Category Archives: Equal Protection

Sorry To Disappoint, But Getting Government Out Of Marriage Is A Fantasy


In the wake of the Supreme Court’s decision making gay marriage legal in all 50 states, the rally cry of many libertarians and conservatives is to get government out of marriage. Presidential candidate and Kentucky Senator Rand Paul wrote an op-ed suggesting just that. While that’s a tempting proposition, it’s probably not possible without a major overhaul of everything from government benefits to nearly the entire civil and family legal code.

Let’s start on the Federal level. The Christian Science Monitor had an article that describes all the various benefits and rights that are granted as a result of marital status.

The sheer volume of benefits offered to married Americans may make it difficult for the United States to disentangle itself from the “marriage business.” In the US, there are 1,138 benefits, rights and protections granted under legal marital status, based on federal law, according to the Human Rights Campaign. Benefits of marriage extend to areas of Social Security, tax law, immigration, employee benefits for federal workers, and health coverage to name a few.

Unless we repeal or modify every single one of these programs and rights, simply eliminating marriage will create new legal nightmares.

Jason Kuznicki of the Cato Institute found that while decoupling the Federal tax code from marriage is a good idea, there are many aspects of marriage related law that serve a valuable function in a free society. Among those are:

  • Ability to sponsor spouses for immigration visas.
  • The presumption of legitimacy that make child custody matters much easier for married couples.

When you look at the state and local level, the argument for “getting government out of marriage” falls apart even more. Here are just some of the other benefits and rights that marriage provides:

  • Spousal immunity from giving testimony against each other.
  • Enrollment on a spouse’s insurance plan and other benefits.
  • Automatic right of visitation in a hospital or the right to make medical decisions as next of kin.
  • Can be held responsible for spouse’s debt.
  • Right of automatic inheritance if spouse dies.
  • The right to file joint petitions for adoption.

To get “government out of marriage” is a fantasy because it takes away an efficient way to handle civil and family matters. However, there is an alternative that libertarians and conservatives can support, which is a separation of civil and religious marriage. All references to “marriage” in the law can and should be replaced with “civil marriage.”

For legal purposes, only a civil marriage is required to access the spousal benefits and rights. That is granted by a marriage license issued by state governments and all that is simply signing a piece of paper and having it signed off on. All the state is doing is recording the marriage. It is not passing judgment on the wisdom of the ceremony. If they want an actual ceremony, they can pay more money for one.

A religious marriage is simply what it sounds like, a marriage performed by a minister or clergy and not merely signed off on by a bureaucrat. Those could be done by combining the religious ceremony and the minister signs off on it, just as done today or it can be done outside the religious ceremony.

Since it is impossible to “get government out of marriage”, libertarians and conservatives should concentrate on separating civil marriage from religious marriage.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The and Rare. You can also find me over at the R Street Institute.

In the Wake of Obergefell v. Hodges: Gay Marriage, Religious Liberty, and the Free Markets

Church of the Pilgrims, Washington DC

[Photo: Church of the Pilgrims, a Presbyterian USA Church in Washington DC, via Wikimedia Commons.]

On Friday, June 26, 2015, the Supreme Court held in Obergefell v. Hodges that under the Fourteenth Amendment, states are required to license marriages between same-sex partners and to also recognize same-sex marriage licenses from other states. The topic of same-sex marriage is probably one of the most polarizing topics in modern-day America. Over the past several days I have seen dozens of people, both for and against same-sex marriage, acting hateful to one another, unfriending and/or blocking people on social media because they have different views, and just having a very nasty tone. But why? Why can’t we have a dialogue on the topic? Let’s face it. Obergefell is now the law of the land. The purpose of this post is to try to open that dialogue. So now that gay marriage is legal in all 50 states, what comes next?

Gay Marriage

Contrary to what many may think, the Supreme Court did not create new law here. They did not legislate from the bench. The Supreme Court has a long history of recognizing marriage as a fundamental right and has held that the states cannot discriminate against consenting adults with regard to this fundamental right. The Supreme Court has held this time and time again. As Justice Kennedy noted in his majority opinion:

[T]he Court has long held the right to marry is protected by the Constitution.
In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” The Court reaffirmed that holding in Zablocki v. Redhail, 434 U. S. 374, 384 (1978), which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turner v. Safley, 482 U. S. 78, 95 (1987), which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause.

