Why libertarians shouldn’t support the right of religion to opt-out of same-sex marriage

Christina Annesley February 25, 2014 7
Why libertarians shouldn’t support the right of religion to opt-out of same-sex marriage

I’m going to hold my hands up here – I don’t really care about freedom of religion. I’m an atheist, I don’t think religion provides a net positive contribution to the world, I think it’s based on ludicrous (non-)reasoning and I’m never going to be particularly supportive of any kind of faith-based institution. That being said, I do care about property rights, and therefore have to grudgingly pledge support for voluntary institutions and non-coercive individuals to be as bigoted and regressive as they like on their own private property.

Or so I thought.

My timeline today was clogged up with a stream of socially conservative UKIP-types crowing that Nigel Farage’s homophobic scaremongering was right all along, because a gay couple are indeed suing the Church of England for their right to marry.  My first thoughts were of scepticism of their victory, considering the lengths Cameron has gone to to not only protect but actively ban religions institutions from performing marriages based on gender. It’s worth nothing that their local church have been ‘nothing but supportive’; is this actually a protection of property rights, or an active infringement of them? But let’s say it’s the Church of England that don’t want them to get married, and that their local church is willing to bow to their wishes. Let’s say that this couple win, and the Church is forced to grant them a marriage. What would be the problem with that?

The first thing to note is that the Church of England is technically a state institution. It is officially and constitutionally our state religion, making it a branch of the state, regardless of funding or it’s role in law-making (although as the Bishops in the Lords will testify, that is indeed still active). Should we class this as the state infringing against the property rights of a voluntary institution, or the state merely changing the rules for one of its departments? For example, state-funded comprehensive schools ban verbal bullying on homophobic and racist grounds. Few libertarians and indeed few people would dispute that this is a good idea. And yet it is not an infringement of property rights; it’s simply the state enacting a fairly sensible policy to make people’s lives better. We don’t mind it doing so, because the schools already ‘belong’ to the state; more importantly, they don’t belong to anyone else. Although we would probably hope that in a free society private schools would enact a similar policy, we wouldn’t force this – but it is not a private school that we are talking about. In what way is this scenario so different to the state setting out policy that its own church to cease similar discrimination?

But to be more thorough, let’s consider an alternative scenario; that it is not the Church of England that is being sued, but a different denomination or religion entirely. A thoroughly private and legitimately voluntary association. What then?

Much to my chagrin, marriage is currently a state licence, and it monopolises the right to grant that licence. Whilst I sincerely hope that this changes (and preferably before I can afford my own wedding), these are the facts as they stand. So the question as to whether libertarians should support the right of religion to opt-out of same-sex marriage can be rephrased as; do voluntary institutions have the right to use a state licence? It’s an interesting and complicated question, and brings up the question of – who does the state belong to?

Although the state is funded unequally by the people, it coerces against them equally; based on this argument, we could rightfully deduct that it does indeed belong to ‘us’. Equally. With no special allowances made for any system of beliefs – religion, for example. And as I have already pointed out, marriage is currently a state institution. What right, then, does a discriminating institution have to use a state licence to discriminate against other people that have an equal entitlement to that licence? Surely none at all, and the state is therefore completely entitled to revoke that licence on the basis of discrimination – on the same grounds as it could, for example, if an LGBT organisation that happened to be a provider of state marriages denied a marriage to someone based on their religion.

Of course, this is hardly an ideal situation for anyone. Forcing people to conduct marriages to everyone or conduct marriages to no-one at all is hardly a fair and effective way of running the marriage system and provide incentives to do so, and yet it strikes me as currently the only legitimate option. The reason, of course? The state’s monopoly on marriage. Make marriage a private legal contract between individuals and let the prejudiced decide for themselves if they want to view that as legitimate. Most importantly, make marriage a private legal contract between individuals and let groups decide for themselves if they want to host the ceremony surrounding it. Privatise marriage, and let bigots be bigots both without coercion, and without the state’s support for their actions.

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