Sex, Love, and Liberty

THE KISS, by Francesco Hayez, 1859, oil on canvas (located in the Pinacoteca di Brera, Milan)

The Kiss, by Francesco Hayez, 1859, oil painting on canvas (located in the Pinacoteca di Brera, the primary public gallery of Milan, Italy)

As I have often remarked to my students, the most fascinating topics of human existence are sex, religion, and politics (not necessarily in that order). Each is imbued with layers of meaning. Each can be a source of profound liberation and joy, but each can also be used by manipulative individuals for unhealthy control over others. From my perspective as a Christian, the moral quality of all three is enhanced by the presence of genuine love, accurately defined by Jesuit theologian William O’Malley as a conscious and active commitment to another person’s well-being.

All three topics (sex, religion, and politics) merge into a sometimes volatile intersection as Americans debate the issue of gay marriage. After months of reflection, the Liberty Professor has decided to weigh in on the topic. I have hesitated for some time now simply because I recognize that this is a controversial and sensitive subject–and my parsing of the details and components involved will probably offer to everyone something about which they will be unhappy. As the French remind us, c’est la vie.

I trust that my readers come here for honest, libertarian commentary–not necessarily to find total agreement on all issues of the day. My goal in this post is to untangle some of the many threads that combine to make this issue so contentious. It is a complicated subject; the political outcome of the debate, no matter how it ends, will have consequences. The liberty-minded citizen must move cautiously in these waters in order to remain faithful to his or her constitutional values.

1. Let us begin by reminding ourselves that we live in a society of profound moral diversity. This is nothing new. What is new is described by psychologist Kenneth Gergen as “social saturation.” Technology, social mobility, and ease of travel have resulted in a world in which it’s more difficult to withdraw into moral and religious enclaves where we can ignore those whose views differ from our own.

Dealing with such diversity of beliefs has been a hallmark of the American experience from our very beginnings as a people. It resulted in a form of federalism (not nationalism) that intended to leave most decisions in the hands of localized entities (sovereign states) and which forbade governmental favoritism or prohibition in matters of religion. In other words, citizens do not have to agree with one another on the greatest issues of human existence, but they must tolerate one another and refrain from infringements upon one another’s rights.

2. Since I am not an anarchist (neither do most Americans identify themselves as such), let me also propose a second foundation for our discussion on gay marriage: human society functions best when the rights and obligations of its citizens are delineated clearly and fairly enforced. This is not an argument for bigger government. Far from it. What I intend by this statement is to say that citizens have the right to freely enter contracts and agreements as they wish, whether it be for personal or professional reasons. They also have the right to refrain from such contracts, even to their own detriment.

With the perspective of a strict constitutionalist, I argue that government should stay out of those private agreements unless invited in by one or more of the parties involved due to fraud, misrepresentation, or default resulting in damage or loss. This attitude applies even when people enter contractual agreements that I believe to be unwise (such as poor business choices), immoral (such as prostitution), or potentially dangerous (such as the use of an experimental drug). The key to this point is full disclosure and personal freedom. I’m arguing that adults of full mental capacity have the right to arrange their lives and their moral activities as they see fit, with a minimum amount of governmental interference. When such interference is necessary (such as the just hearing of grievances between parties), it should take place on the most local level possible, with only a small and enumerated list of powers being exercised on the federal level (as proposed by the Constitution).

3. Sexuality is an inevitable and vital part of the human experience. It is one of the legitimate pleasures emerging from the fact that humans have bodies. It is also a powerful and mysterious procreative reality–one that should not be used to cause harm to others. Some social prohibitions upon sexual behavior are urgently necessary. The first to come to mind is protection of children against pedophiles. When it comes to fully-informed, consenting adults such as those described in the paragraph above, I am of the opinion that government entities should mostly refrain from the attempt to regulate behavior.

4. Evidence (both scientific and anecdotal) increasingly supports the understanding that genuine, exclusive or predominant homosexual orientation is not experienced as a choice but as a given. My reading of science and my experience with friends and students who self-identify as gay has led me to believe that when it comes to lifestyle “choices,” sexual orientation is not a choice. It’s a situation that must be dealt with by the millions of people who experience it. At this point in the discussion I refer the reader back to point #2, above. I do not find it necessary to address the question of morality here since the decision about this issue doesn’t rest with me. It rests only with those who find themselves in the particular situation being addressed.

5. Speaking philosophically, I believe that the Constitution must be read in light of the Declaration of Independence. In proposing the constitutional thesis that individuals must be allowed to live by their own beliefs and morals, I understand this to be based upon the differing opinions we citizens have with regard to “life, liberty, and the pursuit of happiness” (that phrase comes from the Declaration). Constrained only by the few limitations listed in point #2 (above), citizens should be free to live as they choose so long as they cause no harm or loss to others (there are exceptions to this). In addition, it is the constitutional role of the federal government to treat citizens with equal rights before the law (though it is not the role of government to force all businesses or employers to give identical benefits or services).

6. Both marriage and homosexuality have been around for a long, long time. Their presence cuts across human cultures; I have encountered both in every society that I have ever studied, from primitive to postmodern. Cultures have handled homosexuality in differing ways throughout history. Some have been intolerant of it while others have provided a comfortable niche for it.

Some societies have distinguished between male and female homosexuality. Some cultures have assigned special religious roles to homosexual persons. Even among those societies that find it acceptable, homosexual relations have been distinguished from marriage, with marriage understood as a relationship between man and woman. This understanding was present even in polygamous societies (those where men could have multiple wives) and also in societies where married men were allowed to have male lovers (such as in ancient Greece). In other words, with or without social approval, homosexual relations were deemed to be distinct from marriage. Not surprisingly, it was understood as a different kind of relationship–even when it was given social and religious recognition.

