My bottom line on same-sex marriage (SSM) as a political issue is that recognizing it will inevitably be a misuse of government. It is especially a misuse of national government. States have more latitude to indulge in governmental malpractice, because the rights of citizens are properly backstopped at the federal level. If a state has infringed citizens’ rights by doing something misguided, a federal read on the Constitution should adjust the problem. But the national government must remain limited in its scope for mucking around in the people’s lives, in large part because there is no appeal above it.
The corruption of our thinking
The original intent of the Civil Rights Act was precisely to affirm federal constitutional protection for rights that were being infringed – either outright or in effect – by state law. As Thomas Sowell has documented at length, Southern states had made laws that placed limits on the hiring of black employees, among other outrages such as state-mandated segregation in schools and public accommodations. The hiring laws, in particular, were necessary because too many Southern employers were actually quite willing to hire blacks. The state, under the influence of white labor advocates, had to order them not to do it.
The Civil Rights Act was intended originally to invalidate this kind of state practice. The problem was the state law; the desired outcome was that such state law be voided and unenforceable. The reason legislators like Barry Goldwater, and national political figures like Ronald Reagan, had to break with the Civil Rights Act – which they initially supported – was that it moved from invalidating state law to regulating the local practices of private citizens and property owners (under, of course, the Commerce Clause of the Constitution). It went from being a proper use of government to being a misuse of government.
Students and young adults today too often have little idea that the rights-infringement problem in the Southern states was a problem centered on state governments. One need not claim that there would have been perfect racial harmony, if not for the actions of state governments after Reconstruction. But the segregation and discrimination that existed in the South could not have been entrenched as they were without the constant attention of law and law enforcement. Racial discrimination was a government pathology, in that it was amplified and enshrined in social practice by the use of government to enforce it.
Yet today’s narrative never reflects that all-important point. In story and imagery, we are led to believe that segregation and discrimination somehow just happened because of private citizens with hatreds and buck-toothed accents. Classes of people are vilified – in many cases justly, of course – but the role of government is ignored.
The post-Civil War history of racial discrimination in the South is one of the most illuminating stories America has about the ways government can be misused, if it is leveraged by a majority for the purposes dictated by invidious emotion. But most Americans under 50 today cannot even imagine seeing it in that light. To the modern mind, the Civil Rights Act story is not one of government stepping in to check government – federalism working as intended – but of government stepping in to save some of the people from other people.
Shielding government from culpability in this narrative has had a profoundly corrupting influence on our political ideas. What we ought to be wary of is government inquiring into anyone’s race, hiring practices, public-service practices, Skin Color While Attending School – or sexual orientation. Governments cannot be trusted with this charter. The Southern legislatures got it wrong for decades – but so has the U.S. federal government in the decades since the Civil Rights Act.
The protection of federalism for our rights basically collapsed with the aftermath of the Civil Rights Act, in which the regulation of private – non-governmental – activities proliferated. The status of states has actually become unclear, with the federal government reaching past the statehouses to regulate private and social matters that the Founders never intended.
Disappearing checks on government
This is the other face of the loss-of-federalism dynamic. If the federal government backstops our rights when over-zealous state governments infringe them, the state governments exist to provide regulation without ceding that regulatory charter to the national government, which has vast emergency powers and armed force that are too easy to abuse.
The city might prohibit us from walking a duck unless it’s on a leash; the county might regulate how we get rid of our duck when it dies; the state might regulate the farming of ducks inside its borders. But the federal government is not supposed to know from ducks. The very last thing the federal government is supposed to do is, for example, prescribe the length and material content of the duck’s leash – yet today’s federal government is heavily involved in prescriptions of exactly that kind.
And, yes, this would mean that the U.S. Food and Drug Administration is a federal activity outside the scope of what the Framers of the Constitution intended. Limiting the scope of the federal government’s powers was one of the cornerstones of the checks-and-balances principle from which they acted.
Those checks and balances are in tatters today, and the reason is 100 years of misuse of the federal government (and of most state governments as well). Our rights no longer have the protection required for governments to safely do something like “recognize gay marriage.” There remain profound disagreements among the people on this matter, and the citizens who do not agree that same-sex unions are actually “marriage” will be in danger of seeing their rights abrogated. America has too corrupt an idea of “government” today for this social intervention to be brought off in an environment of genuine tolerance and latitude.
