The Recognition of Same Sex Marriage is a Victory for Conservatism

A couple of years ago, I wrote about the defeat of Proposition 8, and how it was a victory for Conservatism. In light of Burt’s recent post, I thought I’d resurrect it. Here it is, in full:

With the ballot initiative Proposition 8, California rolled back the legalization of gay marriage that had been imposed by the courts. Well, the courts have spoken again, and they’re holding fast.  In California, at least, a gay marriage ban is unconstitutional. Conservatives may decry the decision, and they may complain of judicial activism; it’s quite understandable – a judge overturned the will of the people; we should be wary of that. But here’s the thing, the decision, as I understand it, is a conservative (or at least libertarian) decision.

I’ve never been too enamoured with the arguments I’ve heard suggesting that laws upholding the traditional definition of marriage were unconstitutional. Generally, what I was always told was that we were discriminating against gay couples.  My initial response was, “yeah, so?” I mean, we’ve alreadyestablished that not all discrimination warrants judicial redress. Further, the entire focus on gay couples never held much sway to me. Couples, as couples, hold no particular rights. All rights afforded couples stem from the individuals that make them up. It may seem like hair-splitting, but it’s important for us to retain precision in our constitutional judgements. Finally, there is no right to be married. Suggesting that the government had to administer gay marriage was a non-starter.

But none of that applies here.

Through the Equal Protection clause, Judge Walker has told the government of California that they must recognize gay marriage. And that’s the thing. These couples are married. It doesn’t matter whether you recognize their marriage, or whether Rich Lowry recognizes their marriage; they are married. By not recognizing these marriages, the government of California was treating the individuals differently. At this point, it has nothing to do with couples.

And this is where we get back to the idea of positive and negative liberties. Generally, the conservative/libertarian school of thought respects negative liberties (basically, you’re free from government intrusion), but scoffs at the notion of positive liberties (the right to things… like, say, sanitation and water). When the question is framed as the rights of gays to be married, we’re talking about a positive liberty, but to accept such a framing is to allot to government that over which it has no purview.

Marriage does not belong to the government. Marriage predates our constitution, our form of government and our nation. Marriage belongs to the people. It is a social convention that has grown organically within human society. It is nothing that has been imposed by government – at least, if we’re actually to believe in liberty, it is nothing that should be imposed by government. Marriage is an institution in which we organize ourselves. It belongs to us, and we shouldn’t let the government appropriate it.  Once we cede it to the domain of government, we are relinquishing personal, private control of this elemental part of our society.

Conservatives may not like this decision, but it is the right decision (pun intended). Allowing government to pick favourites among our private relationships is anathema to liberty. Conservatives should accept that.  Hell, they should embrace it.

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44 thoughts on “The Recognition of Same Sex Marriage is a Victory for Conservatism

  1. My support for gay marriage is based as much on my inner conservatism as much as anything. I think the added stability for some couples outweighs the theoretically diminishment of stability within the institution among everyone else.

    That said, I do have difficulty with the marriage-by-judicial-decree tact, liberal or conservative or otherwise. If it happens, I will shed not a tear. I don’t see that getting married to the person of your choosing is an inherent Constitutional right. Just something that is right and should be legally right. This isn’t a rock-solid, because I do think that Full Faith and Credit has implications for marriage, for instance, but not on the basis on which it is being fought.

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    • Strangely, I come at it from an entirely different direction. It doesn’t strike me as appropriate for marriage to be something that’s voted upon… either for or against. Whether these two people are married depends on a number of things, mind… but how many people I can get to agree strikes me as the last thing in the world that has an impact.

      The judicial branch was acknowledging an emergent reality when it recognized gay marriage.

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      • But legally recognized marriages are actually the best way to win the population over. As much as people in Texas are griping about Judicial activism, you don’t hear that refrain from the places where marriage has actually been established for more than a few months. It quickly becomes “oh, I guess this isn’t so bad after all”. The only exceptions are places like California and Iowa where the democratic backlash came so soon after the initial decision that the new acceptance hadn’t happened yet.

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    • A friend and I were discussing the Civil War recently, and the subject of slavery arose. Specifically, that slavery as practiced in the US was worse than slavery in classical times in many ways: that slaves couldn’t own property, were denied the chance to become literate or in other ways advance their prospects, that slaves had no opportunity to earn freedom, and so on. But the very most basic is that slaves cold not marry. That is, while they could hold ceremonies or call themselves married (married before God, as JB says) , the marriage had no legal standing and either party could be sold away at any time (not married before the state).

