Wednesday, February 3, 2010

Why I Oppose Gay Marriage

Gay marriage is one of the most complex issues of the past twenty years. It is an issue that transcends ideology, despite the media’s attempt to paint this as the “intolerant right” versus the “victim left.” In fact, I know some of you favor allowing gay marriage. It is also one of the most contentious issues of our time because most of the arguments made are emotional in nature. I do not support gay marriage. Here is why.

Let me start by saying that I have nothing against gays. You can’t live in Washington, D.C. without meeting a good number and I’ve found most of them to be pleasant, decent people. But this issue isn’t about “like.” I like eight year olds and puppies too, but that doesn’t mean I think they should be allowed to marry. See, this issue isn’t about what I think or who I like, it isn’t about whether or not something is a sin, or my definition of morality, or whether or not it’s good for society or whether or not it’s been accepted historically. Those may sound like valid reasons for deciding this issue, but they aren’t. They are, in fact, entirely irrelevant. Because we are a constitutional democracy, the only thing that matters is the law.

The Law
Unlike other countries, the United States was formed by the consent of its citizens. The left likes to claim this is a difference without a distinction, but they are wrong. It matters very much. In other countries, the government can change the law as it sees fit. But in the United States, the powers of the government are expressly limited to those granted to it by the Constitution. All other powers are retained by the citizens.
Note: This is not to say the Constitution can’t be changed. It can, but it must be done through the amendment process, with the consent of the public, not by simple fiat.
Why does this matter? After all, aren’t we only talking about giving some people new legal rights? Well, it matters because law is what is called a “zero-sum game.” That means you cannot give a right to one person without taking a right from another -- every right given to one under the law imposes an equal restriction on another.

In the case of gay marriage, the deprivation includes depriving others of the right to refuse to recognize the relationship and all that is associated with that. This would include, for example, (1) employers, who would become legally obligated to extend partnership benefits to gay couples, (2) churches, which could no longer refuse to recognize such marriages, and (3) taxpayers, who would be forced to bear the burden of subsidizing these new marriages through the government benefits that become available to married couples.

Whether or not you like those rights is irrelevant (there are many rights people have that I don’t like and if you want to start playing the game of letting government take away rights because we don’t approve of them, expect to have no rights very quickly). The fact is these are rights, and before the government can take them away on behalf of gay marriage advocates, those advocates must show that their right to marry is legally superior to the rights of the people to refuse to recognize those marriages. They have yet to meet that burden.
Why Pro-Gay Marriage Arguments Fail
Gay groups generally make two kinds of arguments for gay marriage. First, they argue that they are a distinct social group akin to blacks or women, who should be given “equal protection” under the law. Secondly, they argue that it is improper for the government to grant heterosexuals the privilege of marriage, but to deny it to them. Neither argument has merit.
Gays Are Not Like Other Minorities
The primary argument made by advocates of gay marriage is that they are a distinct minority social group akin to blacks. Thus, they argue that having a right to gay marriage is a civil right akin to ending legal discrimination against blacks. But the two groups are not comparable.

First, there is a key difference between “blackness” and “gayness.” Being gay requires action -- engaging in homosexual activity. Being black does not. Our Constitution has never recognized a minority based on behavior rather than status. The reasons are obvious. If we were to start creating minorities based on behavior, anyone could claim minority status -- gays, people with any number of sexual fetishes, hunters, meat eaters, fight-club members, etc. This would make an unworkable mockery of the law.

And while gays will argue that they are like blacks because “they were born that way,” that assertion does nothing to change this analysis. For example, allowing self-report to form the basis for awarding minority status would open the door for anyone to claim minority status by making a similar claim. In that regard, serial killers, pedophiles, addicts, shoplifters and thrill seekers all already claim to be “born that way.” Does that mean they deserve legally protected status? If it doesn’t, why should gays be different?

Moreover, the mindset of the minority group has never been the relevant factor in deciding whether or not to grant legally protected status -- it is the ability of others to identify them that matters. In other words, we don’t extend legal protections to blacks because they feel that they are black, we extend legal protections to blacks because others can spot them instantly and single them out.

