Category Archives: Strategies For Advancing Liberty

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.

One of the Original “Liberty Papers” Turns 800


A mere 572 years before the U.S. Constitution and the Bill of Rights, 561 years before the Declaration of Independence, and 465 years before John Locke’s Two Treatises of Government was a government-limiting charter which inspired the authors of each of these was the Magna Carta. In June of 1215, a full 800 years ago, a group of land barons had decided that they had enough of the tyrannical rule of King John. Rather than depose the king outright, the barons forced King John to surrender some of his powers, thus creating the concepts British Common Law and the Rule of Law.

The history of the Magna Carta and how it was almost quashed is quite interesting:

There are four copies of the charter still in existence – one each in Lincoln and Salisbury Cathedrals, and two in the British Library.
The curator of the Library’s exhibit, Dr Claire Breay, told Sky News: “The most important thing about Magna Carta is that it established the principle of the rule of law.

“No free man shall be seized or imprisoned or stripped of his rights, or outlawed or exiled, except by the judgement of his equals or by the law of the land. And that clause is really at the heart of Magna Carta’s fame today.”

Those who negotiated the treaty would be astonished at how its reputation has survived eight centuries, because it was annulled after only 10 weeks.
The Pope ruled that King John had been forced to sign it under duress. Yet in the years afterwards, the language in the charter was revised and reintroduced and became part of the cornerstone of English law.

Vicor Hugo famously said “No army can stop an idea whose time has come.” Shortly after King John’s signing of the Magna Carta, the idea of the rule of law had come; the divine rights of kings was no longer universally accepted.

Men, Women and Rand Paul

Zuri Davis, Brittany Wilson and Grace Charlton Standing With Rand.

Since the issue is getting a lot of coverage now, I will explain why libertarians are “mostly dudes” and why women are not as statistically likely to support Rand Paul.

Let me begin by explaining why it does not matter.

People are not representatives of the groups to which they belong. We are all individuals in a category of one. Denying differences between broad classes of people, like “men” and “women,” is to deny reality. But it is also a denial of reality and a logical error, to generalize differences between those broad groups to the individuals within them.

The male and female bell curves of any trait encompass wide areas of overlap. They do so for height. They do so for mathematical ability. Other than whatever criteria is used to assign the individual data points to their respective categories in the first place, there is literally nothing true of all men, but not true of any women.

It is therefore almost never accurate or productive to say things like “men think or say or do or feel xyz, but women think or say or do or feel the opposite of xyz (or xyz to a lesser extent).” That is taking differences at the extremes and generalizing them in a way that obscures the wide areas of overlap for the vast majority of traits.

So headlines like “Women Don’t Like Libertarianism Because They Don’t Like Libertarianism” (which I will not link to here) are just insulting and inaccurate.

Two-thirds of libertarians are men.

I know math is supposedly hard for us ladies (hey, like libertarianism!). But by my calculations that means female libertarians are not exactly unicorns. They are 33 out of every 100 libertarians.

And I am one of them.

My mother and sister may not call themselves libertarians, but their political views are virtually indistinguishable from mine. I have a female second cousin who is a libertarian. I have worked in a small town in a ten-person office, unrelated to politics, where one other woman was a libertarian, and yet a third voted for Gary Johnson in 2012. My social media feeds are filled with libertarian(ish) women like Julie Borowski, Libertarian Girl, Elizabeth Nolan Brown, Shikha Dalmia, Cathy Reisenwitz, Veronique de Rugy, Lucy Steigerwald, Cathy Young, and more.

So I am not really perceiving this massive shortage of libertarian ladies.

But if I had to guess why there are not as many women as men who are libertarians, two answers seem intuitively compelling:

  1. Women as a group (not as individuals) are more likely to prefer belonging to in-groups and acting under established norms. They are less likely to be comfortable in out-groups or as outliers to established norms. Similarly, for example, women are only 36% of atheists.
  1. Women as a group (not as individuals) are more likely to have moral hierarchies that focus on empathy and connectedness, over liberty and autonomy.

