For an allegedly “grotesque” (but, thankfully, “innocuous”) confusion, Sam Barr’s equation of liberty and equally is pretty well-founded empirically. Think about the history of America. Think about the struggle to integrate non-land-owners, Catholics, Jews, women, blacks and now gays. Surely, as Sam notes, all this expanded both liberty and equality at once.

One way to understand the relationship between liberty and equality is to acknowledge that while the state doesn’t have to sanction anything (to, in Daniel’s words, grant “imprimatur on your relationship”), it does have to protect people’s free pursuit of social goods, marriage included among these. And if the state denies that protection to some but not others than that’s both an issue of liberty and an issue equality.

That’s the basic point of this post: my contention that even if we accept a minimalist state and the libertarian premise that nothing that comes out of a committee is, in itself, a “liberty/civil right/thing of justice/commandment” we can still understand the connection between liberty and equality to be something other than grotesquely confused, and we can still understand why the state should protect access to marriage for all.

Click over the jump for the argument.

First, note that I said “protect access” to marriage, not just “provide for marriage.” It only happens to be the case that marriage is actually provided by the state; it could also, conceivably, be simply protected by the state. So for our purposes, it’s easier to think of marriage of as just another social good — like money or happiness or health.

We can probably all agree that people are entitled to pursue these social goods as they see fit — that people are, in other words, free to “pursue their own ends.” That is natural rights theory; it’s a belief that our own freedom is embedded, somehow, in our humanness, in our having Selves. And if we agree on this, we can probably also agree that the state, at the very least, must protect this right; according to libertarians, in fact, that’s its raison d’etre: the state keeps us safe, protects our property, protects our transactions, and, otherwise, leaves us free to do what we please (so long as we don’t impinge on others’ ability to do the same).

If we’re all born with Selves that have rights, we are also born (we can probably agree) with certain identities on top of those fundamental Selves — we have a race, a gender, a nationality, a socioeconomic status, a sexual orientation and so on — and that our membership in these groups is both arbitrary and non-transferable: I, Max Novendstern, alas, am not free to be a female or a WASP; I am a member of two groups that are decidedly neither!

So the question is: what if those latter identities threaten the freedoms of my prior Self? That’s a big problem! What if my inherited membership into one group translates, because of the tendencies of my society, into the systematic deprivation of my access to social goods? Well, now the innocuous unfreedom of my identity (its arbitrariness) becomes a much graver, fundamental unfreedom of restricted access (my inability to freely pursue my own ends).

None of this is idle speculation. In America, at least, this is often the nature of unfreedom: the coupling of identity with access.

The result, of course, is inequality. Some have identities that are tagged as “deserving” social domination and radical deprivation, and others don’t. And if I inherited an identity and that identity causes my persecution (ie my restricted access to pursue social goods which is my definitional freedom as an individual) then not only is that just too bad for me, but it has little to do with the freedom of other’s who don’t have my identity. Persecution is distributed unevenly.

That’s how libety and equality are logically connected. Discrimination, which is persecution based on unevenly distributed identities, is ispso facto an affront to both liberty and equality at once.

Please note too that in the course of this entire argument I’ve said nothing about the distinction between “rights” and “privileges”. The privilege/rights debate is something of canard. Whether voting or drinking at a water fountain or marriage is a “right” or a “privilege” is not the issue here. What is the issue is my established human right to pursue social goods freely. This is, after all, what classical liberal “market freedom” is all about: not the “state’s imprimatur” on my “right” to a nicer car, but the state’s protection of my right to freely attempt to make my preferences for said car effective. The case of marriage is no different. I’m surprised that libertarians regularly miss this point. When the state intervenes, it is not to “establish a freedom” to but to correct, as it were, an imperfectly distributed zone of free action.

We don’t, in other words, have to ask the state to grant approval of any ends; we only need to affirm a prior right to pursue them; and this right should be distributed evenly, regardless of identity.

(But Max, can this occur in practice? Can the state protect our prior freedoms to pursue ends without “establishing” those ends as public morality? Perhaps not, but this is the libertarian’s problem not my own: if they can’t create a state that can protect their own conception of freedom without undermining it…well, maybe they should rethink things.)

To conclude, I’ll just point out that I also the think the state’s role in this is not the operative question. Of course the state needs to protect access, but, in reality, much of the struggle against discrimination (the struggle for liberty and equality) is negotiated outside the sphere of direct state power. The Civil Rights Movements did not begin in Washington, DC — it began in the basements of Baptist Churches — and it did not end their either. Marriage, likewise, is only one aspect of a larger fight, the longer war against the pathologies of identity politics (racism, sexism, homophobia); a war that has little to do with the state, and one that has much to do with the strength of our own civil association.

And that is something, if you think about it, that libertarians should applaud.

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