Cross-posted at The Austrian Economists.

We all share a common humanity when it comes to death, especially of those close to us. We turn to the people we've built and shared a life with for comfort and consolation in those times. We share that same humanity in times of great joy - at the weddings or births or anniversaries of our friends and family. And we want to share those moments with the person with whom we've shared the journey of our lives.

Sitting there watching those three couples and thinking about how they can never fully share those times of sorrow and joy without thinking twice about where they are and who might be watching, and without the full protection of the law if it was their own partner who was being mourned, not to mention whether some of their own families and friends might have rejected the very relationships that sustain them in such times, welled up my political anger and sense of injustice, of both the thin and thick libertarian variety.

Libertarians can disagree in good faith about what the relationship should be between marriage and the state. In the first-best world, many of us agree that marriage should be freed from the state. I certainly do. And in the second-best world we can and do disagree about whether the state should treat same-sex couples equally when it comes to marriage. As a matter of justice and equality under the law (a classical liberal idea that unfortunately gets short shrift in the modern libertarian emphasis on reducing the size and scope of the state), my own view is that libertarians should support measures to legalize same-sex marriage, including judicial ones. That said, there are certainly cogent libertarian arguments in the other direction, weaker though they may be.

As my wife and I celebrate our 20th anniversary this coming Thursday, I simply cannot imagine having to engage in the fancy footwork about our relationship that gays and lesbians do about theirs, nor wondering and worrying about how the law would treat either of us if something happened to the other. These concerns about our common humanity and treating equally the relationships so many of us rely on in times of sorrow and joy should, in my view, be part of a thicker libertarianism that is more than just politically tolerant or neutral about such relationships, but instead is positively supportive of them as part of a larger vision of a world in which individuals are free to create meaning out of the voluntary relationships they construct in their lives.

To be clear: I'm not suggesting any role for the state in this (beyond treating such relationships as equal to heterosexual ones as a second-best solution), nor am I suggesting that it is "unlibertarian" to simply dislike such relationships. What I am saying is that I wish more libertarians would get past thin approaches that treat the marriage issue no differently than the issue of, say, whether municipal power companies are inefficient.

The marriage question is more than an abstract exercise in political philosophy; it goes to the very core of who we are as human beings and what it means to live a life of dignity. How someone committed to individual liberty can be anything less than supportive of the desire of gays and lesbians to be treated equally, both under the law and in the eyes of others, when it comes to how we face the common sorrows and joys of human existence remains a very frustrating puzzle to me.

Some very brief thoughts of mine on the day over at Western Standard, a very nice and quite libertarian Canadian site.

Like the child who murders his parents and then asks for pity because he's an orphan, the Federal Reserve has a long history of asking for more regulatory powers to clean up messes for which its action or inaction is the primary cause….

The history of banking in the United States and elsewhere does not show that the industry is beset by market failures that require regulatory intervention. To the contrary, almost every major crisis faced by the banking system has been the consequence of already-existing regulations, many of which came about as responses to previous crises caused by older regulations. Countries, like Canada, where some of the worst of these regulations were absent, have not had the same history of crises as has the United States. Perhaps this time we will learn from history and avoid a new regulatory regime that will create new threats to an already somewhat shaky U.S. financial system.

Julie Novak is reporting at her blog that Liberty and Power's Sudha Shenoy has died after a bout with cancer.  Julie's obituary provides all the relevant information on Sudha and her career.  Sudha was everything Julie says she is and more.  She was truly one of the founders of the Austrian revival. Although she never published with the frequency of many of the rest of the stellar group of young scholars who attended the first revival conference in South Royalton, VT, she was active, including her contributions here at L&P. Her knowledge of history, especially European economic history, seemed endless and her training as an Austrian economist enabled her to see things in that history that others often overlooked.  She was also one of the loudest classical liberal voices against the American imperialism of the last few years.

