Thursday, March 21, 2013

Libertarians For … Expanded Licensure?

An odd state of positions has emerged in the ranks of the libertarian movement in the past decade or two:  A strange affinity for expanded licensing.

Followup here.

Related:  A classic article on state abuse of marriage power from the December 1991 edition of Voluntaryists"One of our Most Human Experiences": Voluntaryism, Marriage, and the Family - By Carl Watner

One of the first lessons I learned when I discovered this thing called libertarianism, after countless friends told me that is what I am before I knew how to spell the word, was the evils of licensure.  It was a pretty simple lesson, even for me, someone who really thought that licensing doctors, electricians and plumbers actually protected people and property.  In reality, all those licenses do is restrict the available pool of competent providers of skilled labor for consumers to tap.

The Wacky World of Licenses

Today one does not have to search hard for lists of absolutely bizarre licenses required to perform all kinds of work in the USA.  Licenses for:

· Nail polishing (Nail Technician’s License) 

· Picking out drapes (Interior Decorator’s License)

· Painting (Paint Contractor’s License)

· Cutting hair with a razor (Barber’s License)

· Cutting hair without a razor (Hair Technician’s License)

· Nailing wood together (Carpenter’s License)

· Thermostat installation (HVAC Certification and License)

· Moving a car (Towing Operator’s License)

· Giving people rides (Cab Driver’s License and Cab Owner’s Medallions)

The list is much longer than that and growing daily.  When you get down to the basics, government licenses serve only to preserve the markets of entrenched classes of people and scholarly article after scholarly article has been published showing this.  Licensing is sold as a public safety issue, an excuse I bought into for years, until I discovered something else: Generally, everybody is liable for damages they do to other people and property, licensed or not.  Sometimes one is punished more severely for performing commerce without a license than if they had a license, even if no damage was done.

In the theoretical world of politics, no pipe is soldered and no electrical wire is connected without a licensed person checking it.  Actually, in the licensure propaganda world, only licensed people do those things, which is false as false can be.

Take for example when I worked at McGhee/Tyson Airport for Tennessee Airways.  The mechanics who inspected and signed off the work on aircraft had an Airframe and Powerplant license.  The fellow who did most of the airframe work, like patching the aluminum skin in a manner that looked like it came from the factory, had no license at all.  However, he had mastered his craft to a level that none of the licensed mechanics could approach.  What does the customer get for that?  A repaired aircraft and two bills, for the price of two.

Another example is when work is performed by government employees and no license is required.  I learned this one while working in maintenance at the University of Tennessee as an Electrician’s Helper.  My work was supervised by someone with the title of Electrician, but most of them did not have a license and were not required one by the State.  The crew I was on installed and maintained clocks and alarm systems, so we performed electrical work from Neyland Stadium, to the high-rise student dorms, without a licensed member in the entire crew.  So, if unlicensed electrical work is good enough for teenagers in a government high-rise, why can’t a consumer make the same choice?

Here in Tennessee, when one passes the Bar exam, he can avoid the license fee by selecting military only, which is what my son the Infantry Officer did.  But with the freebie he can only practice in military courts (representing government employees, or the government itself), even though he passed the test that is supposed to ensure competent representation to all.  If I recall correctly, managing to get in to test and passing the test counts for nothing if you did not get a law degree from the education industry first.

Marriage Licensing: The Who You Can Feel License

It is not hard to find everything I’ve mentioned decried by most libertarians, libertarian scholars, even zads of conservatives.  However, the license outrage falls apart as soon as the topic turns to marriage.

The marriage license does not grant the holder the right to sex or affection, it only restricts whom the license holders can express affections for, with severe financial penalties for the violator.  Something like Copyrights and Patents, with a twist.  If you have a government granted patent, it does not grant you the right to produce or manufacture.  It grants you the right to sue the crap out of anybody else who produces your idea.

If one is legally married, they can spend the family into beggardom and there is no penalty.  However, if they are caught in a romantic interlude with anybody not named on that license and they are in for real trouble.  The marriage license, in the USA anyway, is not a license for intimate relations with the co-licensee either.  It is a prohibition of intimate relations with anybody else.