Further, under our legal system, we only extend such protections to groups that were historically legally discriminated against. Blacks were once held as slaves, were denied the right to vote and hold property, and have been systematically excluded from the economy through a series of laws like the Jim Crow laws. The same is true for women. But none of this is true for gays. Sure, you can find some laws that prohibited gay sex, but that is no different than laws that prohibit unlicensed people from practicing medicine or driving. The point is that there were no laws to deprive gays of their property or their legal rights like there were with protected minorities. And before you tell me that people informally discriminated against gays, consider that people discriminate against slobs today -- does that make them a protected group? It is prior legal discrimination that matters.

Thus, the reasons put forth for granting gays protected status simply don’t justify the granting of such a status.
Heterosexual Marriage Is Justified, Gay Marriage Is Not
The other argument gay groups make is that because marriage discriminates by providing benefits that singles cannot get, and the government may not discriminate in handing out privileges, the government cannot allow heterosexual marriage without also allowing gay marriage. But this argument ignores the fact that the government can discriminate where it has a sufficient justification, which it does in this case.

Contrary to what gay groups argue, the government can discriminate in handing out privileges. It does this every time it denies a 12 year old a drivers license, every time it requires a license to enter a profession, and every time it means-tests benefits. The question is whether or not the government has a sufficient public interest in allowing the discrimination. In the case of heterosexual marriage, it does.

To understand this point, one must first understand the reason the government became involved in recognizing marriages in the first place. Marriage began as a religious institution, but was quickly adopted by the state as a means of handling inheritance. When Napoleon ushered in the era of nation states, with their massive citizen armies rather than small professional armies, marriage because a way to encourage “child production.” Toward the modern era, marriage became a way of protecting women at a time when women had few legal rights outside of marriage. For example, despite feminists' claims to the contrary, marriage allowed the state to protect women from men who would marry them for their money and then run away (polygamy and adultery laws), protect women from sexual abuse (sodomy laws and later laws against marital rape), protect women from their husband’s creditors, and finally protect women from being left without support following a divorce.

These reasons constitute the state’s interest in maintain the institution of marriage despite its discriminatory effects. But none of these justifies extending marriage to gays. Inheritance can be handled outside of marriage now. Gays do not produce children. Nor is marriage needed to protect gays. Thus, this argument fails as well.

Moreover, even if gays were right about their assumption that there is no special justification for allowing heterosexual marriage, that argument still would not justify extending marriage to gays. Instead, it would only justify getting the government back out of the marriage business. You don’t correct discrimination by adding new members to the discriminating class.
Conclusion
All in all, gay marriage advocates have been unable to show that they deserve protected status or that it is improper to allow heterosexual marriage without also allowing gay marriage. Thus, there is no legal justification for allowing gay marriage. And under our system it is simply not proper to give a legal right just because we like that right.

Since allowing gay marriage would require the government to force millions of people to extend benefits against their will, act against their religious beliefs or pay more in taxes to support something they oppose, I cannot support such an extension given the lack of a compelling legal justification for giving gays such legal rights.

Moreover, at each turn, I find myself facing the troubling aspect that all of the arguments made by gay advocates leave me wondering why those arguments should apply only to gays. Why couldn’t groups of three or four or ten adults make the exact same arguments? Why couldn’t children make the same arguments? Or bothers and sisters who wanted to marry? Or what about people who want to marry their pets? And why can’t these same arguments be used to expand legal rights well beyond marriage? If these are valid arguments, what right do gays have to say, “they apply to us, but won’t apply to anyone else,” and what right do we have to accept that reason for gays, but not others?

Ultimately, accepting these arguments is truly the slippery slope that leads to legal chaos. Not to mention the practical problems. Heck, how do you even know if someone is gay? What’s to keep a couple friends from using such a law to take advantage of the system? You would be a fool not to be “married” to someone if this becomes law. . . a whole world of benefits, from health insurance to pension plans to per diems on travel awaits.

