gay marriage

Surrender? Hell No!

About six weeks ago, Ross Douthat — the truly conservative columnist at The New York Times (as opposed to David Brooks) — conceded surrender in the battle over same-sex “marriage”:

It now seems certain that before too many years elapse, the Supreme Court will be forced to acknowledge the logic of its own jurisprudence on same-sex marriage and redefine marriage to include gay couples in all 50 states.

Once this happens, the national debate essentially will be finished, but the country will remain divided, with a substantial minority of Americans, most of them religious, still committed to the older view of marriage.

So what then? One possibility is that this division will recede into the cultural background, with marriage joining the long list of topics on which Americans disagree without making a political issue out of it.

In this scenario, religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out “in the name of their freedom — and ours.”

But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado….

… We are not really having an argument about same-sex marriage anymore, and … we’re not having a negotiation. Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose. (“The Terms of Our Surrender,” March 2, 2014)

Well, it didn’t take long to learn the terms of surrender. (Not that it wasn’t obvious, given the cases of the florist in Washington and the baker in Colorado.) There is a strident branch of gay activism — backed by the usual “liberal” and “libertarian” suspects — that will brook nothing less than the surrender of fundamental rights: freedom of association, freedom of contract, and freedom of speech. The cases in Washington and Colorado are evidence of efforts to deny freedom of association and freedom of contract. Then came the full-blown attack on freedom of speech, with the ouster of Brandon Eich from his job as CEO of Mozilla because six years ago he donated $1,000 to California’s Prop 8 ballot initiative reaffirming traditional marriage.  (See the links at the bottom of this post for more about the Eich affair and its implications.)

What else would you expect, given the precedent of the “civil rights” movement? In the name of “civil rights,” Americans have long been forced to associate with and hire persons whose main qualification is the color of their skin. As for speech, no CEO of any consequence would dare say anything in public (or private) about the difficulty of finding qualified black employees, despite the demonstrably lower intelligence of blacks and their above-average proclivity for criminal behavior. The typical CEO will instead tell his minions to make the workplace look like the “face of America,” regardless of the impossibility of doing so without ripping off taxpayers, shareholders, and customers.

Why? Because honesty about the reasons for failing to meet racial quotas would cause the wrath of the Civil Rights Division and the Equal Employment Opportunity Commission to be visited upon the CEO’s corporation. And you can be sure that the worthies in those thought-crime agencies are polishing their truncheons in anticipation of the day when the failure to meet a government-imposed gay quota becomes a crime. Brendan Eich’s fate at the hands of private actors is but a hint of the things that will come at the hands of state actors.

Anyone who lived through the “civil rights” forced equality movement with open eyes could see where the “gay rights” movement would lead, long before its victory became evident to Ross Douthat. I certainly did. See, for example, “In Defense of Marriage” (May 26, 2011), “The Myth That Same-Sex ‘Marriage’ Causes No Harm” (October 14, 2011), and the posts and readings linked therein. This is from “In Defense of Marriage”:

The recognition of homosexual “marriage” by the state — though innocuous to many, and an article of faith among most libertarians and liberals — is another step down the slippery slope of societal disintegration. The disintegration began in earnest in the 1930s, when Americans began to place their trust in chimerical, one-size-fits-all “solutions” offered by power-hungry, economically illiterate politicians and their “intellectual” enablers and apologists. In this instance, the state will recognize homosexual “marriage,” then bestow equal  benefits on homosexual “partners,”  and then require private entities (businesses, churches, etc.) to grant equal benefits to homosexual “partnerships.” Individuals and businesses who demur will be brought to heel through the use of affirmative action and hate-crime legislation to penalize those who dare to speak against homosexual “marriage,” the privileges that flow from it, and the economic damage wrought by those privileges.

It should be evident to anyone who has watched American politics that even-handedness is not a matter of observing constitutional limits on government’s reach, regardless of who asks for an exception; it is, rather, a matter of expanding the privileges bestowed by government so that no one is excluded. It follows that the recognition and punitive enforcement of same-sex “marriage” would be followed by the recognition and bestowal of benefits on other arrangements, including transient “partnerships” of convenience. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

The day is coming — and it’s not far off — when it will be illegal to refuse to associate with, do business with, or hire anyone for any reason that Congress, the executive, or the courts deem unacceptable. This will have two predictable effects. It will further dampen entrepreneurial enthusiasm, which has already taken big hits, thanks to the expansion of the regulatory-welfare state. And it will further divide Americans from each other (see Michael Jonas, “The Downside of Diversity,” boston.com, August 5, 2007).