– Obergefell (slip op., at 11)

Furthermore, the right to marry is guaranteed under the Equal Protection Clause of the Fourteenth Amendment. Anytime that a fundamental right is restricted to a group of people, the government bears the burden of proving that the law is necessary to meet a compelling government interest, that it is narrowly tailored to meet that interest, and that the means of implementing the law is the least restrictive means available. The Court found that there is no compelling government interest in denying same-sex couples the fundamental right to marry solely because of their sexual orientation. This is not creating new law. This is the Supreme Court telling the states that any law which restricts fundamental rights between consenting adults is unconstitutional.

Another argument that I often hear is that people think that this should be left up to the individual states to decide. That would be true under the Tenth Amendment. However, the Tenth Amendment only applies to powers not delegated to the United States by the Constitution. The Supreme Court has the power to interpret these laws under the Fourteenth Amendment. So the states’ rights argument doesn’t apply. Bans on same-sex marriage also violate the Privileges and Immunities Clause of the Fourteenth Amendment. This means that citizens who move to a new state are entitled to the same rights and privileges of citizens in the new state. The state cannot discriminate against them. Therefore, a marriage license that is valid in Massachusetts is also valid in Mississippi. A state cannot discriminate against people who move from other states.

This is not a legislative issue either. As Justice Kennedy stated:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. Obergefell (slip op., at 24)

So even though the ideal process may be to go through the democratically elected legislature, this does not preclude one from raising the issue before the Court if his or her fundamental rights are abridged.

Therefore, the Supreme Court did not create a new law. They did not legislate from the bench. This is not a case of judicial activism run amok. Even if you do not agree with gay marriage, at least understand that the government cannot deprive others of fundamental rights that are given to the rest of us.

Religious Liberties

Rest assured that just because same-sex couples can now marry in all 50 states, it does not mean that the government can discriminate against religious institutions. The government should not force any particular denomination, pastor, priest, or clergy to perform a same-sex wedding against their will. This would violate the Free Exercise Clause of the First Amendment.

I don’t foresee this as much of an issue. Most gay people that I know would get married outside of the church anyway. But if a same-sex couple does want to get married in a particular denomination, their right to marry is not infringed by a pastor’s denial to perform the service. The same-sex couple is still free to seek out another pastor. If a Southern Baptist church does not want to perform the ceremony, the couple can go to an Episcopalian church. If a pastor with the Presbyterian Church of America (PCA) declines to perform a ceremony based on his religious conviction, the couple can seek a pastor with the Presbyterian Church USA (PCUSA) willing to perform the ceremony.

Therefore, I don’t see this decision as an attack on our religious liberties. Every denomination should be able to exercise their faith and religion as they see fit under the Free Exercise Clause of the First Amendment. If you do agree with gay marriage, at least understand that the government cannot infringe on a clergy’s right to exercise his or her faith by declining to perform a same-sex marriage.

Free Markets

Okay. So now same-sex marriage is legal in all 50 states. How does this affect the markets and what does it mean for all of the bakers, florists, photographers, et. al who decline their services to same-sex couples? As a Christian AND a libertarian, I sometimes find myself at odds with…myself. Even if I disagree with something that goes against my convictions, it doesn’t give me the right to deprive another of their rights or hate on them for their choices. So I want to view this topic in two lights. How should this be handled with regard to the free markets and the courts? And how does this appear in the eyes of God?

Over the past several years, Christian wedding service providers, such as bakers, florists, and photographers, have declined to provide their services to same sex weddings. In Colorado, Masterpiece Cakeshop was sued for failing to make a wedding cake for a same-sex reception. Despite the owner’s willingness to serve homosexuals in his establishment, he believes that making the wedding cake means that he is participating in the union and it goes against his convictions. More recently, in Oregon, an administrative judge proposed that Sweet Cakes by Melissa pay a same sex couple $135,000 for refusing to bake a cake for a same-sex marriage. Then of course, there was the New Mexico case where the NM State Supreme Court held that Elane Photography discriminated against a same-sex couple by refusing to record their wedding, despite their policy on welcoming gay couples for other services.

From a free market, libertarian position, I disagree with all of these decisions. In each of these cases, the business owner was willing to serve gay couples, but did not want to participate in the wedding ceremony. Businesses are rewarded or punished in the marketplace for their stances and services. If a customer doesn’t like their stance, s/he does not have to give them business. Let the markets dictate what happens to the business. I also understand the business point of view that their services are forms of expression. They should be protected from being forced to cave on their religious convictions. If they don’t want to express themselves in that manner, I don’t agree that they should be forced to. But does that mean that it’s the right decision?