Also, in some States, it is an immediate and continual transfer of property from one to another throughout the existence of the license.  In Tennessee, and other “equitable division” States, the situation is a bit different.  Property brought to the union stays the property of the bringer, and property gained during the union is divided in proportion to the incomes of the individuals.

This might be different if people could create “roll your own” marriage agreements for “open” marriages, platonic marriages, polyamorous, or even polygamous marriages.  But they can’t and the din of libertarians calling for adding just one more combination to the marriage licensing buffet are not calling for them to be added either.

The Libertarian Party, of which I am not a member (not much of a joiner here) takes this position in their current platform:

Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships.
For the Constitutionalists out there, the US Supreme Court weighed in on the subject on the federal level (as quoted by George F. Will):
“[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.”— U.S. Supreme Court, Sherrer v. Sherrer (1948)
However, the Congress and President Clinton weighed in also, in the 1990s and jumped in where the Supreme Court already told them they should not go, with the Defense of Marriage Act (also covered in the George Will story).

The short Federalist answer is, it is none of the federal government’s business who is or can be married and DOMA should be struck down.  Or, as Professor Will states it:

The question now is whether DOMA is “necessary and proper” for the exercise of a constitutionally enumerated congressional power. There is no such power pertaining to marriage. This subject is a state responsibility, a tradition established and validated by what can be called constitutional silence: The 10th Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The libertarian answer is, DOMA should die and so should the rest of the marriage licensing schemes with it.  Marriage is not a federal issue and it should not be a State issue either.

Gravy Train Licensing

Chuck Grimmett, met my position calling for an end to marriage licensing with an implication that I advocate a continuation of oppression (responses to my comment about this article by Ed Lopez, Richard Lorenc, and Liz Mair):

to get it straight, you'd prefer to keep a group from doing something that will expand their freedom to choose... @cagrimmett via Twitter
Freedom to “choose” one of the most restrictive licenses ever created?  The license itself restricts choice.  That is how license work.  How about ending the licensing and the special privileges granted by the license?  This emotional issue is one of the only issues where large numbers of libertarians advocate expanding special privilege.  The primary excuse is practicality:

yes, but we both know it won't happen. We can't allow people to be 2nd class citizens for the sake of perfection. @cagrimmett via Twitter
Rather than advocating a position of ending things like Social Security Survivor benefits, a benefit that the recipient did not contribute to at all, the advocates of same sex licensing wish to expand that to more people who never contributed to the program.  If you are going to keep Social Security, at least pretend to tie it to the Social Security Account Number of the person receiving the check.  I advocate ending Social Security too, and I would like a refund for every single person who paid into it and never received a payment.  DO NOT send “refunds” to people who never paid!

Mr. Grimmett also raised this issue: keeping in mind eliminating social security is not an option in this situation. Suppose everyone paid in to social sec, but only whites got benefits. Would you stop expansion to others b/c it grows govt? If that resembled anything in this discussion I could have an on-topic response, but I have to settle for a direct response to the non-sequitur:  Perhaps I could be persuaded into accepting every single person who had their money taken at gunpoint to be able to receive benefits.

Oddly, this is not the case with any “marriage benefit” from government.  Every single one of these “benefits” is a handout to someone who just happens to be named in a license with a person who can get the benefit, not to anybody who could receive the benefit on their own.  Everybody who paid into Social Security does get some sort of benefit, if they live long enough, they don’t need to be married to anybody.

When do libertarians ever advocate these solutions for other licensing issues?  Do they say, “Anybody who wants to be an electrician should get a license if they pay a fee”?  No, the solution is to attack the bad law and get it repealed, no matter what sort of bigoted and biased qualifications are attached.  Then again, I am not sure what other licenses get payouts from the government just for being on the license, which makes libertarian support for this sort of thing a bigger puzzle.

