Saturday, October 6, 2012


To assure everyone I'm not just a shill for the Republican Party, which I vote for almost exclusively, here is my view on gay marriage.

Ideally, there would be a separation of marriage and state. People could sign contracts, or choose to call themselves "married" with no formal (legally binding) setup. A lot of people would probably get married in their church and follow the rules of matrimony presented by their religious affiliation to whatever degree. But the government wouldn't require or offer any kind of license, and no laws would recognize marriage as a specific thing with benefits or requirements.

This idea is elegant and completely consistent with the (American) value of individual liberty. In such a society, gays would be as able to get married as anyone else, with the obvious caveat that religious institutions could freely choose not to endorse such relationships. To me this is a solution where everybody wins, because I don't care about people who try to control others. I want those people to lose.

But Libertopia doesn't exist. Let's review the various legal courses same sex marriage could take, sponsored by Wikipedia.

  1. States' Rights - In this scenario, the Constitution is interpreted to not grant the federal government any authority over marriage, and the states, because of the Tenth Amendment and the general "police power" granted to them, have sole arbitrary purview. The relevant parts of DOMA are struck down or repealed, and any federal law that interacts with marriage does so according to the definitions of the states. As they have been, states, through statute, constitutional amendment, or the judicial process, decide whether to license same sex marriage.
    • 1A - The Supreme Court (SCOTUS) rules that the Full Faith and Credit Clause applies to marriage, all states have to recognize marriage licenses issued by other states, and gay marriage is effectively legal everywhere in the US.
    • 1B - SCOTUS doesn't accept FFCC challenges. Gay marriage is illegal in a majority of states for the foreseeable future, but legal in a few. The federal government still has to treated same sex marriages in legal states the same as heterosexual marriages.1
  2. Equal Protection - SCOTUS rules that the Fourteenth Amendment applies to gay marriage, just like it does to interracial marriage. Gay marriage is uniformly legal throughout the United States.
  3. Constitutional Amendment
    • 3A - Gay Marriage Amendment - A Constitutional amendment is ratified legalizing gay marriage uniformly throughout the United States.
    • 3B - Traditional Marriage Amendment - A Constitutional amendment is ratified outlawing gay marriage uniformly throughout the United States.
  4. Status Quo - States define marriage as they see fit, and the federal government enacts its own arbitrary laws that are bound to conflict with some of the states.
If we assume 3A highly unlikely in the near future, none of these outcomes is very good. In the other scenarios where same sex marriage is legalized uniformly (1A and 2) it probably happens at the expense of Constitutional limits on the federal government and the notion of state sovereignty. While desirable in themselves, such rulings would also set the stage for more infringement on religious freedoms guaranteed by the First Amendment.2

Ultimately, the long run benefits of the social equality of gays is probably more important than avoiding the various possible threats to religious liberty (though perhaps not more important than actual harms3 ). So ultimately 1A, 2, or 3A would in my judgement be better than the alternatives.

Scenario 1B deserves discussion, if only because it is among the most likely outcomes. There may be something to be said about allowing our laws to adapt to changing social attitudes over time, rather than insisting on radical top down intervention. To whatever extent "social conflict" and "culture wars" are undesirable, letting gay marriage arise from popular support (which is steadily increasing) may be the least traumatic path.

1. This would likely lead to a different Equal Protection challenge based on the objection that people were being treated differently just because they lived in different states, and therefore would reasonably lead to de facto universal federal marriage rights for same sex couples. 

2. If the federal government is trying to force religious institutions to pay for contraception and abortifacients right now, it can't be far fetched to think it would force them to accept gay marriage in any number of ways once it was established.

3. The distinction I'm making between threats and harms is that threats are merely potential (and therefore uncertain) harms.