As Christians, is this the way that we are to show our love to the world? In Matthew 22:36-40, Jesus tells us that we are to first, love the Lord our God with all our heart, soul, and mind and second, that we are to love our neighbors as ourselves. When we decline these services to others, are we loving our neighbors as ourselves? Are we reflecting the love of Jesus as we are called to do? I don’t think so. Jesus never really hung out with the religious folks. He was always meeting with, preaching to, and loving on the fishermen, the taxcollectors, the prostitutes, the dregs of society. Jesus said that he didn’t come for the righteous or powerful, but to save those who are lost. When we refuse services to same-sex couples, are we drawing them closer to God, or are we just pushing them further away?

I think that it’s time that we love our neighbors as ourselves.


Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

Instead Of Giving Gay Marriage Opponents Special Rights, Get Rid Of All Anti-Discrimination Laws


The Alabama House passed a bill on Thursday that allows judges to refuse to perform gay marriages. It passed after a four-hour debate by a vote of 69-25. More “religious protection” bills are on the way according to groups pushing this legislation.

The bill was passed to ease fears that judges and ministers would be forced to perform gay marriages if court rulings legalizing gay marriage in Alabama were upheld by the U.S. Supreme Court. This bill to be blunt is a travesty, would open the door to lawlessness by Alabama’s judges, and should be vetoed.

The first problem with this bill is that it tries to link judges performing gay marriage ceremonies with other travesties on this issue, such as requiring bakers to bake cakes for gay wedding ceremonies. There is a major moral difference between a private company refusing to offer a service and government official refusing to perform their legal duty. Judges are bound by law to serve all of their constituents and perform certain duties as described, despite their own personal feelings on the matter. One of those duties is solemnizing marriages. A judge cannot refuse to perform an interracial marriage because they personally disapprove it.

On the other hand, fining or legally punishing a private individual because they refuse to perform services for a gay wedding is immoral. In this age of Yelp and social media where customers can easily leave reviews of businesses, we need to ask ourselves if anti-discrimination laws covering the private sector are obsolete. If a business is discriminating based on gender, sexual orientation, race, or religion; it’s more easy for customers to identify those offending businesses and for people to vote accordingly with their pocketbooks. There is no need for the state to get involved and punish businesses with fines and other punishments.

If a judge cannot perform a gay marriage ceremony because they disagree with it, they should not be a judge. This is like refusing to sentence someone to jail because they object to a law. Judges do not have that discretion in criminal law and should not have that kind of discretion in marriage law.

As for ministers being forced to perform gay marriages, that’s a red herring. The First Amendment already protects the rights of ministers to refuse to perform gay marriages. The decision of churches to solemnize marriages to whom ever they want, as long as they can legally consent, is a protected religious practice. This legislation to protect them is not necessary.

The best way to solve is to divorce government from the act of solemnizing marriage. Make the only legal paperwork that has to be signed off is the marriage contract itself. Whenever a county or parish official files or signs off on a contract, they’re not passing judgment on the issue. All they’re doing is just filing legal paperwork so it can be enforced in courts. We should also look into ways into getting government out of marriage for tax purposes and other services.

All of these “religious protection bills” miss the big picture. Why should private businesses have the right to discriminate against potential customers based upon their religious beliefs and not have the right to discriminate based on other factors? Here’s another way to put it, why should gay marriage opponents have special rights?

Instead of writing “religious protection bills” to protect business owners from being bankrupted and driven out of business by government agencies for deciding who they want to serve, legislatures should consider a different approach. Every legislature should pass a bill or better yet an amendment to their state’s constitution stating this:

The right of any private business to deny service for any reason, except for emergency medical services and emergency lodging in a licensed hotel, shall not be infringed by any law.



Anti-discrimination laws, in this era of social media, are relics of the past. It’s time to make these laws history and let the marketplace punish discrimination. I don’t know about you, but I prefer to trust ordinary people than the government.


I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The and Rare. You can also find me over at the R Street Institute.

5 Thoughts On Ferguson And Mike Brown


As the country has watched the events unfold in Ferguson over the past week, we have been horrified by the rioting and the wanton destruction of property in the wake of the grand jury’s decision to not indict Ferguson police officer Darren Wilson on criminal charges for the shooting of Michael Brown. Tempers have been flaring as people have taken to social media to argue their side of the case. I’ve been trying to figure out what to write on this and putting together what to say on this. So here we go:

1) The Grand Jury Came To The Right Decision

After looking at the evidence, here’s what we have essentially; some eyewitness testimony that claimed Mike Brown was essentially murdered by Darren Wilson, most of which was proven false; Officer Wilson’s version of events; eyewitnesses that corroborate Wilson’s events; and finally an autopsy and forensic evidence which also corroborate Officer Wilson’s version of events that showed a struggle for his gun and that Brown was shot in the front.

Given all of this, there was no basis for an indictment for anything. Even if he was indicted, there was no basis for a conviction so a trial would’ve simply been a waste of taxpayer money.