As a discussion medium, Twitter lacks quite a lot.  I contacted Chuck via email with an invitation to correct or comment:

To be clear, my first option IS getting rid of licensing all together. As Leonard Read said, "If there were a button on this podium..." (paraphrasing) I would push it. I just don't think that is going to happen in my life time, so I prefer allowing same-sex couples to marry and receive the same treatment as heterosexual couples. Like I stated on Twitter, if I could abolish this licensing nonsense, I would. The next best option is making sure the laws, if they must exist, apply equitably to all. - Chuck Grimmett, 21 March 2013
Feel free to read the original conversation on Twitter.

Government Hijacked Religion

My fellow libertarians, as well as quite a few Progressives and conservatives, decry religious interference in government, yet they applaud this hijacking of a religious tradition by government.  Western governments did not co-opt just any old religions as a model for licensing, they only chose the monogamous ones.  Again, one of the very common religious forms of marriage in the world, polygamy, is not being advocated at all by my fellow libertarian big government do-gooders.  A trip down memory lane reveals that the federal government leaned on Utah to outlaw polygamy.  Somehow, I am missing the outrage over this.

Even with all that, a primary purpose marriage license in Western Civilization, since their 17th century introduction to the American colonies (and later States), served for racial discrimination.  White guys (like me) could not legally marry Asians (like my wife), usually specified Chinese (like my wife) well into the 1960s in many states.  I am not aware of anybody saying, “We should end the ban against White/Black marriage, and stop there until the Mongolians storm the Capitol.”  The solution was to repeal those unfair laws in whole.

The simple solution to include everybody who wants to marry anybody, conceivably even himself, is abolishing government recognition of marriage, especially when handing out goodies.

It Is For The Children?

Proponents in all quarters come up with all sorts of false flags for this government intrusion into the most intimate of relationships.  One is “rights of children” (had to use the Google cache, the direct link is broken at this writing).  I was wholly unaware that there was anybody left in America who was unaware of paternity issues with unmarried people!  This country is full of couples who exercised their libertarian urges (knowingly or unknowingly) to cohabitate and procreate without a license, like Gene Simmons and Shannon Tweed.  Many of those couples have children and domestic courts handle their situations every single day.  Many more unlicensed couples mate and nest without ever seeing a courtroom.

How about this “for the children” concept: Constructive Marriage.  The State of Utah pays indigent single custodial parents a bit of welfare.  They also have licensed marriage and court granted divorce.  In a deft feat of invisible foot State prowess, Tom Green got legally licensed married, fathered children, got divorced, repeated a few times, and was convicted of welfare fraud.  The court ruled him constructively married to his ex wives because they and their children continue to live with him and draw welfare checks.

Wow, what a benefit!  Follow the law through divorce and go to jail because the State is showering your ex wives with welfare checks.  There is no mention of any welfare checks written to Tom Green either.

What about equitable application of the law, as some libertarians mentioned earlier advocate?  I have not found a case where never married people without children were jailed this way, be they communal livers drawing welfare, nor communal livers in general.  Wait, this might qualify: Banning unlicensed roommates.  No, not in the ‘Bible thumping South,’ this one is from Watertown, NY.  No jail time was mentioned in the article.

Licensed ‘Rights’

The other big false issue is “homosexual rights” to marriage, while omitting all of the other variations.    In the first place, rights are not licensed.  If you want to call licensed marriage something, don’t call it a right.  If you want it to be a right, don’t demand licensing.  See any Second Amendment discussion and those Constitutionalists (also known as the people who can read, scholars too) will tell you the same thing about Second Amendment “licenses.”

I suppose I am more socially hip than I thought I was, because I was aware of homosexual marriages long before they were mentioned in the Seinfeld episode “The Subway,” where Elaine was stuck on a government train when she was supposed to be performing Best Man duty at a lesbian wedding.
So what is the big deal?  As mentioned earlier, something else that my fellow libertarians rant about: Government benefits.  No, I am not talking about husbands getting to visit husbands in the hospital; that is usually due to bad hospital policy, not a law preventing same sex visitors from visiting patients.  Not talking about insurance either, especially since every employee insurance policy I’ve been presented with for over a decade had a “domestic partner” or “other person” insurance option, that even heterosexual couples can use, no license required or requested.  Yes, I know this because I exercised it in Tennessee two years ago when my wife and I were engaged.