That’s why I oppose gay marriage.

24 comments:

Writer X said...

Andrew, thanks for writing an objective post. Unfortunately, this debate too often turns hysterical and everyone always leaves unhappy. Example: That recent McCain ad with the duct tape. It implies that anyone who has a different view is hateful. How will that foster debate?

AndrewPrice said...

Writer X, That's the problem with this debate. It's become purely emotional. I do largely blame the pro-gay marriage side because they have gone with a narrative that accuses all of their opponents of being ignorant, intolerant religious extremists -- though as you can see, my objections have nothing to do with my religious beliefs.

They also demonize anyone who opposes them, putting out ads of the kind you mention which are purely inflammatory. They have attacked churches, sought to arrange boycotts, and tried to get people fired.

The left has joined this battle because they see gay marriage as a way to break down another American institution to let them build the new "socialist man," who looks to the state rather than family and church.

On the right, many of the religious groups have way overstated their case. Beyond just calling it a sin, they make all kinds of strange claims about gays.

As with most issues, each of these groups has lost touch with the real issues and with the consequences of this decision. And neither cares about the views or feelings of the other.

So I figured that I would lay out my objections and hopefully elevate the debate a little bit.

AndrewPrice said...

P.S. I also wanted to point out the fallacy of what I've heard from many libertarians who say that "we should allow gay marriage because the government shouldn't get involved." They have it backwards. The act of "allowing gay marriage" is not an act of taking the government's hands off, it's the act of using government force to impose a view on a group of people.

MegaTroll said...

Interesting article! I have often heard the libertarian position that gay marriage should be allowed because the government shouldn't stop it, and that always struck me as wrong. Now I know why. Thanks.

AndrewPrice said...

Thanks Mega. I hope people find the article useful to understanding the issues.

Tennessee Jed said...

I wanted to respond now to acknowledge my appreciation of your thoughtful post on this subject, even though I haven't completely thought through all aspects of the subject. I have heard the legal argument/slippery slope line and absolutely agree.

What I have yet to think through is weather or not women still require the protections afforded by marriage. Certainly, as an example, I would revise the tax code so that there is difference between filing status of marrieds vs. anyone else.

LawHawkSF said...

Andrew: I've expressed my opinion of gay marriage on more than one occasion, and I've concluded that for many of the reasons you've laid out, it's wrong. Still, I'm in the state that will probably end up determining whether the Constitution actually speaks to the subject. I say it doesn't, and should be left to the states (where I will oppose it on multiple grounds).

Like you (and then-Senator Rick Santorum) I agree that if the Supreme Court interferes in state matters and declares gay marriage to be a remedy for religious/secular unequal protection, there is absolutely no barrier to the same finding for polygamy and polyandry, or just plain group marriage.

I agree wholeheartedly that that the argument that racial discrimination and gender marriage issues have absolutely nothing to do with each other, and to claim they are is simply terrible legal reasoning. The penalties for gay sex were a bit worse than you indicated, however. In many states, particularly in the South, it was treated on the same level as forcible rape. When I was in college, California de-criminialized gay sex, and I was very surprised at the time to find that in some states, penalties in other states were as harsh as 99 years in prison. Until the late 40s, even Illinois provided for long prison sentences for homosexual "sodomy" particularly, including loss of the right to vote as a convicted felon. The Georgia statute was aimed specifically at homosexuals and even though the court didn't find that it discriminated between homosexual and heterosexual sodomy, it was only imposed on homosexual acts. It was only in 2003 that the Supreme Court finally found that the right to privacy (a "right" I don't believe exists) protected all acts of "sodomy" in Lawrence v. Texas.

Still, that doesn't change your underlying position that interracial marriage and single-gender marriage have absolutely no legal/constitutional connection. The tortured arguments in the Prop 8 California case only enforce the silliness of that argument.

I should add that in my Diary tomorrow, I mention that there is a proposal before the California State Senate to deflect the "religious" aspect of the problem. It fails on all counts.

AndrewPrice said...

