The Freedom to Commit to a Dream

Imagine two people who each share a common passion, one they’ve been cultivating for years. At long last each has found another person who can help realize this ambition. Each is a responsible adult who is prepared to commit to a long-term, maybe even lifelong partnership.

Many agree that these two deserve the recognition of society and even the protection of the government—but only as long as what they want to do is marry. But what if they want to do business with each other?

Because government does not always recognize same-sex marriage, our culture has become engulfed in a controversy that reaches from local churches all the way to halls of power in Washington. The debate is routinely given top billing in the news, surpassing even stories about the war in Afghanistan and the economic crisis. Recently President Obama caused a stir even among his own supporters when he spoke out in favor of legalizing same-sex marriage.

But there is no comparable controversy—especially among Obama supporters—about the far more systematic restrictions on the freedom of adults to trade goods and services with each other.

Suppose an entrepreneur wants to start a business—a hair salon. He loves making people beautiful and he is good at it, so he wants to find a way to make a profit doing what he loves. In many states he is legally required to spend upwards of $20,000 for 1,500 hours of classes in cosmetology schools, and will have to take and pass a series of tests and then pay hundreds of dollars in fees to obtain a license to style. If he does not comply with the licensing regime, he could be fined thousands of dollars or even arrested. The state can prevent him from doing business with his customers, even if they already know he is good and they’re willing to risk the occasional bad haircut.

And this is just what he needs to do to obtain the license. He still needs to buy or rent property, open a storefront, hire employees and collect revenue. Just to be able to cut hair he has to cut through miles of local, state, and federal red tape: zoning requirements, building permits, parking variances, safety regulations, social security and immigration checks, unemployment insurance payments, even environmental mandates. And then there are taxes: taxes on income, on property, on sales, on capital gains. Obamacare alone mandates that employers purchase a full suite of health insurance for their employees at increasingly exorbitant rates.

And this is only if the business gets started in the first place. There are endless forms of prior restraint that make trade of certain goods and services between consenting parties illegal to begin with. Individual employees are legally forbidden from negotiating their own contracts with potential employers if other employees are in a union protected by “collective bargaining” laws. Some products and services are judged to be unsafe, and even consumers willing to accept the risks are forbidden from purchasing them from willing providers. Two companies may be forbidden by antitrust laws from merging, even if doing so will increase their productiveness and profit and even if consumers would continue to patronize them voluntarily.

For those who are lucky enough to launch, failure to comply with extensive rules and regulations can mean going out of business, either by legal fiat or by financial attrition. Yet no one’s marriage can be voided by the state against the will of the couple for failure to comply with marriage regulations (there are no such regulations). Even those who are denied the right to marry are still free to do many other things: they can express their love for each other, live together, walk around in public, raise children, own property in common, and almost everything married couples can do. At no point do any couples need to secure permission from the government to do these things, nor does the government monitor them or interfere arbitrarily with their affairs.

Many are rightly concerned when some adults are prohibited in advance from marrying. But few of the same show concern when the state prevents people from doing business with one another.

Why are restrictions on one institution received with such controversy, while those on the other are taken for granted as routine? Is there a principled difference here, or is it just a double standard?

Our culture distrusts businesspeople because of a general skepticism about the moral acceptability of the profit motive. But two people who marry are also seeking their own best advantage. Each wants to find a life partner who will bring stability, companionship and loving affection. Why is one form of the pursuit of happiness seen as noble, but not the other?

Perhaps we are wary of self-interest in business but not in love because profits seem to come at the expense of others. But both are a form of exchange in which each party gains. A man gives his time, energy and affection to his beloved because his beloved is willing to exchange the same “currency”: together they share interests, personality traits, and fundamental values that make their relationship mutually fulfilling. And even though each party to a business exchange has to give up money or time, each values that money or time less than what he receives in exchange for it—or else he would not give it up.

Perhaps some worry that third parties might be affected by a business exchange. Yet two people’s love might also seem to come at the expense of others. The more time a couple spends together is less time each member has to spend with family and friends and at work. And don’t forget that romantic partners expect each other’s fidelity. Less attractive, less intelligent, or simply less interesting people are thereby deprived of a mate. And yet there are no laws against “unfair competition” in the realm of the heart. In truth, of course, third parties in neither case can legitimately claim as an “expense” what was not theirs to begin with.

Why then do so few think we should regulate the pursuit of happiness in romance, but so many want it regulated in economics? At base, the reason is an assumption that goes to the heart of many other political controversies. It is the same reason for which many support an individual’s freedom of speech but not an individual’s freedom to pay political campaigns to speak on his behalf—or support the freedom of the press but not the freedom of separate news organizations to combine under one banner—or support the freedom of association, but not the freedom to form and operate corporations.

The popular assumption here is that we should have unlimited freedom in areas that have personal emotional or spiritual significance, but not in those that deal with the economic or material realm.

Everyone realizes that marriage is of intensely personal psychological importance, but we should also recognize its important material and economic dimension. As a contract concerning the division of property, it enables two people to plan for and invest in the future of their romantic relationship. And just as marriage has an economic dimension, running a business can also be a matter of serious emotional significance.

Businesses are opened and operated by individual human beings, not robots—people who have chosen to make money in one field rather than another because they enjoy the activity involved. Perhaps they’ve dreamt of such a career their entire lives. Arguably, one forms an even deeper conception of who one is and who one wants to be through one’s career ambitions than one does through one’s romantic aspirations.

For some reason we associate the word “soulless” with business. But we need every last ounce of spirit to sustain the motivation to engage in long-term entrepreneurship. We need to exert the full force of our intelligence to conceive, plan, and execute a business venture. And the most distinctive essence of the human spirit is the human mind.

In order to use our minds to achieve material success, we need freedom of action in the physical realm. Just as a married couple stabilizes their relationship by settling in a physical home and sharing their property (not to mention physical intimacy), businesspeople become prosperous only through the confidence that they can secure their property, enforce their contracts, and profit from their efforts. Human beings are not souls without bodies or bodies without souls. We are a union of the two. And freedom for one depends on freedom for the other.

None of this is meant to disparage or belittle the legitimate grievances of those who seek the right to marry. The social and governmental recognition of marriage is indeed important. But if we demand the freedom to marry, we should be even more outraged that other freedoms are vastly more restricted. The popular prejudice that tolerates the restriction of economic liberties but decries the violation of civil liberties is just that—a bigoted prejudice that has no role in a civilized society. Like other prejudices, it is sustained by a faulty conception of human nature—in this case, the view that the needs of the mind and the needs of the body can be isolated from each other.

We should abandon this prejudice, and legalize all acts between consenting adults—including economic acts.

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Valery Publius is the pen name of a teacher living in the American South.