Allow Same-Sex Marriages as a Basic Individual Right

For centuries, most people of the Judeo-Christian tradition have believed that God frowns upon people of the same sex having sexual relationships.  Indeed, for centuries they often thought God demanded that they execute, often very gruesomely, men thought to be having sex with men.  This vision of morality has been transformed for the better, but translated into governments only recognizing opposite sex marriages.  In recent times, the Netherlands, Belgium, Ontario, British Columbia, Quebec, and then Massachusetts came to recognize same-sex marriages.  Today in the United States, the District of Columbia, Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont recognize same-sex marriages.  In addition, California, Delaware, Hawaii, Illinois, Maine, Nevada, New Jersey, Oregon, Rhode Island, Washington, and Wisconsin offer either civil unions or domestic partnerships to same-sex couples.  Forty-one states forbid same-sex marriages, including North Carolina which just passed a ban by referendum earlier this year.

The referendum ban of same-sex marriage in California was challenged in federal court and was declared unconstitutional.  This ruling is under appeal and is still working its way through the federal court system.  Washington passed a law authorizing same-sex marriage and Gov. Chris Gregoire signed it earlier this year.  The Maryland legislature also authorized same-sex marriage this year and Gov. Martin O'Malley has signed it into law.  But, referendums to ban same-sex marriage in Washington and Maryland will be on the ballot in November.  Maine, which presently bans same-sex marriages, has a referendum on the November ballot to allow them.  Minnesota, which presently bans same-sex marriage by statute, has a referendum on the November ballot to additionally forbid same-sex marriage in their state constitution.

How does one rationally analyze the role of governments with respect to marriage and with respect to same-sex marriages in particular?  We have to decide what marriage really is and why government has necessary and legitimate functions with respect to marriage.  In the oldest Judeo tradition, marriage was commonly not a domestic partnership between one man and one woman.  Each husband might have several wives.  This was surely not marriage of the nature of those recognized by government in America today.  Early Christians commonly did not marry, since many thought the end of the world was rapidly approaching with the return of Christ.  After that brief period, Christian marriage was often a means of cementing favorable relationships between families, clans, tribes, aristocrats, and even nations.  A young woman was pretty much the property of her father and the father eventually traded her to a man for a degree of allegiance and goodwill in many cases.  She was now her husband's property.  Marriage was not the spiritual union of two people in the way many think it is today.  It was a commercial and political act in many cases.  The church supported this viewpoint of marriage by providing a patina of spirituality, though spiritual connections between the husband and wife were very commonly missing.

Even today, the role of government is not to provide a spiritual content to marriage or even to assess whether such a spiritual basis for a marriage exists.  An honest evaluation of marriage as provided by government license and contract is that every marriage is a domestic partnership and any spiritual meaning to the union is provided by the married partners independent of government.  The domestic partnership that governments offer is a legal contract with legal implications for shared property, procreation and the raising of children, taxes, mandated time off work to care for one another, and permissions to make medical decisions for one another if one partner is unable to make such decisions.

The only case of such issues in which the sex of the partners may make any difference at all is with respect to procreation and the raising of children.  In the modern world, adoptions may easily take the place of procreation, but many married partners also have no children and there is no title of aristocracy demanding an heir.  Should children be adopted in the relatively rare case by two partners of the same sex, there is little reason for one having to be a high-earning man, since many women are now high-earners.  The domestic partnerships that are formed by government marriage licenses are just as appropriate today for partners of the same sex as they are for partners of opposite sexes.

Each and every American adult competent to care for himself has a very broad sovereign right to life, liberty, property, the ownership of his own body, mind, and labor, and the pursuit of his own happiness.  Legitimate government cannot violate that broad range of fundamental individual rights.  There must be a strong presumption against laws that limit the exercise of personal actions which do not do harm to others.  Legitimate government does not interfere with the association of one adult with other consenting adults, unless substantial harm is thereby done to others.  Legitimate and individual rights-protecting government is highly limited and minimal government.  If it acts to place limits on the relationships and associations of individuals, it must have a very substantial reason for such limits and a strong case for the harm those associations or relationships would do to others.  The only way such harm to others occurs is if the partnership uses force to harm others, but there is no new issue here since initiated harm done by force by any individual to others is already prohibited.  There is no more reason to prescribe the number and sex of domestic partners than there is to do so for a business partnership.  Indeed, a domestic partnership is very much like a business partnership in all respects relevant to the role of government.

Not only is there no reason to place a prohibition on same-sex domestic partnerships, but because our individual rights are equal, we cannot limit marriage contracts to only those who desire a single partner of the opposite sex.  While anyone may exercise their own freedom of conscience in the belief that same-sex domestic partnerships are immoral, abhorred by God, or simply biologically uninteresting to them, government and the People whose individual equal rights are to be protected by government cannot make such judgments in the political realm without violating the freedom of conscience of others with a differing viewpoint.  They cannot legitimately use force to prevent others from exercising control over their own bodies and minds, from evaluating and choosing whose most intimate company they desire, and from pursuing their most personal and individual happiness.

Individual human beings are complex and highly differentiated.  We are all different in the way our minds observe reality, analyze and evaluate it, and assess our own relationship to it and to others.  Our biochemistries differ, our senses operate at many different levels, our nervous systems feel differently, our bodies take very different forms, and we respond very differently to other individuals.  Among the most complex and highly differentiated aspects of an individual's nature is his or her sexuality.  We cannot be serious about the individual right to pursue happiness if we have government place obstacles and unequal treatment in the way of individuals whose sexuality is different than that endorsed by a religion or just recent and local tradition.

It is a basic violation of individual rights for government to discriminate against individuals based on their sexuality.  Legitimate government ought to provide same-sex marriage contracts which are equivalent to those it provides to couples of the opposite sex.  It should even provide a more enlarged concept of domestic partnership contracts as broad in terms of the combination of adult individuals bound in the contract as is the case in small business partnerships.  Government commonly interferes with our freedom of association in far too many ways.  It is time that it stop interfering with that broad freedom of association in our domestic partnerships which it is the right of each and every adult individual to claim.

Understanding this, one should vote for Question 6 in Maryland to allow same-sex couples to marry in Maryland.