Horwitz Reminds Us That Classical Liberalism Insists Governments Treat Citizens As Equal Before the Law

Michael Giberson

Steve Horwitz argues that Classical Liberals have become so focused on the size and reach of government that they have lost touch with another important Classical Liberal project: promoting equality before the law.

Part of the problem today is that an increasing number of libertarians lean toward the anarchist position.  When one’s whole political perspective begins with the proposition that anything and everything the State does is evil and/or unnecessary, it’s easy to ignore questions about about how the State — given its existence – should properly conduct its business.  These questions involve matters of justice and liberty, and if we libertarians ignore them, we risk not only irrelevance in important conversations but also risk consigning our fellow citizens to continued injustice and denials of liberty.

The legalization of same-sex marriage in New York last week has brought these tensions to the surface.  Libertarians seem split over whether to celebrate this action.  On one side is a group arguing that the real problem is State involvement in marriage in the first place and that this decision just makes it more involved.  Therefore, this group seems to be arguing, we should oppose the action (or at least be indifferent about it) and work to separate marriage and State.

Equality under the Law

On the other side are those like me who — while agreeing that the long-term goal is separation of marriage and State — argue that, given the slim chance of separation happening any time soon, classical-liberal principles require the State to treat all citizens as equal before the law.

For most of human history political leaders acted with near total discretion, distributing benefits and impositions among their subjects however they like.  One of the most important accomplishments of the liberal movement was to subject those with political power to rules.  Starting with the Magna Carta and up through the democratic revolutions and constitutions of the eighteenth century, liberalism worked to create a society ruled by law not by men.  Since the eighteenth century the liberal movement has also worked to ensure that all citizens, by virtue of their being adult humans, have their rights fully respected.  The liberalism of the nineteenth century was antislavery, antiracist, and part of the earliest movements for women’s rights.  It powerfully combined a commitment to liberty with a commitment to equality to make the case for the liberal order.

21 thoughts on “Horwitz Reminds Us That Classical Liberalism Insists Governments Treat Citizens As Equal Before the Law

  1. I see classical liberalism as a pragmatic point of view that separates opinions how we want to society to be from our models of how society works.

    In the case of marriage, if we by marriage mean the “legal kit” that allows for the possible arrival of children, there are certain biological considerations. From our biology it appears that children have alternative algorithms that kick in depending on whether the father is present or not (no mother almost always meant “dead” so there are probably few adaptations for that).

    To generalise in the extreme, for a boy, father present means longterm commitment to women, follow in your father’s footsteps. No father means short-term mating strategy, join youth gangs.

    For a girl, father present, delay marriage until a faithful husband can be found. Father absent, better get out quick and have a baby with some gang leader, but without commitment. The presence of a step-father seems to cause a girl to have her first period six months earlier and it could actually be the sent of the step-father that triggers it.

    David Buss, “Evolutionary Psychology” and Steven Rhoads “Taking Sex Differences Seriously” are very informative on these matters.

    To me, this means that growing up with two mothers and no father, or with two fathers and no mother seems to be a sure recipe to mess up the lives of the children.

    With this evidence, I am against homosexual marriage, or rather against homosexual upbringing of children through adoption or through the help of a donor. As long as the other biological parent is alive, he or she should be around. Divorce does not look too hot either.

  2. Rubbish. The whole gay marriage thing has nothing to do with equal treatment. No one was deprived of equal treatment by the old dispensation. Every one was permitted to contract marriage with one other living human being who was not in a excluded class (relatives, minors, married to another person, members of the same sex, lunatics). Homosexuality, to the extent that it is a condition, and not merely a behavior, is not and was not a disqualifying condition. Love, affection, and even mere friendship never were requirements.

  3. Legalizing civil unions would have dealt with the “excluded class” issue without an adverse affect on marriage. Regrettably, it appears that “gay rights” gains must produce a “zero sum” result.Too bad. So sad.

  4. Ed: And being forced to ride at the back of the bus still gets you to the destination just like the white folks, so no problem there I guess.

    I’m still waiting for someone to explain to me what the “adverse effect on marriage” is.

