My headline makes it sound like he’s endorsing legalizing SSM but he’s not doing that. Or is he? He sort of is, actually — he wants marriage, or “marriage,” to be a matter of purely private contract for gay couples, which would lend legal force to their unions. But what about for straights? If Rand’s taking the pure libertarian position that the state has no place in marriage, period, he should want all marriage laws repealed, including for heterosexual unions. If he’s not taking that position, and I don’t think he is, then I’m not sure why he doesn’t simply endorse civil unions for gays. That would have the same effect as his private-contract scheme by retaining the label of “marriage” for straights except that gay unions would be formally recognized by the state. This weird hybrid proposal, in which apparently straights are governed by statute and gays are governed by contract, feels less like a considered solution than Rand trying to give half a loaf each to his libertarian and conservative constituencies. If you’re a libertarian who thinks the state should stay out of private relationships, great — you get that here. Sort of. If you’re a social conservative who thinks gay relationships shouldn’t have the same status as straight ones, great — you get that here. Sort of. Everyone happy?
Well, no. Supporters of gay-marriage will hate this because, to them, equal treatment under the law means equal recognition of their relationships under the law. A system where all marriage was privately contracted might do it; a system where all marriage was recognized by the state surely would. A system where gays remain effectively outside the statutory code, though, while straights are inside it would be challenged in court as discriminatory just as civil unions have been. I don’t know if social conservatives would be thrilled either with the thought of privatizing marriage for a subset of the population for fear of the slippery slope it might create. If gays end up in a system of private contract, how long until political pressure would lead states to push straights into that system too? I wrote about that the last time Rand made noise on gay marriage back in 2013:
At the core of the anti-SSM argument, as I understand it, is the belief that man/woman marriage is qualitatively different from gay unions; barring gays from marrying under state law is a way to recognize that difference. It’s not that state sanction operates as some sort of “benediction” for straights, it’s that it[‘s] a mechanism of differentiation with all other types of unions. If you move to Paul’s paradigm where everything’s a matter of contract, there’s no longer any such mechanism. Every couple with a private agreement is effectively equal; the state will enforce an agreement between gays just as it will an agreement between straights. How does that satisfy the social-con objection to SSM? Likewise, some conservatives support state sanction of marriage because they believe the state has a role in promoting marriage as a social good and domesticating force. I’ve always thought that was a good argument for gay marriage too, but we needn’t argue about that; the point is, if the state gets out the marriage business it’s no longer officially promoting anything. And finally, if you’re worried about gay marriage for fear that it’s another step down the cultural slippery slope towards polygamy, why on earth would you favor a paradigm of private contract? A multi-party contract would place polygamous groups on the same legal footing as couples. If polygamy’s your chief concern, you’re probably much better off sticking with state-sanctioned marriage and taking your chances with the Supreme Court.
Right or wrong? At this late hour in the SSM debate, I think opponents would be more open to a system of private contract for all marriages than supporters would be open to a two-tier system where straights get formal recognition while gays get contracts. But I doubt there’s much support for either, especially in traditionalist bastions like Iowa.
Exit question via Scott Shackford: If Rand Paul thinks the rise of gay marriage is part of a “moral crisis,” as he said recently, why is he legitimizing gay unions by offering them the force of contract law?