libertopia

Note to Government: Butt Out!

In the July 15, 2005 edition of Best of the Web Today, James Taranto took umbrage with one of Andrew Sullivan’s blog entries entitled Sodomy Watch: An obviously non-procreative couple gets married in Britain. Worse: "Simon is gifted with the organ." I anticipate condemnation from Maggie Gallagher, Stanley Kurtz, and Pope Benedict XVI..

Taranto’s reasoning goes like this:

For the sake of argument, let's suppose someone actually were arguing for a policy that would bar the Simon-Townsend nuptials--that is, for a law preventing couples whose age difference exceeds some limit from marrying, or prohibiting men under a certain age from marrying postmenopausal women.

This would be an argument about the regulation of marriage. And make no mistake, marriage is subject to a lot of regulations. Current law everywhere in America prohibits, for example, marriage between a parent and child or brother and sister; a couple in which one partner is below the age of consent (with some exceptions); a couple whose "marriage" is a sham for immigration purposes; or a couple in which one partner already is married to someone else, even if separated. There are solid public-policy grounds for all these limitations on marriage. Other restrictions are invidious, such as the bans on interracial marriage that the U.S. Supreme Court struck down in 1967.

So far, so good. The case has been made that the state ought to regulate marriage in the interest of preventing measurable harm to innocent parties, such as protecting minor children from predatory adults and safeguarding against birth defects that can result from incest. Additionally, Taranto rightly criticizes the immoral “bans on interracial marriage” of the past.

In evaluating a proposal to ban marriages à la Simon and Townsend, one would weigh its effect on the couples involved against the purported public benefit of such a law. The reason no one has actually advocated such a ban is because it so obviously doesn't pass the test. Even if we disapprove of the Simon-Towsend union--and to be candid, this columnist finds it pretty creepy--it would be cruel to outlaw it; and because very few 31-year-old men have any interest in marrying septuagenarian women, the public benefit of such a law (i.e., encouraging fertility) would be vanishingly small.

Can he be serious? Sadly, it’s very likely. This is yet another example of minority rights being trampled under foot by any given majority. It's Democracy in action folks. Notice that, in the second excerpt, “the purported public benefit” is determinative, whereas in the first excerpt, state regulation is limited to protecting individuals, particularly minors. But now, “encouraging fertility” is a supposed proper role of government? What happened to the idea that ‘state recognized marriage’ is simply to provide a legally enforceable contract between consenting adults?

The debate over same-sex marriage is entirely different. It is about the definition, not the regulation, of marriage. Merriam-Webster's entry on marriage confirms the point:

(1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage

For the entire history of mankind except the past few years, the first definition was the only one. That definition is broad enough to include forms of marriage that were once outlawed (exogamy) and others that are now outlawed (polygamy). But same-sex marriage requires a new definition…

This line of argumentation exemplifies one of the reasons that I’m an iconoclast. The irrational reliance upon tradition and culture can—and often does—relegate individuals to mere units of the group, the society. Furthermore, placing ‘same-sex’ marriage in a completely different category than ‘interracial’ marriage amounts to a distinction without a difference, for the similarities far outweigh the dissimilarities. Let’s look at a few of them shall we?

Similarities: involves consenting adults, has experienced ‘social disapproval’, has been unlawful, constitutes a minute percentage of the population, critics have used the Bible to argue against it, no appreciable harm is caused to third parties, etc.

Dissimilarities: homo vs. hetero relationship and homosexuals cannot reproduce (but that’s a non-issue which has already been dealt with).

Legalizing same-sex marriage, then, represents a radical change in a bedrock social institution and thus is not comparable to any other reform of marriage law. This is why it generates such wide opposition even among people who harbor no antipathy toward homosexuals, and why it is much harder to stomach than any other gay-rights measure.

Marriage is not the only, or even the most important “bedrock social institution”. It ought to be rather obvious that the rule of law is the preeminent 'social institution', with its justification being the promotion of individual liberty. Whether or not consenting adults wish to enter into a contract of matrimony is the concern of the parties involved, not society at large. Now, I'm not a homosexual, and no, I’m not married either…at this time. It's quite posible that I will never be again. Regardless, that decision lies with me and an as yet unidentified individual. It is none of the public’s business, so the government needs to butt the hell out!

posted by Robert @ Sunday, July 17, 2005