Liberty is for me…

***I hope Liberty Girl doesn’t mind that I add this post while she’s away. I wish her the absolute best on her exciting adventure to Latin America and look forward to reading her posts once she returns.***

As you’ve no doubt heard, the California Supreme Court ruled today that homosexuals cannot be discriminated against with regard to marriage. Specifically, the state can no longer legally distinguish between heterosexual “marriage” and homosexual “domestic partnership.”

There are two important lessons to learn from this case.

The first is that it is possible to achieve great gains in liberty through the courts. And make no mistake about it, this is a wonderful victory for all advocates of liberty. Gay marriage has absolutely nothing to do with sex and everything to do with individuals being afforded equal protection under the law.

This is a fitting place to note Hayek’s point that the fundamental goal for libertarians is equality before the law. Today’s ruling brought precisely that.

Further, marriage is a deeply private and personal contract that really is no one’s business but those involved in the contract. Even if you personally don’t want two people to marry — due to your religious views or personal biases — their private contract is none of your business.

Some people may not want Jews to be allowed to marry, or interracial couples, or fat people, or smelly people, or gay people. Such views should not be warranted the muscle of the law, but rather, be allowed to die quiet deaths as the prevailing moral zeitgeist surrounding them continues to march forward.

The second lesson from this case is that, when it comes to your rights, the standard of review is everything. In the United States today, there are three types of review that judges use: strict scrutiny, intermediate scrutiny and rational basis.

Cases that get strict scrutiny almost invariably result in a protection of the rights in question. However, cases involving rational basis review are damn near impossible for the government to lose. Under rational basis review, even if a regulation is obviously immoral and wrong, judges will uphold it so long as someone can think up a potentially justified use for the regulation! Actual facts mean nothing.

This distinction appears nowhere in the Constitution, mind you, but it determines to a large extent what rights actually exist. For more on this, I recommend the article No Such Thing.

So it is truly exciting that in today’s ruling the California Supreme Court ignored the U.S. Supreme Court and other states in deciding that regulations discriminating against homosexuals deserve strict scrutiny. The Court’s opinion on this matter is worth reading. Click here and scroll down to about page 83.

In order to fully realize Hayek’s goal of equality before the law for all people, we need more rulings like the one today — court decisions that examine regulations with the strict scrutiny they deserve.

In closing, I share with you my favorite quote on homosexuality, by one of my favorite authors:

Regardless of where homosexuality resides in the brain, the ethics of homosexuality is a no-brainer: what consenting adults do in private is nobody’s business but their own. And the deterrents to research on homosexuality leave us in ignorance of one of the most fascinating sources of human diversity.

Do you know who said it? For the answer, click here.