Gay Marriage Must Win Through Appeals to Freedom, Not Equality

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The proponents of legalizing same-sex marriage should congratulate themselves on a number of victories in recent years. The fact that some 17 US states now allow gay marriage—and laws banning gay marriage have been challenged by courts in 7 additional states—is making a real difference in people’s lives on a day-to-day basis. However, if this freedom is to be extended to all the remaining 33 states, its supporters will need to sharpen their arguments to eliminate a number of vulnerabilities in their position.

Many people argue against bans on gay marriage by framing the issue as one of marriage equality. They seek to extend this right to gays because it is a right currently enjoyed by heterosexuals. This approach is generally consistent with other causes on the Left, which also crusades against pay discrimination on the basis of gender and against discrimination by restaurant owners towards patrons on the basis of race or sexual orientation.

The first problem with current approaches to defending same-sex marriage is that the nature of marriage itself requires discrimination. We would not condemn the individual of discriminating tastes in a spouse, who dedicatedly searches for a partner he respects and loves more than anyone else. We would condemn the marriage entered into carelessly, thoughtlessly, and therefore indiscriminately.

Let’s imagine three people for a moment: Greg, Jane and Jessica. Greg wants to marry Jane, but Jane refuses because she’s not attracted to men, and rather prefers to marry Jessica.

When you think about it, a true anti-discrimination stance on marriage would mean that if Greg could demonstrate that his marriage proposal was denied on the basis of race, gender, sexual orientation, disabilities, etc., he could sue on the grounds that he has been denied a valuable marriage. Of course, no one advocates this.

One might respond that the government specifically ought to ban only the kind of discrimination which denies people things they need, like jobs, food, education and such. But by what standard do people need jobs, food and education, but not marriage? Gay marriage advocates support their position by citing the ways in which couples need a legally recognized marriage to live together prosperously. If the problem with outlawing it is that it discriminates and deprives someone of what they need, why not also outlaw a discriminating choice of a spouse? Greg could argue that his happiness and prosperity depend upon his winning Jane’s hand in marriage.

But this represents a completely backwards perspective. Gays should have the right to marry not because of the value of nondiscrimination or equality, but because they have the right to be free to live and associate with others on their own terms. No individual in a civilized society is beholden to a single employer, restaurant, or school for the resources they need to survive. If an individual is fired by an employer—or rejected by a potential spouse—he can seek another who will agree to hire or marry him. But an individual has no replacement for his own life, and that’s why he needs to be left free from interference so he can pursue it by offering his best in exchange for the best that others have to offer. If a man can convince a consenting adult to hire him or to marry him, he should be free to do it.

Now, a number of marriage equality advocates are able to sidestep this first pitfall by asserting that surely, the government has no call to discriminate against gays. After all, aren’t all individuals equal in rights?

This leads to the final, fatal flaw in the currently popular argument, and indeed any defense of same-sex marriage in the name of “marriage equality.” As a Maryland court pointed out when it delayed Maryland same-sex marriage rights for six years, same-sex marriage bans do not separate individuals into separate classes: under such laws, all individuals, gay and straight, are allowed to marry, so long as they marry an individual of the opposite sex.  The fact that the argument for gay marriage can be undermined by such objections demonstrates that current argument isn’t getting to the heart of this issue, and a new argument is needed.

People have the right to marry because it is the moral right of every individual to pursue his or her own happiness. This right requires that the government identify the nature of the marriage contract and enforce its conditions. Without marriage, couples seeking a level of commitment extending throughout life would not have any legal recourse in case of a breach of the terms of the arrangement. Many relationships get along fine without a legally binding agreement, but people have a right to commit themselves to such agreements in order to plan their future.

Mountains of evidence demonstrating that homosexual love is very real, even commonplace, have squashed any reasonable moral objection to homosexual relationships as such. A marriage literally starts with the vows of love of two lovers, and this is a sign that we must take the pursuit of romantic values to be the defining element of marriage. Thus we should extend its applicability to all couples, including same-sex ones.

People have the right to marry not because everyone should get the same deal out of life, but because the freedom to choose one’s spouse by one’s own standards necessarily includes the freedom to choose the best. The freedom of every individual to choose the best, happiest life he or she can possibly lead is the fundamental basis of a free society, and is the only standard which can grant full, passionate moral authority to the cause of extending same-sex marriage rights.

Creative commons-licensed image from Wikimedia Commons. 

Posted by on May 7, 2014. Filed under Government & Law, Spring 2014, Uncategorized. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
  • Steven

    Nicely written. A few thoughts:

    “Gays should have the right to marry not because of the value of nondiscrimination or equality, but because they have the right to be free to live and associate with others on their own terms.”

    Do they not already have this right? I’m not sure, but haven’t most laws banning cohabitation of same-sex couples been repealed?

    “People have the right to marry because it is the moral right of every individual to pursue his or her own happiness. This right requires that the government identify the nature of the marriage contract and enforce its conditions.”

    This seems to me to be a non sequitur. Why does the enforcement responsibility fall on the government and not on the individuals themselves through some sort of conditional system they can set up with a third party? Why does marriage have to be a legal concept at all?

    Now, you might say that all contracts must be enforced by “government.” I think this is wrong generally, but if I understand the Objectivist view of how a government should be funded (voluntarily) then I have fewer qualms. However, why can it not be the case that two lovers marry through some personal confession of love or some personal ceremony; marriage is a very personal and private act, and then work out the contractual negotiations separately? Two people can marry each other without contract, and they can contract with each other without marriage. The two concepts aren’t intimately linked.

