Today's "Question of the Day" from the Wall Street Journal, "Should gay marriage be legal in the U.S.", illustrates the difficult position a sensible libertarian is confronted with when a social issue which intersects with Constitutional procedural concerns. It also indicates the larger problem in the country, which is the widespread assumption that every political issue is met to be debated democratically and that the majority should force their opinion on the masses.
From a broad libertarian perspective, there is nothing wrong with homosexuality. Under John Stuart Mill's harm principle, one should be able to engage in whatever conduct one wants, provided it does not harm another. Homosexuality then, is up to the practitioner alone. Republicans though, of the breed which abandon notions of liberty when they conflict with personal inclinations, simply do not like homosexuality. This creates a situation where they espouse liberty, but limit it when they find it unpleasant. Homosexuality offends their religion, it disgusts them personally, and perhaps for a few, the practice resonates deep in their repressed souls ("I have a wide stance," commented former Republican Senator Larry "I Was Caught Cruising For Guys in the Bathroom at an Airport" Craig, unknowingly creating a metaphor for the right's view on homosexuality: libertarians see no reason to oppose it, fiscal conservatives are ambivalent toward it, neocons are opposed to it).
But the neocons have had the lead of late, and that is why we have the Defense of Marriage Act, which essentially defines marriage as limited to between a man and a woman.
How the conservative half of the nation's legislative body invented the authority to tell states what to do about marriage (and states have always been where the marriage authority is vested) is a lesson in the GOP's hypocritical adherence to the Constitution in recent years. It is impermissible, argues the GOP, for the Supreme Court to find a right to privacy in the Constitution which permits abortion, but the Congress can invent authority to regulate an area otherwise exclusively in the states' domain. Never, say neocons, shall the federal government be involved in managing education, a states issue, but if the states are doing a poor job (in the right's view) with marriage: it is time to get involved. They pick and choose, which is a sign of poor discipline.
(One could argue, of course, that the Defense of Marriage Act does not directly compel states to preclude gay marriage, but by the same system of intimidation that Congress forced the states to raise the drinking age to 21, the feds do so. Of course, with the federal government's malignant growth over the past century there are many ways in which who is an who is not married is now a federal issue- the recent health care expansion is an obvious issue- will gay partners have the ability to make end of life choices for a dying mate under Obamacare?)
The left, of course, is not inculpable here. At the root of Obama's recent decision is the need to placate a progressive desire to ramrod social policy into the souls of all Americans, at a national level. In this instance, a libertarian application of political philosophy would happen to agree with their general goal: gays should be allowed to engage in whatever relations they want. But the method is all wrong.
The proper course for this to evolve would be a realization that the Constitution gives no express grant to the federal government to engage in such regulation. The authority, therefore, rests with the states.
The left and right then, should be lobbying state legislatures to make changes as they see fit.
Nevada, my beloved adopted state, I am certain would eventually approve gay marriage. Utah, our fiscally responsible but social cautious neighbor to the east, I am certain would not- at least not in the next fifty years or so. The beauty of federalism is each sovereign state can select how it wants to govern itself. Don't like your state's policies? Lobby to change them. Or move- that's what I did. I like gambling. It seems too decentralized to some.
But such a course respects the system with which we have been blessed.
The risk both the GOP and the Democrats run in trying to manipulate the process at the national level is that they raise social policy to a countrywide referendum, whereby any majority can force widespread compulsion on the entire population. That sort of Athenian democracy is precisely what Madison feared and exactly why we have a 10th Amendment.
Both sides need to be careful what they get here. Even if Obama and crew win this battle, and strike down or ignore (much could be written about his decision "not to enforce the law because it is Unconstitutional"- will the Administration be doing the same with the Patriot Act?) the law, they might simply be setting the precedent that whoever is in the White House can wave their Imperial wand and set the nation's national social agenda.
If the Constitutional argument does not appeal to both sides then, perhaps they can imagine the practical problems with a situation where every four to eight years a new King decides what the rule is on gay marriage, smoking, caloric intake, and swear words, and (as in this case) shirks any legal or legislative process, and simply changes the policy.
The Founders rejected a largely democratic system because they feared not only the rule of the majority, but the impracticalities of capricious rule.
One area where they did include democratic choice though is in the selection of the members of the House of Representatives (and by the amendment process this was later extended to the Congress as a whole, with the 17th Amendment creating directly elected senators).
The choice then is not "should gay marriage be legal in the U.S.?"; the U.S.G. has no authority over gay marriage. The choice is "should we the voters, through the one democratic apparatus granted under the Constitution, select representatives who would assume false powers which would conflict with authority of states, and jeopardize our fine system?"*
But that's not gonna sell papers.
*as I have posted before, participation on a jury is the other democratic mechanism the Founders included in the Constitution
Sensible libertarian views on nearly everything- except foreign affairs.