Indiana’s Libertarian Party chair, Dan Drexler, announced in early November his opposition to a proposed constitutional amendment that would prevent Indiana from issuing marriage licenses to gay couples. But the libertarian reason he gave for his opposition does not support that opposition.

Drexler stated, “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.” He added that he supports efforts “to remove government from intervening in personal relationships altogether.”

Clearly, the logical libertarian conclusion would be to keep government out of the relationship-licensing business as much as possible, not to support the extension of governmental “seals of approval” from heterosexual friendships to homosexual ones as well.

Society may have to license and reward different-sex relationships in order to stabilize them for the sake of any children that may be born of them, but why would a libertarian wish to extend the bureaucratic regulations and restrictions surrounding marriage to couples that are inherently non-fertile?

Drexler’s position may emerge from a common confusion, the idea that gay people are not now free to form any sort of relationship they wish, and that a governmental marriage (or civil union) registry is necessary in order to liberate them. But in fact Indiana’s consenting adults, gay or straight, are already “free to choose their own sexual practices and personal relationships” and the proposed constitutional amendment would do nothing to limit their liberty. Gay sex would be in no way prohibited by the amendment.

Indeed, despite the amendment, gays would continue to be free to engage in wedding ceremonies and pledge life-long fidelity to one another, as at present, if they wished to do so. The amendment would serve only to continue the current state policy of non-supervision by the government of such relationships and ceremonies. That is, Indiana would neither prohibit nor license gay sexual friendships. It would just continue to leave them alone.

By contrast, the legal validation of gay relationships as “marriages” would be an intrusion of government into private sexual matters, an intrusion that would limit liberty quite significantly.  

The legal institution of gay marriage would entail public approval for the kind of sex acts that gay couples engage in, for all of us agree that there is nothing wrong with sex within marriage. Indeed, one of the most traditional reasons for two people to get married is so that they can remove absolutely all stigma from sexual relations between them.

The result would be a deep cognitive dissonance in the body politic. The marriage label would proclaim that there is nothing wrong with gay sex acts, but many people would continue to believe gay sex acts to be always and inherently wrong (whereas no one believes penile-vaginal sex to be always and inherently wrong).  Gay marriage advocates are asking the government to intervene on one side of a profound moral controversy, are asking in effect that we officially establish sodomy to be right, as part of what we will label “marriage,” making the other - still strongly held - moral view to be wrong.

Especially from a libertarian point of view, this attempt to establish a new moral orthodoxy about a deeply felt and intimate question is most dangerous. Like the religious establishments of old, a contested but officially established morality is bound to come into tragic conflict with the individual liberty of many persons, from that of wedding photographers forced by anti-discrimination laws to participate in applying a seal of approval to sex acts they regard as gravely wrong, to the freedom of parents not to have their children taught in school that there is no difference in dignity between vaginal and anal intercourse.

I once asked an old and dear friend (who later died of AIDS) whether his struggle for gay rights was based on the principle “All people are created equal.” He responded, in his wry and funny way, that it was based upon the principle “All orifices are created equal.” 

Because the latter principle remains deeply divisive, it is not one on which we can build a free and harmonious life together. To ask the government to make it an official moral norm, in preference over the contrary moral judgment, certainly seems out of keeping with a libertarian position favoring limited government.

Richard Stith is a Professor of Law at Valparaiso University, Indiana, USA. For a more extensive version of this argument, see R. Stith, “On the Legal Validation of Sexual Relationships,” The Jurisprudence of Marriage and Other Intimate Relationships 143-163 (Wm. S. Hein & Co., 2010).