  5. Fat Man, recall of course that the list of members of an excluded class once included “members of another race.” By your argument, that restriction also had nothing to do with equal treatment, but doesn’t it seem like unequal treatment by the state? If you marry someone of the same race, the government will recognize your agreement and grant access to favorable tax treatment and other government-mediated benefits. If you marry someone of a different race, the government will refuse to recognize your agreement and deny access to various government-mediated benefits.

  6. Your analogy is faulty. In the case of Loving v. Virginia (the case you were alluding to) the law in question was a penal statute that made it a crime for a white person to marry, or be married to a “colored person”. The statute had a classification scheme that distinguished between white and colored people. It was that scheme that violated the 14th Amendment.

    There is no law, anywhere, that makes marriage between a “heterosexual” and a “homosexual” or between two “homosexuals” (of the opposite sex) invalid or criminal. Nor is there a classification scheme that sorts homosexuals from heterosexuals. Indeed, I am not sure that there is any universally accepted definition of either of those terms, read this article to see how difficult the question is:


    There have been many marriages between heterosexuals and homosexuals. Cole Porter and Malcolm Forbes come to mind quickly. I know of at least 3 such marriages in my little neighborhood, all of which resulted in children.

    The real complaint about marriage seems to be that the legal form does not allow some people to do what they want to do. But, I know of no reason why the legislature is required to provide for everything everybody wants. The marriage laws do not allow men to marry their mothers, even though she may be the only person they ever loved. Nor, do they allow a man to marry his dog, even though a canine bitch is a far superior companion to a human one. Further, they do not allow for polygyny, which is a far older and more recognized institution that same sex marriage. [Although as an aside it strikes me as simply destructive and societies that permit it are impoverished by it.]

    Further, allowing same sex marriage gives an open field to using the device for purposes that were not intended: see, e.g. 6. “I Now Pronounce You Chuck and Larry” (2007) where two firemen marry in order to get cheap healthcare coverage. If the estate tax comes back, ssm will be popular as a fiddle on that tax.

  7. Steve,

    You will likely have to wait a while, though I would guess your are young enough to do so.

    The institutions which form the structure of a civilized society have been under attack for decades. Family has been adversely affected by sex before marriage, easy divorce, cohabitation, “shacking up”, “hooking up”, “kids having kids”, legal and easily accessible abortion, etc. Each attack has taken a while to manifest its adverse effects. The “world’s oldest profession” must struggle to compete.

    Family, interestingly, has also been adversely affected by government welfare, particularly in the black community. Just one of those “unintended consequences”.

    Churches are also under attack. The Archdiocese of Boston is no longer involved in adoption services, because it refused to place children with gay couples. Religious schools are under attack for teaching that homosexuality is a sin. Religious hospitals are under attack for refusing to permit abortions or sterilization. Physicians with strong religious convictions are under attack for refusing to perform abortions or sterilizations. “Separation of church and state” is “essential”, as long as it doesn’t impede the state from interfering in the church.

    “Gay marriage” is just one more “drop of acid” strategically dripped onto the structure of society. It will weaken the structure, as has each other “drop of acid”, until the structure fails.

  8. Ed,

    I really wish conservatives would embrace evolutionary psychology and use the fact that we can now show why we have so-called “conservative” values with regards to marriage and children, and why we screw up children’s lives and the lives of women by not embracing them. Men on the other hand easily adapt.

    I cannot enough recommend the book by Steven Rhoads.

    Also, in case you are interested, from evolutionary theory comes the fact that one cannot ask the question “nature or nurture”. It should be “nature AND nurture”. From this follows that “gender” as a “socialized sex” is such nonsense that it isn’t even wrong. Probably for reason of academic self-preservation, this is not pointed out by the researchers. But you will not find “gender” in the textbooks by David Buss and Gaulin&McBurney. In the index of Steven Pinker’s “How the Mind Works” it says “Gender, see Sex Differences”.

  9. While I agree with Steve Horwitz’s bottom line about same-sex marriage, I think he too glibly embraces the principle of equality before the law. Equality before the law in the case of same-sex marriage makes total sense. But it is not as easy a principle as Steve seems to say in his piece, as he essentially admitted in his comment on my blog post. As he put it well, “The world of the second best is a very messy place.”

    See: http://econlog.econlib.org/archives/2011/06/is_equality_bef.html

  10. Erik,

    Thanks for the references. I will check out the Rhoads book.

