Questions for Conservatives about Gay Marriage and Sock Drawers

[Ed Hudgins]

Questions for Conservatives about Gay Marriage and Sock Drawers

By Edward Hudgins

July 1, 2011—With New York the latest state to allow gay marriage and others likely to follow, this issue will continue to consume public attention. Most conservatives strongly oppose such unions.

I want to ask my conservative friends to take a quick logical trip: Help me—and you—understand your perspective.

Your limits on government

Let's start with your views concerning government. Most of you believe that government should not jail consenting adults for engaging, in the privacy of their homes, in homosexual acts of which you, personally, disapprove. Most of you would not have the government bar such individuals from living together.

Most of you would not have government jail such individuals for announcing to family and friends, perhaps at a celebratory ceremony, that they are in an exclusive relationship; that they will share the joys of this world as life partners; that in their hearts, minds, and souls—no matter what the actual legal status of their relationship might be—they consider themselves to be married.

And most of you would not have government ban private contracts between individuals of the same gender for sharing property or granting one another power of attorney in cases of medical emergencies.

The "M" word

So here's my question: How would you conservatives even know if, on that contract between such individuals, laying somewhere in the bottom of their sock drawer, the letters M-A-R-R-I-A-G-E appear? How would the world existentially change as you go about your daily business, if suddenly those letters were written on that piece of paper? What earthly difference would it make?

Not that your feelings should be a standard for public policy, but would you feel better if, instead of the above letters, that contract were to bear the letters H-O-C-H-Z-E-I-T? For most of you these letters trigger puzzlement rather than the strong emotions associated with the "M" word. In German "hoch" means "high, tall, or lofty," and "zeit" means "time." Would you feel better if that contract bore the English words "high times"? "Hochzeit" is the German word for "marriage," surely a high time in anyone's life!

So can you begin to see how silly your obsession with the word "marriage" seems to be? But let's be fair and pursue your beliefs further. I know your worries are about more than words.

Societal decay

For many of you, gay marriage is symbolic of societal decay, of a weakening of institutions—especially the family—and standards that you see as necessary for a free and civil society. Those are indeed legitimate concerns and deserve serious and honest discussion. And that's exactly the approach that you don't bring to the gay marriage discussion.

Over 40 percent of heterosexual marriages in this country end in divorce; one would think you'd be pleased that so many gays want to abandon promiscuity for exclusive commitments in the relationship we call "marriage." In many cases, divorce involves questions about raising children, visitation rights, and financial responsibilities. Out-of-wedlock births present yet another set of problems. But whether or not same-sex couples can marry does not bear on these matters.

State sanctions

Some of you oppose the government "sanctioning" marriage relationships of which you disapprove. But it is sheer pretense to demand that government act as the enforcer of your judgments about how others should run their lives when those others in no way interfere with your freedom to run yours.

In any case, government only metaphorically "sanctions" your actions when you speak what you will, read what you wish, worship—or don't worship—as is your wont, live where you desire, work where you please, marry whom you love, and deal with other individuals based on mutual consent. All individuals have those rights. In society with others it is the purpose of government to protect those rights. The government doesn't take a moral position on your actions; it only makes certain that you don't act to limit by force the actions of others.

And you're wrong if you think that somehow a government "sanction" confers a moral value on behavior. I'm married to a wonderful woman and we have two beautiful baby daughters. If you—as I—think that "marriage" is more than just a word, then you should understand that what moral value and sanctity there is in it lies in what the partners in marriage bring to it.

Some of you flat-out judge gay marriage to be immoral. Let me suggest that you should judge individuals not by their sexual preferences, but rather by their moral character: Are they rational, thoughtful, honest, and productive? Do they act with integrity and independence? Do they take pride in their achievements? Do they deal with others with justice, good will, and benevolence?

A quick generation

There have always been gay libertarians because libertarians consistently favor freedom. There are also gay conservatives who have come out of the closet: former Republican Party chairman Ken Mehlman; commentator Andrew Sullivan; former Republican representatives Steve Gunderson (Wis.) and Jim Kolbe (Ariz.). Most European conservatives have no problem with gays; British Tory leader Nick Herbert is gay, and so was Dutch conservative Pim Fortuyn, an anti-Islamist who was assassinated by a leftist environmental extremist.

In coming decades more young, tolerant heterosexuals will join the conservative ranks, and opposition to gay marriage will fade away. It is time for you, my American conservative friends, to get over this obsession with sexual preference that drives away potential allies. Get that fluke out of your brains. Welcome all who want to fight for less government, more individual freedom—both economic and social—and have serious discussions about the values at the foundation of a free society based on reason, not on prejudice or unthinking traditionalism.

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Hudgins is director of advocacy for The Atlas Society.

[Selene]

Ed:

I am not a conservative, but I had argued that marriage being statutorily defined as between one man and one woman had sustainable value in this particular culture. However, with the addition of the hold harmless clause in the NY Statute for clerics, I am not opposed to the NY law.