Channeling the Framers on government’s function
Let us imagine how the Framers might have seen the SSM issue as one of the proper constitution of government. They would have noted first of all that proposing to write into law a relationship that had never been recognized by law before was an attempt at social engineering. They would have been split, I believe, into two camps: those who thought homosexuals should be able to found colonies of their own, if they wanted to, but that their arrangements should not be a matter for the legislatures; and those who felt that state legislatures could and should take the question up and reflect the will of the people on it – but that the federal government should distance itself from such issues.
The Framers would, to a man, have agreed that no one’s “rights” were violated by the failure of government at any level to take up the question of SSM and redefine the institution of marriage to include it. The Framers were profoundly split on the question of slavery and natural rights, given the manifest humanity of the black man and woman, and the universal character of natural rights, as the Framers defined them. But it is by no means obvious that having one’s sexual preferences officially recognized by the government is a “right” of any kind.
Marriage isn’t about recognizing sexual preferences – just as, from the law’s perspective, it isn’t about whom you love. The Framers would have said marriage is an important social institution which provides optimally for the rearing of children, matures and domesticates men, and offers women honor and protection. As a focusing agent for economic synergy, it is unmatched. It is salubrious for the public weal, fostering education and discipline of the young in a way nothing else does, and uniting families across generations. The progenitive familial structure has never been unimportant, and it is integral to the success of all advanced societies: societies which can plan for the future, benefit from diversity, offer opportunity to all, and care for the sick and distressed out of the bounty of others.
But as much as the Framers would have defended the traditional definition of marriage, their particular care would have been to put law and government on the right footing. Nothing about the SSM idea is compelling enough to warrant exceeding the Framers’ carefully-imposed limits on government. Unlike the issue of slavery, SSM is not about a manifest equality of rights between humans. SSM is not equal to male-female marriage, to begin with. It is quite obviously not the same thing, nor can it possibly have the same social effect.
Even if there were no public opposition to it, some of the Framers would have said that government should do nothing unnecessary by recognizing and regulating it. But I think most would have come down to the following proposition: that states were free to debate the matter and try to pass laws if they wanted to. It would be proper for the majority will to prevail. Recognition of same-sex unions as “marriage” should not be imposed on the people by any method except a vote, either in the legislature (what the Framers would have envisioned) or a public referendum.
Whatever decision was reached by this process, it would constrain the state government’s behavior, but would not constrain the behavior of the people acting in their private capacity. An innkeeper who did not want same-sex couples staying on his property would, of course, be within his rights to decline their business, as would a wedding photographer or a caterer. An adoption agency would be within its rights to decline to place children with same-sex couples. No appeal to religious belief would be required; citizens acting in their private capacity, making decisions about their own property and voluntary actions, had the clear right to limit their clientele as they saw fit.
Indeed, government agencies themselves were not bound to make no distinctions in the application of the law. It was absurd, the Framers would have said, to suggest that anyone has the “right” to teach in the public schools. If parents in a school district didn’t want a teacher who was in a same-sex union to teach their children in the classroom, it would be no violation of state law or the teacher’s rights to honor the parents’ preference.
On the other hand, if the state decided not to comply with parents’ wishes, it was doubtful that the parents would have a legal case against the state. One of the chief limitations of law – one that the Framers understood well – is that it cannot adjudicate every situation for us as if there is a single, cosmically-correct solution. The parents’ option for achieving a different outcome would be electing different officials.
Because plenty of people are likely to be displeased with government decisions, no matter which branch makes them and no matter what they’re about, the Framers’ approach was to limit what government does. The Constitution defines the role of the federal government, and there is a reason it contains nothing about social-morality law: because the Framers recognized that such law was contentious and invasive, and should be formulated and executed at a level both closer to the people, and less universal in reach.
The Framers would have rejected outright the idea of a national government prescribing approved stances on a laundry list of social issues. The flagship example of the French Revolution had not quite burst upon humanity when the Framers were deliberating the Constitution, but national social-moralism – the idea of a nation (or “empire”) standing politically for a set of social-morality postures – was intrinsically characteristic of most European monarchies in the centuries preceding America’s founding.
The modern left’s passion for pursuing social-morality agendas at the national level may have its immediate political roots in radical and “social democracy” movements, but it has far more in common with the one-time practices of European Christian monarchy than it has with American republicanism. Leftist statism is just a modern form of the socially interventionist type of autocratic government most of the world has lived with for most of history. Where federal-republicanism might envision a local sovereignty that could allow same-sex couples to call themselves “married,” while accepting that many people would decline to recognize their marriage for private purposes, statism insists on uniformity in this matter.