Several of those insurance policies were for employers in Virginia.  Yes, the home of the failed (thank God) Marshall-Newman Amendment:

Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.
Advocates of government regulation of “marriage,” are you happy with that one?  From my reading, the “approximate the design” clause prevents me from putting my best guy friend on an insurance policy.  Possibly the same for a girlfriend.  Okay, if you did not like that one, try this Virginia law that is still on the books and has been used recently:

A law dating to the late 19th-century makes it a misdemeanor for “any persons, not married to each other, [to] lewdly and lasciviously associate and cohabit together.
Probably no one has been prosecuted under the law for decades, but state officials used it as recently as the early 1990s to threaten revocation of a daycare provider’s state license, said Sen. Adam Ebbin (D-Alexandria), who has brought the bill with Del Scott Surovell (D-Fairfax). The measure comes before a Senate committee Monday.
Italics mine, to highlight some bizarre turn of phrase by those professionals at the Washington Post.  So, they did not find a prosecution lately but it was easy enough to find the license law used as a club to threaten the license of a business.  A license to babysit.  Seriously, people want to expand this?

In the government benefits realm, this becomes a larger issue.  Everything from government employees getting to sign up for government discounted insurance (a recent issue at the government owned and operated University of Tennessee) to Social Security Survivor’s Benefits, to federal income tax status.  Notice that insurance companies can offer insurance to an unlicensed second person if they are in the public sector, but if they work for the State of Tennessee they are prohibited.  I would love to extend this to an abolition of government schools topic, but this post is long enough already.

What about giving your property away after you die?  Wills and powers of attorney were made specifically for that purpose.  Oddly, a marriage will wreck the wishes of the dearly departed, no matter how clear they were about who gets what.  Even without a marriage license, the same invisible foot effect happens in the States that have common law marriage.  People can be together, unlicensed, happily living their lives without knowing that the government decided that they are legally married.  So, if the deceased wanted to give her property to her offspring from a previous encounter, too bad, the government says it goes to her spouse.  If a man wants to give his property to the dog next door instead of his husband, same deal.

I can only wonder how common law marriage works with federal benefits, like military retirement.  A State declared people married, but the feds do not have the proper paperwork.  From my experience with the military, if you cannot get a bureaucrat to read the plain words on a document you are not getting squat.  If no document exists, your mileage is worse.

Everything related to “unfairness” in marriage is due to authoritarians in government, and their allies in the crowd.  The officials want to hand out government checks to garner support, and the crowd clamors for more recipients.

In an earlier post, the Pentagon announced "benefits" for unlicensed homosexual couples, but not for unlicensed heterosexual couples.  How does this count as "fair" again?

Ⓐ Steve Ⓐ


  1. Thanks for your post, Steve. As one of the authors of the Daily Caller article you reference, you'll not be surprised I disagree with much of what you write. Like my colleague Chuck, I would prefer the government to be extracted from all licenses, including marriage licenses. The Overton Window, however, is not yet open enough to achieve this, so the libertarian maxim to follow is equal treatment under law.

    One of the goals of our article--and organization, Freedom to Marry--is to repeal DOMA, which everyone here should agree is terrible legislation and anathema to libertarians. As you know, another goal is to get legislation passed at the state level for same-sex couples to also have the ability to have their relationships recognized as marriage legally.

    Perhaps we libertarians would prefer it not to be so, but it is true the state today has a large, validating role in marriage. Regardless of benefits, penalties, or whatever, individuals in society generally regard the state marriage license as the official statement that two people are committed to each other. I do not agree with this, but am simply stating the fact. Furthermore, the rotten unequal treatment principle enshrined DOMA and some marriage legislation and constitutional amendments (specifying only man-woman marriage) is bad pedagogically--what libertarian would want any person to get the idea legislation can speak only to a single group of peaceful people?

