Legal Marriage Equality for Skeptics

Author’s note: If you are reading this blog then chances are you support legal equality for homosexual and heterosexual couples, and likely  see no role for government to promote specific values or institutions. If so, know that this essay is not for you. It is for the skeptics in your life who remain unconvinced that equality under the law includes a recognition of gay couples’ marital commitments. The fight for liberty and tolerance is incremental, advancing with each newly-opened mind. Consider this piece a conversation-starter.

If you are opposed to gay marriage as a legal institution, I want to start by saying that I understand where you are coming from because I used to oppose marriage equality. Homosexuality is not a concept I was familiar with growing up. I was fairly sheltered as a child and am a practicing Roman Catholic to this day, so the values we hold and the choices we make are probably quite similar. Although my religious views are not strictly relevant to my argument that gay marriages should be legally recognized, I know that many individuals oppose the recognition of gay marriage for religious reasons, a point I hope to address. In that spirit, note that none of my arguments bear any relationship to questions of morality, a distinction I encourage the reader to make.

What is marriage? Broadly speaking, its traditional definition in contemporary modern societies is a lifelong commitment between a man and a woman who promise to honor and cherish each other. Like most Christians, I view marriage as a covenant between a man, a woman, and God which should be formed only with great reflection and never broken. I will only view myself as married if I marry a woman in a Church (unless of course my views change, which they have in the past). That is what marriage means to me.

In my mind it is irrelevant whether the government gives me a license or processes my income tax filing a certain way. The legal distinctions surrounding my decision are ultimately secondary. People of other faiths as well as atheists and agnostics may likewise decide to marry as they define the act. They may acquiesce to enter into a marriage arranged* by relatives. Like me, from “society’s” perspective, whether they are married or not is ultimately a matter of their decision and their belief. Really, it is between the individual and his or her partner.**

Why do we allow individuals of different creeds to marry freely and their unions to be recognized by the law? The answer is simple: Americans live in a pluralistic society, as the writers of the First Amendment intended. The Enlightenment value of tolerance is a tacit acknowledgement that there is no monopoly on truth, and more than that, of the simple proposition that I am free to think, feel, believe, and live as I choose so long as I do not impinge upon the liberties of others.

It is difficult to argue that a gay couple’s decision to marry violates anyone’s rights. I may dispute the validity of marriage under a tradition different from my own, but this is a polite disagreement. I am a conservative Christian in my own life, but the world around me is overrun by people holding views and pursuing lifestyles at odds with my own (including my dearest friends).

You, gentle reader, almost certainly have your own polite disagreements with the individuals around you, the ordinary people you encounter in your daily life, to say nothing of someone living across your state or thousands of miles away in a different part of the country. The question is, why not extend this tolerance to homosexual individuals? Why single them out? Why not recognize the claim gay, lesbian, bisexual, and transsexual individuals have to full legal equality?

This debate illustrates how inappropriate it is for government to promote a specific set of values or institution (cf. Fugitive Slave and Jim Crow Laws). Marriage may have a legal dimension as a contract between individuals, but government’s only role in this case is to enforce said agreement. As a classical liberal, I believe government’s only legitimate function is the protection of individual rights. And on a very basic, practical level it cannot decide what is proper or moral any more than it can decide what is traditional. Propriety, morality, and tradition are established by free individuals. In conception they are cultural processes.

The unfortunate reality, of course, is that our political and legal institutions materially impact social norms. This includes various statutory references to marriage such as licensing regimes and special tax privileges. However, whether government should set criteria for marriage itself is a separate matter. As noted previously, any man and woman of age can gain legal recognition as a married couple. With this in mind, consider Section 1 of the Fourteenth Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Even if homosexuality is immoral, this has no bearing on whether it should be legally permissible. If a homosexual couple wishes to marry, the law should recognize their union, so long as it recognizes the unions of heterosexual Muslims, Hindus, Jews, atheists, agnostics, and, indeed, Christians. Myriad religious and secular institutions exist to promote various ways of life. Individuals should be free to choose for themselves, and a government which promises “the equal protection of the laws” should respect those choices instead of deigning to choose for them.

*I know that arranged marriages are not necessarily voluntary, in which case I question their validity. However, this discussion is ultimately outside the scope of my analysis.

**I believe polygamy and all forms of marital arrangements, if they are voluntary, should be legally recognized according to the principle of equality under the law. However, this is also outside the scope of my analysis. Suffice to say that the same basic arguments made above in support of homosexual couples’ legal recognition on an equal footing with heterosexual couples can be applied to any case of two or more individuals who wish to “marry.”