The Case For Gay Marriage

Editor’s Note: Originally published January 2014 at The Roots of Liberty. Before the Obergefell v Hodges ruling that legalized gay marriage, before many Democrats had come around (or shifted with the winds) on the idea, and just a couple years after Obama “evolved” his position. Libertarians had been, by then, advocates for at least four decades.

It’s coming up as an issue again because of Clarence Thomas’s widely misinterpreted comments regarding the “substantive due process” rationale used to write the Roe ruling. Thomas’s comments suggest that substantive due process is, to put it colloquially, crap, and that rulings based on it should be revisited from an equal protection angle. This has been mischaracterized (sometimes deliberately) by those sky-screaming about the Dobbs ruling.

Some social conservatives are making noise about repealing Obergefell and/or ending gay marriage rights. This is a mistake, both politically and substantively. Government created state-sanctioned marriage, and until government ceases its involvement in the marriage contract, discriminating based on gender-mix is a fundamental violation of equal protection principles.

I re-offer my rationale, and urge anyone who’s thinking along these lines - just don’t do it!

One of the hot-button issue of the day is, of course, the debate regarding legal recognition of gay marriage. Apart from the well-known disagreement between Left and Right, the issue is one of several wedges that divides libertarians from many conservatives and mainstream republicans. This wedge is gleefully hammered in by the Left, because disagreement between the GOP and libertarians is considered one of the big reasons Dems hold onto power in swing states. Social conservatives have been at the fore of the GOP for a while now, harkening back at least to the days of George W. Bush and compassionate conservatism, and in many ways much longer. The GOP had its heyday in this regard in the early to mid 2000s, but circumstances and, in my opinion, an abandonment of the precepts of limited government in favor of offering a “statist-lite” alternative to what the Democrats were selling blended with a lot of lip service to social conservatives led to many growing disenchanted with the GOP and gave us the statism run amok we have today.

I surmise that there are many people in the gay community who would love to hop on board with a party that is dedicated to smaller government and more liberty. The current choices, however are the Democratic Party, which has embraced more-government, all-the-time while being antithetical to individual liberty unless that liberty is exercised according to their approved playbook, and the Republican Party, a portion of which is at least trying to talk liberty, yet whose members face excommunication if they so much as breathe a word supporting or simply acceding to gay marriage. I know it’s a tall order and an uphill fight, but I’ve long argued that the GOP should set aside its social conservative agenda in favor of a purely economic-and-liberty small government message (in other words, become more libertarian). And, that message should include dropping any opposition to gay marriage.

Lets start with the practical. Gay marriage is on its way to becoming legal in much of the nation. The ball is rolling, the momentum is there, and the anti- side is facing increasing dissension and desertion. And, it really is a small issue – the number of gay people in the nation is small, just a couple percent, and the number of gay couples is certainly smaller than that. Why so much fuss, then? Herein I will consider many of the arguments I’ve come across in years of arguing with conservatives about this topic.

Firs, consider the reality of marriage in the United States today. Far more than a private commitment between two people, far more than a recognition, commemoration and commitment within one’s religion and religious community, marriage is a rigidly defined public contract, with the state as an involved party, that establishes a long list of rights, benefits, protections and obligations. A GAO report attached to the Defense of Marriage Act notes that there 1138 such in federal law alone. Being married confers tax, estate, insurance, social security, survivor, familial and immigration benefits that aren’t available to unmarried couples, heterosexual or homosexual. Herein is the crux of the argument in favor of legalizing gay marriage: Marriage today is a publicly-regulated legal status, and given the basic principle of equal treatment under the law, it is inequitable and unconscionable to deny that legal status to some while offering its benefits to others. If marriage is a traditional, religion-based ritual and commitment, those who want to maintain the old way should insist that government not be involved in the marriage contract, that there be no preferential treatment for married couples in any of the ways I’ve listed, that there be no secular marriage license.

Get government out of marriage and this whole issue goes away. Marriage should be a contract free from outside involvement or mandate. This is the libertarian position, and the correct one if one values individual liberty.

