The anti-marriage forces aren’t telling the truth when they insist that they aren’t “against” gay people and that they don’t want to trample on anyone’s rights. Two ministers have been charged with the criminal offense of presiding over private wedding ceremonies for gay couples. According to the CNN story. the New York District Attorney who is pressing charges “said he decided to press charges because the marriages were ‘drastically different’ from religious ceremonies because Greenleaf and Sangrey [the ministers] publicly said they considered them civil.” So much for freedom of religion and so much for freedom of speech.
What’s also remarkable of the allegedly tolerant anti-marriage activists is that they claim not to want to harm gay people (manifestly false of explicitly intolerant groups such as the Family Research Council, which defended sodomy laws) and that they don’t have any problem with gay people having sex. They just don’t want them to be committed to each other. Casual sex is ok — after all, we’re all grownups, right? — but love and commitment? No way. You’ve got to draw the line somewhere.
Tom You are so right on the money here. I am appalled at the lengths this administration is going to force feed our public “Christian Right” beliefs.
Why two men or women cannot marry yet Britney Spears can go to Vegas and get it done is ludicris.
I have a Gay Brother. He and his partner just bought a home together. I am saddend that the right to survivorship sans taxation is not possible. Let alone the ability to visit one another in the case of a medical emergency. etc. The fact that our current government is SO CONCERNED with DISCRIMINATING based on who one sleeps with is just one MORE thing the Bush admin is doing to shoot itself in the foot for the upcoming elections.
UGH….Jods
I don’t believe in licensing gay marriage. But, then again, I don’t believe in licensing any type of marriage. It is a religious sacrament and shouldn’t be recognized by the state in any way. I think the debate about this subject has been framed incorrectly. It shouldn’t be about gay marriage, it should be about government intrusion and the seperation of church and state.
I agree with Chris. Get government out of the business of licensing marriages and the problem is solved.
Chris and AAA are, of course, correct. But demanding an end to government licensing of marriage is not an immediately effective solution to today’s assault on equal rights, and it doesn’t make a terribly persuasive case for expanding marriage rights.
The reality is that goverments are involved in marriage, and will continue to be involved. The question then becomes how best to preserve liberty and promote equality within the given framework.
There are plenty of Supreme Court cases on both privacy and equal protection grounds that can be used to get to the decision that homosexuals ought to be guaranteed equal rights to marry. Arguments from a constitutional persepective are probably more persuasive to the average person than grandiose notions of purely private marriage.
Of course we can always work toward changing the framework. But until that strategy succeeds, more reasonable solutions–based on respected law and shared ethics–will be necessary, else we stand to lose every fight.
Interesting comments, all. I wonder whether those who jump to the libertarian ideal as the solution would have said the same thing back when interracial marriage was banned. Would they have said, “I don’t favor licensing marriages between black and white people. That’s because I don’t favor licensing any kind of marriage.” Would that have sounded like a dodge to avoid taking a controversial stand in favor of allowing people equal rights under law, at least the equal right to create a legal relationship? Does it sound like a dodge now?
“Privatization” of marriage is also my preferred position. But at the moment gay people cannot create the same set of rights through private acts that straight people can create through marriage. To take one example, that means that, no matter what legal documents they sign, they do not have the right to live with their partners if the partners are citizens of other countries. In contrast, straight people can invite their spouses to live in the U.S. and get them residency or citizenship.
To blow off the issue by holding up the banner of privatization of marriage is to avoid addressing a manifest injustice.
On the contrary, Mr. Palmer, I wonder if this is not the perfect situation with which to gain leverage in the privatization of marriage argument. It may seem like the avoidance of a controversial issue at the expense of an oppressed minority, but through what other situation could we possibly gain widespread support for privatization? The more these groups fight, the more average Americans will be open to privatization, it would seem.
I completely understand your discomfort, however, with the apathy of those who are afraid to take sides here because they rely on what seems an untenable utopian solution that avoids offending either side. I think, however, not everyone is blowing off the issue by holding up the banner of privatization, and, in some ways, those who are afraid to push for the ultimate solution are allowing themselves to be slightly myopic and are avoiding an even larger injustice–the long history of state intervention in humanity’s most basic sacrament. From the arrest of St. Valentine to the oppression of slaves, marriage has been improperly used as a tool for state manipulation, and its history is sad.