But above all of that, she was "old school" in all the best senses of the term.  She was a scholar and a gentlewoman, and she was fun to be around.  Last November at a Society for the Development of Austrian Economics session looking back at the early years of the Austrian revival, Roger Garrison told a hilarious story (as only he can) about an early conference in California that included Sudha taking an unplanned dip in the pool.  My own favorite memory is what a good sport Sudha was when a group of us at an SDAE meeting a few years ago decided to go out to dinner at a barbecue place.  It was decidedly not her scene, but she came along, found some things she could eat, and had a great time I think.  It was also one of the few chances I really had to chat with her one-on-one as we sat at the same end of a long table.  It was a great experience.

Rest in peace Sudha and thanks for all that you have done to help put Austrian economics where it is today.

Cases like these do pose difficulties because they raise an interesting conflict of legitimate rights. Children surely have a right not to be physically or sexually abused and in the non-anarchist world, it's legitimate as part of the state's job of protecting rights to respond to genuine cases of such abuse (noting that what constitutes physical abuse isn't always crystal clear). But parents have rights as well, both at the state level and in terms of the federal constitution. And those rights include the right to make decisions about how to raise and educate their children. We might not like what parents teach their kids, but unless there's evidence of actual abuse, parental beliefs alone are not sufficient grounds to deny them their rights. Yes, this group's practices might threaten the rights of some of their girls, but the state's action definitively denies the parental rights of the adults and libertarians, it seems to me, must account for both sets of rights, even as we might recognize there are trade-offs and imperfections all around.

The Texas SC made this clear in their decision, arguing that if the child protective authorities wanted to remove children they would have to do it on a case-by-case basis, demonstrating that abuse was happening or some sort of immediate possibility. The circumstances did not justify a wholesale "class action" removal of several hundred kids. In the case of the boys and the pre-pubescent girls, the court was unanimous. Three dissenters argued that there were grounds to remove the pubescent girls based on past patterns of behavior, even though the other six argued there was not enough evidence to do so. I think this is the right decision on both counts. I'd like to offer a couple of reasons why, in particular in response to the view that the group's practices create an environment in which the girls are being abused and the boys are being raised to be abusers.

First, the state has to show that actual laws were broken. The age of sexual consent in Texas is 17 and the minimum age for marriage (with parental consent) is 16, raised from 14 a few years ago (see David Friedman's excellent blog post on this topic). Any 16 year-old girls who are married and pregnant with their parents' permission have broken no laws of the state of Texas, nor have any girls who were married at 14 or 15 a few years earlier, and neither have their parents. So if the justification for removing the children is that girls are being coerced into sex/marriage with older men, the state will have to demonstrate one of two things: 1) that the girls in question are not yet 16 (or were not 14 a few years ago) or 2) that they or their parents did not consent to the marriage. Only girls who fall into either of those categories are victims of sexual abuse in the context of early marriage. To the extent the law is being followed, the early marriage practices are not fundamentally different from those of immigrant communities, as Eugene Volokh notes. He also points out that the sexual consent laws are broken in communities across the US all the time, and might well be a socially prevalent practice in those communities. Does that justify removing any or all young women from such communities? Here too, Eugene points out, the state must find individualized cases to work from.

The point here is that critics of the TX SC decision who argue that FLDS is somehow creating a toxic institutional environment for the girls are going to have to show how their practices actually violate Texas law. If parents are forcing children to break the law, or doing it themselves with the kids, then that seems grounds for state action. If not, then what the complaint really amounts to is not liking the Texas consent and marriage laws and, by implication, believing that your dislike of a community's marital norms is grounds to take the children away. I'm not sure that's a good place to go, as I argue later. Of course the SC's job is to make sure the other branches of government are not wrongly punishing people who are abiding by the law, whatever the law might be.

If one wants to go after the parents for being polygamists, then find the relevant laws and prosecute them. Before you take their kids away, you better clearly show that the children are in danger by staying with their parents and that they would be better off in foster or institutional care or with other relatives. This is an exercise in comparative institutional analysis and we cannot fall for a family policy version of the Nirvana Fallacy. Just because one set of institutions is imperfect, doesn't ipso facto mean the statist alternative is better. Parental lawbreaking is not sufficient cause to remove the kids. (Plus, as David Friedman also argues, it's quite possible to engage in polygamy of a strong sort without technically violating the law.)