Adam

[syrakusos]

As we know, MSK earns money to pay for this site by selling advertising links based on the content we read and post. When I launched this, I got an ad to meet gay singles in Ann Arbor. (My IP address places me.)

Myself, I find this amusing, but you might want to consider what it means that anyone can track your discussions on this or any other message board.

(Originally posted at 11:42 PM on July 1, now at 7:38 AM on July 2 the boys in the ad band are back.)

Edited July 2, 2011 by Michael E. Marotta

[anthony]

As we know, MSK earns money to pay for this site by selling advertising links based on the content we read and post. When I launched this, I got an ad to meet gay singles in Ann Arbor. (My IP address places me.)

Myself, I find this amusing, but you might want to consider what it means that anyone can track your discussions on this or any other message board.

Yes,

Mighty clever technology, if somewhat Big Brother-ish.

If you need a lawyer, check out the ads at Ghs' plagiarism thread.

[caroljane]

Tony, lol.

Edited July 2, 2011 by daunce lynam

[caroljane]

So that's why I'm always being invited to get tutored at the Sylvan Learning Centre and access government cash to go to college! Also, I had no idea there were so many dating sites tailored for "special needs."

What kind of girl does Big Brother think I am?

Respectably,

Carol

[syrakusos]

Now all the ads are gone. Is it just me?

Back on topic here, I replied to Ed's post on Rebirth of Reason at length. Just to say here and now that as clear as his writing is, it will not convince those for whom this is a religious issue.

I suggested there and again here that it might be more helpful to point out that not every sin is a civil crime. (Honoring your father and mother is a Commandment, not a suggestion. But failure to do so is not a crime.) That leaves unanswered which sins become law. Usury would be one example: a large body of law defines lending at interest.

[syrakusos]

... I had argued that marriage being statutorily defined as between one man and one woman had sustainable value in this particular culture. However...

Again, over on RoR, I entered a comment at length in reply to a rhetorical complaint that marriage is between the couple involved and except for registering a contract, is not any business of the government. I found that "except for" to be too much of a gloss. Marriage is primarily about property. Procreation is almost incidental. Again, I will not post here what I wrote there.

Here and now, I point out that childless couples are still married. Even though some cultures allow divorce for infertility, that is only grounds for divorce. It is not automatic. I read a biography of a merchant from Cairo circa 1600 and it was interesting to see that among his wives were two with whom he had no children. However, when one of them remarried after his death, she had enough status that in her contract, she specified how many nights her new husband could spend with other wives and concubines. Just to say, infidelity is contractual. Perhaps we are so close to this that we cannot see it, but marriage is only secondarily about procreation. In all the cultures I know of from a mere semester of anthropology, marriage is all about property rights - property rites, if you will.

I agree with Adam that different societies have different definitions of marriage, and ours can have anything it wants... except that I question the reification of society. And so I have to question whether Reynolds v. United States is valid. And I have to question whether a ban on homosexual marriage can stand up. In other words, Aristotle pointed out that tradition is stronger than law. That assumes that tradition is permanent and law is transitory. What happens when the tradition has changed, but the law has not?

[Selene]

Michael:

Good points.

George Q. Cannon, representative of the territory, states concerning this decision: "Our crime has been: We married women instead of seducing them; we reared children instead of destroying them; we desired to exclude from the land prostitution, bastardy and infanticide. If George Reynolds [the man who was convicted of committing bigamy] is to be punished, let the world know the facts . . . . Let it be published to the four corners of the earth that in this land of liberty, the most blessed and glorious upon which the sun shines, the law is swiftly invoked to punish religion, but justice goes limping and blindfolded in pursuit of crime."^[3]Reynolds v. United States, 98 U.S. 145 (1878), was a Supreme Court of the United States case that held that religious duty was not a suitable defense to a criminal indictment. George Reynolds was a member of The Church of Jesus Christ of Latter-day Saints, charged with bigamy under the Morrill Anti-Bigamy Act after marrying Amelia Jane Schofield while still married to Mary Ann Tuddenham in Utah Territory. Before the Supreme Court, Reynolds argued that his conviction for bigamy should be overturned on four issues. These included that his grand jury had not been legal; that challenges of certain jurors were improperly overruled; that testimony by Amelia Jane Schofield was not permissible as it was under another indictment; and, most importantly, that it was his religious duty to marry multiple times.

Reynolds v. United States Wiki Link

The question before the Court was:

Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he "was married as charged -- if he was married -- in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty.'" This request was refused, and the court did charge "that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right, -- under an inspiration, if you please, that it was right, -- deliberately married a second time, having a first wife living, the want of consciousness of evil intent -- the want of understanding on his part that he was committing a crime -- did not excuse him; but the law inexorably in such case implies the criminal intent."

Religion is not defined in the US Constitution.

This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. At the next session the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. In the preamble of this act religious freedom is defined; and after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the State.....

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances....

Fascinating case.

Adam