      If marriage isn’t a right that needs to be defended against anyone who’d take it away from you, I honestly don’t know what is.

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      • This strikes me as a strong argument to support gay marriage, and to fight for it, but still not necessarily on the Constitutional basis of equality. Except for the fact that we did single African-Americans for an amendment and so it becomes much more of a Constitutional issue than it was, as it pertains to race.

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        • Or rather, we singled out race, though that was for voting rights in particular. The other side was equal protection, which was more general and only belatedly applied to gender. I guess I take the position of a more limited interpretation of equal protection to where it applies to sex and gender issues. I mean, the argument is there. I’m just not fully sold it.

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  2. You may find this odd, Jonathan, but I have a philosophical disagreement with you. I know I find it odd because I really dig the negative-liberty, state-has-no-power-in-the-first place vibe you’re working here. In the context of the constitution, I see “rights” as the boundaries between a government’s power and an individual’s liberty. So I grok your argument.

    Where I’m not on all fours with you is that the state clearly has the authority to issue a marriage license. Anglo-American governments have been doing that since well before the Revolution. The secular government’s authority to grant (or dissolve) marriages as to the government, as distinguished from the Church’s recognition of the same was a big issue in, just to pick a prominent historical example, Henry VIII’s Great Matter. Not threading the needle of civil versus religious marriage to the satisfaction of his King and friend cost Sir Thomas More his head.

    Courts take marriage very seriously and marriage (or its absence) matters after people die, when they divorce, when they have kids, when they disagree about who owns a particular thing of value like a house or a promissory note or a debt or an entitlement to social welfare benefits. In all those situations, the state is necessarily involved, if only to enforce rights as between private parties, but more often to determine them.

    I can’t see a way around the government being a player in so many ways that the notion of isolating marriage from the state is simply too impractical to be reality. Now, we wind up in the same place — conservatives ought to be happy that same-sex relationships are recognized, for me along lines similar to those described by my main man Will Truman — so keep that in mind too. Just sort of a different theoretical perspective than yours.

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    • Actually Burt, I think you are both at the same conclusion for the same reasons. You talk about government being involved to protect individual rights within the marriage construct; Jonathan talks about government being involved to PREVENT discrimination against individuals – i.e. not picking “winners and losers” with respect to who can legally marry and who can’t. perhaps I have not had enough coffee (!), or perhaps it’s my southern simpleton mind coming out, but those sound like the same argument to me, just draped in different metaphors.

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        • I’ll have to think on things a bit more, Burt, my initial response would essentially be Philip’s, but there might be a dimension I’m missing. Partly, it might be that I didn’t go into all the trappings of official marriage and the role of the state. Basically, if the government decided to get out of the marriage game tomorrow, I’d still be married. Further, if I didn’t get my marriage officially recognized by the state, I’d still be married.

          Perhaps we’re at a point where everything you have written here pretty much dovetails with everything I wrote, but that doesn’t necessarily mean that two ideas always match up.

          In an interesting twist that I think aligns with my argument, I never got a marriage license. I didn’t need to. The government, in a long-established tradition, followed the church.

          Finally, I’ll just say that I’m not saying that the government doesn’t have the authority to issue marriage licenses. I’m just arguing that they’re not creating marriages out of thin air; they’re just processing and recognizing marriages that happen.

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  3. Civil marriage really takes off with the French Revolution and Napoleon. It’s a vast improvement on the previous state of affairs, where interfaith and interracial marriages were forbidden. Belay all this talk about positive and negative rights. It’s all nonsense in this context. Marriage may have predated the French Revolution but it was always a contract.

    Of course marriage belongs to the government, as surely as land deeds and estate and probate law, which always come into the picture upon the death or incapacity of a citizen. My corporation belongs to me but my corporation paperwork was issued in the State of Delaware and I am obliged to file tax returns upon it.

    Marriage is a contract. It is governed by law. It creates rights and obligations, as surely as an incorporation. As for precision, matrimonial is its own branch of law.

    SSM is no victory for Conservatism. It’s a victory for equality and a profound and lasting defeat for Conservatism, which has always laboured to preserve the status-quo ante and deny the ability to form a contract to certain persons they feel undeserving for various idiotic reasons.

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    • I’d quibble with one point BlaiseP. I think the more accurate term would that civil marriage took off ~again~ with the French Revolution.

