On Gay Marriage

On the Leonard Lopate show on NPR today, guest Alan Van Capelle, Executive Director of Empire State Pride Agenda, discussed strategies for bringing "marriage equality" to the entire nation. I'm not particularly opposed to gay marriage as an idea. But I do find that many of the arguments of its supporters, including Van Capelle, range from the weak to the absurd.

One argument is that gays do not have "equal rights" because they are not allowed to marry. That's not true, of course. They are allowed to marry in exactly the same way that anyone else is allowed to marry, i.e. one man is allowed to marry one woman. What they seek is not an "equal right" but a new right. The only way an equality argument could be made is if rights inhered, not to individuals, but to couples. If that were the case, then an entity composed of two men or two women would in fact be denied a right granted to an entity composed of one man and one woman. But, in fact, rights inhere to individuals, so that argument is not sound.

On the other hand, some corporate entities are granted rights similar to those of individuals. But the rights so granted are granted to the entity as an individual; that is, if marriage were a right granted to a corporate entity, then that entity would have a right to "marry" some other entity. This is not what gay marriage supporters seek, obviously. It is quite clear that they seek a new right, not "equality."

An argument that Van Capelle trots out - one that I had not heard before - is that "human rights should not be subject to vote." One can understand, in the wake of California's, Maine's, and other state's rejections by referendum of gay marriage laws, why a supporter would say such a thing. Philosophically, such a statement is as incoherent as is the line between human rights issues and other issues (for example: are income taxes, which are the legalized taking of your property to fund state-directed projects, a human rights issue? if not, why not?). But even ignoring that problem, the statement is simply incorrect in our Constitutional democracy. The Bill of Rights is certainly subject to vote, for example: any item in it could be overturned or modified by Constitutional amendment.

The best argument for gay marriage is that the government really should not be in the business of granting benefits or preferential treatment to persons based on marital status. But that has less to do with gay marriage per se than it does with actual marriage, and its differences with non-marriage. Van Capelle today mentioned that a New York State marriage license grants 1,324 (I think it was) rights and responsibilities. One quick way to bring unmarried gay couples closer to equal status with any other person, couple, or group of people would be to reduce this number, ideally to zero. That's an unlikely outcome politically, though, so gay marriage might be the lesser of two evils.

The problem with all arguments for gay marriage, though, is that they have trouble with this question: What principle would prevent marriage between three or more persons? Or between brother and sister? If it is a human rights issue, which presumably trumps other considerations (and should not even be subject to vote!) then such marriages should be allowed. The objection I generally hear is that these types of marriages are not being called for and would not be required - which is true, at least for now - but if no principle would prevent them, then how would we as a society object if such a right ever is demanded?

Getting back to the realm of everyday politics: the most distasteful part of the pro-gay-marriage movement is its disdain for popular opinion. If a clear majority wants gay marriage, let them approve it in law. That is how democracy works. Ramming it down our throats via the courts is not the way to resolve the question any more than Roe v. Wade resolved the question of abortion rights. Comparing gay marriage as a "human right" to the anti-slavery movement in the 19th century is both disrespectful and inaccurate, and unnecessarily raises the temperature of the debate. Gay marriage advocates should concentrate on convincing voters, not bypassing them.