Jed, Thanks!

I think the use of marriage to protect women has gone about as far as it can. So maybe, the answer is that the government's involvement in marriage is no longer justified?

I have to admit that I am torn on that issue. This should probably be handled in a completely separate topic, but I wonder if the government's involvement in marriage doesn't do more harm than good at this point -- after all, consider that after the government really began to use marriage (particularly divorce law and welfare laws) as a tool for social engineering in the 1960s, marriage as an institution took a serious hit. Maybe the time has come for the government to back out of marriage entirely and leave that to the churches?

On the other hand, it does remain a very useful vehicle for bringing people together to raise kids, and it does protect spouses who find themselves unexpectedly divorced. Though, maybe people will take more care if they can't rely on the government to act as referee?

I am still undecided on how I go on that issue. . . might make an interesting discussion though?

AndrewPrice said...

Lawhawk, I know that gay sex was criminalized, but that's still not comparable to the laws that turned blacks into property, or that prevented them from voting or owning land, or that allowed them to be excluded from society. It's the difference again between an action and a state of being. You could be gay without suffering under the law, unless you were caught having gay sex, whereas black were "illegal" simply for being. That's a huge distinction.

LawHawkSF said...

Andrew: I agree, and I didn't want to emphasize that point more than to point out the penalties in case someone thought we didn't know about them. The only reason for bringing it up at all is that gay marriage implies gay sex, and the two would be inextricably intertwined somewhere along the line. The status and the act would be hard to separate. That said, everything you wrote is correct (at least in my opinion).

AndrewPrice said...

Lawhawk, We should probably point out too that since the Supreme Court overturned Bowers in Lawrence v. Texas, it is no longer constitutional to ban gay sex.

LawHawkSF said...

Andrew: Agreed. That removed the sexual element (the act) from the status element (the gender of the partners), and paved the way for the California Prop 8 case.

JG said...

Excellent article, Andrew. One other perspective I would add is that, by the government legalizing gay marriage, it comes dangerously close to infringing on the freedom of religion. How? Because undoubtedly such legalization would fall under the category of "anti-discrimination" laws, and as the case of Bob Jones University vs. the United States shows, any 501c3 tax-exempt organization is required to comply with any state or federal anti-discrimination laws. Therefore, a 501c3 church (as most are) could be sued for refusing to perform or speaking against gay marriage from a religious standpoint. I'm not saying that *would* happen, but it certainly opens the door.

AndrewPrice said...

JG, Thanks! I'm glad you liked it.

I think you're absolutely right. If we suppose that being gay makes you a protected class, then there is no legal justification for religions to refuse to treat gays identically to heterosexuals. Indeed, legally speaking, refusing to marry gays would be the equivalent of refusing to marry blacks. So you're right that such a ruling would force religions to change their behavior, which would directly conflict with the freedom of religion.

As I said in the article, whether we think these religions are right or wrong doesn't matter, the point is that they have the right to exercise their beliefs. If we are to impose gay marriage on those religions, then we need to show the state's interest in protecting gay marriage is superior to the rights of those religions to act according their beliefs. I don't see how gay marriage advocates have met that burden.

LawHawkSF said...

JG and Andrew: The "religious discrimination" vs "civil rights" statutes debate is very much at the heart of the California debate. The pro gay marriage proponents were shocked at how many mainstream believers still have serious worries about their personal and church-affiliated religious freedom, even if they're neutral on gay marriage itself. Tomorrow, I address one attempt by the pro gay marriage contingent to allay those concerns, but it's only the tip of the iceberg.

StanH said...

You would bring up Georgia sodomy laws Lawhawk, you talk about antiquated, and to this day we are still wrestling with Blue Laws from town to town.

One good byproduct of our raging Baptist, degradation of society moves at a crawl keeping Atlanta at bay with I believe, the third largest gay community in America. I’m not a particularly religious man the Good Book is cool with me. My objection to Gay marriage is the concept itself, taking 10,000 of civilized society and throwing it out the door to be stylish. I don’t have a problem with most anything for gays short of marriage, civil unions, etc. You guys on the legal basis make perfect sense.