      The Romans, for instance, had civil marriage well prior to the establishment of their empire. There ceremonies were culturally dictated, not religiously and once the Roman Empire took hold the rules were enshrined in civil law. Who you could marry and how the particulars worked was defined by the government, various different religions could officiate but the meat and potatoes was defined by the state.
      The Christian Churches didn’t take over civil marriage until after the Empire collapsed and the Catholics were pretty much the only organization in town.
      This is one reason why I roll my eyes at the assertions of the eternal intertwining of religion and marriage. Marriage of one sort or another predates monotheism for God(ess?)’s sake. It’s been the province of civil government for ages and it’s changed with along with them. SSM is just another natural step as far as I can see.

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  4. I believe that as long as everyone involved is of legal age and consenting, they should be free to form a family in wichever way they want. And the government should recognize them as a family for law purposes., with all the benefits and liabilities that come with it.

    Same thing for sex, really. Government involvement should be minimal. If everyone is of legal age and everyone consents to what is being done, then there shouldnt be anyone else meddling.

    Too many people trying to impose their righteous will onto others on stuff that they shouldnt even be aware of.

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  5. The vast majority of self-identified conservatives oppose same-sex marriage. Most major publications, political leaders, and interest groups on the right that have a taken a stand oppose it; the few who don’t are castigated. Meanwhile, the people voting for gay marriage in ballot initiatives, endorsing it publicly, and passing bills in its favor are disproportionately on the left side of the spectrum. And somehow gay marriage is a victory for conservatism? I think the Princess Bride has already responded for me.

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  6. I don’t even vaguely understand the idea of ‘not an individual right, hence not a right’. In what way is entering a marriage something an individual doesn’t do?

    Sure, it requires two people…but so does freedom of assembly. And freedom of speech and press also. (Unless you want to argue that the government banning people from listening to you isn’t a violation of those rights.). The right to vote presumably is the right to vote for _other people_ in addition to yourself. The right to a trial by jury requires other people, and in fact they can be _involuntary compelled_ (via jury duty) to participate in your exercise of that right. (Talk about ‘positive rights’.)

    But this is not actually important. And while there actually _is_ a right to be married (Ask Loving vs. Virginia), let us pretend there is not.

    What there _is_ a right to is a right not to be discriminated based on your gender. Especially via government treatment of you. We can stand around debating conflicting rights of private entities all we want, but we should all agree the _government_ has a duty to treat people identically. Which it does, under the Equal Protection Clause.

    So let us assume I am named Leslie. And I wish to marry a woman named Jennifer. There are things needed before marriage (Blood test, consent of the other party, etc) and let’s assume those are done. There are things that would bar marriage (genetic relationship, a current marriage to someone else) but let’s assume none of those apply.

    So I walk into the place to get a marriage license, and get one outcome if I’m a man named Leslie, and one if I’m a woman named Leslie. That’s it. That’s the sole deciding factor in that outcome, all other things being equal. My gender.

    Please note that, while Jennifer is also (If I am a female Leslie), barred from marrying _me_ based on _her_ gender, but that is a completely unrelated violation of rights. Violating two people’s rights at once is not somehow not violating individual rights. (We shall bar you from speaking to this guy, but we shall also bar him from speaking to you, so that’s okay.)

    The government decided that I can or cannot do something based solely on my gender. An _individual_ violation of _my_ rights.

    And, yes, there are also things that female Leslie can do that male Leslie could not. That does not really change anything, and we’ve long since moved past allowing ‘separate but equal’. And _that_ was in circumstances (different facilities) where ‘equal’ might actually apply in theory, but did not in practice. But it’s hard to argue that different marriage partners can substitute for each other _even in theory_. (Someone needs to see if there’s any instance in modern history where groom ran away, and the people at the wedding shrugged and married the bride to the best man, like what is supposedly ‘supposed’ to happen.)

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    • I don’t really disagree with you that much (though I won’t comment on Loving vs Virginia, being a Canuck and all). What I was really getting at was that rights belong to the individual; collective rights only exist as a collection of individual rights (which is, I think, what you’re saying, too). I just always found that a lot of the talk of the right of a couple to be married ignored that it was the rights of the two individuals. As I said, it’s kind of semantic, but for the purposes of the law, semantics matter.