Second, some have argued that the boys are victims too, being raised to become rapists/abusers of young girls. Clearly this can't be true of all of the boys, given that this is a community in which one male has multiple wives. If we assume a 50/50 split in births, there must be some significant number of men who are denied sexual/marital access to the women (as each woman has only one husband, but each man has multiple wives). The problem of "what to do with the other men" is one that plagues polygynist societies. Assuming actual abuse is taking place, rather than just marriages right at the minimum age, it's not being done by every male, thus the argument for taking away all of the boys seems highly problematic. For all the concern about the individual rights and autonomy of the young girls, don't the young men deserve the same respect and thus not be hauled away from their parents having themselves committed no crime nor been the victim of abuse?

But beyond these considerations, I think there's a more compelling reason why the Court has done the right thing here and why especially folks on the left who are making the argument that it's putting the girls in danger and poisoning the boys should think carefully about this case. In the end, the argument by the Texas CPS amounted to a claim that this group's beliefs and practices as a whole were such that they raised the threat of abuse to these kids as a whole. That is the justification for taking them all, rather than identifying specific victims. The reason why such an argument is so dangerous is that it is the very same argument that has been used to take kids away from gay and lesbian couples as well as other religious groups with non-standard belief systems, such as Wiccans or other neo-Pagans. The long-standing argument was that their "lifestyles" in and of themselves posed a threat to their children because the parents' supposed practices or beliefs amounted to abuse. Of course cooler heads have largely, though not totally, prevailed and have been able to demonstrate that the worst fears of the child-savers were based on stereotypes and misinformation.

This is precisely why in such cases, the burden of proof should lie squarely on the state to demonstrate what the parents have done that is abusive and to identify the specific children who have been abused. To expect parents to demonstrate that they are not abusers, and that's been the case for gays and lesbians as well as minority religious groups, violates our notions of innocent until proven guilty and demands that they prove a negative. The parent-child bond is simply too important to the well-being of children, not to mention the constitutional protection of parental rights, not to hold the state to an extremely high standard when it intervenes in families.

It may well be the case that there is abuse going on in the FLDS. If so, the state needs to clearly demonstrate that laws are being broken and who the precise victims are. At that point, it can decide whether to remove the specific children or remove the specific adults or some other solution. Short of that, do we really want to give the state the power to take kids away based on the parents' general beliefs and practices after having come so far in not doing this in so many other situations where we used to? However much we might dislike the specific practices of the FLDS and however much some on the left might think giving the state that power in this case would so some good for the possibly victimized girls, we know all too well that such a precedent and giving the state such power will hardly mean that it will be used only when "we" think it should. To the contrary, it is most likely to be used against groups the left is much more sympathetic to and whose practices and beliefs are seen as "out of the mainstream" and potentially threatening.

The problem with giving states the power to do what you think is right is that they won't always agree with you.

Finally, we live in an imperfect world. We cannot eliminate all mistreatment of children without doing grave damage to the individual rights of parents. We know that children do better when raised by their parents as opposed to foster care or institutions. We also know that states face knowledge and incentive problems whenever they intervene in voluntary social orders. Thus, the burden of proof on the state is and should be high, even if that means parents sometimes get away with things they shouldn't. It's the price we pay for the freedom to form families and raise our children as we see fit. The alternative, which more or less would make parents adjuncts of the state, is much, much worse.

Thanks to the generosity of the Koch Foundation, we have inaugurated a Visiting Speaker Series in Political Economy here at St. Lawrence.  Our kickoff speaker in March was Chris Coyne, who did a fantastic job with a talk on After War. Last night was our second speaker for the semester, Pierre Desrochers of the Geography Department of the University of Toronto at Mississauga. Many of you are probably familiar with Pierre's work.

As I did with Chris, I gave a brief introduction that both said something about the speaker but also talked about the issues each was addressing. I tried to pick themes that illustrated the ways in which libertarianism shares the values of the left. In Chris's case, I talked about the anti-imperialist tradition of classical liberalism. For Pierre last night, I talked about the parallels between the War in Iraq and the calls, especially in the current issue of Time, for a"war on global warming." I share a slightly revised version of my thoughts on those parallels below.

