Freedom quest of Zork (the) Hun

The cost of free is freedom

How many wrongs make a right?


While I am sorting out my thoughts on religions, let me give you a quick one on one of my recent subjects: rights.

I came across this video on Learnliberty.org. Watch it, it’s only four minutes. I highly recommend the site, this is the first video I am having issues with.  (…..and if you do not want to watch it, you can find the transcript at the end of this post.)

According to the presenter, the questions are equal treatment under the law and federal versus state rights. I beg to differ on both counts.
Conferring specific benefits to a certain group of people is NOT equal treatment under the law. I would argue that ANY KIND of government benefit by definition means unequal treatment under the law. The number of groups specified to be eligible for the benefits does not make it any more or less equal.

In my humble opinion, both laws should be struck down but not for the reasons suggested. The fact that DOMA is a federal overreach is secondary from a libertarian perspective. The libertarian position should be that it is not the job of the federal (nor any) government to decide what kind of legal or social arrangement any two individuals could or should make. Unfortunately, the question then remains: what are we going to do with the benefits?

The problem with both issues, as I pointed out in an earlier post, is that it is all about money. It is all about benefits which looking from the other side is a liability for the government.
The principled Libertarian position should be that we need to get rid of all the benefits that we are haggling about in front of the judges. YES, DOMA is a Federal overreach, but so is every single benefit the Feds so graciously hand out. You can’t attack one without the other.

The accommodating alternative should be to suggest that if we indeed want to have equal treatment under the law, then decisions about any transferable benefits should be under the control of the individual.
Just as I can name a beneficiary on my life insurance, I should be able to name a beneficiary for ANY transferable benefit. Even to a trust fund to take care of my pets if I so choose. (See how cleverly I am courting the “What’s next? Marry your goat?” argument? 🙂 )

Proposition 8 is slightly different as it is about striking down a law that should not have come to being in the first place for the reason stated above, marriage should not be any business of any government.
Legalizing then overturning same sex marriage was the democratic will of the people who should not have been presented with the option, neither through a referendum, nor through their representatives when it was voted into law in the first place. What comes into question here is not same sex rights but the very essence of democracy. What should prevail? The direct voice of the people or the one presented through their elected representatives? And if they cannot sort out the disagreement, how could handing the substance of the decisions over to an unelected third party (the judiciary) make it any better? I hope you can see how this is an entirely different discussion.

In the end these cases are just examples of the slippery slopes that only serve the interests of the ever expanding state. Trying to right a wrong with another wrong never works. Fine-tuning wrongs can only make them worse as it inevitably gives more power to those who are administering the ‘rights’.

What is sad for me to see is an organization such as LearnLiberty.org to fall for the lure of the siren song of the state.

=== === ===

The full text of the speech

The Marriage Cases: Legal Challenges to Prop 8 and DOMA

The 14th Amendment guarantees liberty and the equal protection of the law to every American. When a state refuses to recognize a marriage of two people of the same sex, is it violating those principles? Or when the federal government decides not to recognize a marriage that is legal in a state, is that a federal overreach? These are the questions that are before the Court in two cases in 2013. However the Court decides the cases, they raise underlying and enduring questions about liberty that all of us should care about.

One case challenges a California State law popularly known as Prop 8, which was passed by the voters of the state in a referendum in 2008. Prop 8 amends the state constitution in California to ban same-sex marriages in that state. The California case challenges Prop 8 on two different grounds under the United States Constitution. First, it denies the principle of liberty in that past cases have determined that every American has the fundamental right to marry. And second, the challengers say that the equality principle is violated because same-sex couples are denied the status that opposite-sex couples have.

The second case is a challenge to the Federal Defense of Marriage Act, which was passed by Congress and signed by President Clinton in 1996. DOMA limits federal recognition of marriages to opposite-sex couples. This means that it denies to same-sex couples more than a thousand benefits that are otherwise available under federal law. For example, the plaintiff in the case, Edith Windsor, was presented by the IRS with a tax bill of more than $363,000 when her wife died. An opposite-sex surviving spouse wouldn’t have had to pay anything at all for inheriting wealth from her deceased spouse. Under DOMA, same-sex spouses can also be denied health insurance, immigration rights, and social security rights, among many other benefits under federal law.

So the first question in the DOMA case is what is the justification for treating same-sex couples and opposite-sex couples differently under the law? As in the Prop 8 case, this raises the question of equal treatment under the law. But there is a second important question in the DOMA case, and that is one of federalism, the proper allocation of authority between the federal government and state governments.

Edith Windsor and her wife were legally married under the laws of New York. Historically the states have had the power to define marriage. In passing DOMA, Congress claimed a power that it had never before had under our Constitution. The framers, on the other hand, thought that federalism—respecting state authority—was an important structural guarantee for the protection of individual liberty.

Decisions in both of the cases are expected by the end of June 2013. There are many possible outcomes in these cases. For example, in the DOMA case I think the Supreme Court should rule that there is no legitimate federal interest in denying recognition to validly married same-sex couples. So I filed a brief in the Court asking it to strike down DOMA on federalism grounds. But the justices may not agree, and you may have your own opinions as well. So what do you think?

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