02 January 2008

Gays and Sloppy Thinkers: Part #2

The Objectivist
Dunkirk-Fredonia Observer
December 27, 2007

In this column, we consider whether the state should recognize gay marriage. This issue is distinct from whether gay sex is immoral, because one might think that the state should recognize some immoral contracts (for example, a contract to supply pit bull puppies to the Aryan Brotherhood). The issue is not merely academic. Gary Gates of UCLA Law School points out that a 2000 U.S. Census report noted that there were 600,000 same-sex couples and in 2005, the Census Bureau estimated that the number is greater than 770,000.

Gay marriage is currently legal in the Netherlands, Belgium, Canada, South Africa, and Spain. In the United States, gays can get married in only one state, Massachusetts, and in Iowa this issue is currently in dispute. In addition, nine other states grant civil unions to gays. These offer the same legal rights as heterosexual marriages. These states include Connecticut, New Hampshire, Vermont, and New Jersey.

In addition, the Defense of Marriage Act (signed into law by President Clinton on 1996) made two changes in the law. First, it permits any state to refuse to recognize a gay marriage performed in another state. Second, it prevents the federal government from recognizing same-sex or polygamous marriage for any purpose.

Here is a good principle for state recognition and enforcement of contracts. If a contract was voluntarily entered into, doesn’t involve activity that is already illegal, and doesn’t involve direct harm to others, the state should recognize and enforce it. This is why we allow persons to purchase goods that are destructive (for example, cigarettes and alcohol) and that offend the majority’s sensibility (for example, pornography).

Jennifer Roback Morse writing for National Review argues against this claim. She argues that marriage is a permanent bonding of persons and not a contract. Even if true, state recognition of it is a recognition and enforcement of a contract. This is why it carries with it changes in the property ownership (for example, joint ownership of marital assets) and certain remedies in the case of contract dissolution (divorce). This is also why much of the state marriage-license requirements (competency, voluntary agreement, and conscionable terms) track contract law. Her argument is an interesting metaphysical claim about the nature of marriage, but irrelevant to the issue at hand.

With this in mind, let us consider the arguments against gay marriage. First, it is argued that gay sex is immoral and that the state shouldn’t recognize contracts to do immoral things. As argued for in a previous column, the arguments for this claim are unconvincing. Even if convincing, the state recognizes a wide range of contracts involving behavior that many consider immoral (for example, prostitution in Nevada and pornography in California) and so it is hard to see how this objection is supposed to work.

Second, some opponents of gay marriage argue that state recognition of it would harm children. This argument is also hard to follow. One-third of lesbian couples and one-fifth of gay male couples have children. This involves at least 154,000 couples (one-fifth of 770,000 couples). It is not clear that gay couples harm children who were born into them because the children owe their lives to the couples. The notion that gay marriage harms children not born to gay couples is a claim in need of supporting studies. I haven’t seen any. I should note that a few anecdotes are not data. As always the opponents of liberty (in this case the liberty to form a contract and have it enforced) should bear the burden of proof.

Third, other opponents claim that state recognition of gay marriage will break up heterosexual marriages. The data doesn’t support this. Wikipedia reports that divorce rates in the one state where gay marriage is legal, Massachusetts, are the lowest in the country and dropped after gay marriage was legalized. Researcher Darren Spedale similarly found that after Denmark legalized gay marriage, the rate of heterosexual marriage increased and divorce rates fell.

However, let’s assume that there was data supporting the claim that recognizing gay marriage correlated with greater harm to children and higher divorce rates. This still would not provide a sufficient case against gay marriage because the harm would be indirect. The responsibility for harm to children should fall on those who molest, injure, or abandon them, not third parties who affect how others think about the world. Such a system tries to control what persons do by controlling what they think and this treats Americans like children.

Fourth, opponents assert that if gay marriage should be legalized, then so should polygamous marriages (one person married to two or more others) and adult incest marriage. This, the opponent argues, is ridiculous. As reported by William Saletan of Slate.com, one response is that adult incest might lead to birth defects. But, as he points out, states might simply recognize it if the couple proves that they are infertile or are too old to procreate. This is the rule that five states adopt with regard to cousin marriage. In addition, if we are concerned about birth defects, then perhaps the state should sterilize or criminalize reproduction by persons whose retardation, mental illness, or physical abnormalities are in part genetic.

Another response is that gay marriages are not morally right, healthy, or characterized by love and this is not true of these other relationships. The moral claim is likely false for the same reason that it is false with regard to gay sexuality; such behavior does not involve a right infringement or exploitation. The latter two claims are empirical and in the absence of data, there is no way of knowing whether they are true. Even if true, this generalization admits of exceptions and the exceptions have rights. For example, the case for state recognition of gay marriage doesn’t rest on claims about the frequency of gay versus straight promiscuity, cheating, or comparative depth of love.

The same reasons that justify gay marriage also justify permitting adult-incest and polygamous marriage. People are still free to try to get others to avoid this sort of behavior, they just can’t use state coercion as a means of persuasion. I realize a lot of readers find adult-incest relationship and polygamous relationships disgusting, but this is merely aesthetic. The same can be said for those who find the idea of obese people having sex disgusting.

In short, the arguments against gay marriage fail on their own terms and in any case are trumped by liberty.


The Objectivist said...

Note that the best solution would be to tax income or consumption as individuals and get the government out of marriage altogether.

Unfortunately, an ugly group of control freak from the left and right want to use taxes, subsidies, and regulations to encourage behavior they favor and hence the issue of state recognition of gay marriage can't be avoided.

The Objectivist said...

It is interesting that many of the opponents of gay marriage argue for it based on the wrongfulness of gay sex.

Leave aside gay sex for a second. It is interesting to ask what, if anything, is wrong with heterosexual sodomy (oral or anal sex)? I would love to hear an argument for why this is wrong. In the absence of an argument against it(and many of the heterosexual readers love these activities), it is hard to see the argument against the homosexual versions of it.

The Objectivist said...

As a side note, those who are merely for civil unions rather than gay marriage need an argument for this claim other than definition. They'll probably argue that it somehow involves making a statement or other message-sending argument.

A couple of concerns here.

1. At the Federal level, where in the Constitution does it say that the federal government can regulate marriage?

Don't embarrass yourself by citing the general-welfare clause, which was just a statement of motive and not an elastic permission.

2. What exactly is the message? Gay families are second class and shouldn't get full respect?

3. Do we really want messages sent by the sort of scum that occupy Congress and the state legislature. For example, does anyone take seriously moral leadership by the likes of Ted Kennedy, Ted Stevens, John Murtha?

Liberals masquerading as moderats too easily join with conservatives to pass this sort of silly message. This leaves liberty-freaks like myself and a good deal of the Republican Party out in the cold.