(I hope since I am a libertarian, and since I spelled it out up above, it is clear that I recognize these things are not true of all women.)

So, no, Jeet Heer, it is not because libertarianism reflects nostalgia for a time when white men were freer, but women and minorities were less so.

We libertarians are more futurist and optimistic than such cynicism admits.

Various women commenting on Rand Paul’s “gender gap” have intuitively landed on one or both of the same explanations as I posited above. Mollie Hemingway pegs libertarian discourse as “high systemizing and low empathizing.” Julie Borowski notes:

Most libertarian women that I have met are very different than your “average woman.” I’d be lying if I didn’t say that I wasn’t intimidated by a lot of them. They’re strong and independent. They don’t give a *beep* what you think about them. Mess with them and they’ll kick your butt. Basically, they do what they want.

In order to speak out about “unpopular/marginal” ideas, you need to have that kind of personality. If you have a great desire to be liked, ha, don’t get involved in libertarianism. Or at least hide your views. If you post about it on Facebook, get ready to get defriended or uninvited to Thanksgiving dinner this year.

But what to Do About It?

First, do not succumb to handwringing. Libertarianism does not need an even split of men and women to be a worthwhile political philosophy. Neither liberalism nor conservatism are split evenly either.

Ideas should be judged on their merits, not by quotas.

Second, there is nothing we can do to make women (as a group, not as individuals) more comfortable being outliers, “going it alone,” or belonging to fringe groups. As libertarianism becomes increasingly mainstream, however, more women (and men) will be comfortable venturing into our territory and supporting candidates like Rand Paul and Gary Johnson.

Third, what we can do to nurture the process along is get better at explaining how our political philosophy is about empathy and fairness. Yes, we oppose minimum wage hikes because we care about the property rights of business owners. However, we also oppose minimum wage hikes because we understand how they hurt people, and hurt poor people most of all.

Too often we fail to defend the moral high ground when by rights it should be ours.

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

How Rand Paul’s Campaign Is Already Succeeding


Even if Rand Paul is not elected president, he has already performed the country a great service. No, I’m not talking about the pending expiration of Section 215 of the Patriot Act. It will likely be a temporary victory at best. What Rand Paul is accomplishing is that he’s exposing some of the contradictions of the Republican Party’s establishment wing.

Establishment Republicans are the ones who like to talk about reaching out to new voters. They point out, correctly, that Republicans cannot win if they stay the party of old, white guys.

What Paul is doing is exposing the same GOP establishsment types who support every shift to the left and support every big government program in the name of “moving to the center” as frauds and liars. All Paul is simply doing is letting them go hysterical.

Take for example former New Hampshire Governor and Chief of Staff to George H.W. Bush John Sununu comments:

Once the primary is over, Sununu said it’s “stupid” for Republican voters to not back whomever wins the primary, with one exception, Sen. Rand Paul (R-KY).



Sununu said while he is tired of “stupid conservatives giving Democrats the election,” After Paul’s comments blaming Republican hawks for creating ISIS this week he now believes Paul’s national security positions are too extreme “isolationist,” and “to the left of Barack Obama.”

He added, “Frankly, I can not imagine Sen. Rand Paul (R-KY) as commander in chief.”

Here’s Fox News’s Brit Hume:

Bill Kristol also joined the parade last week calling Rand Paul a “liberal Democrat.” Kristol actually knows a thing or two about siding with liberal Democrats.

If Rand Paul accomplishes nothing else this campaign cycle, he exposed the self-described “big tent” Republicans as nothing more than a bunch of hypocrites. Most of these same guys are the ones who criticize conservatives who support primaring more moderate Republicans.

But when a Republican pushes back against issues the “big tent” crowd are passionate about, they must be driven out of the party. This is despite the fact that the American people want reforms to the Patriot Act to protect privacy and oppose giving arms to “moderate Syrian rebels.” If you’re going to take a stand and die on a hill, take a stand on issues that have popular support.

