05 Oct 2006

No One is Banning Anything

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Ann Althouse this morning, quotes a colleague asking rhetorically (and disingenously): What is the rational basis for banning same-sex marriage?

It’s perfectly possible to propose a rational debate on this kind of question, but when one finds that the debate’s proposer has already engineered the grammar of the proposition around so as to make the ordinary status quo appear in the guise of some intended innovation and aggression against the rights of others, it is apparent that there is a certain effort underway to fix the outcome of the debate before it has begun. “How dare some people suddenly compel the legislature and the courts to ban Gay Marriage!”

Of course, we all know that the precise opposite is the case.

Marriage is a human institution existing immemorially, even from times preceding the organization of the state itself, long prior to the creation of individual American states or the United States. The state never created marriage, but merely recognizes marriage as an estate, i.e., as a recognizable status conferring a number of customary privileges and immunities.

That marriage consists of the union of one man and one woman has been its definition for at least the entirety of the Christian era, some two thousand years. The innovation consists of the revolutionary demand that the definition of this most fundamental of human institutions must be modified to confer equality of status on homosexual relations in accordance with the wishes of a contemporary minority.

The increased popularity of monogamous homosexual relationships over the two decades following the arrival of the AIDS epidemic seems to many of us a positive development, but it is far from clear that the fashion would survive the removal of the health threat. Is two decades of anything a sufficient basis to modify the most fundamental institution of human society?

Liberalism has triumphed in the jurisprudential debate about the law’s treatment of homosexuality since the time of the Wolfenden Report. The consensus of opinion these days holds that Mill was correct. Absent some demonstrable harm to others from private action, the state has no right to interfere with the private conduct of consenting adults. Homosexuals have a right to do as they like in private, and the rest of us are obliged to respect that right. We owe them our tolerance.

We do not, however, owe homosexuals our applause and approval.

Just as it is possible to be a law-abiding and unoffending member of the community, and indulge in homosexual acts with another consenting adult in private, it is also perfectly possible to subscribe to religious or other opinions which take a negative view of homosexuality.

Alteration of the definition of marriage to include homosexual liaisons would, in fact, confer both public recognition and approval upon those liaisons in a form which the majority of American are not voluntarily willing to concede.

There is nothing coercive in declining to consent to the adoption of a new and revolutionary definition of marriage. But the forced participation of an unwilling national majority in the public recognition and celebration of unconventional liaisons would be indubitably coercive.

No one is “banning Gay Marriage” by prohibiting homosexuials from conducting whatever private ceremonies or taking whatever personal and private view of their own relationships they like. It is simply the case that a majority of Americans are declining to share those particular views or to recognize those particular ceremonies as meaningful to themselves in the same way.

I obviously disagree with the proposed “state interest” approach to analysis. But if I were compelled to argue in that form, I would observe that a state constitutional amendment defining marriage as it is traditionally understood, as the union of a man and a woman, should be perfectly constitutional. States obviously have a right to define legal concepts and institutions. They have a particularly good right to do so, when they are making no change whatsoever, but merely identifying what has always been understood to be the case.

The obvious line of attack for the left will be via the Equal Protection Clause. But there is no inequality to it. Everyone has just as much right to marry anybody else as he ever did. Arguing that you want to do something different and call it marriage, and you want everyone else to call it marriage, too, and they won’t, and you don’t like it, does not mean you have been treated unequally.


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