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.

USDA Makes Heterosexism Ugly

Most of us did not know that heterosexism does not describe those who practice or advocate the desirability of heterosexuality.  No, according to the US Department of Agriculture (USDA) and Sec.Tom Vilsack, it means the belief that marriage can only be between one man and one woman.

I am trying to figure out where this idea comes from.  Does liberalism mean that only one man and one woman can enjoy the benefits of a liberal society?  Perhaps it does now, when liberalism seems to mean that one great socialist leader and his First Lady will rule the country and choose everyone's values and impose them on everyone using the force of government.  This was not the origin of the term liberalism, however.  Libertarianism still means that one favors liberty for all and conservatism still means one favors many traditional values, so most isms do not have a parallel to this new word heterosexism.

Why is it that sexism does not mean that one believes in the desirability of sex or that one enjoys sex?  No, in our strange new world, sexism means one is biased against those of one sex or another.  In this vane, one would think that heterosexism would mean that one was biased against heterosexual activities.  But no, heterosexists are according to the USDA advocates of heterosexuality.  This would be in keeping with the traditional use of words such as liberalism, socialism, conservatism, and libertarianism, rather than the screwy use of the word sexism.  But, the USDA says that heterosexism is not just in favor of heterosexuality, but that its essence is the denial of marriage to those who are not heterosexual.  I do not know why attitudes toward the marriage rights of others must be wrapped up in this term at all.  This is very strange.

But applying this rule to other words that ought to be of the same family, leads us to the conclusion that homosexism is the denial of marriage rights to those who are not of the same sex.  Bisexism is the denial of marriage rights to those who are heterosexual and to those who are homosexual.

The USDA is re-educating its employees against biases directed at those who are not heterosexual.  Of course, any government agency has no business being biased on the basis of sexuality in its hiring and promotions.  The USDA is going beyond this to attack certain ideas about marriage though.  Given that the U.S. Supreme Court has not yet ruled that states cannot discriminate in favor of heterosexuality in marriage, it seems a bit premature for the USDA to be framing those who oppose marriage rights for those who are not heterosexual as bigots.  Mind you, I think such people are bigots, but the government's courts and Congressional law have made no such determination.  The Obama administration is all in favor of discriminating against those who believe marriage should be reserved to one man and one woman, however.

Furthermore, the USDA does not make marriage laws, so it is pretty much irrelevant whether some of its employees believe marriage should be limited to one man and one woman.  Any effort to dictate that they cannot think this is an attack on the religious beliefs that many people hold and is as clearly wrong as would be USDA discrimination against the hiring of homosexuals or its attempt to re-educate them to become heterosexual once hired.

This USDA effort is in the context of a diversity and inclusion program.  It is being pushed forward by the Office of Personnel Management as a model for all of the other agencies of the federal government.  It will then be pushed upon the states and upon all government contractors.  In practice, such diversity training and incentives result in managers preferentially hiring and promoting two-fers.  They will be rewarded for hiring or
promoting lesbian women and homosexual Black men, while discriminating against heterosexual white males and even those who are only one-fers, such as heterosexual Black males or white females.  This leads to what ought to be seen as clearly unlawful and immoral discrimination.

To overcome the fact that this is such transparent wrongful behavior, it is useful to actually denigrate the word heterosexual.  It has to be converted into a put-down.  This has been done with white male as in "The Founders were just a bunch of white males, so their work was full of evil and discrimination.  Therefore we can dismiss the Constitution in its entirety, not to mention the Declaration of Independence."  The strangely defined word heterosexism helps to give the word heterosexuality a very negative connotation.  Defining heterosexism as evil and as a denial specifically of marriage rights helps to accomplish this important goal of the Progressive Elitists.

It will be interesting to observe in time if one sense of the meaning of Progressive Elitism becomes the belief that only Progressive Elitists are allowed to marry.  When that starts to happen, will most Americans see that as a new form of bigotry?  Or will they just accept the idea as a return to the aristocracy's natural rights such as they enjoyed in the Dark Ages and Medieval times?  After all, the Progressive Elitist believes most Americans are too stupid to choose their own values and to manage their own lives.  It is clear that they already think of themselves as the educated aristocracy who by right take care of the dumb and uneducated peasants, who should be treated just a little bit better than the pigs.  Maybe.  Many environmentalists and animal rights advocates among the Progressive Elitists believe most of the peasants should not be treated as well as the pigs or the snail darter.