    • Green Parks

      Steven, I don’t think your complaint is even about marriage per se, but contracts. If you pay Dell $1000 for a computer, but they renege on the agreement, don’t you think you should have some recourse other than to write a negative customer review and a stiff letter to the Daily Mail? What if businesses and people could bind themselves legally to a set of conditions enforced and arbitrated by the courts and the police? What could be wrong with that?

      As for marriage being separate from contracts, it’s true that historically, marriages and arrangements and agreements like them precede most legal systems. However, we live under a system of laws, and this has certain implications for the way we live. Property existed before laws, but property, properly understood, is a legal concept. It’s full expression requires a system of laws to protect it, and the same is true of marriage. Marriage is a legal concept, and its full civilized expression requires the recognition of the government.

      The terms understood to be essential to marriage have been codified in modern law. If you want to achieve the same thing while pretending that marriage and law are compartmentalized into different spheres of human activity, you need to specify all those conditions. Well, it’s just a marriage, how hard could it be? Marriage includes certain property rights, inheritance, legal proxy, hospital visitation, guardianship of children, and many other things I don’t even know about. It also specifies a set of conditions pertaining to romantic activity which, under certain circumstances, can be used as grounds for invalidating or otherwise terminating the arrangement under terms with various favorability to one party or the other.

      Given that marriage means all those things, are you really going to look at two people who declare their eternal love and commitment to eachother in private and call that a marriage? Marriage is a particular arrangement–an arrangement which can have no meaning qua marriage unless it is backed by the contract, which means, enforced by government.

  • Ray Shelton

    Once again a poorly written and poorly argued essay by a well meaning author. It would help a great deal if you actually had a gay man or women writing about this issue. I know you’re trying – but the argument must be based upon individual rights – not “freedom.” Moreover, you don’t actually understand what “marriage” is. It is a legal contract which turns two people into a single, economic/legal, unit. This is why married couples are responsible for each others debts, why couples can’t be compelled to testify against each other, have power of medical supervision, etc. Marriage is fundamentally a binding contract – not a romantic relationship – even if love might be the reason for seeking marriage.

    Love is not the fundamental of marriage. Finally, equality before the law – while not a fundamental – is an extremely important principle. (As a personal aside, while it is nice to see an Objectivist publication defending gay Americans, the sad truth is you’re several decades too late. And it is just too easy to join the parade long after it has begun.)

    • Mary

      Ray,

      Individual rights are a prerequisites to freedom. An individual cannot be free, unless their rights are protected and respected. An appeal to freedom is an appeal to individual rights.

      Second is the sexual orientation of the author mentioned or implied? How do you know this individual is not gay? Could a gay individual have not written this article? By what standard? Do gays have to abide by certain beliefs? According to whom?

      One does not have to be gay to write to about individual rights or objectively. To say otherwise suggests not only that writing is subjective, but that one’s opinions are determined by arbitrary traits such as sexuality or race.

      • Ray Shelton

        Mary – you really should learn how to read – and to think. If you had any real experience in the world, you would know that every dictatorship in history has appealed to “freedom” while rejecting individual rights. So your first paragraph is meaningless.

        Second, as an Objectivist gay man who has been politically and socially out and active for over 35 years – I can guarantee you that the author of the article is NOT gay. No gay person would write about gay people like the author did. The issue isn’t determinism; it’s style and tone.

        Thirdly, your final paragraph has nothing to do with what I wrote or even claimed. This tells me that you are a young woman, probably in still in college, and clearly a rationalist who doesn’t pay attention to how words and reality connect. It also tells me you are one of those Objectivists that mature Objectivists refer to as “Objectivists With Issues.” You’re angry, and you enter arguments not to listen or learn but to WIN – and to win at all costs. Even if the cost is simply not taking the time to actually read what the person you disagree with wrote.

        • pschearer

          Reading the first sentence and a half of this response is reason enough not only for me not to read the rest of it, but not to read any comment by Ray Shelton.

    • Green Parks

      @disqus_yMhietibci:disqus, you assert that the fundamental way to understand marriage is as a binding contract. I agree, however, I don’t think this is helpful for understanding what kind of contract it is. Think about it, there are other kinds of financial partnerships other than marriage. Why do we have a separate concept to specifically denote “marriage” as opposed to other arrangements. If you look at the terms of the contract, I think it’s clear that there would be no need for such a thing if there were no such thing as romantic love.

      From this perspective–that romantic love is the essential fact of reality which gives rise to the need for the concept “marriage”– we can understand which associations ought to be included and which ought to be excluded from the concept. This is why you can’t have a “marriage” with an inanimate object, or a corporation, or a child, or a dozen different people.

      Now, if one took the modern conservative perspective–that the purpose of marriage is not romance, but producing children–one would likely exclude gay men from entering marriages. Being able to combat this perspective is the major advantage of saying that the essential or the “defining element of marriage” as this author puts it, is romantic pursuits.

      Now as to whether one can effectively defend marriage rights through appeals to equality before the law, what do you make of the author’s claim that that route makes no logical sense? Is it not true that even if there are bans on gay marriage, gays can still marry? If you answer “yes,” by what standard can you claim that such laws violate the principle of equal application of laws to all individuals?

  • Charles L. Hefner

    Why does the Author attempt to say that marriage is a right? That is obviously wrong and not an Objectivist viewpoint that TU claims to value.