Commentary

Gay Marriage: a Victory for ‘Radical’ Libertarians

Yesterday, the Supreme Court heard arguments over whether the Fourteenth Amendment of the Constitution requires states to recognize same-sex marriages. The challenge will almost certainly succeed, and, by late June, same-sex couples will likely be able to marry everywhere in the country.

Gay rights have seen incredible expansion in the 46 years since the Stonewall riots. Until 1973, homosexuality was considered a mental disorder by the American Psychiatric Association, and only 12 years ago the Supreme Court ruled that laws criminalizing homosexual conduct were unconstitutional.

Libertarians, however, have been there all along. In 1972, while homosexuality was still classified as a mental disorder, the first Libertarian party platform advocated the “repeal of all criminal laws in which there is no victim.” This view, simultaneously radical and commonsensical, is a cornerstone of libertarian beliefs. Private sexual conduct between consenting adults should never be criminalized. But libertarians went even further, advocating for allowing homosexuals in the military and for repealing bans on gay marriage.

Libertarians were not just at the forefront of the gay liberation movement, they were also at the forefront of the abolitionism and the struggle for women’s rights.

How did those “radical” libertarians get it right 40 years ago? Is there something about libertarianism that puts it in the vanguard of important civil rights movements?

The “simple system of natural liberty,” to use Adam Smith’s phrase, is a powerful tool. Governments, when they’re doing it right, are supposed to facilitate the interactions of free people by respecting and protecting the rights of each and every person regardless of race, sex, or sexual orientation. It is a cornerstone principle of our nation, yet it has been more honored in the breach than in the observance.

Unfortunately, too often government is taken over by those who want to construct society in a certain way, and who are willing to use force to try to mold people to fit their ideals. For those who are against drug use, it is not enough that they themselves avoid drugs and counsel others to do likewise - no, they want to use force on those with a different lifestyle choice. Similarly, for those who oppose homosexuality.

For over a thousand years, most governments in the Western world oppressed and marginalized homosexuals. Shortly after Constantine’s conversion to Christianity, the Church and the state struck a deal: the Church would glorify the state and the state would use force for the Church’s purposes, including and especially to punish victimless crimes. In the wake of that agreement, the church/state alliance brought the hammer down on homosexuals, from burnings at the stake to imprisonment.

Out of this milieu of state-sponsored oppression and marginalization rose “traditional” marriage, and now conservatives argue that that history underscores their view that heterosexual marriage is somehow “natural.”

In the ‘70s, and even before, libertarians recognized that the church/state alliance had rarely been a friend to homosexuals. Loitering laws and entrapment were used to harass homosexuals. Medical and legal licenses were denied on the basis of sexual orientation. Other laws prohibited cross-dressing, adoption by gay couples, and homosexual parents from having custody of their children.

None of these laws are part of the “simple system of natural liberty” espoused by libertarians. These ideas are rooted in the classical liberal tradition that animated the Enlightenment, and when taken to their logical extreme, they are radical, wonderfully radical, and they countenance no exceptions to protecting the life, liberty, and dignity of those who have been historically oppressed by whoever happens to hold state power. For this reason, libertarians were not just at the forefront of the gay liberation movement, they were also at the forefront of the abolitionism and the struggle for women’s rights.

Many people believe that liberation takes political action, raising awareness, and get out the vote campaigns. While those things can serve important purposes, particularly in a world turned upside down by state-sponsored oppression, it’s heartening to know that liberation can come not only by looking forward but also by looking back and recapturing the fundamental principles of a free society.

Trevor Burrus is a Research Fellow in the Cato Institute’s Center for Constitutional Studies.