As I have discussed many times, the government ought not to be in the marriage business.  If marriage is a spiritual union of two or more people, then it belongs in the private sector.  Government should only offer domestic partnership contracts and these should no more limit the partners than a small business contract does.  These domestic partnerships should be completely non-discriminatory, so long as the partners are only consenting adults.  See my prior discussions on the right to form domestic partnerships without government discrimination here, here, here, and here.  Marriage or domestic partnerships are surely relationships in which one should be completely free to exercise one's right to the freedom of association.

Don't Ask, Don't Tell, Don't Enforce

U.S. District Judge Virginia Phillips, who earlier decided that the military's policy of Don't Ask, Don't Tell with respect to people in the military having or being inclined to same-sex sex was unconstitutional, earlier this week ordered the military to stop enforcing that policy.  I discussed her decision on its constitutionality here and expressed my agreement with her decision.  She had given the government time to respond to her decision with a plan to end the policy, which it failed to do.   The Democrats did try to pass legislation in Congress to strike the policy, but despite their overwhelming majority, they could not pass the legislation.  The Republicans, to their shame, largely opposed the legislation, as did numerous Democrats.  So, Judge Phillips has acted to halt enforcement of the policy that Obama and the chairman of the Joint Chiefs of Staff have said they wanted ended.  Nonetheless, the Justice Department has decided to appeal the decision.

This is one of those Go Figure moments.  The Democrats have long claimed they were the champions of homosexuals, but have not ended this policy in the last nearly two years despite having the Congress and the presidency locked up.  Laws discriminating against same-sex relationships and sexual acts are mostly popular with the People yet, though the discriminatory attitude is very much tied to the older generations.  Mostly religious conservatives favor discrimination.  Because of that, the Republican Party is mostly on-board for such discriminatory acts.  This is one of its grievous faults.  Faced with a disastrous election in a few weeks, many Democrats did not have the nerve to defend the equal rights of homosexuals and bisexuals to their lives, liberty, and pursuit of their happiness.  Judge Phillips gave the Democrats an out, which they should have taken.

It is claimed that when a U.S. District Judge rules a law unconstitutional, the Justice Department must appeal the case, which is what it is doing.  This is nonsense.  The President is sworn to preserve, defend, and protect the Constitution of the United States, which of course the members of Congress are also.  The Justice Department reports to the President and he should have ordered them not to appeal the ruling of Judge Phillips because he is suppose to recognize the excellent argument she made as a correct interpretation of the constitutionality of Don't Ask, Don't Tell.  Perhaps, in the now well-established tradition of the Democrat Party, he has not bothered to read her decision.  If he did, he is failing us with his judgment of her argument.  If he did not, he is failing us with his turpitude.  He should be taking his duty to the Constitution more seriously.  Of course, from many things he has said and done, we know that he does not care to actually follow the Constitution since he sees it as being in opposition to many of his socialist policies.  For instance, he faults it for being a roadblock to redistributive policies.

Each of the three branches of the federal government has the obligation to preserve, protect, and defend the Constitution.  This is not a task given only to one branch.  When any of the three branches fails to exercise its independent judgment, the exercise of our individual rights is harmed.  When Congress considers legislation, it is obliged to consider whether it is constitutional.  If any Congressman thinks it is not, he is obligated to vote against it.  In fact, if he is not sure that it is constitutional, he is obliged to vote against it.  If the President is presented with a proposed law passed by Congress, he is obliged to decide whether it is constitutional or not.  If it is not, he is obliged to veto it.  Because it is the nature of government to try to expand its powers, it should be the practice to recognize that if any of the three branches of government believe a law is unconstitutional, we should be disposed to refusing to allow the force of government to be used to enforce that law.  The bias of the People should be toward limited government and a maximization of the rights of the individual.  If the federal courts rule a law limiting individual freedom of choice unconstitutional, then we have recognized in recent times that the law cannot be enforced.  Unfortunately, we seem to have lost the idea that the Congress and the President are also supposed to be bulwarks against the encroachment of government against our equal, sovereign individual rights as well.  A three-legged foundation is much more stable than a one-legged foundation.

On a related issue, the Justice Department is also wrongheadedly appealing two decisions of a federal judge in Massachusetts that the 1996 Defense of Marriage Act federal law is unconstitutional.  The judge ruled that the states, not the federal government, have the power to define marriage.  He also ruled the federal law violated citizens due process rights.  I have never seen any power given to Congress by the Constitution which would allow it to decide who has a valid marriage contract and who does not. 

