This essay was written by my friend Sam. While I did not write it, my personal views are somewhat similar.
(02/25/04)
Bush’s move to codify bigotry into the Constitution is reprehensible. It doesn’t make a lot of sense to implement exclusionary language into a document that is of special importance to all Americans. And even if I was against the legalization of gay marriage (which I’m not), the idea of permanently defining a fluid cultural movement is irresponsible. Although polls show that the majority of Americans oppose the legalization of gay marriages, the percentage in favor of gay marriage is around 40% for people 18-29 years of age. What is demonstrated is that gay marriages are headed down the path of being culturally accepted (like interracial marriages and black people). Like it or not, culture has a large part in constructing morality. Many great thinkers have conceived of morality as a human phenomenon and have focused on studying its origins (Nietzsche is one my personal favorites). To assume that what is right and wrong now should remain fixed forever is arrogant and naïve.
Is there a legal basis for gay marriage? Conservatives would argue that because marriage is not a fundamental right, it is not guaranteed. And I agree. But gay activists couch the argument in terms of privacy rights. Although many conservatives contend that privacy is not a legitimate right, it was legally established in Roe v. Wade. And, as a privacy matter, I think marriage seems defensible as promised to all citizens. It exists as a private affair, one of the most private of all. Communication between a married couple is granted special privileges in a court of law. People are given free reign to run their families as they see fit (with some reasonable limitations of course). Thus, a case can be made for gay marriages as guaranteed by the right to privacy, which all citizens can claim. However, I don’t find the argument that convincing since marriage is a state- sponsored act, making it seem more like the public recognition of a private affair. But, ultimately, this is a question of equal rights. Even if marriage is not a fundamental right, it is a right possessed by the majority of the population and denied to a specific segment. Driving is not a fundamental right but it does not mean that the state would be legally justified in denying gay people the right to drive. Some would argue that homosexuals are not discriminated against because the exclusion is based on behavior. Even if you deny that homosexuality is biologically-oriented, the behavior argument fails. For example, it is legally defensible to deny all people who are drunk the right to drive because they pose a risk to the safety of the community. But their behavioral choice is one that fails the harm principle, meaning that their behavioral choice can be justifiably used to limit a right. But homosexuality as behavior passes the harm principle with flying colors. Thus, it is clearly discriminatory to allow heterosexuals the right to marry while denying it to homosexual couples.
As a social libertarian, I could care less about moral arguments against homosexual relationships. The less the state interferes in the personal affairs of individuals the better (markets, of course, are a different matter…). Nevertheless, some conservatives argue that states can express their moral disgust through laws. Bullshit. Murder isn’t illegal because we find it morally reprehensible. It’s illegal because it promotes social interests and because it fulfills basic government duties, i.e. basic social contract theory. Law as a moral mechanism is, at best, weak. What kind of authority does that have? While a law can, in a secondary matter, express moral outrage, it cannot be the primary factor of the law or else the legislation is meaningless and claims no authority over a state’s citizens. Only laws conceived of in terms of social needs and/or fundamental government duties (for, after all, a right is an individual’s claim on the government, a limitation on its powers) have any authoritative force. Moral language should be reserved for the private sector.
Some conservatives, however, would argue that gay marriage is harmful. They argue that gay marriages could lead to the legalization of other forms of deviant behavior becoming acceptable, e.g. incest, polygamy, etc. At best, the argument rests on a slippery slope fallacy. And what’s the big deal if this is a consequence? Allowing guns to exist can lead to murders and other crimes. Letting people drink can lead to drunk-driving accidents. The point is that the potential harms of something are not justifications for limiting the action itself. The harm must be inherent, not a mere (and only potential) side-effect. But some conservatives argue further. What is the difference between legalizing homosexual marriages and incestuous marriages, polygamous marriages, etc? Well, I don’t know if there is a difference or if one can draw a line. So screw it, legalize all of that too. It constitutes such a small segment of the population that any ramifications it will have would be minimal. But I do think that gay marriages are a lot closer in process to heterosexual marriages than any other kind of wacky relationship. Homosexual couples meet in a similar fashion and their relationships have similar trajectories as hetero relationships. Incestuous couples don’t really have to go on dates to get to know their significant other and polygamous relationships have power structures that are unique unto themselves. Thus, I think a difference can be drawn as to how mainstream the relationships are, i.e. how “deviant” they are from hetero relationships. And I think that gay relationships are much closer to hetero relationships than bestiality-inspired relationships, etc.
Does the state have a compelling interest in promoting heterosexual marriages? Of course. It helps stabilize and regularize society and provides an efficient way of creating new, productive members. But the question ought to be whether or not the state has a compelling interest in discouraging gay marriages. I can’t see why. The existence of gay marriages does nothing to damage the institution of hetero marriages. One does not preclude the other. Some may argue that gay marriages denigrate the sanctity of hetero marriages. I think things like adultery and divorce do enough damage. And it seems a lot less intrusive to deny the right to divorce than to deny an entire segment of the population the right to marry. More importantly, it seems to be in the state’s interest to promote gay marriages. Like many prominent gay conservatives point out, allowing homosexual relationships to exist outside the mainstream is dangerous because you are denying a group that, in every other sense, would fit nicely into society. By denying them access to the mainstream, the state actually encourages deviant sexual behavior. The lack of promise of marriage leads to less stable relationships among homosexuals and already committed couples are relegated to the fringes of society. That it is always in the state’s best interest to include as many people in the center and to reduce the number of people on the fringes is undeniable.
It is almost assured that gay marriage will become legal within my lifetime. History will judge Bush’s actions as moronic and homophobic. Although I don’t want this issue to distract from more fundamental factors in the upcoming presidential race, it is one that needs to be addressed. It’s time for social conservatives to release their grip on the past and accept that times have changed. Let’s legalize gay marriages.