However, I think that your perspective as mentioned above is not getting enough play in circles where, indeed, people are blowing off the issue to avoid picking sides. As always, wonderful coverage of the issue.
I am sympathetic to gay marriage. But I have two questions that I don’t think have been adequately addressed by gay-marriage advocates/activists, particularly those who identify as libertarians.
First, why not try to achieve this end in ways that are clearly lawful? The courts have shown themselves to be increasingly friendly to gay rights causes. (For instance, the SCOTUS decision in Lawrence should, I think, be seen as a landmark case — not just for gays, but for libertarians generally.) Yet, in California and elsewhere, gay people and elected officials are engaging in acts of civil disobedience instead. This is unnecessary (at this point) and (probably) counterprductive. Challenge laws against gay marriage in court. If those actions don’t succeed, then, yes, by all means consider other measures. But, first, try to achieve change in a way that will be broadly recognized as lawful and legitimate.
Second, from a libertarian perspective, there are many, many injustices in the world. The inability of gays to marry is just one of them — and, by most standards, a relatively small one. Despite what some gay “leaders” would argue, gay people are not subject to widespread discrimination and hostility. There are pockets of vicious intolerance, to be sure, but it is hard to argue that gays suffer from more severe discrimination than most other minority groups. Most gay people are able to live full, happy lives — with the exception of the inability of those (a minority, probably) who wish to marry their partners. So, why, in a world of limited resources, should we spend so much effort trying to correct this wrong when there are others that seem much more pressing? For instance, the inability of gay people to bring their partners to the United States in the same way that heterosexuals can is wrong. But why is it a larger problem than denying residency to people fleeing brutal regimes such as Cuba? Strategically, it is not clear to me why libertarians — gay or straight — should see gay marriage as an important issue.
One final point. It is, I think, simply gross to compare laws banning interracial marriage with laws banning gay marriage. Bans on interracial marriage were dominant, in the main, in a period in which black people were unable to achieve fair hearings in court. (Indeed, for most of American history, blacks, by virtue of their race, did not even have standing to bring a case to court.) But gay people do not suffer from this sort of discrimination. Gays can seek remedy through the legal system and, as noted above, are increasingly successful in such efforts.
Yet more interesting comments.
First, John Coleman’s main point is well taken, but I disagree with his conclusion. When does one hold up an ideal as an alternative to an improvement? I do think that decoupling the state from ‘marriage licensing’ would be idea, but it’s also the case that right now there is a group of people who would like to create legal protections for their relationship, so that they could not be overridden by blood relatives and so that they could enjoy the set of rights that their neighbors in relationships also enjoy. I debated against Andrew Sullivan on this very issue a loooong time ago and took the position that we should focus more on eliminating sodomy laws than on creating gay marriages. Well, we’ve gotten rid of sodomy laws. Now it’s time for legal equality. The state isn’t going to eliminate licensing of marriage anytime soon, so while we propose the ideal, let’s also insist on allowing people who are invidiously excluded to have the same right to create a legal relationship as others. (If Jews were forbidden to get licenses to drive taxis, would we insist that we’re opposed to taxi licensing anyway, so why try to eliminate a restriction?)
Eli Feigenbaum raises some interesting points. It’s true that there are many injustices in the world. I wrote a one paragraph essay on the topic of gay marriage, but devoted years of my life to undermining the Soviet Union. (By the way, Cubans have automatic rights to residency in the U.S. if they get to dry land; Haitians or Uzbeks would have made a better example.) The general claim is hard to gasp, and undoubtedly is not followed by Eli in her own life. I don’t see why I or anyone else is required to compare all of the injustices in the world and then go off to address the worst, with no ‘agent relative’ concessions allowed. (For a general treatment of the issues Eli raises, see Samuel Scheffler’s ‘The Rejection of Consequentialism: A Philosophical Investigation of the Considerations Underlying Rival Moral Considerations’: http://www.amazon.com/exec/obidos/tg/detail/-/0198235119/qid=1079895067/sr=1-1/ref=sr_1_1/103-7318513-1522245?v=glance&s=books). Why not devote ourselves 100% to freeing the people of North Korea, who seem to live under the most repressive state on the planet? In comparison to what is going on in North Korea (gassing of families to further experiments on weapons toxicity; famine-induced cannibalism; public executions; etc., etc.), even the injustices and indignities suffered by Cubans seem minor. There’s something wrong with the logic behind Eli Feigenbaum’s note.