In actual fact, I believe it very unwise to allow any government to define marriage.  Marriage is a spiritual union of people and there is no way to preserve fundamental freedoms of conscience and the right to pursue happiness if governments are allowed the power to define what constitutes such a spiritual bond.  What they do have within their purview is the job of enforcing domestic partnership contracts, which is done at the state and local government levels, not the federal level.  My views on this are given here, here, here, and here.  Domestic partnerships should no more define and limit the number and sex of partners than does a small business contract.  A single heterosexual couple, gay men, lesbians, bisexual people, multiple heterosexual couples, and polyamorous people should all be allowed the protections and benefits of domestic partnerships suitable to their needs and as agreed upon as free adults.

Miron: Government Needs to Divorce the Marriage Business

Jeffrey A. Miron, a senior lecturer and director of undergraduate studies at Harvard University and a senior fellow at the Cato Institute, has made an argument similar to the one I have been making for about 5 years on the issue of gay marriage and the role of government in marriages.  To summarize his argument:

• Government should exit the marriage business.
• Private contracts for raising children, for the division of property, inheritance, and other purposes should be available as components to a bundled contract open to all couples.
• Opposite-sex and same-sex couples would have the same opportunities and be treated equivalently.
• Government would still define the default rules of a contract.

The main limitation of his argument is that he limits domestic partnership contracts to a couple.  There is no more reason for doing this than there would be to limit a small business partnership to a couple.

Equal Rights in Domestic Partnerships

Robert A. Levy, Chairman of the Cato Institute, and John D. Podesta, President of the Center for American Progress, wrote an interesting article for the 8 June 2010 Washington Post called Marriage Equality for All Couples.  They noted that the 1967 case of Loving v. Virginia, ended the ban on interracial marriage in the 16 states with laws banning it at the time.  The Supreme Court unanimously ruled that "marriage is one of the 'basic civil rights of man.'"  This decision was based on the 14th Amendment, ratified in 1868.  Sadly, it took 99 years for this ruling to finally be made.  At the time of that decision, 74% of Americans disapproved of interracial marriages.  Twenty years ago, only 6.8% of newly married couples said they married outside their race or ethnicity.  That number is now 14.6% according to a recent Pew Research Center study.  Clearly, the earlier prejudice against interracial marriages has subsided and more and more Americans are claiming their equal right to marry, whatever their racial mix may be.

The right of people to marry who are not heterosexual has not yet been given a basis in the federal courts.  In 2003, the American opinion was that only 37% supported same-sex marriages.  A February Washington Post poll found that 47% of Americans now support same-sex marriages.  65% of those ages 18 to 29 support same-sex marriages, so the trend will continue in the direction of increasing support.  Robert Levy and John Podesta are the chairmen of the advisory board of the American Foundation for Equal Rights, which is supporting the case of Perry v. Schwarzenegger.  This case is aiming to have California's Proposition 8 outlawing same-sex marriages declared a violation of the 14th Amendment and is now before the federal district court in California.  The case is likely to be appealed to the Supreme Court.  It ought to win the freedom for all couples to enter into equal marriages.

I have long made it clear that government should not be claiming to play a role in marriage at all.  For many, marriage is a spiritual union and I fully understand that concept even though it is not the case that I believe in a god.  There is good reason to reserve the term marriage to meaning a spiritual union and allowing people to control that spiritual content in their marriages without any presumption on the part of government that it has anything to say about that spiritual content.  Those who are religious or who have spiritual values which are not religious are best served by adopting a more appropriate term for the contract that government offers to couples.  It would be better if this were universally called a domestic partnership contract or agreement.  All of the issues which involve government are better described as contractual in nature.  Recognizing this, provides a separation of church and state in marriages/domestic partnerships which would help to diminish the passion of the argument from religious quarters against equal rights in domestic partnership contracts.

As I have written many times also, domestic partnership agreements ought to be a parallel to small business partnerships in that government does not dictate the sex or number of partners.  Two men, or two women, or two men and two women, or any other combination of several people ought to be free to enter into a legal domestic partnership contract.  Joint property, joint responsibility for raising children, the sharing of income, and critical medical decisions and support could readily all be incorporated into such domestic partnership agreements.

Very likely, most families would still be built around one father and one mother, but the huge number of divorces and resulting serial marriages are clear evidence that one-man-one-woman marriages do not work for large numbers of people.  Sometimes the failure is largely the result of two people becoming bored with one another or of one simply yearning for some change of pace.  Sometimes, the couple simply do not always share the same cycle of need for sex.  Sometimes, the strains of earning income, cleaning house, purchasing food and clothes, maintaining the house and cars, agreeing on a common vacation, and raising the children are simply too much for two people.  Some people would do better in larger domestic partnerships in which tasks are spread over more specialists or where they can be varied over time.  With most public schools having severe shortcomings, many such extended family groups would be able to have a member or two specialize in home-schooling the children, while a sufficient number of others remain to bring home the bacon.  One member might be particularly good in managing the family investments, while another is great in playing with the kids and caring for the yard.  One may love to cook, while another loves to work on the cars and keep them running.  Another may like purchasing the groceries, the furniture, and the clothes for the children.

