We Are Not Constitutionally Entitled to the State’s Badge of Normalcy
Lots of folks, gay and straight, are good and upset about Prop 8. The former I can understand; the latter is giving me more trouble. Just why would a straight person care whether anyone else considers gay unions to be considered normal and entitled to the state’s encouragement? We seem to live in this weird time in which everyone not only wants tolerance, but full acceptance and validation. But people are not entitled to a badge of normalcy. And this is just what Prop 8 was about: a declaration of the people of this state that gay unions are not ready for prime time. Without a doubt, our sensibilities will continue to evolve in this regard, one way or another. But as this issue is not about tolerance, but rather encouragement of gay unions, there is no legal right to accelerate our cultural and moral evolution. [More]
To be fair, I do fine a weakness in the pro-traditional marriage position, in that government has to have a rational justification for everything it does. I do think there is some traction to the argument that there is little if any reason for the government to be involved one way or the other in the marriage business. Would any fewer or more people get married if not for the tax breaks and legal benefits the state gives marriage? Doubt it. So if it’s going to give marriage to some, why not all? (Of course, this argument proves too much: Yes! Why not all? Let’s not stop at male-male couples or female-female couples; what about cousins or siblings getting married, etc. And why stop at two people? Who are you to tell me that two is some kind of magic number? The state must also legalize polygamy. The “love is love” argument gives us no non-arbitrary way to draw the line anywhere.)
In other words, the government-wary libertarian in me who is skeptical of everything the government does wants to say, what is your basis for being in the marriage game? And does that basis have a good reason for stopping at homosexuals? In this regard, I think it is a much more elegant approach to governmental theory to just say, stop the whole nonsense. Let people make up their own institutions. Don’t let the government issue badges of normalcy one way or the other.
But this is one of the key differences I see between libertarians and conservatives: conservatives don’t think that our sensibilities are for nothing. In the book of Leviticus, God told the Jews to leave their fields fallow every seven years as a dedication to Him. At the moment of that decree, there was no “rational” (i.e., empirical) basis for following it. Thus, a law requiring such would be invalid. But mankind later discovered the phenomena of crop rotation, and at that point had an empirical, rational basis for following the command that God had given long ago (and which was of course for the purpose of the people’s prosperity and happiness.)
The example is illustrative here. The reasons for promoting heterosexual marriage are there, but they’re not all that compelling. They’re mostly based on the general impression that a lifetime of experiences gives us. Thus, while we might not have a fully researched empirical explanation why any number of off-beat lifestyles might not be the best path, I cannot say that this means there is no reason not to encourage traditional paths, and it certainly does not mean that all things are permissible, that all paths are correct, and that none is better than another. We should be tolerant of those who choose these off-beat, non-traditional paths. I do believe that such paths are difficult, and that they are not chosen but thrusted upon them by nature. These folks are thus deserving of empathy and dignity. These ways of life are hard. It is true that we each have challenges in our personal constitutions that we have to overcome. But none of this means that the state should issue a culture-shifting proclamation endorsing any number of alternative lifestyles just to make these folks feel normal. I wish those folks the best, but that is not what the state is for.
Point is, this is probably one of the few kinds of things that are proper for a voter initiative. Most things are too cumbersome and complicated to be left to an up-down vote. But in this case, it’s a simple matter. No one has the evidence to make a duly supported rational decision about whether gay marriage should be grafted in as a cornerstone of our culture. So, in the absence of the support for such a decision for either side, the people must follow their sensibilities. Our sensibilities are not for nothing, after all, and in the absence of invidious motivations, and accompanied by serious and thoughtful reflection, I believe they can form the basis for certain kinds of laws. Prop 8 was a good example of that, in my opinion.