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.
The Liberty Professor 