The U.S. Supreme Court to the contrary notwithstanding, I will never recognize same-sex “marriage” as a valid institution. I refuse to cede an inch in the culture war.

*     *     *

Related reading:
Seth Mandel, “Brendan Eich, the Culture Wars, and the Ground Shifting beneath Our Feet,” Commentary, April 4, 2014
Jonathan S. Tobin, “Mozilla Has Rights, Just Like Hobby Lobby,” Commentary, April 7, 2014
Scott Johnson, “Roots of Totalitarian Liberalism,” Powerline Blog, April 7, 2014
Jordan Lorence, “Supreme Court Turns Down Elane Photography,” National Review Online, Bench Memos, April 7, 2014
Mollie Hemingway, “The Rise of the Same-Sex Marriage Dissidents,” The Federalist, April 8, 2014
Patrick J. Buchanan, “The New Blacklist,” Taki’s Magazine, April 8, 2014
Ed Morrisey, “Eich, Intolerance, and the Growing Demand for Absolutism,” Hot Air, April 8, 2014
Nicholas James Pell, “The Care Bears vs. McCarthy,” Taki’s Magazine, April 8, 2014
Stella Morabito, “Bait and Switch: How Same-Sex Marriage Ends Family Autonomy,” The Federalist, April 9, 2014
Robert Oscar Lopez, “Stop Crying over Mozilla and Start Fighting Back!,” American Thinker, April 14, 2014
Bill Zeiser, “We Are All Charles Murray,” The American Spectator, April 25, 2014

Other related posts at this blog: Take your pick of the many listed here, here, and here.

 

The Texas Marriage Canard

The left-o-sphere has resurrected the canard that the constitution of Texas bans all marriage. This canard rests on an incomplete reading of the following section of the constitution’s bill of rights:

Sec. 32.  MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.

(b)  This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.

(Added Nov. 8, 2005.)

The lefties like to pull sub-section (b) out of context and claim that it stands alone. Why? Because section (b), taken out of context, can be used to scare “straights,” who might then agitate for the repeal of section 32. That would open the way for left-wing judges to decree that Texas must allow homosexual “marriage.” (Yes, there are left-wing judges in Texas, which still has a sizable Democrat minority.)

The lefties, in other words, are promoting their agenda through dishonesty. But what else is new?

Here is the correct reading of Section 32: Sub-section (a) defines marriage. Sub-section (b) spells out the implication of (a), which is to prohibit any form of “marriage” or something similar (e.g., “civil union”) that does not accord with the definition given in (a). The word “identical” in (b) should be understood to mean “equivalent,” that is, “having similar or identical effects” with respect to persons of the same sex.

Here is an analogy from mathematics:

(a) Only certain pairs of non-negative integers can be added to get the number 2, specifically: 1,1 and 0, 2.

(b) No other pair or pairs of non-negative integers can be added to get the number 2.

The framers of Section 32 might have chosen a better word than “identical,” but Section 32 clearly means what it was intended to mean: Texas recognizes no form of marriage, by any name, other than the union of one man and one woman.

End of discussion.

Civil Society and Homosexual “Marriage”

THE IMPORTANCE OF CIVIL SOCIETY

The liberty to live a peaceful, happy, and even prosperous life depends on civil society: the daily observance of person X’s negative rights by persons W, Y, and Z — and vice versa. That is so because it is impossible and — more importantly — undesirable for government to police everyone’s behavior. Liberty depends, therefore, on the institutions of society — family, church, club, and the like — through which individuals learn to treat one another with respect, through which individuals often come to the aid of one another, and through which instances of disrespect can be noted, publicized, and even punished (e.g., by criticism and ostracism).

That is civil society. And it is civil society which, many minarchists aver, government ought to protect instead of usurping and destroying as it establishes its own agencies (e.g., public schools, welfare), gives them primary and even sole jurisdiction in many matters, and funds them with tax money that could have gone to private institutions. Moreover, some minarchists aver that government ought to tolerate a broad range of accepted behaviors across the various institutions of civil society, as long as government also protects the negative rights of association and exit: the right to associate with persons of one’s choosing, and the right to live and work where one prefers.

The centrality of family, church, club, and the like, to civil society reflects a fundamental fact of the human condition: We tend to care more for those who are close to us than we do for those who are unrelated to us by blood or a direct social bond of some kind. Charity and civilization begin at home.

HOW HOMOSEXUAL “MARRIAGE” THREATENS CIVIL  SOCIETY

I turn to Jennifer Roback Morse’s article “Marriage and the Limits of Contract“:

Marriage is a naturally occurring, pre-political institution that emerges spontaneously from society. Western society is drifting toward a redefinition of marriage as a bundle of legally defined benefits bestowed by the state. As a libertarian, I find this trend regrettable. The organic view of marriage is more consistent with the libertarian vision of a society of free and responsible individuals, governed by a constitutionally limited state…..