Eli Feigenbaum’s dismissal of the comparison of the ban on interracial marriage and the ban on gay marriage is based, I fear, on some misunderstanding. The restriction on interracial marriage was lifted as a result of court action, in the famous case of Loving v. Virginia (see http://www.multiracial.com/government/loving.html), not legislative action. African Americans did have access to the courts; indeed, they did far better in the courts than they did in the legislatures. (See David E. Bernstein’s book, ‘No Other Place of Redress: African-Americans, Labor Regulations, and the
Courts from Reconstruction to the New Deal’: http://www.amazon.com/exec/obidos/tg/detail/-/0822325837/qid=1079894140/sr=1-3/ref=sr_1_3/103-7318513-1522245?v=glance&s=books.) As to ‘civil disobedience,’ it is frequently the case that the only way to gain access to the courts is to take an act that gives one standing. The case currently wending its way to a decision by the Supreme Court of the state of California was a result of the decision of the mayor of San Francisco to interpret state law to require him to issue marriage licenses. If ordered by a court to desist, the rule of law would, it seems, require that, and that’s just what the mayor did. But the mayor did so only after a court ordered it, pending a decision on the merits of the case. (The Massachusetts case arose because of a similar act of ‘civil disobedience,’ when gay couples went to government offices and filled out forms to be issued marriage licenses, for which they were refused. On the basis of that refusal they had standing to go to the court for redress, as the Massachusetts state constitution specifically forbids the withholding of privileges of law from one group if they are offered to another.)
I would stand by my comparison of the ban on interracial marriage and the ban on gay marriage. Shelby Steel in an essay in the Wall Street Journal recently referred to gay people as fully free. Well, um, for a bit over eight months. Until June 26, 2003, when the Supreme Court of the U.S. handed down the decision in Lawrence v. Texas, my friends Jonathan and Michael were committing a felony in their home in Virginia whenever they made love. That’s no longer true. Now it’s time to allow them to decide for themselves whether they want to get married.
Thank you, Tom, for the careful responses. These are interesting issues. We agree on the end: that gay people should be permitted to marry. But I think there are still some unresolved points.
First, regarding priorities, of course we cannot choose the most egregious wrongs and put all our efforts toward remedying them. But this does not mean that we should not try to determine the relative importance of wrongs (while assessing the chances of improving or correcting them). For instance, I think that we would be better off if trash removal were privatized (it is in some places), but I’m not willing to expend much effort lobbying for it — certainly not at the expense of more important reforms. I see gay marriage in a similar way. Yes, I favor it, but there are literally dozens of policy issues that seem to me to be more important — both to the general populace and to gay people specifically. Why should gay marriage receive such great attention? The best argument, I think, would go something like this: This is an issue where victory is nearly at hand — and we should strike while the iron is hot. I can buy that argument. But I don’t see how one could reasonably argue that gay marriage is itself a huge priority. Similarly, to say that that gays face great discrimination in everyday life — well, that just doesn’t jibe with most people’s experience today. (I do not want to discount the evils of anti-gay discrimination. But I do think it is relatively rare.)
Regarding the interracial marriage-gay marriage comparison, I urge you to reconsider analogizing the two. Your point that blacks — and I should note that “blacks” is a more appropriate term to use here, since “African-American” would exclude people of color from the Caribbean who suffered discrimination in the United States — tended to fare better in the courts than in legislatures is widely recognized by legal theorists and historians. But let us not forget that the lifting of the ban on interracial marriage occurred more than 100 years following the end of the Civil War. The modern gay rights movement is only 35 years old — and, yet, we are on the brink of seeing bans on gay marriage lifted. Moreover, during the period when the interracial ban was in place, consider the danger that an interracial couple faced if they dared live together — not just in the Southern states, but in large parts of the North as well. Gay couples who cohabitate do not face that same sort of fear.
A final, minor point: Yes, I know that Cubans who make it to land are permitted exile in the United States. But, of course, during the past 11 years, the United States has actively worked to keep fleeing Cubans from reaching shore.