2) Having Said That, There Should’ve Been A Special Prosecutor Appointed In This Case

I agree with Stephen Littau that the outrage here is not that the grand jury was through in the Darren Wilson case, it’s that they indict everyone else. No wonder why many people protesting can see a possible conflict of interest.

If it’s even possible to appoint a special prosecutor, this is such a case. It may have lessoned the charges of impropriety and conflict of interest.

Criticizing the process is not grounds for calling for an indictment though, it’s just grounds for calling for a special prosecutor. I think the special prosecutor would’ve come to the same conclusion as this prosecutor and grand jury did.

3) Anyone Calling For Violence Or Making Excuses For It Is Disgusting And Morally Rephrensible

One of the things that has been disturbing in this case is the calls to violence in the media. An anarchist magazine says we need to stop “riot shaming.” An op-ed writer in Time wrote a defense of rioting. A libertarian blogger called the rioting and violence “just and necessary.”

These people and others like them who are supporting the riots are disgusting. There is no excuse for the destruction of private property and businesses. These riots have runied the livilihoods of the employees and business people, most of whom are black. These people didn’t kill Michael Brown.

A brief look around shows that there are non-violent alternatives to pursue change. Civil rights laws were enacted in the 1960s and legislation defending the right to vote was enacted as a part of it. If you want to change the law and how policing is done, get out there organize and vote for candidates who agree with you.

4) Ferguson Not Only Demonstrated The Worst Of America, But The Best Of America As Well

Enough about the riots. Let’s talk about how people have come together in the aftermath. One of the businesses destroyed in the Ferguson riots was a black-owned bakery. They’ve raised $200,000 in donations from a GoFundMe page to enable them to rebuild. The store that Michael Brown allegedly robbed before his encounter with Officer Wilson was also looted. They too have setup a GoFundMe page which has raised almost $25,000 in two days. Please give some money to them.

The people that gave money to these two minority business owners were of all races and creeds. The attempt by many of the Ferguson rioters to start a race war failed miserably.

Other Ferguson businesses have setup GoFundMe pages and in a future post, probably tomorrow, I will feature everyone I can find. Let the best of America outshine the worst of America.

5) Although Mike Brown Is Not The Proper Poster Boy For Corrupt And Racist Policing, We Need To Address Police Brutality

Mike Brown most likely died assualting a police officer and going for his gun. Darren Wilson most likely did nothing wrong when he killed Michael Brown. However, police brutality is a real problem, especially in minority communities.

We need to ask ourselves why African-Americans are so afraid of law enforcement and work together to change it. We also need to end or rein in police militarization and the Federal government does need to get involved to create stricter oversight of local police departments. There will most likely always be police officers who abuse their authority, but right now we have too many on the force. We’re not going to solve this by blocking freeways, annoying Black Friday shoppers, and rioting; we’re only going to solve this by dialogue.

In the end, what we have here is a tragedy all around. An 18 year old young man is dead and regardless of the circumstances, it’s still a tragedy. We have a police officer who had to take that young man’s life. I hope and pray that the family of Michael Brown and Officer Darren Wilson find peace. I pray that the business owners of Ferguson have their shops restored and I pray for peace and more importantly, for understanding and that out of this tragedy, some change that ensures something like this never happens again.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The and Rare. You can also find me over at the R Street Institute.

Sixth Circuit Decision Upholding Gay Marriage Bans Invites Supreme Court Review

finally married 2

On Thursday, the U.S. Court of Appeals for the Sixth Circuit upheld gay marriage bans in Ohio, Michigan, Tennessee and Kentucky. It did so by reversing lower court rulings striking down the bans. This decision puts the Sixth Circuit out of step with the other circuit courts to address the issue thus far (the Fourth, Seventh, Ninth and Tenth). The decision is sure to be appealed, and many observers believe it will be the vehicle by which SCOTUS finally weighs in on the issue.

DeBoer v. Snyder was decided 2-1. The majority decision was authored by Judge Jeffrey S. Sutton. Sutton largely argues that the definition of marriage should not be “constitutionalized” and that change should come from the voters. He maintains that the right to marriage recognized as fundamental in prior SCOTUS cases is defined by, and presumes, a relationship between one man and one woman. He rejects sexual orientation as a suspect classification entitled to heightened scrutiny, and frets that constitutionalizing gay marriage will require recognition of plural marriages.

Having found no need to apply heightened scrutiny to the bans, Sutton finds two rational bases for denying marriage to same sex couples. The first involves channeling straight people’s sexual energies into monogamous, legally binding relationships:

One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children? That we rarely think about these questions nowadays shows only how far we have come and how relatively stable our society is, not that States have no explanation for creating such rules in the first place.