      I will say that in Canada there is no such right as a right to be married. There is freedom of association, but there’s no constitutional guarantee that anyone’s choice to associate with someone else in the form of a marriage need be recognized by the state* – just that if the state recognizes one, it has to recognize all (well… except for polygamy and underage stuff). I’m surprised to learn that things are different in the U.S.

      And this is really the crux of my opinion. The freedom to be/get married is bigger than the government. Whether the government officially recognizes your marriage, you are still married.

      (*I could be mis-remembering, but I think the Canadian Supreme Court basically told the feds that the restrictive form of “official” marriage was unconstitutional and that if they didn’t change it to accomodate SSM, then the courts would, essentially, strike down all marriage laws.)

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      • The freedom to be/get married is bigger than the government. Whether the government officially recognizes your marriage, you are still married.

        Well, almost all rights are ‘bigger’ than the government.The US Declaration of Independence specifically claims that rights exist in some real sense, independent of the government: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

        But where rights come from is rather moot. Either we can take the position they come from governments, and should be distributed equally without basis to gender, or we can take the position they just exist, and the government should not fail to recognize them based on gender.

        (I confusingly take the position that rights actually come from governments, or rather whatever we can force out of them, but we should _pretend_ they do not. We should pretend ‘freedom of speech’ is some real thing. How we think about things is very important, and it’s best if we think ‘freedom of speech’ is something like ‘our left arm’, and get annoyed if people try to take it away, even if, unlike our left arm, freedom of speech is something we made up.)

        What I was really getting at was that rights belong to the individual; collective rights only exist as a collection of individual rights (which is, I think, what you’re saying, too)

        I’m not _entirely_ certain I agree completely with that, there are some things that I think probably can best be be regarded as collective rights, like self-governance, and some religious freedoms. Note these would be entirely different rights than individuals have, though. A group of people have a right to create laws and government, and make everyone in that area live under them, which is a right individuals do not have. You can try to break that down to individual rights, and it might work, but it’s vastly simpler to just pretend there are collective rights.

        However, yes, WRT marriage, that is entirely an individual right, and I see no rights that it would make sense to view as collective rights except maybe ‘The right to own property’. But almost all the rights associated with marriage are ‘an individual member of the marriage can do something’.

        Or, to put it another way, a ‘married couple’ is a fictional legal entity, and just other fictional legal entities, do not actually have most ‘person’ rights, except joint property. (No matter what nonsense the court says.)

        Of course, this is all irrelevant to whether or not individual people have the right to _be_ married to a specific other person. Which is, as we both agree, an individual right. And I further assert this individual right cannot be removed based solely on gender, at least not in any country where gender equality is based in any sort of fundamental principles that laws cannot override. (Like the Constitution in the US, and it’s entirely possible there’s some equivalent thing providing gender equality in Canada.)

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        • I think we’re coming from separate directions, but arriving at about the same place. However, I will disagree that a marriage is a fictional legal entity. My marriage began before any legal recognition (granted by a matter of minutes), but it still exists regardless of any legalities.

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          • Right. The whole ‘Where do things come from?’ question that might be of interest to philosophers, but is not really important.

            To restate what I said more specifically: Either we can take the position marriages come from governments, and should be available without basis to gender, or we can take the position they can just exist, and the government should not fail to recognize them based on gender.

            Either of those is fine. I won’t argue with people who take the second position. In fact, like I said, it’s probably best if we act and speak like the second position is the truth, even if we don’t think it. How we talk about things is important, and there’s a large difference in people’s head between ‘The government refusing to recognize a marriage’ and ‘The government refusing to let two people get married’.

            Or course, this applies in other contexts, too: ‘The government refuses to recognize the free speech rights of X’ vs. ‘The government decides that what X intends to do is not speech’.

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  7. Should the anus be used as a sex organ? Google First Scandal. When you get there, go to the top of the page and click on “Can you explain…” Please note: this website will be deleted on November 1, 2012.

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  8. If I take the spirit of the last part of the post it leads to the following: The government has absolutely nothing to do with marriage and does not issue marriage licenses. Instead it only offers civil union licenses which provide the legal basis of the relationship, A civil union may be entered into by any two adults.
    This puts the state where it should be registering those relationships that desire the protections traditionally offered by marriage, but not using the word any more. Religion may now have marriage back and can define it as it pleases.

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    • It’s a lovely idea but legislatively cumbersome.
      The number of laws that would have to be cited in the form of

      In code blah, para foo, the word “marriage” shall be replaced by “civil union”

      would make the omnibus ACA look like the phone directory for The Village in comparison.

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