Personally, I’m not for or against gay marriage – I just don’t care. Although, the absolute best wedding reception I ever attended was when two gay friends were “married.” If there is any such thing as a true stereo-type, then the gays-are-more-fun-at-a-party is it. It is the third fondest memory I have, right after my marriage and the birth of my son.
As for the libertarian perspective, I don’t think seperation of church and state is a libertarian ideal, it is a constitutional issue. One that shouldn’t be too difficult to get past even a conservative SCOTUS.
Marriage has always been a religious sacrament. The government should not be permitted to recognize marriage for anything other than a contractual agreement – which can be entered into by two consenting adults. This country seemed to do just fine for all those years prior to marriage being written into the law.
If we pander to the “deal with reality as it is” arguement, we can’t change the underlying fallacy of the law as it now stands.
Tom errs in several ways in his reply to Eli Feigenbaum. First, he has it backwards on civil disobedience. Since gays have access to the courts, what they should have done to challenge the legal status quo is to march down to the city hall or courthouse and apply for a marriage license. Then, when they were denied they should file suit against the clerk or the person is who ultimately issues the licenses (in his/her official capacity), challenging the legality of that denial under Equal Protection or Due Process grounds. Presumably a number of such cases would get dismissed, but if enough couples did it around the country, especially in states like California and Oregon, some would stick. That’s civil disobedience — a fact Tom recognizes in his comment about what has happened in Massachusetts.
But what’s happening (e.g., in San Francisco) with politicians deciding on their own in defiance of explicit state laws to the contrary is anarchy, not civil disobedience. As a sometime target of “hate crimes,” gays should generally favor the rule of law as something helpful to them in the long run, not something hurtful that should be undermined in this way. If this type of “civil disobedience” is acceptable, who’s to say the next person’s cause is not? Would mayors of homogenous, generally left-leaning villages be justified in seizing all local private property for the “good” of all residents (i.e., socializing it) until a lone dissenting citizen gets upset and finally goes to court to get an injunction against the practice? That is obviously absurd, but it does not differ much from Tom’s example except for the fact that Tom favors gay marriage and would not favor government seizure of property. It seems to me that giving such unprecedented power to local officials is terribly antidemocratic as well as extremely dangerous to the rights of everyone.
Second, Tom is incorrect about his characterization of gays being free for only “a bit over eight months” (i.e., since the Lawrence decision was announced). Even pre-Lawrence, only a handful of states continued to have laws against sodomy, and even fewer (like Texas and Virginia) had laws specifically banning gay sodomy. While gay sodomy laws were certainly overturned by Lawrence, it is uncear if states may still outlaw sodomy generally for all people and enforce such a ban in a non-discriminatory way (i.e., arrest straights for it too). A persuasive case can be made that sodomy laws in general are unconstitutional under the Lawrence rationale, but Lawrence itself does not say this.
There is a principled distinction between seizing property and conducting marriage ceremonies for homosexuals. The latter activity can exist without violating compossible rights, while the former cannot. When seizing property for “the common good,” there is no way to benefit one without harming another.
This particular argument may not amount to much more than “we prefer one and not the other,” and the logic wouldn’t work well in a vacuum. But it is a distinction, and it should carry some weight in a country founded on the respect for individual rights and the pursuit of happiness. In other words, the distinction is more powerful here, than say, in the former Soviet Union.
Tom was also (at least partially) correct in characterizing homosexuals as free for only a bit over eight months. While it is true that they were not slaves, it is most certainly also true that they were less free than heterosexuals. Before Lawrence, any heterosexual couple was at liberty to travel through any state, and engage in any sexual act they pleased, without fear of punishment. Homosexuals clearly did not share that liberty. They do now, and we are all better for it.
Finally, characterizing local officials’ choosing which laws are valid as “anarchy” seems a bit dramatic. Since the founding of the republic it has been recognized that certain laws are repugnant to the Constitution. Those laws, as noted in Marbury v. Madison, are “null and void.” Until the courts have an opportunity to officially overturn such laws, it is not anarchy to ignore them. It is instead, as Jefferson argued, the obligation of officials to disobey them. That case is made even stronger when the law at issue so clearly infringes on fundamental rights and equal protection of the law.