Most gays that I have known are hard working business people and tend to be fiscally conservative, socially liberal, a Rockefeller Republican, if you will.

LawHawkSF said...

StanH: The Georgia statute decision (Bowers v. Hardwick) is even worse than that. The lawyers and the court ignored the total inequality of enforcement of the statute, which would have been a strong argument, and instead concentrated on the right to privacy, a dubious "right" at best. The Texas case which overturned the Bowers decision upholding Georgia's statute (on the wrong grounds),Lawrence v. Texas, simply decided on airy-fairy grounds that homosexual sex should simply be a matter of privacy, not unequal enforcement, overruled Bowers and expanded the horrific results of Griswold v. Connecticut and its murderous offspring Roe v. Wade.

The "right to privacy" is now established jurisprudence, even though many of us consider it to be a right created out of whole cloth. Sound legal arguments of discrimination and unlawful search and seizure can simply be ignored as long as the act, whatever it is, takes place in private.

AndrewPrice said...

Stan, There are many views on this topic and many reasons pro and con. I'm just pointing out in the article why I oppose gay marriage. My issue with it isn't based on religion, it's based on liberty -- I don't want the government telling people what they have to do except when absolutely necessary, and I don't see the justification in this instance in letting the government tell people that they need to accept gay marriage.

I also think that creates a horrible precedent.

Individualist said...

Andrew,

I cannot disagree with much in your post but I will say that I think "marraige" actually precedes our species. I think it evolved when our ancestor had the ability to understand what it is to have a mate.

To my mind the first problem with this argument is that people think marraige is about love. Certainly today it isw expected that married people love each other but my limited understanding is that is recent.

To me Marraige is about children and identifying who a child's parents are. After all if we had the kind of free sex commune in Brave New World children might not know who their siblings are and could unwittingly engage in incest especially in small communities. But more than that I believe that a child is ideally raised when their biological parents who share the genes are most like them raise them to adulthood. This is the ideal. I understand it isn't always like this but I still maintain that it is the best outcome.

That being said one of the points to mrraige in my mind is to assign custodial rights to children. Let's say that a man had children and finds out when his daughter is 10 that she was in fact the product of an adulterous relationship by his wife. It is my understanding though I could be wrong that by virtue of being married to the woman at the time of conception that he has legal rights as her father. If it is not this way well then it should be.

For me I believe in Civil Unions for reasons I won't bring up here as it would detract from the discussion except to say that a Civil Union could identify what rights a gay partner has to a child belonging to the other partner. I know someone whose father was gay which caused a lot if issues so despite what they say I don't think this is so rare.

But who knows I find that the emotional side of the argument is even more troubling because the legal issues it does raise are ve3ry complicated. IF you allowed gay marraige could you really apply laws to a homosexual and heterosexual marraige on an even level especially as to the custody of children. I don't even think it is physically possible to do so.

Anyways very good analysis.

AndrewPrice said...

Individualist, I understand your confusion on this issue, as it's not an easy issue. For me though, it comes down to the question of liberty. I think people should be allowed to live the way they want, but with that comes the fact that you can't force others to treat you in any particular manner.

And legally speaking, I don't accept that a group that self-defines by an act they engage in deserves to have the law force others to accept them. That's just too open to the slippery slope problem.

In terms of the history of marriage, you're right that it was never about love until recently -- it used to be about property. I also suspect that the institution goes way back, as it seems almost instinctual for us.

As I said in the comments above, I am torn on the question of whether or not the government should be involved with "marriage" at all. I think a better solution might be to leave "marriage" to churches and let the government deal with a form of civil union for the purposes of property distribution, assigning of children, etc. But I haven't thought that through enough to know exactly how I would come down on that issue.

DCAlleyKat said...

I loved this - "Marriage began as a religious institution, but was quickly adopted by the state as a means of handling inheritance." - the origin of marriage is almost NEVER to be discussed when this issue arises.