Its insistence takes the form today of awarding damages to those claiming they have been injured by others’ “non-acceptance.” More active measures may or may not need to be taken, to root out “non-acceptance”; the impact on businesses from the fear of lawsuits and “discrimination” judgments is already acting, along with other forms of regulation, to repress economic growth. The more importunate and dependent the people become, and the fewer economic options they have, the less trouble it is to enforce statist political correctness on them.
But the Framers would have considered the whole thing ridiculous – invidious, dangerous, demagogic, autocratic – and would blame our changed ideas about the meaning of law and the role of government for the hazardous course we are now treading. How utterly wrong, to insist that everyone behave as if he accepts homosexuality or same-sex marriage, on peril of losing his livelihood or incurring a costly judgment. That’s not what government should be doing. It’s uncomfortably similar, in fact, to the posture of the Spanish Inquisition vis-à-vis Jews.
The SSM issue is more about the role of government than it is about “rights,” but it’s worth discussing the rights aspect. The Founders spoke of rights very narrowly, because they understood that a “right,” properly defined, is actually about restraints and compulsions on others. Having a right to life means that others may not kill us arbitrarily. Having a right to liberty means that others may not deprive us of it arbitrarily. The fundamental nature of these rights means that government, functioning properly, must not do either of these things to us; and must, moreover, keep an apparatus of law and enforcement in place to deter or punish itself, and all others.
What is not intended to constrain others cannot properly be called a “right.” If we have a right to something, we have an entitlement that is good against the behavior of others. That is the only context in which “right” has a meaning. That is why Jefferson wrote only of three categories of rights in the Declaration of Independence: life, liberty, and the pursuit of happiness. These rights can be honored and enforced by the state without encumbering some on behalf of others.
Proclaiming rights beyond these does begin to encumber our fellows, whether what is being trodden upon is their economic circumstances or their intellectual freedom. You can only have a “right” to food if someone else has to provide it for you; otherwise, the “right” you have is to pursue your own arrangements for food. The same is true of a home, car, job, salary, or education (or marriage or children or fame or love). From the French revolutionary government to the Soviet Union to the modern social-welfare state, plenty of governments have proclaimed lengthy lists of such “rights.” But all such “rights” indenture some on behalf of others, and thereby introduce the pathologies of slavery by the back door.
The proclaimed “right” to have your living arrangements recognized as “marriage” is the latter kind of right. It does not increase your liberty; it encumbers others. If government were more limited, it might not encumber others much. But government is heavy-handed and inescapable today. There is no appeal from heavy-handed government at the state level; government wields an even heavier hand at the national level. (Read up on “systemic discrimination litigation” by the Equal Employment Opportunity Commission here, for a flavor of just how heavy the hand is. There is no employer decision the EEOC will not second-guess.)
America has become a place where tolerance is increasingly impossible. Where actual tolerance prevails, people can live according to their different beliefs and opinions in peace, without suing each other or being sued by agencies of the government. Stupid prejudices are liquidated through contact with reality, if government does not enshrine them in law (or abet organizations like labor unions and professional societies in doing so). In an environment of freedom and opportunity, people generally accommodate one another to grease the wheels of economic, if not social, interaction. It is when freedom is restricted, and forced uniformity becomes the desired norm, that tolerance has no role or meaning.
There are other important elements of the SSM problem, such as the argument that it doesn’t fall within the federal purview and the Supreme Court should therefore not rule on it. (A compelling school of thought would say that the federal appeals courts rulings should be considered invalid, in that case.)
A finding based on the premise that the Constitution implies no “right” to SSM could produce a somewhat satisfactory outcome, although satisfaction would be tempered by concern about what other “rights” SCOTUS may still find lurking in the Constitution.
The narrow legal or constitutional arguments are important; we may find SCOTUS overturning the Ninth Circuit on the California Prop. 8 case because of a standing issue. (This outcome would leave Prop. 8 as the law of California, but presumably a new suit would be brought against it.) There is every possibility that the court will not “settle” the issue by ruling on it this year.
But the underlying problem of SSM is that advocacy for enshrining it in law, particularly federal law, is the very essence of bad government and the misuse of law. Our modern, increasingly corrupted expectations of law and government were always going to lead to this day. If there is no firm limit on what government is allowed to do, someone will inevitably try to make it do this – and will try to make it do anything else you can imagine, no matter how unthinkable at the moment. The more of these things government does, the less free we are, and the less meaning tolerance has. If the ultimate outcome of the judicial process is accepted as affirming SSM to be a “right,” the death warrant will be signed for tolerance. The condition of our society and our post-American view of law and government guarantee that.