The Other Argument For Gay Marriage

By David K. Shipler

Government has no business telling people whom they can marry. It’s as simple as that, and why most small-government Tea Partiers and other conservatives don’t see it is one of those vexing mysteries of hypocritical politics.

President Obama did not make that argument when he finally completed his circular “evolution” of 16 years and returned to where he had stood in 1996, when he had said, “I favor legalizing same-sex marriages.” Yesterday, he declared on ABC, “Same-sex couples should be able to get married.”

It seems that he has finally come around to accepting his own opinion. That’s what integrity looks like. Now let’s see if he can lead some of the Americans on the other side to accept it as well.
The bully pulpit of the presidency, which Obama has not used very well in support of his policies, is all the more influential when it’s engaged to further change already in progress, and this change has been dizzying. Not since the civil rights movement have popular attitudes on individual rights “evolved” so rapidly as those on gays and their right to marry.

So, Obama is riding a wave, and he can accelerate it if he chooses. Despite the strong countercurrents of hardline resistance by zealous voters who pass ballot initiatives and constitutional amendments outlawing gay marriage, younger Americans have been raised in a new spirit of tolerance, nourished by gay characters on television and young adult literature portraying gay kids’ touching struggles to be themselves.

Enlightenment is not inevitable. The country is also being pulled backwards into caves of ignorance about science, pluralism, internationalism. But a president can pull people toward the light, and I have a hunch that most Americans, who tend to vote for character over policy, will admire a man who stands honestly and openly for what he believes, even while they may disagree with him.

The issue of gay marriage also offers a new opportunity to talk seriously about the relationship between the individual and the state, about the proper powers and limitations of government. “The right answer to the same-sex marriage question is to remove government from the marriage business altogether,” says Robert A. Levy, chairman of the libertarian Cato Institute. Here, here.

Obama has no natural constituency among libertarians, who usually vote Republican to oppose high taxes, social welfare programs, and the regulation of the private sector. But the libertarian approach to gay marriage has merit, especially in the current climate of polarization, and it reinforces the liberal Democratic view that the equal rights of gay citizens are violated when government precludes them from marrying. This is a happy coincidence of positions.

It is the role of government, after all, that has been at the heart of what loosely passes for political debate these days. Conservative Republicans portray themselves as favoring smaller government, and liberal Democrats as advocating such big government as to defy the Constitution. But Republicans countenance multiple constitutional violations in supporting the government’s post-9/11 powers to evade the Fourth Amendment’s restrictions on searches, for example, and to shun one of the Constitution’s crown jewels: civilian courts as the place to try accused terrorists. You don’t hear many Tea Partiers expressing concern on behalf of privacy, due process, or defendants’ rights—all central principles of the Constitution they brag about supporting.

Indeed, in their rush to the radical right, Republicans advocate big government in some of its most personally intrusive forms—to determine who marries whom and who controls a woman’s reproductive decisions. By and large, the Tea Party has not included the right to marry in its formula for smaller government, although occasional Tea Party demonstrators have spoken out on behalf of gay marriage.

Therefore, listen to the eminently sensible argument on marriage by the libertarian Robert Levy: “It should be a private arrangement requiring minimal or no government intervention. Some religious or secular institutions would recognize gay marriages, others would not. Still others would call them domestic partnerships. Join whichever group you wish to join. No one would have to join any group, and no group would have to adopt the definition that members of the group found to be offensive.”

There would be no harm in Obama’s adopting this persuasive line of argument. He would elevate the discussion and might even pick up a few libertarian votes along the way.

Of course libertarians—in their consistency—have an absolutist tinge, as Levy displays in differentiating his movement from those on both the right and the left: “All rights, enumerated, unenumerated, fundamental, non-fundamental, should be rigorously protected by the courts, and that is the view of most libertarians,” he explains. “Too often it is not the view of many conservatives. So from liberals . . . we sometimes get too much government, an enlargement of state power. And from conservatives . . . we sometimes get too few freedoms, protection of some but not all of our constitutionally secured rights. The left and the right are selectively indignant about the proper role of government. That reflects I think an inconsistency among both liberals and conservatives on their views of rights and powers. … We want government out of our wallets and out of our bedrooms.”