    Conservatives and even “enlightened” progressives have difficulty dealing with the effects of the New Deal and the Great Society on the black family. The shouts of “racist” begin immediately, even when the “enlightened” progressive is a black PhD named William H. Cosby, Jr. There seems little doubt that self-destructive behaviors are primarily, if not exclusively, “nurture”, although that seems a self-contradictory term to apply to the situation.

  11. If a woman wears pants exclusively, wears her hair very short, wears no makeup, is sexually aggressive, swears like a sailor, drinks beer, belches and flatulates in public, etc, does equality before the law require that we recognize her as a man simply because she portrays herself that way to a significant extent? Conversely, if a man wears skirts and dresses exclusively, wears his hair long, wears makeup, is sexually restrained, drinks white wine, acts in a genteel manner, etc. does equality before the law require that we recognize him as a woman simply because he portrays himself that way to a significant extent? Each has similarities to the other sex, but each still retains significant differences?

    Does equality before the law truly require that we recognize a committed relationship between two individuals of the same sex as “marriage” because it has similarities to heterosexual marriage, though it retains significant differences? In granting same sex couples the same equal rights under the law, do we have to ignore the significant differences which remain between same sex unions and heterosexual unions and apply the same name to both? Surely our language is rich enough to accommodate separate, appropriately descriptive terms for these differing relationships.

    What is occurring here is the insistence of a group of people of both sexes, who represent a portion of the population of the third standard deviation from the norm of society at the opposite ends of the normal distribution curve, to have themselves and their relationships recognized as normal, simply because they would prefer it that way.

  12. Ed,

    Rhoads’ book will make you happy. With regards to racism, when you look at humans as a social animal, the reasons for it become trivial. Be nice to people within your group, be wary of others. With regards to “nurture”, this is just an example of where we are designed to pick up cues about who is in our group and who isn’t. Skin colour cannot be some innate differentiator though because our ancestors never saw someone of another colour. This has been tested using T-shirts by Tooby and Cosmides. There is an article in the Economist from 2007 about that I think. Conversely, this means that celebrating that you belong to a particular ethnic group is a double edge sword. On the one hand, you get the warm and fuzzy feeling of belonging to a group. On the other hand, you have just announced to the world that you belong to a different tribe.

    I hope you will notice that with evolutionary psychology, conservatives, classical liberals, get a big baseball bat called science to to whack those that subscribe to the idea that evolution stopped at the neck and that we are now “socialised” into different “gender roles”, etc. Some of the details might be different, but essentially evolutionary psychology agrees with the concept of man having a “fallen nature”. We are not innately good and our character flaws are not due “to society”.

    You might have noticed that there are articles in the papers about bravely taking the message of evolution to remote areas in the US, areas supposedly populated by religious bigots. The participating biologists are then surprised at how well they are received. Bravery at, or beyond the limit of recklessness would be displayed if they instead ventured into the sociology, gender studies or cultural studies departments of their own universities.

    I am writing a book on this matter that you are welcome to have a look at. If you have read Thomas Sowell’s “A Conflict of Visions” it might interest you to know that one can demonstrate (or at least I believe I demonstrate) that the “Vision of the Anointed”, the vision of Condorcet, Rousseau and Obama, is the unadulterated “Vision of the Hunter-Gatherer”. But we do not live in small tribes anymore. Instead we live in “the extended order” (Hayek), what Adam Smith called “The Great Society”. I think the latter name is worth reclaiming from the later perversion of its meaning.

  13. Erik,

    I would enjoy looking at your book draft. However, I will warn you ahead of time that I am an editor to the core. I am totally incapable of reading a draft without editiong and inserting questions and comments. I am too old to change now. 🙂

  14. “I really wish conservatives would embrace evolutionary psychology”

    A central pillar of conservative wisdom is that the so called social sciences are the pretense of science, not science. “Evolutionary psychology” is a bunch of “just so” stories that explain the observable — the behavior of modern men, with the unobservable hypothesized circumstances of evolution. At least Freudians did not make claims about events that no one could ever observe. And that “science” has lost all credibility outside of a few die hards.

  15. Erik,

    The regression from our current society to a “hunter-gatherer” society might require that we begin by hunting each other, to restore population to a level at which we could subsist on what we could hunt for and gather. Not a happy prospect!

