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.

7 COMMENTS

  1. I am an atheist, what consenting adults do is up to them – but I don’t
    like all this blatent shirt-lifting. Do what you want as long as it
    doesn’t offend me – or I may get irate and refer to them as
    arse-bandits, pederasts, queers, molly-annes, bent, buggers (literally),
    pooftahs etc. درب اتوماتیک کرکره ای

  2. Great article.

    These sorts of post are, in my opinion, some of the hardest to write from a libertarian perspective. Trying to argue what the state should or shouldn’t do in certain circumstances, when you don’t believe it should be there in the first place, is always an uphill battle.

    This is also a particularly difficult one to argue, as marriage is different for different people. Grounds for divorce are different depending on the couple involved so you could argue that the state does indeed discriminate unequally. Because of this, if the state forces institutions to perform both types of marriage they are in effect forcing those institutions to discriminate. Of course the solution is as you suggest, that the state stay out of it altogether.

    Thanks for writing. This really made me think 🙂

  3. It’s all well and good to say take marriage away from the state and make it private but to many state related things are attached to it. From tax breaks, inheritances, next of kin legalities, immigration/visas etc. While a marriage certificate is a legal document it has far to many reaching consequences that interfere with state related business that it can’t just be left to any old lawyer.

    And frankly the idea of forcing a religion to perform a ceremony they find sinful is just ridiculous. If you have a group, let’s say Catholics to avoid state links, who find gay marriage wrong how can you possibly think it’s acceptable to put them in a situation where they have to choice between their faith and breaking the law? Further more if Catholics believe that gay is wrong then clearly you can not be a gay Catholic and therefore should have no requirement for a Catholic wedding.

  4. I was born in and brought up in London. Pre – Wolfenden we didn’t hate queers – we preferred to ignore them apart from the thuggish element of queer-bashers. I believe there would have been MUCH more opposition to the report if it had been realised that not only was homosexuality now legal – but it was very much more “in your face” and annoyed many people, including myself and even Wolfenden .
    We have just had Cameron forcing through a law that seems to give extraordinary rights to a supposedly “oppressed, disadvantaged” segment of society.
    How long before it will be illegal for anybody to state they abhor the thought of a male inserting his penis into the anus of another man (whether willing or not)?

    I am an atheist, what consenting adults do is up to them – but I don’t like all this blatent shirt-lifting. Do what you want as long as it doesn’t offend me – or I may get irate and refer to them as arse-bandits, pederasts, queers, molly-annes, bent, buggers (literally), pooftahs etc.
    For every action, there is a reaction – leave me in peace and I will reciprocate, annoy me with “in your face” perversions and I will fight back!!
    Go and shag your boys’ bums – but not mine or my family!!!!!!!!!!!!!!!!!!!
    There used to be signs at the zoos – THIS ANIMAL IS DANGEROUS – HE FIGHTS BACK WHEN ATTACKED! Talking about me?
    Having said this, a scottish overt queer kissed me once at a party – it wasn’t that repulsive but I still preferred (and do) women.
    By the time they make it compulsory to be bent – I WILL BE DEAD!!!!!!!!

  5. Agree to an extent with this. The separation of church and state would be a precursor to a libertarian Britain. Marriage was a religious affair, now the state has taken control. It is unacceptable for lgbt to preach tolerance from their high horse and then force a church to conduct a ceremony against their wishes by using the coercive force of the state. LGBT then seems to be very illiberal.
    the meddling of the ECHR does not help either as noone seems to be able give a clear legal confirmation on this. So eventually will end up with decision being made up by a judge in Strasbourg using case law to support the European Courts view. Basically we live in a banana republic where Judges make the rules up as they go along.

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