Once one accepts a need to establish such ground rules, and most especially a need to create stable family units for the planned and unplanned creation of children, one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them. One way to pursue this objective is to encourage couples to enter lasting relationships through subsidies and other benefits and to discourage them from ending such relationships through these and other means.

The dissent scores powerful points observing that heterosexuals are already free to follow their procreative urges where they will, and that the unwanted children resulting from such unions suffer when their adopted same-sex parents are precluded from marrying. In any case, Sutton’s second rationale for upholding the bans has to do with principles of federalism:

[O]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time. …. How can we say that the voters acted irrationally for sticking with the seen benefits of thousands of years of adherence to the traditional definition of marriage in the face of one year of experience with a new definition of marriage? A State still assessing how this has worked, whether in 2004 or 2014, is not showing irrationality, just a sense of stability and an interest in seeing how the new definition has worked elsewhere. Even today, the only thing anyone knows for sure about the long-term impact of redefining marriage is that they do not know. A Burkean sense of caution does not violate the Fourteenth Amendment, least of all when measured by a timeline less than a dozen years long and when assessed by a system of government designed to foster step-by-step, not sudden winner-take-all, innovations to policy problems.

Indeed, this decision creates a conflict among the circuit courts that did not exist (or at least not clearly) back in October, when SCOTUS declined to hear appeals from decisions in the Fourth, Seventh and Tenth circuits striking down similar bans.

Shortly after SCOTUS declined those appeals, the Ninth Circuit also struck down bans.

Collectively, those decisions were reached in a variety of ways: finding that the bans failed under rational basis review; applying heightened scrutiny to restriction of a fundamental right under a due process analysis; or applying heightened scrutiny under an equal protection analysis based on suspect classification or history of animus. However reached, they had the result of making gay marriage legal in 32 states (with three additional states with bans still technically in effect, which will inevitably be struck down).

That left litigation percolating in the Fifth, Sixth, Eighth, and Eleventh circuits. The decision Thursday by the Sixth was the first to break the prior pattern. Most commentators believe SCOTUS will now accept review to resolve the conflict. As Doug Mataconis, writing for Outside the Beltway, explained:

[T]he most important thing about the decisions in these cases is the fact that it creates the split among the Circuit Courts of Appeals that the Justices apparently felt was lacking when they considered the appeals it acted on in early October. … With this decision, though it can no longer be said that there is not a Circuit split since the differences between Judge Sutton’s opinion and those from the other four Circuits could not be more apparent. Thus, the one thing that didn’t exist on this issue in early October regarding this issue can now be said to clearly exist, and the likelihood that the Supreme Court will accept an appeal to this decision would seem to be quite high.

Only four justices need to agree for SCOTUS to accept an appeal. Assuming one is accepted, Mataconis and others predict SCOTUS will rule that the states cannot regulate gay marriage, by a majority consisting of at least Ginsburg, Breyer, Sotomayor, and Kagan, plus Kennedy.[1]

From my own perspective, I do not see how we avoid the leviathan of government once we accept its tentacles are properly applied to the regulation of personal relationships. Even if the collective will was acceptably used to such ends, I have not come across convincing reasons for denying same sex couples access to the same bag of government goodies, incentives and subsidies enjoyed by opposite sex couples. The various theories propounded by opponents of gay marriage are belied by the sound sociological research to the contrary. Plural marriage does not frighten me, both because it does not rise to the same level of constitutional scrutiny as gay marriage—and because it is inherently non-frightening. Finally, I have and will continue to oppose all efforts to force private people, churches or businesses to associate with gay marriages against their will. The same principles that underpin the right to choose a spouse also underpin the right to choose with whom to do business.

I will close with Justice Sutton’s own observation that:

Over time, marriage has come to serve another value—to solemnize relationships characterized by love, affection, and commitment. Gay couples, no less than straight couples, are capable of sharing such relationships. And gay couples, no less than straight couples, are capable of raising children and providing stable families for them. The quality of such relationships, and the capacity to raise children within them, turns not on sexual orientation but on individual choices and individual commitment. All of this supports the policy argument made by many that marriage laws should be extended to gay couples, just as nineteen States have done through their own sovereign powers.


[1] Kennedy wrote the majority decisions in Romer v. Evans (overturning a Colorado law preventing local governments from enacting anti-discrimination regulations to protect homosexuals), Lawrence v. Texas (overruling sodomy laws), and U.S. v. Windsor (overturning provisions of DOMA allowing the federal government to refuse recognition of same-sex marriages performed by states).

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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