Of course, in many such cases, family members may have the option for having a sexual life enriched by more than one sexual partner.  Sex is one of man's greatest pleasures in life.  It is very important to many people that they are able to optimally enjoy this pleasure.  There is no valid ethical principle that says that it is immoral for a man or a woman to have more than one sexual partner in any period of his or her life.  The ethical issue is whether the person one chooses to have sex with is a person of good character who is of great interest to and highly valued by the chooser.  If someone is fortunate enough to find more than one such person with whom they can form a more intimate bond with shared life-affirming sexual pleasures, people of good will ought to be ready to simply wish them the best.  This is true whether the individuals in the serious and sincere sexual relationship are of different sexes or the same sex.

A knowledge of history makes it very clear that while some people may be entirely heterosexual, very many people are bisexual or homosexual.  When societies are not burdened by severe heterosexual bigotry, it is clear that many people are happy to give outlet to their bisexual or homosexual desires and choose to pursue their happiness in that way.  In our present time, the video market in erotic movies and the rich offering of sexual images and discussions offered on the Internet, make it clear that sex is both of great interest to many people and that their interests are highly varied.  These interests, when given anonymous expression, do not conform to the publicly affirmed principles dominant in our society.  It is clear that many sexual interests are being suppressed, some for good reason, but many for no more reason than traditional prejudice.  It is no one's right to interfere with the exploration, development, and expression of another's optimal sexuality, so long as only consenting adults are involved.

We are all complex and highly differentiated individuals and one of the great expressions of that is in our sexuality.  To suppress the sexual development and expression of others is to attack the rights of the individual in a very basic and fundamental way.  This is an attempt to deny the nature of man and as such it is not consistent with a rational understanding of man and reality.  Let us hope that a step in the direction of our sexual liberation will be made with a Supreme Court decision that same-sex marriage must be allowed because all people have an equal right to pursue their happiness in domestic partnerships.

Levy: The Moral and Constitutional Case for a Right to Gay Marriage

Robert A. Levy is the chairman of the Cato Institute, a libertarian think tank in Washington, D.C.  He recently played a major role in strengthening the Second Amendment to the Constitution in the case of Washington, D.C. vs. Heller.  He recently wrote an article appearing in the New York Daily News on 7 January 2010 on the right to gay marriage called The Moral and Constitutional Case for a Right to Gay Marriage.  It is an excellent article, consistent with my oft-stated belief that we would be better served by getting government out of marriages, which I believe are a spiritual union of partners.  The government should only be offering an important legal contract for domestic partnerships, somewhat akin to a small business partnership.  The spiritual aspect of such a domestic partnership, the marriage aspect, is not something government can or should attempt to address.

Levy points out that New Hampshire and Washington, D.C. have just joined Connecticut, Iowa, Massachusetts, and Vermont in legalizing gay marriage after disappointing defeats in California, Maine, and New York.  Levy says:

The primary purpose of government is to safeguard individual rights and prevent some persons from harming others. Heterosexuals should not be treated preferentially when the state carries out that role. And no one is harmed by the union of two consenting gay people.

For most of Western history, marriage was a matter of private contract between the betrothed parties and perhaps their families. Following that tradition, marriage today should be a private arrangement, requiring minimal or no state intervention. Some religious or secular institutions would recognize gay marriages; others would not; still others would call them domestic partnerships or assign another label. Join whichever group you wish. The rights and responsibilities of partners would be governed by personally tailored contracts — consensual bargains like those that control most other interactions in a free society.

Levy notes that more than 1,000 federal laws dealing mostly with taxes and transfer payments have provisions for married people.  The states have many more laws with provisions for married people.  But Levy says:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Levy also observes that:

No compelling reason has been proffered for sanctioning heterosexual but not homosexual marriages. Nor is a ban on gay marriage a close fit for attaining the goals cited by proponents of such bans. If the goal, for example, is to strengthen the institution of marriage, a more effective step might be to bar no-fault divorce and premarital cohabitation. If the goal is to ensure procreation, then infertile and aged couples should be precluded from marriage.

More and more people are unable to find any substantial merit to the claim that gay domestic partnerships weaken or threaten heterosexual marriages.  As Levy notes, nearly 60% of Fortune 500 companies offer employee benefits to domestic partners.  The Senate Homeland Security and Governmental Affairs Committee has also voted to apply employee benefits to the gay partners of federal employees.  The clock is running out on this cruel act of discrimination.