It is a reality, though, that this isn’t going to happen. Apart from the sheer magnitude of such a task, apart from the long list of adverse impacts on people who’ve planned their lives around those 1138+ laws, the level of noise in the public square in favor of getting government out of marriage is a gnat’s buzz in a typhoon. So, we’re back to treating all couples the same way as the least offensive (to liberty) answer to the disparity caused by the 1138+ laws.

One of the arguments against gay marriage is that it “redefines” a term and a tradition that dates back thousands of years, but the sheaf of legal benefits and obligations imposed by our current government involvement in the contract is not part of that tradition, nor is it thousands of years old. Marriage as a three-party secular contract isn’t a rich or old tradition. While legal benefits conferred to married couples have existed in societies for centuries, those societies had the government and the church deeply intertwined. Marriage was a state-sanctioned religious event, and our secular society very clearly separates the sanctioning by a religion from the contractual action. With rare exception, a couple does not need to engage in a religious ceremony to get married. “Marriage” has already been redefined by our society, and to argue that the term’s meaning is sacrosanct ignores that reality.

Furthermore, there is nothing today that stops two people from referring to each other husband and wife, or husband and husband, or wife and wife. Nothing. No law on the books, nor any law that could stand constitutional muster, could keep someone from using that descriptor among friends, acquaintances and even strangers. The words associated with marriage cannot be locked up in a box and handed out for use only to those who’ve been permitted to join a club. Nor is there anything that prevents two people from writing a contract that establishes rights and obligations between themselves. Two people can own a house, a car, a boat, furnishings, bank accounts, and such. Two people can contract with each other to establish duties and obligations to each other and in tandem towards others. These contracts, however, are restricted by the body of current law regarding marriage and co-habitation. The argument about gay marriage is and remains one of access to the 1138+ laws.

What of the children, though? Apart from the truism that any time someone argues “for the children” you should grab your wallet and hawkeye your rights, the notion that “traditional” marriage has to be protected to protect children gets a snort of derision from me. Unmarried women are not debarred by law from having children. Unmarried couples can have children. Individuals can adopt children, no matter if they’re gay or straight. Unmarried couples, gay or straight, can and do adopt children. Many decry some of these realities, arguing that children are better off in a household with a mother and a father. While that, as a general observation, may hold up, it ignores the fact that a particular single parent might be a far better child-rearer than a particular married couple, or that a particular gay couple might do a far better job rearing children than a “traditional” couple, or a single mother. And, I doubt there are many people out there who advocate for restricting child birth to married women. Good luck telling a pregnant single woman that society’s going to take her baby and put it with a married couple. That absurdity aside, there’s also the simple fact that the state allows couples to divorce even if they have minor children. If the state had a compelling interest (set aside the question of authority) to protect “the children” by ensuring they are in married-mother-father households, gay couples would be very low on the list of “targets.” Unless one devolves into counterfactual allegations that gays are pedophiles, or that children raised in gay households are going to turn out “deviant” or sociopathic, the “for the children” argument is a grasp-at-straws excuse and deflection given current realities.

Another argument in favor of traditional marriage is that government has a vested interest in robust rates of reproduction. It is true and obvious that nations with below-replacement birth rates (all of southern Europe, Japan and Russia, to name a few) are facing long-term catastrophe. An aging population in a nation that has publicly funded pensions/retirement (e.g. Social Security, Medicare) is a ticking time bomb, so it behooves the people of a nation to reproduce. Malthusian arguments aside, a growing society is a healthy society. Yet how, given all the realities discussed in the previous paragraph, does debarring gay couples from marrying help reproduction along? Unless one believes that gays can simply choose to become heterosexual (ask yourself, if homosexuality is simply a choice, could you decide to ‘play for the other team’ for a year or two?), get married and bang out a few kids, isn’t it more likely that gays will settle down and raise children under the aegis of legally recognized marriage than not? There is also the argument that gay men cannot reproduce, but adoption and surrogacy are modern available options for them. But even without those options, so what? How would gay marriage harm national reproductive rates?

Next up is the “slippery slope” argument, which involves the concern that allowing same-sex marriage might lead to the normalization of polygamy and bestiality. Lets dismiss the “marry the dog” argument, not by calling it absurd (which it is, but which doesn’t rebut those who put the argument forth) but by simply noting that animals cannot give consent and enter into contracts. The polygamy issue has several facets. First, there is the prohibition itself. As with the case of using the words “marriage,” “wife,” “husband,” etc, there is no way to prevent three or four or eight individuals from cohabitating in a mutually agreed-upon fashion and referring to themselves and their arrangement in any fashion they choose. A recent court ruling in Utah struck down provisions of an anti-polygamy law by recognizing that adults are free to cohabitate. The more relevant aspect of the polygamy issue is the difference between what government recognizes as “marriage” today and multi-partner arrangements. Marriage is a relationship of two, and the argument at hand is about the genders of those two. Applying the 1138+ laws to groups of three or more would represent a true expansion of their coverage, rather than an equal treatment under the law acknowledgment. Of course, some disagree with this distinction, and consider granting coverage of the 1138+ laws to same-sex couples an expansion in itself, and thus a cost to society. But consider that, from the practical/financial/legal perspective, there’s nothing to stop a gay man or woman from availing him or herself of the 1138+ laws in a legal but sham marriage, but there’s no way that a threesome can fully access those laws, no matter what the gender mix.

Consider, also, that polygamy is an arrangement that actually furthers many of the values and goals that opponents of gay marriage say would be degraded by gay marriage. Family structures, robust reproduction, dual-gender households, and the like are all advanced by polygamy, especially the “traditional” sort with one husband and multiple wives. In fact, if we are to contemplate the traditional definition of marriage, societies throughout history have embraced polygamy, so to argue that gay marriage would trash the definition of marriage and lead to polygamy is both to ignore history and to get things in a sideways order.

What of the morality of homosexual relationships? The answer to that question is – whence do moral objections against homosexuality come? That’s not hard – the objections derive from religious scripture and dogma. The Abrahamic religions proscribe not only homosexual acts, but sodomy in general. Some modern denominations and variants of Judaism and Christianity now accept homosexuality rather than condemning it, but that’s a side point – moral objections to gay marriage are rooted in religion. Many conservatives would strenuously object, but it remains that this nation is a secular one, with no mention of any particular religion in the Constitution and specific protections against imposition of religion on the populace. In a society that values individual liberty, the consensual actions of people behind closed doors should be no one else’s business. If they were, then the law should extend to heterosexuals acting in ways that are considered “immoral.” Those sorts of laws existed, and still exist in some jurisdictions, but their enforcement is rare and usually incurs outrage.

As I noted earlier, the ball is rolling in the direction of legalizing gay marriage. As the years and decades move on, old prejudices fade in favor of the prevailing attitudes among the young, and it’s hard to dispute that younger people are more tolerant of and comfortable with the notion of homosexuality. Standing in opposition to what should be a minor, “who cares” issue has the unfortunate result of pushing those who don’t have objections towards “the other guys.” You might have a sheaf of great ideas regarding government and how to fix the problems of the nation, but if you embrace one side of an issue as binary as gay marriage, many who might agree with you on the other issues may be reluctant to take your side, to avoid “guilt-by-association” or to avoid offering correlative support of your position. The Left has succeeded in turning this issue into a dog whistle of sorts, using it to rile up conservatives and republicans and in doing so portray them as intolerant and backward. The correct answer to the marriage issue is to get government out of it, but that’s not going to happen in our lifetimes. Since government’s involved in marriage, there should be access to that involvement for those who want to marry someone of the same gender. In the big picture, it’s a small issue and a small concession, but its impact on some individuals and on the perception that many other individuals have is quite large.

So, to my small-government-minded friends who stand opposed to gay marriage, I suggest “let it go.” You lose very little and stand to gain a lot.