The willingness of people such as Pierre to challenge the commonly held beliefs about capitalism and the environment is a model of critical thinking and courageous scholarship.  It is especially so when one considers the current issue of Time magazine, with its cover image of the Iwo Jima Marines planting not the US flag but a tree and its title of “How to Win the War on Global Warming.”  That is a powerful image that suggests both that the debate over the facts is over and that we all should be in this war together, much as was the case in World War II… and it also recalls the atmosphere created in 2003 by supporters of going to war in Iraq.  The text of the articles support this interpretation of the image.

The use of the war metaphor is troubling on several grounds.  Any time war is invoked as a common cause, both critical thought and our freedoms can easily be lost in the name of militarizing society in pursuit of a moral cause.  As Hayek recognized, the invocation of war is implicitly an attempt to turn a free society into a consciously organized one, with all of the attendant problems such an attempt will bring with it.

It is particularly ironic that a good number of folks who were rightly critical of the rush to war in Iraq because they questioned the apparent consensus about the existence of weapons of mass destruction there, as well as the ability of the US to “nation build,” appear to be so willing to undertake a “war on global warming.”  I would hope that those who fit this category are as willing to entertain “dissent” on environmental issues as they are with dissent on the War in Iraq.  Principled and courageous dissent can look like something different, and tolerating it can be a lot harder, when you’re on the “pro” side of a war.

More generally I would ask several questions of people critical of the War in Iraq but gung-ho about a War on Global Warming.  Should we not be asking the same deep, critical questions about what we do and do not know about climate change and environmental issues more broadly, and how we acquired that information, as we should have asked about Iraqi WMDs before we go rushing to “war” on global warming?  Though the earth has been warming, it is not at all clear that the consensus on the causes and consequences of said warming is as widely shared among scientists as Al Gore and others would like us to believe.  Should we not also be asking the same questions about the effects that such a war will have on innocents in the third world as dissenters did with respect to Iraq?  After all, the environmentalism-driven rush to biofuels appears to be a significant contributing factor to the run-up in world food prices, which is causing great harm to the poorest folks on the planet.  And shouldn’t we be asking what the consequences of this “war” will be on our own freedoms and our own standard of living, just as critics of the War in Iraq have rightly drawn attention to those same issues in the context of that war?  Finally, is it really all that much more imperialistic to try to create democracy at the point of a gun in Iraq than it is to tell the Third World that they must abide by high Western standards of environmental regulation in the name of a war on global warming and environmental destruction, when the consequences of doing so are sure to prolong their poverty?

The scholarship of those who are challenging the conventional wisdom of environmentalism, but who also do not have feature films to promote their views, are a crucial part of the critical thinking and provision of historical context that we need in order to make sure that we don’t go rushing into another mistaken war – one that will once again harm us and perhaps millions of innocents in the name of a moral cause whose factual assumptions may not be as certain as its proponents believe. 

And those who have argued the hardest for the toleration, if not the encouragement, of dissent on the War in Iraq have an equal obligation to do so for the War on Global Warming.  Whether they will do so is very much an open question.  So far, when dissenters are relabeled as “deniers,” with the parallels to Holocaust deniers made explicit by some critics, the outlook for the toleration of dissent during this war remains unclear.

It is worth noting that the same argument can be made in reverse - conservatives who agree with my cautions about global warming should do some soul-searching about their support for the war. I'm not optimistic about that possibility either, especially when Rich Lowry of National Review says of the Time cover: "Regarding that Time global warming cover, just imagine if the mainstream media were as exercised about the war on terror and as devoted to crusading to win it. How different would the political environment look?" Sigh. The right-wing worship of war continues unabated.

Of course none of this is to say that we shouldn’t be attempting to tackle real environmental problems.  Nor is to deny that such problems exist.  But invoking the war metaphor to do so is not helpful to say the least, and a severe threat to liberty and prosperity at the most.