With the Supreme Court debating the merits and legality of both the federal Defense of Marriage Act (DOMA) and California’s Proposition 8; that state’s voter referendum prohibiting same-sex marriage; now is an especially relevant occasion to consider the legal definition of marriage from a framework of individual liberty.
This debate is exceptionally difficult to have with others, as it is often fraught with deep prejudice, confounding religious zeal, and intense emotionalism. I, personally, had a difficult time in my past even considering other viewpoints on the topic because of my profound cultural bias against the very idea of homosexuals getting married. I grew up in a Protestant Christian community that explicitly condemned the behavioral lifestyle of homosexuals as a sin. My particular faith community almost never entertained the delusion that homosexuals should or could be “turned” (I say “almost” because I have encountered those individuals who have sincerely claimed that they personally have experienced this conversion, and while I remain skeptical, it is not my place to make any claims to the contrary) but the prevailing belief was that a homosexual Christian could not marry and was destined for celibacy. The stereotype of Christians hating, condemning, and banishing homosexuals was fortunately rather infrequent in my own encounters, and I believe that as a trend this image is becoming less and less the norm in the larger Christian church, though, of course, it is still entrenched in certain circles.
Though I am still a Christian, my religious beliefs concerning homosexuality have changed since becoming an adult. As a number of close friends began to come out, I developed an appreciation and empathy for their realizations about their own sexuality and the extent to which that impacted their sense of identity, fulfillment, and joy. As a topic of theology and morality I am totally ambivalent with respect to a person’s questioning or declaration of sexual identity. Homosexuality and most other aspects of queer culture no longer make me personally uncomfortable, my gay friends are some of the best and most joyful and loving people that I know, and the idea that homosexuals are somehow delusional or are part of a trend that will eventually go away is so silly and mendacious that it ought never be entertained. This change in my own beliefs does of course bring up some challenging questions with respect to biblical interpretation, but in any case sin is a barrier between an individual and their relationship with God, and as such, in spite of any personal questions or challenges I may have, it is not my place to condemn, only to love.
This might seem like too much exposition on my personal religious journey and readers may wonder if it is appropriate in the context of a blog focused on political and economic theory. I chose to relate it to emphasize how often we view politics as a vehicle for conferring our personal beliefs on morality, culture, religion, etc. onto other individuals via public policy and the force of the state. How many readers, I wonder, began to formulate supporting and counter arguments to my various appraisals and claims? I’m sure that my personal ambivalence on homosexuality has managed to frustrate and alienate vehement supporters of both sides of the debate (as a libertarian, I am accustomed to performing that precise end on a whole host of issues, to be sure). If not, then I will definitely do so with my next statement: It doesn’t matter what your personal opinions or beliefs concerning homosexuals are. The question of whether or not homosexuals should be allowed to marry is not a question of personal morality, religious doctrine, or cultural norms. It is a question of the proper role of government in regulating human interaction.
The Role of Government in Marriage
My exegesis of the proper role of government in a free society presupposes some core principles that will not be analyzed at this time, and therefore will be taken as axiomatic:
1) Individuals retain the natural right of self-ownership, by which they have sovereign control over their own body or life.
2) The non-aggression principle, which states that the initiation of force, fraud, or coercion against a sovereign individual or their property is inherently illegitimate, applies both to individuals and collective entities.
3) Individuals should be free to make personal choices so long as they do not violate the non-aggression principle and accept the responsibility for the consequences of those choices. This is what is known as personal liberty.
Government is the answer to the question, “What happens when someone aggresses against me?” Its proper role is to protect property rights and to provide a legal system through which individuals can redress grievances against those who initiate aggression against them. In this way, our society can maintain rule of law. The government also has a role in protecting voluntary trade and enforcing contractual agreements and provides the framework in which to adjudicate disputes.
It is frequently argued that the government should not have any role in defining marriage and that the state should divest itself from any sort of control or regulation. It is then assumed that couples would simply be free to marry according to religious customs or common law arrangements.
I’m more inclined to agree with the claim that this would be very difficult, as fully privatized marriages would overlook many of the legal ramifications of marriage contracts. Besides those consequences that are of dubious importance, such as the ridiculous incentives and penalties of the convoluted tax code, Richard Epstein notes that the usefulness of marriage law is that it:
“…covers issues dealing with child support and inheritance rights. It also deals with issues of guardianship and divorce. It is hard enough to deal with these questions when it is known who is married to whom. It is even harder to deal with them when the nature of these private relationships resists standardization.”
Wherever a defender of a free society might end up on this debate, one thing should not be in question:
No government has the legitimate power to confer or allow legal contractual agreements between certain consenting adults and then arbitrarily deny them to others.
The content of these contracts is wholly irrelevant. So long as all parties are recognized as adults and voluntarily consent to negotiated terms, and so long as the content of the contract contains neither action nor conspiracy to engage in force or fraud against another person, it should be recognized as legitimate according to the parties’ rights to property and self-ownership. Government is only legitimate insofar as it recognizes these contracts and negotiates disputes that arise regarding them. To assert inequality before the law (a power ostensibly denied by the 14th Amendment) and impose arbitrary restrictions on personal contracts constitutes an initiation of force by the state and compromises its tenuous claim of legitimacy.
Imbecilic and Trivial Counter-arguments
I’ll briefly respond to some of the oft-cited counter-arguments that are typically offered in criticism of the assertion in support of same-sex marriage that I have just given. In the interest of full disclosure, I will say now that I consider several of these arguments barely worthy of consideration or response as they are inchoate and degrading.
1. Legalizing same-sex marriage will open the door for people wishing to marry [their dog, a toaster, an 8-year-old, etc.]. When will it end?