My central argument is that a society will be able to govern itself with a smaller, less intrusive government if that society supports organic marriage rather than the legalistic understanding of marriage….

The new idea about marriage claims that no structure should be privileged over any other. The supposedly libertarian subtext of this idea is that people should be as free as possible to make their personal choices. But the very nonlibertarian consequence of this new idea is that it creates a culture that obliterates the informal methods of enforcement. Parents can’’t raise their eyebrows and expect children to conform to the socially accepted norms of behavior, because there are no socially accepted norms of behavior. Raised eyebrows and dirty looks no longer operate as sanctions on behavior slightly or even grossly outside the norm. The modern culture of sexual and parental tolerance ruthlessly enforces a code of silence, banishing anything remotely critical of personal choice. A parent, or even a peer, who tries to tell a young person that he or she is about to do something incredibly stupid runs into the brick wall of the non-judgmental social norm….

No libertarian would claim that the presumption of economic laissez-faire means that the government can ignore people who violate the norms of property rights, contracts, and fair exchange. Apart from the occasional anarcho-capitalist, all libertarians agree that enforcing these rules is one of the most basic functions of government. With these standards for economic behavior in place, individuals can create wealth and pursue their own interests with little or no additional assistance from the state. Likewise, formal and informal standards and sanctions create the context in which couples can create marriage with minimal assistance from the state….

Some libertarians seem to believe that marriage is a special case of free association of individuals. I say the details of this particular form of free association are so distinctive as to make marriage a unique social institution that deserves to be defended on its own terms and not as a special case of something else.

One side in this dispute is mistaken. There is enormous room for debate, but there ultimately is no room for compromise….We will be happier if we try to discover the truth and accommodate ourselves to it, rather than try to recreate the world according to our wishes….

Being free does not demand that everyone act impulsively rather than deliberately. Libertarian freedom is the modest demand to be left alone by the coercive apparatus of the government. Economic liberty, and libertarian freedom more broadly, is certainly consistent with living with a great many informal social and cultural constraints….

We now live in an intellectual, social, and legal environment in which the laissez-faire idea has been mechanically applied to sexual conduct and married life. But Rousseau-style state-of-nature couplings are inconsistent with a libertarian society of minimal government. In real, actually occurring societies, noncommittal sexual activity results in mothers and children who require massive expenditures and interventions by a powerful government….

When…Friedrich Hayek championed the concept of spontaneous order, he helped people see that explicitly planned orders do not exhaust the types of social orders that emerge from purposeful human behavior. The opposite of a centrally planned economy is not completely unplanned chaos, but rather a spontaneous order that emerges from thousands of private plans interacting with each according to a set of reasonably transparent legal rules and social norms.

Likewise, the opposite of government controlling every detail of every single family’’s life is not a world in which everyone acts according to emotional impulses. The opposite is an order made up of thousands of people controlling themselves for the greater good of the little society of their family and the wider society at large….

Libertarians recognize that a free market needs a culture of law-abidingness, promise-keeping, and respect for contracts. Similarly, a free society needs a culture that supports and sustains marriage as the normative institution for the begetting, bearing, and rearing of children. A culture full of people who violate their contracts at every possible opportunity cannot be held together by legal institutions, as the experience of post-communist Russia plainly shows. Likewise, a society full of people who treat sex as a purely recreational activity, a child as a consumer good and marriage as a glorified roommate relationship will not be able to resist the pressures for a vast social assistance state. The state will irresistibly be drawn into parental quarrels and into providing a variety of services for the well-being of the children….

The libertarian preference for nongovernmental provision of care for dependents is based upon the realization that people take better care of those they know and love than of complete strangers. It is no secret that people take better care of their own stuff than of other people’s. Economists conclude that private property will produce better results than collectivization schemes. But a libertarian preference for stable married-couple families is built upon more than a simple analogy with private property. The ordinary rhythm of the family creates a cycle of dependence and independence that any sensible social order ought to harness rather than resist.

We are all born as helpless infants, in need of constant care. But we are not born alone. If we are lucky enough to be born into a family that includes an adult married couple, they sustain us through our years of dependence. They do not get paid for the work they do: They do it because they love us. Their love for us keeps them motivated to carry on even when we are undeserving, ungrateful, snot-nosed brats. Their love for each other keeps them working together as a team with whatever division of labor works for them.