Now let’s get to the crux of my point. Let me spell it out as clearly and as precisely as I can. As a constitutionalist I believe that government should not be in the business of giving benefits to some citizens while denying them to others. As a steadfast general rule, I’d like to see government (especially federal government) do less, interfere less, spend less, dictate less, and possess far less power than it does now. If it’s true that well-ordered relationships are good for society as a whole (such as marriage in which duties and rights are clearly delineated and the relationship is supported by law), then I can find no constitutional reason to deny that same protection to gay couples who freely choose to establish similar relationships.

In other words, I’m arguing for nothing more than equal status before the law for all citizens, including gay couples. To do this, however, government does not have to change the definition of marriage–a definition that seems to be as old as humanity itself. Nor should it. 

Gay couples should have the same legal rights and opportunities as all other citizens. Married couples have a right to see the definition of their relationship remain the same as it was on the day they entered that relationship. This distinction does not constitute an act of bigotry or hatred.

As cultures and societies around the globe have recognized for thousands of years, there are different kinds of relationships. Changing the definition of marriage is not the way to guarantee equal rights before law. It will open the door to limitations on liberty, not to an increase in liberty. If we truly wish to live in a society that tolerates moral diversity, we must refrain from using the law to enforce moral uniformity.

Let’s allow people, associations, and religious congregations to make their own decisions about how to understand these different relationships. Should the federal government try to redefine marriage, it will open the door to legal actions against the very institutions we cherish most by further eroding the constitutional limits placed upon that government. This realization explains why there are voices condemning the proposal–even among our fellow citizens who happen to be gay.


9 thoughts on “Sex, Love, and Liberty

  1. Well put, John. I developed a friendship with one of the best nurses I’ve ever worked with in the ICU at Ochsner. We had several frank discussions around this topic and one thing was clear, he would have gladly foregone the prejudice, consternation, and alienation from family and society generally if he’d been given that choice. I cannot say how it comes to be, but agree that sexual orientation is far more nature than nurture, and attempts at government regulation around such private matters belie an oppression that inextricably represses the soul of its people.

  2. David, your comment is most appreciated … because it confirms to me that I was able to inform it with a genuine spirit of appreciation and respect for our fellow citizens who happen to be gay.

  3. I have believed for a long time that the rights and privileges afforded to married couples should be extended to homosexual couples in a committed and legal relationship. It is unconscionable that one partner would not be able to visit the other in the hospital or take care of legal or financial matters because they were not “family”. To be able to insure loved ones, pass on inheritance, etc., is a right that should be recognized for same-sex couples. I know of a woman (one whom I have come to greatly admire) who told me that she is not able to sign school papers for the girl she calls “daughter” because the daughter is her partners biological child, and she has no privileges in that regard. This is wrong. To deny one group the rights and liberties of another equal group is a violation of their human dignity.

    I can agree that there is a difference between marriage and the civil contract that binds two people, hetero- or homosexual, to form a family. However, if calling their partnerships marriage is what it takes to restore dignity to our homosexual brothers and sisters, then call it marriage. I do not feel that traditional marriage is lessened in any way by including those of same sex.

    It has been argued that homosexuality and same-sex marriage is an attack on the family. I reject this argument. The family is under attack by immorality and laziness within the family. Children are being reared by MTV and TBS rather than by Mom and Dad. The same-sex couples that I know have been together a long time and some have raised children that are functional, stable, and loving (along with the ups and downs that all children have). Simply put, they are parents in every conceivable way that we are parents, and I have seen no detriment to the children. Same-sex couples do not want to tear down the family. They want to build their own and contribute as families with all of the dignity that family affords.

    I admire those who want equality and are willing to fight for it. I don’t believe that the SCOTUS should be deciding marriage but rather rights and liberties. Recognition of the human dignity of homosexuals and same-sex couples should be the aim. For they, too, are “created in the image and likeness of God.”

    • Thanks, Dawn. I agree with you on so many points. I’ve never thought that loving, committed, healthy gay relationships were a threat to marriage. A statement from your post highlights my main point: “if calling their partnerships marriage is what it takes to restore dignity to our homosexual brothers and sisters, then call it marriage.” My point is that it doesn’t take this, nor should it. Doing so, I strongly believe, will open a can of worms with disastrous repercussions for religious communities, each of which need to struggle with this and find their own answers.

  4. I am seeing more and more conservative and even fundamentalists arguing that the fight would be over if the government only issued “civil union” licenses to all couples and then let those couples who wanted more respectfully seek their religious authorities. Also, in this way it would eliminate the awkward closing by the priest as the official of the state.

  5. Very interesting, Denise! I have heard such comments from libertarians and liberty-minded Republicans. Government should not be in the religion business and religion should not be in the government business. If all couples were eligible for “civil-union” status by the filing of a piece of paper, it would be easier. Then those who want religious ceremonies could have those separately. Ministers would no longer act as government representatives. They could simply be ministers and then the couple could file the form with government.

    • That could work. Everyone file the paperwork like we do already, and the ceremony is a formality that isn’t necessary. The union would be legal affording all rights and priviledges without question. That’s what has to be decided. Insurance companies, state & federal government, etc., should no longer be allowed to discriminate. The military has already paved the way by its recognition of same-sex unions and offers partners access to bases and other priviledges.

  6. While I do not really have an opinion on it personally, and do agree that government probably shouldnt prevent consenting adults from marrying, I do think if non-traditional marriages are approved it would likely cause more “fake” marriages just to get benefits. This might possibly, in the long run, decrease spousal benefits as a whole because of people taking advantage of it.

  7. Since 1990 births to unmarried mothers has continually increased and shows no indication that it will decrease. Do these women not know of all of the wonderful benefits of marriage that homosexual couples know about?
    Just a thought

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