Rand Paul’s presidential campaign may yet crash and burn, but he has destroyed the credibility of “big tent” establishment Republicans.

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.

Misunderstanding Law, Government, and Society

GovernmentIsForceMost people… At least most people in modern western democracies… Seem to have a fundamental and unconscious assumption about the nature of law and government, that goes something like this:




Law and government, are or should be, the expression of the will of the majority, for the purpose of making collective decisions, taking collective actions, fixing problems and righting wrongs.

If I gave that definition to most people as what government “should” be, or even what it is, I’d guess they would agree.

But that’s not what law and government are at all. In fact, that notion of the nature of law and government, is not only wrong, it is extremely harmful.

What are law and government?

Government, is the instrument of collective delegation of the legitimate initiation and use of force against others.

Law, is the body of rules by which that force is administered and applied.

The only legitimate purpose for which, is to secure and protect the rights of individuals governed by them.

So, what’s the other thing, and why is this a problem?

The other definition, is more properly that of society (as distinct from culture).

Government is NOT Society, and Society, is NOT Government

This conflation of government, and society, is a very serious social and political problem because those who hold it… and I firmly believe it’s a large majority… believe that law and government, should be used for “doing what’s good, and stopping what’s bad”.

They naturally wish to see government do what they think is right, or best, and stop that which they think is wrong, harmful, or wasteful… And not just in areas where force should be applied.

They conflate “legal” with “good” and “illegal” with “bad”, and try to make laws against things which they think are bad, or mandating things which they think are good.

They often even conflate “legal” or “attempting to make legal” with “approving and supporting”, and “dissapproving and opposing” with “illegal” or “attempting to make illegal”.

This is incredibly harmful

We have allowed… even encouraged people… to deeply hold the fundamental notion, that they get to vote on other peoples opinions, choices, and behavior; and if their “side” wins the vote, that it is legitimate to make those things legal or illegal.

It also means that these people automatically and reflexively try to solve personal, moral, social, or societal problems, with government and law, when it is entirely inappropriate, even harmful, to attempt to do so. Most of those problems cannot be solved by the use of force;, or at best can only be solved inefficiently, ineffectively, and while violating the rights of others.

In encouraging this misapprehension, we have in fact made the personal, the political, and the political, the personal.

How do we stop the harm?

We must correct this critical error in peoples fundamental apprehension of law and government.

People need to understand, at the most fundamental level, that government is force, and that law is how that force is directed and administered. No more, no less.

If we don’t correct this misapprehension, then we will continue to simply seesaw back and forth between majoritarian tyrannies, as social changes dictate.

Rights will continue to be violated and abrogated as the opinions of society fluctuate.

The favored, will continue to be privileged over the disfavored at the expense of the disfavored’s rights, until the pendulum swings again and the roles are reversed.

Yes, I realize, that is largely how it has always been… But never has law and government had such a depth and breath, had so great a reach into our personal lives, as it does today, and this unfortunately shows no sign of receding.

The absurdity of this reach… and overreach… is finally becoming apparent to many people, on all ideological “sides”; be it the “war on drugs”, the “war on terror”, privacy and surveillance, or gay marriage and wedding cakes.

So, we have to take action, now

Use this growing awareness of the overreach, to help people understand.

We have to show people these aren’t just outlying excesses. That they result from the way we think of, look at, and attempt to use, government.

We have to get people to understand, that if they can say “there ought to be a law”, and then get a law made banning something that they don’t like; then their worst enemy, can get a law made banning something they love.

We have to return to the notion that fundamental rights matter, and that the only legitimate purpose of law, and government, is to protect those fundamental rights.

Everything else?

That’s up to individuals, and to society as a whole, NOT GOVERNMENT.

Voluntary collective action. If it’s really what people want, then they’ll work for it, without the threat of force. If it’s not really what they want, then we shouldn’t be forcing people to do it.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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