As we become old enough to be independent, we become attracted to other people. Our bodies practically scream at us to reproduce and do for our children what our parents did for us. In the meantime, our parents are growing older. When we are at the peak of our strength, stamina, and earning power, we make provision to help those who helped us in our youth.

But for this minimal government approach to work, there has to be a family in the first place. The family must sustain itself over the course of the life cycle of its members. If too many members spin off into complete isolation, if too many members are unwilling to cooperate with others, the family will not be able to support itself. A woman trying to raise children without their father is unlikely to contribute much to the care of her parents. In fact, unmarried parents are more likely to need help from their parents than to provide it….

Marriage is the socially preferred institution for sexual activity and childrearing in every known human society. The modern claim that there need not be and should not be any social or legal preference among sexual or childrearing contexts is, by definition, the abolition of marriage as an institution. This will be a disaster for the cause of limited government. Disputes that could be settled by custom will have to be settled in court. Support that could be provided by a stable family must be provided by taxpayers. Standards of good conduct that could be enforced informally must be enforced by law….

The advocates of the deconstruction of marriage into a series of temporary couplings with unspecified numbers and genders of people have used the language of choice and individual rights to advance their cause. This rhetoric has a powerful hold over the American mind. It is doubtful that the deconstruction of the family could have proceeded as far as it has without the use of this language of personal freedom.

But this rhetoric is deceptive. It is simply not possible to have a minimum government in a society with no social or legal norms about family structure, sexual behavior, and childrearing. The state will have to provide support for people with loose or nonexistent ties to their families. The state will have to sanction truly destructive behavior, as always. But destructive behavior will be more common because the culture of impartiality destroys the informal system of enforcing social norms.

It is high time libertarians object when their rhetoric is hijacked by the advocates of big government. Fairness and freedom do not demand sexual and parental license. Minimum-government libertarianism needs a robust set of social institutions. If marriage isn’t a necessary social institution, then nothing is. And if there are no necessary social institutions, then the individual truly will be left to face the state alone. A free society needs marriage.

Moreover, it is clear that the kind of marriage a free society needs is heterosexual marriage, which — as Morse explains — is a primary civilizing force.

AN ENLIGHTENED LIBERTARIAN STANCE

I therefore reject the unrealistic and ill-considered position that the state ought to stay out of “the marriage business.” I embrace, instead, the realistic, consequentialist position that the state ought to uphold society’s long-standing recognition of the special status of heterosexual marriage by refusing legal recognition to other forms of marriage. That is, the state should refuse to treat marriage as if it were mainly (or nothing but) an arrangement to acquire certain economic advantages or to legitimate relationships that society, in the main, finds illegitimate.

The alternative is to advance further down the slippery slope toward societal disintegration and into the morass of ills which accompany that disintegration. (We have seen enough societal disintegration and costly consequences since the advent of the welfare state to know that the two go hand in hand.) The recognition of homosexual marriage by the state — though innocuous to many, and an article of faith among most libertarians and “liberals” — is another step down that slope. When the state, through its power to recognize marriage, bestows equal benefits on homosexual marriage, it will next bestow equal benefits on other domestic arrangements that fall short of traditional, heterosexual marriage. And that surely will weaken heterosexual marriage, which is the axis around which the family revolves. The state will be saying, in effect, “Anything goes. Do your thing. The courts, the welfare system, and the taxpayer — above all — will pick up the pieces.” And so it will go.

Moreover, as sure as the sun sets in the west, the state will begin to apply the equal protection clause of the Fourteenth Amendment in order to protect homosexual “marriage” from its critics. Acting under the rubric of “civil rights” — and  in keeping with the way that anti-discrimination laws have been applied to date — the state will deal harshly with employers, landlords, and clergy who seem to discriminate against homosexual “marriage” and its participants.

Many will dismiss consequential arguments against homosexual “marriage” by asserting that the state’s refusal to legitimate homosexual marriage simply isn’t “fair.” In return, I will ask this:

Unfair to whom, to the relatively small number of persons who seek to assuage their pride or avoid paying a lawyer to document the terms of their relationship, or generally unfair to members of society (of all sexual proclivities), whose well-being is bound to suffer for the sake of homosexual pride or cost-avoidance?

As a practicing minarchist, I would rather have the state stay out of “the marriage business.”  But given that the state is already in that business — and is unlikely to get out of it — the next-best outcome is for the state to uphold societal norms instead of bowing to the preferences of the gay lobby and its influential supporters.

Faced with a choice between libertarian shibboleth and libertarian substance, I have chosen substance. I now say: Ban homosexual marriage and avoid another step down the slippery slope toward incivility and bigger government.