There are some places government has no business going and marriage is one of those places.

AndrewPrice said...

DCAlleyKat, Thanks! It seems to be a truism that the government damages everything it gets involved with.

Benyamin said...

Mr. Price,
I would like to applaud you for being the first human being to make a sensible, logic based argument on the issue of gay marriage.
That said, I respectfully disagree. You say that if gays were allowed to marry, then employers, taxpayers, and churches would give up some rights. Churches won't necessarily be forced to marry gay couples, those couples can go to churches that support gay marriage, or can simply get married under the Law, without the involvement of a church. Some gay marriage laws (such New York's) have "religious exceptions." The other two (taxpayer and employer rights) could both be easily used to argue against heterosexual marriage; for example one could say that taxpayers ought not subsidize marriage benefits for heterosexual couples. Thus, if it can be shown that gay marriage and heterosexual marriage are equivalent, those two issues would go away.
You speak about how heterosexual marriage is justified. You give several great reasons for why heterosexual marriage is justified (inheritance, child production for the military, protection of children, and protection of women). Gays also leave inheritances, and marriage can still be used to handle inheritances. Since we have abandoned the draft and moved on to a volunteer, or professional, military in the US (I presume your post only refers to the US, forgive me if I am wrong), child production is no longer a pressing matter of national security. Marriage doesn't seem to be doing a great job of protecting children, as children who live in households where parents fight can attest. That is, of course, highly debatable and is just my assertion. However, if you believe that marriage protects children, then may want to consider legalizing gay marriage, because many gays adopt children, and they are able to raise them just as well as heterosexual couples (http://www.nbjc.org/news/marriage-for-same-sex-couples.html). You also speak about women's rights. If marriage protects women's rights as you say it does, then it makes sense to support legalizing marriage for lesbian women who wouldn't get a heterosexual marriage (and thus would not get the protections of marriage), so that they can get the protections and rights that marriage offers.
You also bring up the slippery slope argument, or the idea that legalizing gay marriage will lead to the legalization of human-toaster marriage. Besides this being a logical fallacy (http://www.csun.edu/~dgw61315/fallacies.html#Slippery%20slope), it is untrue. This cartoon may help: http://iwastesomuchtime.com/on/?i=19323.
You also mention towards the top of your post (sorry for being out of order!)that gays are not like other minorities. Pedophiles, serial killers, shoplifters, and the like are not like gays because it has not been conclusively proved that any of these groups are born how they are. It is still being hotly debated whether crime is caused by socioeconomic status, genetics, or other factors, for example. Homosexuality has been proven to be a trait that people are born with (http://www.sciencemag.org/content/261/5119/321.abstract?ijkey=7e83d0f5c525e6e541615771dc0a0c17de24d8c8&keytype2=tf_ipsecsha). So-called "converted gays"(gay folk who become heterosexual) are similar to Michael Jackson: they hide their true nature without actually changing it. You also state that the ability to identify someone as part of a group influences the decision to give them rights. I certainly hope not. We give blacks rights because of prior discrimination, not because we can identify them as being black. There has been (and still is) discrimination against gays, such as DADT, bans on selling housing to gays, and anti-sodomy laws, which used to be prevalent. Also, there is a difference between informal discrimination against slobs and informal discrimination against gays: slobs aren't jailed and killed for being slobs.

AndrewPrice said...

Benjamin,

Thanks! And thanks for sharing your views.

This is certainly a complex issue with a lot of different facets which leave much room for reasonable disagreement. And I can't say that you are right or wrong, just that you and I probably disagree.

My preference is for as little government involvement as possible in people's lives and I tend to think this is something the government should stay out of. I am concerned that the government has become too intrusive in terms of deciding what people should believe and sanctioning how they choose to live and that it keeps getting more intrusive with each passing decision. I would prefer a government that left all of these types of issues to individuals and society at large to sort out.

But I also recognize that an acceptance of gay marriage does seem inevitable at this point and I doubt very much that it will do any harm to society.

Thanks again for the thoughtful response. :)

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