
D.R. Tucker wrote
a thoughtful post on RedMassGroup concerning the debate over Massachusetts marriage law, to which I responded and will expand on here. Tucker wrote as a Libertarian questioning his own reasoning:
However, in the years since the [Goodridge] decision, I've sometimes found myself wondering: does my view reflect an unconscious prejudice towards homosexuals? I've always regarded myself as libertarian on the issue of homosexuality: I've never believed that one's sexual direction should have any bearing on the way one is treated by the state. While I profoundly disagreed with the legal conclusions of the majority judges in Goodridge, I certainly understood their motivation--a desire to legally declare that homosexual couples were not second-class citizens.
From the pure libertarian standpoint, that argument makes perfect sense, and thus marriage law like many other questions can separate libertarian conservatives from “social conservatives”. I am uncomfortable wearing the label of social conservative. If there can be “process liberals” concerning marriage law, then I would prefer to be labeled a “process conservative”.
The central point in this debate for me (and most often lost on both sides) is that there are and have been many different forms and practices of marriage throughout human history. Yet many of these remain illegal in our country without a peep of protest, although they could be defended under exactly the same “civil rights” argument that is being made now in favor legalizing homosexual marriage. Polygamy, marriages to close relatives, and some arranged marriages are 3 examples.
Polygamy is the best example since it is allowed now under religious and civil laws in many parts of the world but remains illegal here. Why is it not a constitutional civil right for consenting adults to contract marriage in the form of polygamy? Does our constitution mandate monogamy?
Charles Krauthammer summed up the polygamy argument best when he wrote:
In an essay 10 years ago, I pointed out that it is utterly logical for polygamy rights to follow gay rights. After all, if traditional marriage is defined as the union of (1) two people of (2) opposite gender, and if, as advocates of gay marriage insist, the gender requirement is nothing but prejudice, exclusion and an arbitrary denial of one's autonomous choices in love, then the first requirement -- the number restriction (two and only two) -- is a similarly arbitrary, discriminatory and indefensible denial of individual choice.
This line of argument makes gay activists furious. I can understand why they do not want to be in the same room as polygamists. But I'm not the one who put them there. Their argument does. Blogger and author Andrew Sullivan, who had the courage to advocate gay marriage at a time when it was considered pretty crazy, has called this the "polygamy diversion," arguing that homosexuality and polygamy are categorically different because polygamy is a mere "activity" while homosexuality is an intrinsic state that "occupies a deeper level of human consciousness."
But this distinction between higher and lower orders of love is precisely what gay rights activists so vigorously protest when the general culture "privileges" (as they say in the English departments) heterosexual unions over homosexual ones.
Attitudes of some gay activists have “grown” enough to become comfortable with polygamy. The same day as D.R.’s RedMassGroup post the Boston Globe carried a story about the polygamy-themed HBO TV show (“Big Love”) which included this snippet of support for polygamy on the part of the homosexual couple that created “Big Love”:
The show's creators [Mark V. Olsen and Will Scheffer], who are personal and writing partners, said the initial aversion they both felt toward polygamy has softened as they've worked on the show.
“When I started the series, polygamy was beyond the pale," Olsen said. "When we would hear women advocate polygamy and talk about how good their marriages were, I would say, 'Stockholm syndrome. You're brainwashed.' I don't necessarily feel that anymore. I certainly see abuses to it. But nevertheless, in its best-case scenario, I see it being a valid lifestyle.”
A “valid” lifestyle?
The process conservative rationale for supporting laws maintaining traditional marriage is not that alternative lifestyles are “invalid”. It is rather that certain lifestyles are preferred (or privileged) because elected representatives judge that it is best for our society that these lifestyles should become normative.
When laws privileging these are enacted by elected bodies through legislation, such laws can be quickly modified or reversed, also by legislation. If while the Goodridge case was being adjudicated, just 2/3 of the Legislature had stood for a bill legalizing gay marriage, it would have become law even over a veto by the Governor, and would remain law regardless of which way the Goodridge case was eventually decided. So one must ask of the legislators who today vote to support gay marriage where were they before the Goodridge decision? They were hiding from their responsibility and from their constituents, as I now suspect they are still hiding behind the robes of the SJC.
Our laws governing forms of marriage are not fundamentally civil rights matters but rather are essentially a means for elected governments to encourage certain forms of behavior in what they perceive to be the interest of the people. That is a legitimate function of government. People disagree about what behaviors should be encouraged, which makes this even more a matter that should be kept within the Legislature. But our Legislators lack the courage (or even the integrity) to address the question. Thus the electorate is now saddled with a constitutional fight over it.