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.