    Those who state that global population must be reduced to some sustainable level rarely discus the potential approaches to achieving the reduction, probably because they are all so repugnant. Interestingly, in context, a couple of generations of mandatory same sex “marriages”, in combination with a ban on artificial insemination, might well be sufficient. 🙂

  16. Ed,

    If you leave a comment on my blog, for example on this post:


    I’ll get your email address without broadcasting to the world. With regards to editing, I suffer from the same affliction as you, although I am not a professional editor (my wife is though). So please be as brutally honest as you can.

    The blog is in Swedish, but it might please you that I argue that not only Prague should name a street after Reagan, Sweden should do so as well, as Reagan defeated the Soviets in the cold war.

    With regards to the Anointed, they already “know” that the world suffers from overpopulation. So if ever they got to power and banned chemical fertilisers, pesticides, nuclear power, coal and all other CO2 emissions to “save the planet”, they would most likely not make any connection between their actions and half or two thirds of the world population starving to death.

  17. Fat Man,

    I am certain that I cannot convince you in a comment that evolutionary psychology is hard science. I recommend either one of the textbooks by Buss and by Gaulin&McBurney, or the “Adapted Mind”, eds Barkow, Cosmides, and Tooby. The latter is a collection of articles that are more specialised.

    Pinker, “How the Mind Works” and “The Blank Slate” are also good. I actually find the textbooks easier reads, but in the US you can’t get the “International Student Editions” at half price.

    For your interest, Pinker clearly understands both Thomas Sowell and Hayek. He also writes with a harder edge than in particular Buss that is bending over backwards to explain scientific methodology. Pinker is denser and covers other ground as well.

    And finally, a partially unscientific appeal to authority. Hayek, in Law, Legislation and Liberty, vol. I and the Epilogue, makes very good use sociobiology (evolutionary psychology had not been invented as a name then). Hayek makes a few arguments in relation to culture that are very interesting. In some instances, he over-emphasizes how much culture is learned, because we now know (or at least should know from evolutionary psychology if we believe that stuff) that we must have “cultural instincts”, we must be receptacles that are filled with the surrounding culture when we grow up, just as we have a language instinct that picks up the language around us. However, the gist of Hayek’s argument is sound, as well as most of the details, and it is a bit sad to see that 30 years later, biologists who are unaware of his writings reinvent the wheel (Not by Genes Alone by Richerson and Boyd).

    Regarding terminology, to some ethology, sociobiology and evolutionary psychology is just the same thing using more and more precision as knowledge has grown. Evolutionary psychology is also specialised to humans. Others claim the approaches are different.

  18. Steve,

    “Ed: And being forced to ride at the back of the bus still gets you to the destination just like the white folks, so no problem there I guess.” (Nice snark.)

    We’ve moved far beyond that here in the good old US of A. We now have Affirmative Action. Our colleges now have Black Student Unions, Women’s Centers, GLBT Centers, Islamic Centers, Black Studies Programs, Women’s Studies Programs, Gender Studies Programs, etc. We have progressed from forced segregation to voluntary segregation, even in situations in which there was no previous forced segregation. Now that’s progress! I guess it is a case of “separate but better”, or at least separate is better.

    I can only imagine the “spontaneous” celebrations which would greet the addition of White Student Unions, Men’s Centers, Straight Centers and the related programs. How about some Whites Only scholarships? How about White Entertainment Television?

    I seriously doubt we will be able to resolve the serious issues which face us if we are not able to get over ourselves first. 🙁

  19. Color me completely confused by the response, yet unlikely to write a book (which Shall be wrong no less than (1 or 2)/5 of the time, hereafter called ‘hosed policy’ or ‘wrong.’) I thought for a moment I’d read that a deceased mother meant a baby had no chance of developing! Happy Independence Day,(or global warming undeniability day, or what have you) and thanks for the citations, quotes (not…in a comment,) etc.

    Evolutionary Psychology; just when you thought you knew how testosterone was throwing down, we 400 found through 24 sessions and a fun romp through the human fossils some interesting, non-chafing chimeric results. <–Not bad for Google Translate, I think you'll agree. No, that wasn't Google Translate output….

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