Epstein on Libertarianism and Same-Sex Marriage

The Soulless Libertarian Strikes Back
Richard A. Epstein
April 8, 2013

I just had the other-worldly experience of listening to this short clip in which Dennis Prager, speaking to Peter Robinson on last week's Ricochet Podcast, reflects on the issue of gay marriage and its relationship to the positions taken by “soulless libertarians,” of whom I suspect that I am one. The gist of the short exchange (available in its entirety here) started with his assertion that libertarians are mistaken in their general support for gay marriage, which Prager thinks should be rejected as inconsistent with Biblical commands that define marriage as the union of one man and one woman.

Mr. Prager is perfectly within his rights to articulate his own hardline views on marriage. He is equally correct to say that in the United States each church should be able to organize its internal affairs in just the way it chooses. But the rest of his screed is intellectual mishmash. Yes, the United States was organized on the principle that a neutral state was the best assurance for a system of civil liberties. And yes, it would be unwise to let the federal government take a position that is intentionally meant to echo the precepts of certain preferred religions.

One well-known difficulty with the twin religion clauses of the First Amendment—free exercise and establishment—is that they are in tension with each other. Between them they tend to cover the entire landscape, so that once anyone moves beyond libertarian values they offend one or the other of these two clauses. If we subject religious employers to an anti-discrimination law, we deny their free exercise of religion in how to regulate their own affairs. But if we exempt them from an anti-discrimination law, then the preference could count as an establishment of religion. Keep the state out of all employment relations, and the issue disappears, because every employer can, for any reason, hire or fire any prospective employee, just as an employee can decide to work or not work for any employer for any reason at all.

Richard A. Epstein