The Supremes are to hear two cases this week (California’s Proposition 8 and the Defense of Marriage Act) that will speak directly to the issue of marriage equality. The issue is an interesting one for conservatives and libertarians. Traditionally, social conservatives have embraced states’ rights and heterosexual marriage. The problem, of course, is that states’ rights has produced a patchwork of laws, some recognizing marriage equality, some providing for civil unions, some doing neither (or even explicitly prohibiting gay marriage). What is a conservative to do? Should one forget states’ rights and turn to the feds and the Defense of Marriage Act? This would make the support for states’ rights look more tactical than principled (similar problems exist in marijuana decriminalization).
Libertarians have it a bit easier. For some, states’ rights should prevail and the resulting legal patchwork is simply a reflection of different preferences. One is always free to move to a state that matches one’s preferences. Others might support federal action, as long as it resulted in the expansion of liberty via marriage equality.
In my mind, getting the government out of the business of marriage would be the best solution. Civil unions could be available for all consenting adults seeking to defend their property rights. If some couples with civil unions wished to get married, they could be free to do so. Religious organizations, as private associations, could make their own decisions regarding who could be married, based on their own doctrines. Marriage would not be the strange hybrid of law and religion that exists today.
Of course, getting the state out of the business of marriage is not going to happen. So what is the second best solution?