    Which brings us back to your point about licensure. Every license you reference relates to legal strangers providing services for hire. On that they are already very different from marriage licenses, so much so we should probably differentiate them with a different word. Aside from needing to ask the state permission, these occupational licenses are made scarce through the lobbying of and special legal privileges given to special interests. In that way alone, they are similar to marriage licenses because certain special interests have created a false scarcity through legislation to restrict them only to opposite-sex couples.

    It is my choice today to lobby for those special privileges to be repealed. I argue this on moral, legal, and ideological grounds. Some day in the future, I believe libertarians will have a better chance of removing the state from consensual contractual agreements if every adult couple being harmed by state marriage regulation can stand against it together. (I will add I believe that day is far, far in the future.)

    Your comments are appreciated on this topic. We agree on the end goal, but have a bit of talking to do before agreeing on the strategy to get there. I'm curious to hear yours.

  2. I called for a repeal of DOMA also, in the second section, and quoted George F. Will, along with his 1948 Supreme Court quote.

    However, you are by no means at all advocating marriage equality if you are leaving out the polygamists and other combinations. That is why I gave the Tom Green example. Frankly, it looks like pandering to the vocal fraction of the 4% who want licensed homosexual marriage, yet no further expansion of the licensing, i.e., no expansion of freedom at all, only a tiny expansion of privilege. An unearned privilege at that.

    Your approach is similar to, but much smaller than, what I noted about expanding marriage licensing one race at a time.

    "Which brings us back to your point about licensure. Every license you reference relates to legal strangers providing services for hire."

    Not quite. That is why the Copyright and Patent mention is in there.

    Tell me, precisely what "right" are *you* and your co-authors wanting to license?

    "Regardless of benefits, penalties, or whatever, individuals in society generally regard the state marriage license as the official statement that two people are committed to each other."

    One reason they think that is because the government licenses their clergy for marriage and punishes them if they get caught marrying "unlicensed" people. I only asked 2 pastors and that was the 100% response in my State. I did not include the State laws, but I did look them up a few weeks ago. Easy to find anyway. Your State might be different.

    They also tend to believe wealth comes from government, and a host of other fallacies which libertarians are quick to point out in any other situation.

    The question stands, if you are really wanting marriage "freedom" then why are you only advocating it for a very, very few more people?

  3. Replies
    1. For starters, my strategy is: Don't use wordplay to disguise special privilege as a "right" or "entitlement." Nobody is entitled to the property of others.

      End "benefits" based on relationship status and bring the discrepancies out. Already named in my last response.

      Once the subsidies evaporate, so does most of the issue. Part of how we got where we are now is from so many people falling for the fairness-by-theft argument, and accepting more theft as the solution.

      Quit giving in to narrow groups that want special privileges and point out the existing special privileges must be eliminated. Especially stop giving into collectivist activists who have nobody's free choice in mind at all, and point it out, like we libertarians do everywhere else.

      The way things are going with positioning like yours, we end up with situations like at the end of this post being viewed as acceptable:

      Now, IF you really want to spread benefits around to whomever is spooning with whomever, that is one thing. Having a situation like the military is reported to be going forward with in that article (have not followed up, I hope they changed their minds) you have:

      1) Unlicensed Homosexual couples, who *could* go to several States for licensing, but are not required to, and they get "marriage" benefits

      2) Unlicensed heterosexual couples not covered at all

      3) Not mentioned - Muslims and others who may have four spouses (more for non-Muslim polygamists) and I am pretty darn sure the Army is not going to be tossing around anything but UCMJ action against any Service Member with more than one spouse.

      Your position creates these problems, it does not solve anything.

      What of heterosexual or homosexual close relatives who want to marry? They can't get licensed these days. Reason Magazine has run quite a few articles on the fallacy that close relatives procreating causes genetic problems, and none are possible with homosexual close relatives. I don't advocate the practice, but I will not dictate or support the prohibition either.

      How does adding same sex marriage to the licensing scheme address any of that? It doesn't. Not a single one of those examples gets the "extra" anything that you are advocating for a very small group of people. What your approach does do is amplify the problems named in my post and does not avoid any of them.

      The only fair solution is to get the government out of it, not encourage more rule-making for a bigger regulation state.

    2. More here: