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The argumentS about gay marriage: why traditional marriage is unConstitutional

21 Jun
In a few days or weeks the Supreme Court will issue some decision about gay marriage, in the form of a decision about California’s Proposition 8, a popular 2008 initiative that outlawed the same sex marriage law that had existed briefly in California.

Gay marriage is one of several current political topics (like marijuana decriminalization and surveillance of American citizens) that fracture the simple left-right political spectrum, with conservatives, progressives, moderates, libertarians and others finding themselves with new bedfellows.

In listening to many badly wrought arguments for and against same sex marriage, I discern at least 8.  The taxonomy is four for (the egalitarian, the libertarian, the social conservative, and the Constitutionalist) and four against (the religious, the teleological, the fiscal, and the nominalist).
Some of these I don’t think need a lot of consideration, some are more original or more worthy.  Since I am  for gay marriage, and am entertained by one of the more original arguments for it, and by my innovation on that argument, I’m saving them for the end and running through the arguments against first.

The religious argument is what it is:  G-d said no.  And that’s great for many but I don’t think that without a separate parallel argument it can be the basis of law in the United States, nor should it be anywhere else.  (I also note that in many religions G-d took a very long time to get married.)  It may be a guide for people about who they should marry and how they should live, but not for law they can impose on others.

The teleological argument is that the purpose of gender differences and reproductive organs is to reproduce the species, and the purpose of the family is to produce and raise children.  A slightly more respectable argument, to which some religious texts (including Genesis) allude.  I was actually listening to Rush Limbaugh fret about the next (fiscal) argument on the radio while biking through Senate Park on Capitol Hill this spring, on my way to the protests for and against same sex marriage outside the Supreme Court.  I was surrounded by Washington’s ubiquitous cherry trees and their blossoms, something “intended” to reproduce more cherry trees that has been reformed by human beings for another very different, purely aesthetic, purpose.  Likewise both the family and body parts (e.g., the male nipple) serve many new and salutary purposes that are not simply about producing the next generation.  But beyond this the argument fails because the central practical reason supporters of gay marriage advocate it is that it is for the children, children gay people have biologically, or children abandoned by heterosexuals domestically or abroad, who the gays wish to adopt.  And tangential arguments about the superiority of the traditional heterosexual family are irrelevant, since gay people’s children either wouldn’t exist if we denied gays the right to have children or wouldn’t have parents if we didn’t allow gays to adopt.

I first heard the fiscal argument at a debate sponsored by America’s Future Foundation in Raleigh, North Carolina weeks before that state passed a state constitutional amendment in 2012 outlawing same sex marriage.  The man articulating it. Fergus Hodgson, director of fiscal policy studies at the John Locke Foundation,  seemed troubled by his own argument because he was a species of libertarian.  He was basically against same sex marriage, as many are against free immigration or the legalization of drugs, as long as we have a welfare state.  Too many newly minted gay spouses would be making demands on the government treasury.  It is difficult to take this argument seriously.  Why should gays alone be excluded from adding to our exploding debt?  Gays and lesbians have been paying FICA taxes for decades, yet only their surviving spouses and their children have been denied survivor benefits.  Why must they continue to be taxed for what are in effect heterosexual welfare queens?

The nominalist argument is that “marriage” just means a legally recognized coupling between a man and a woman (perhaps even just one man and one woman).   Two men or two women cannot be “spouses” since the law does not define the word that way; they are only lovers.   It’s common among a few Objectivists (Ayn Rand fans – though only a minority of them) who like to think some kind of tricky leftist epistemological shysterism is behind trying to change what the word means.  Sometimes nominalists even make Burkean or Hayekian arguments about how if we change the definition of marriage we don’t know what will befall us.  It’s all new and unexplored territory, social engineering where the government redefines words and institutions.  But in reality gay and lesbian couples, and sometimes their friends and families, have always thought of themselves as married, and being few in number they hope to assimilate to wider and traditional social norms of marriage.  The only difference being that a gay marriage may be more inclined to gender equality, something heterosexuals have been changing about “traditional” marriage on their own, since in “traditional” marriage even as recently as the 1970s a traditionally married woman could not get a mortgage to buy a house or a loan to buy a car without her husband.  It is the State that took marriage, which in reality is passionate and committed permanent coupling, often with an eye to raising a family, and defined it as only being state approved couplings.  Would the nominalists, especially those among them often critical of government intrusion, agree that the definition of being a “parent” is sending your children to State approved schools (wars, etc.) so that if you home school or use alternative non-State forms of education, you are not a “parent,” but only a sire or mare?

The use of terms like “social engineering” by opponents of gay marriage is interesting in the American context, since the American Founding is a species of social engineering in that before 1776 (or 1789-1791, when the Bill of Rights was ratified) the idea of not having a state established religion was unprecedented.  (This becomes very relevant in considering some of the arguments for same sex marriage, below.)  But it is in fact a form of social engineering that is new and radical in limiting the power of the state to engineer society and interfere with the emergence of spontaneously and voluntarily evolved institutions and traditions.

Turning to the arguments for gay marriage, the least interesting is probably the one most gay people and most professional gay activists find most compelling, the egalitarian argument.  They should be equal, the 14th Amendment etc., etc.  Of course men and women are clearly different and two men or two women are different from a man and a woman.  Same sex marriage opponents often retort that every gay and lesbian American has equal rights, the same right they do, to marry someone of the opposite sex.  (Though not the equal right to marry the person they love.)  One wonders if the gay political class were not “progressives” who would like to eliminate the 10th Amendment from the Bill of Rights, if gay marriage would have made progress faster – if they had sued to have the federal government accept any state recognized marriage including state recognized same sex marriages, and extend federal tax and immigration laws to those state recognized marriages.

One also wonders how long the movement for gay equality has been retarded by justifiable fears that gay progressives would use it as a way to interfere with other people’s lives via law suits and regulations.  This is a real fear – in 2010 EHarmony was forced to pay half a million dollars in a class action law suit brought by a gay egalitarian because they did not cater to gays.  The ridiculousness of this law suit is obvious when one considers how many gay dating (and “dating”) websites there are, from Grindr to Manhunt to Silverdaddies, not to mention how many, from to J-Date, are completely open to gays.  This suit basically announced that some gay statist will in fact be out there to interfere in all aspects of your private and business life; one can only wonder if pregnant women wishing to give their children up for adoption would be denied the right to pick a heterosexual (or homosexual) couple, but would instead be forced to give the child up to a randomized adoption process — and denied the right to abortion if they then opted for that when denied any choice in placement.  A recent CBS poll shows that a majority now favor gay marriage and oppose affirmative action, which may be the beginning of a death knell for the statist model of “civil rights.”

What I am calling the libertarian argument for gay marriage is also not that interesting:  people should be free to marry whom they wish (as long as that person is deemed to be consenting by the law).  Since being free to participate in a State defined institution is paradoxical, libertarians sometimes have fruitless squabbles  about whether they are for same sex marriage or no marriage, or no marriage except marriage contracts.  Paleolibertarian Justin Raimondo has made this argument in The American Conservative and elsewhere.  Of course libertarians favor marital contracts and minimal State regulation of what one can contract to do.  It is also not obvious why that means libertarians should not favor allowing (not compelling) gays and lesbians the freedom to enter into whatever limited range of marriage licenses or contracts the state allows at any point in time, rather than excluding them from them.  Anti-marriage libertarians often align with new left and Marxian critics of marriage and the family, arguing that gays should retain their freedom from a regimenting state defined institution.  Since no one is arguing that they be forced to marry, the freedom to contract supports extending marriage to same sex couples as an option they can choose.

The social conservative argument is a better argument, elaborated eloquently and soberly by Jonathan Rauch in his books (Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America) and before conservatives at forums like the American Enterprise Institute over the years.  Marriage is, as conservatives have said, a good and even necessary institution, and its civilizing influence should be extended to the feral wilderness of gay (male) sexuality, celebrated by Raimondo and the 60’s left, and decried by neocon queen Midge Decter in her famous 80s Commentary screed, “The Boys on the Beach.”  We would all be better off if more gays and lesbians settled down, took care of each other, raised kids in stable homes, and spent less time partying and bed hopping.  Wonky, but probably all true.

But my favorite argument in the debate, and one of the newer ones, was elaborated by blogger Cynthia Yockey (A Conservative Lesbian) just a couple of years ago.  Ms. Yockey notes that some churches (synagogues, etc.), like the gay oriented Protestant denomination, the Metropolitan Community Church, perform gay marriage.  So if the government defines a church sacrament, marriage,  to mean only one set of churches (and their sacraments) are recognized in the law, and other churches and their sacraments are not, the government has established a church (or set of churches) as approved State churches.  This is a violation of the First Amendment.  Ms. Yockey concludes that gay marriage must be legally recognized because of the First Amendment clause supporting freedom of religion and prohibiting the establishment of a state church.

While I wholly agree with Ms. Yockey, and take delight both in her original argument and in the fact that I am friends with someone who has produced an original argument, I also would like to emphasize my corollary to her argument:  traditional marriage (at least state establishment of traditional marriage) is unconstitutional.  Tea partiers should be furiously campaigning for same sex marriage, on both 1st and 10th Amendment grounds.

Traditional marriage violates the First Amendment.

The Supreme Court must strike it down.