marriage. Let people write contracts, and marry in churches if they choose, but leave government out of it.
That’s an appealing libertarian position. In fact, I wrote one of the first articles proposing it (“Privatize Marriage,” Slate, 1997). I said that social conflicts, such as the then‐growing conflict over same‐sex marriage, can “be depoliticized and somewhat defused if we keep them out of the realm of government.”
But there’s a problem: The country was not and is not ready to privatize marriage. So then should libertarians advocate only a radical libertarian policy solution that won’t be implemented any time soon, leaving some people excluded from a legal institution open to others? Or do they advocate a second‐best solution, equality under the law for whatever services government supplies? As Steven Horwitz, author of the forthcoming book Hayek’s Modern Family: Classical Liberalism and the Evolution of Social Institutions, puts it: