The Soulless Libertarian Strikes Back

Richard Epstein

I just had the other-worldly experience of listening to [a] 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.

That logic carries over to the risk of state involvement in same-sex marriage. Why do we want to use explicitly religious reasons to ban same-sex marriage as a matter of law? Or, for that matter, why do we want to use explicit secular reasons to force churches to ordain women or supply contraceptives to female employees? The only way to have a steady neutrality is to minimize the scope of federal involvement in private affairs is to minimize the scope of government activities in the first place.

Does taking that position make libertarians soulless? Only if you think, as Prager seems to assume, that the scope of social relations between ordinary people is defined exclusively by legal rules. But no sane libertarian believes that all there is to life is avoiding the use of force and fraud, or keeping promises. Where soul, as it were, comes into play is in answering the question of what people should do when they have the right not only to sell, but to give, and the right not only to form businesses, but to form marriages, religious congregations, friendly societies and charitable organizations. How then should they exercise their liberties within the boundaries set by law?

The answer is that they create -- not for all society, but at the very least for their members -- dense social networks that first allow for, and then facilitate, compassion, companionship, corporation, and a whole host of other virtues that no state can, or should, try to force upon them. They can pick the people about whom they care and ignore the rest -- just as everyone else can. They can decide to give aid within their own religion or they can decide reach out to help others whose religious beliefs differ from their own.

There is absolutely nothing in the libertarian political philosophy that frowns upon or belittles this wide array of organizations, many of which will embrace inconsistent ideals. In fact, quite the opposite. This legal position facilitates the creation of a wide range of voluntary organizations that can serve as a buffer between the individual and the state. In this world, the types of preferences we all hold have to matter, for they determine which organizations we join and why.

Indeed, it is worth stressing that civil society surely matters in our day-to-day life far more than the general legal prohibitions that kick in only on an extraordinary basis. Where the sentiments in civil society turn malignant, the libertarian legal rules will crumble under the onslaught of narrow and bigoted groups who take control of the organs of the state. No defender of small government should abandon the libertarian banner in setting the proper limits on government power. But, by the same token, no responsible person or citizen will define the limits of his or her social responsibility by the legal rules of the ideal libertarian state.

Prager does a disservice to anyone who cares about the fabric of society by deriding the only political philosophy that works to maximize the prospects for a self-reliant individuals in a prosperous and stable society. He should rethink his harsh words.