(Centennial Fellow) Much has been made of late over the issue of homosexual marriage, its embers stoked by the Colorado Legislatures affirmation of Civil Unions, and more recently by the U.S. Supreme Court’s tentative wading into the issue over a challenge to the Defense of Marriage Act. Proponents of marriage redefinition have taxonomized the issue as being a civil right; a bit of terminological license, to be sure, but it seems to have had the desired effect, as public opinion appears to be gravitating rapidly in favor of such a social readjustment.
Of course, part of the fallout from detonating the civil rights warhead over the issue is that dissent is declared anathema, as censured as pro–segregationist bluster, or advocacy of repealing a woman’s right to vote, or an anti–Semitic rant not delivered in the context of the Israeli–Palestinian conflict. Or as Mark Steyn puts it, like much of the liberal agenda it is not so much about winning as ruling any debate out of bounds.
Nevertheless, the debate ought to be had, and should center on three questions.
The first is to ask what, precisely, is the government’s justifiable role and interest concerning marriage? The fashionable temptation among libertarians is to absolve government altogether of the responsibility, and to make marriage, of whatever strain, a purely non–governmental affair. There is a certain laissez faire appeal to that position; but before heading down that road, it should be determined whether or not the state does bear an interest in the institution.
First, let’s recognize that whether or not the two parties appearing to receive a marriage license are in love is of no concern to the state, nor should be. Does any couple, gay or straight, really require the government to affirm their interpersonal relationship? So what is the interest of the state? Well, the criteria established over the centuries to meet the requirements of a marriage license suggest strongly that it is all about the continuation of the civilization—two people of complementary sexes; not closely related; and just the two. That’s it. Each criterion directed towards the optimum environment for producing and raising the next generation of our society.
But wait, exceptions surface; cannot two men, or two women adequately raise a child? Certainly, under certain circumstances, as can a single mom or dad, or grandparents, or many other combinations. But law is necessarily about generalities, not specifics. Can some 14 year olds drive better than some 21 year olds? Yes, but the law cannot be tailored towards the individual, so an age of 16 is established. Likewise, a single mother might do a heroic job at raising her children; but the accumulated wealth of human experience instructs that this is not the ideal situation—a child responds best to the complementary influence of both a mother and a father, who should not be so closely related as to produce genetic abnormalities, and for whom a break–up should not be too easy. Hence, the laws defining marriage.
What about elderly or infertile couples? Should they be prohibited from obtaining a marriage license? Not unless we wish to include fertility testing as one of the base requirements. Keeping with the general nature of law in a free society such couples fall within the established definition, again provided they are not closely related.
Secondly, some consideration must be brought to the concept of marriage in any case as a “right”. Every right has a corresponding duty attached to it; if one has the right to be married, then someone else must bear the duty of marrying him or her. Does an ugly person with a disagreeable personality have the “right” to be married? If so, should that person not be able to sue in court if denied their right due to rejection by the object of their nuptial desires?
Finally, the more immediate political concern involves the question of whether such issues should be left to the temporal moods of nine individuals, or to the lowest feasible political level. DOMA, it should be remembered, was instituted simply to protect one state from the dictates of another.
The entire discussion should take place under the aegis that it can do so without desiring any interference in the freedom of homosexuals. The desire to resist egalitarian efforts to allow government the ability to redefine a fundamental societal institution is not—and should not be—exclusive of the desire to protect the true fundamental rights of gay persons, nor should the debate be placed off limits.