The legal ramifications of marriage concern its function as a contract. Legally, a contract can only be established between competent persons with the capacity to understand the consequences of an agreement that they have entered into. A dog cannot be married because it cannot sign a contract. Neither can an inanimate object. Contracts with children are voidable or may not be established in the first place because minors are too naïve and inexperienced to negotiate fairly with adults (this raises the question of what age it is appropriate to recognize a person as an adult, but this requires a separate consideration). Same-sex marriage meets the requirements of a contractual agreement as it happens to be between consenting adults.
If a person claims he is married to a dog, a toaster, or a child, then he is a crazy person who is to be derided and pitied. Anyone can say anything they want, it doesn’t make it true.
If the government recognizes a marriage between an adult and one of these things, out of some misguided attempt at political correctness or otherwise, then I would say there is a far larger problem at hand. Any government that cannot correctly recognize contract requirements must have long ago abandoned any and all pretense of legitimacy.
2. Legalizing same-sex marriage would damage the traditional institution of marriage.
Whose tradition? I’m dissatisfied with this argument because it presupposes that one particular culture holds a monopoly on the definition and mores of marriage. This is not true, as countless cultures have defined marriage in various ways. Historically, Muslim cultures have recognized the legitimacy of polygyny in marriage. So have Jewish cultures, which also at one time regarded the wife as chattel. Arranged marriage is traditional in Hindu culture. Some cultures require widows to marry their husband’s brother.
Also, there have been elements of “modern-day traditional marriage in America” that have recently been abandoned because culture is not static. This would include actual recent legal restrictions in U.S. states of whites marrying racial minorities. The tradition argument is tenuous and short-sighted.
3. So, by your logic, you support other affronts to traditional marriage, like polygamy!
It doesn’t matter whether or not I or anyone else personally support those things. If four women want to all marry the same man and they are not being forced into it then I see no legitimate reason why the government should restrict them from doing so, and I definitely see no reason why it would be any business of the state to confer penalties that would injure persons who attempted to do so.
4. Well then, marriage means nothing! What’s to stop two straight guys from “getting married” just so they can adopt a kid together or get tax breaks or inherit Social Security benefits?
Who the hell cares? If anyone complains about how liberalizing the legal definition of marriage allows others to achieve benefits that were at one time restricted only to married male/female couples then all they are really doing is pointing our the inherent unfairness and inconsistency of government protectionism rackets.
5. Traditional marriage with a mother and father provides the best possible environment for raising children.
Firstly, this claim places an impossible burden of proof on those advocating for it. All one would have to do to disprove it is find one child with gay parents in a better and more loving and nurturing and awesome family environment than one child with straight parents.
Secondly, no one who makes this claim is actually willing to carry it out to its inevitable moral end. If a gay couple is legally restricted from adopting children based on this argument, then it suggests that single parents have no more of a moral claim to raise children, and therefore should also be restricted from adopting, or else should be forced into a heterosexual marriage. It is total nonsense.
6. Proposition 8 was voted on by a majority of Californians and DOMA was enacted by a majority of elected representatives. The United States is a democracy and the people have made clear that they don’t want same-sex marriage ‘round these parts.
The United States is not a democracy; it is a constitutional republic. That “constitutional” qualifier means that we have a Constitution that serves to place constraints on what the government can do. As I stated earlier, the 14th Amendment to the Constitution requires equal protection under the law for all citizens and rejects laws that would abridge the privileges or immunities of citizens.
Our country’s use of democratic elections and representation is designed to prevent one individual from achieving totalitarian power over the entire population. It should not, however, be used to justify the tyranny of the majority (or, more accurately, the voting or representational plurality) in allowing its whims to dictate every action or allowance.
You may support an apparent majority’s decision to ban same-sex marriage, but understand that the power granted to do so can also be used ban something that you yourself might enjoy or require. Either you slavishly and solemnly affirm a government that has the power to pass edicts against things that are not crimes based on whims or else you are a hypocrite without any real political congruence.
7. I’m ok with homosexuals having legal “civil unions” with all the corresponding rights of married persons. Just don’t call it “marriage”.
Really? When has anyone ever said, “Will you civil union me?” The stupidity of this argument is self-evident.
Ludwig von Mises argued, though marriage in his day was considered only legitimate if between one man and one woman, that:
“No people can boast that their ancestors thought of marriage as we think of it today. Science cannot judge whether morals were once more severe than they are now. We can establish only that our views of what marriage should be are different from the views of past generations and that their ideal of marriage seems immoral in our eyes.”
In the same essay he argues that it was not moral reformers who changed the acceptable cultural norms of “traditional” marriage, but rather:
“[The] evolution of marriage has taken place by way of the law relating to the property of married persons… Thus marriage, as we know it, has come into existence entirely as a result of the contractual idea penetrating into this sphere of life. All our cherished ideals of marriage have grown out of this idea. That marriage unites one man and one woman, that it can be entered into only with the free will of both parties, that it imposes a duty of mutual fidelity, that a man’s violations of the marriage vows are to be judged no differently from a woman’s, that the rights of husband and wife are essentially the same — these principles develop from the contractual attitude to the problem of marital life.”
Contract law caused marriage to be based on mutual agreement and gave the wife equal rights and claims to property and wealth that she had brought to and acquired during the arrangement.
Understood thusly, the establishment of our current model for marriage has more to do with the rise of capitalism than with the preeminence of any particular religious doctrine. Because voluntarism is a central tenet of capitalism, it follows that various cultures may define marriage in whichever ways they want, so long as those entering into it do so under free will and in deference to laws that protect property rights.