Ask the Local Gentry

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Did you ever see such a festival of bad logic as the one that has consistently attended the gay marriage debate?

Each side maintains that marriage (as each side defines it, of course) is an inherent right that nevertheless has to be provided by the state. In the absence of the state, marriage – not, mind you, any of those legal mechanisms that protect a couple’s private property, contracts, and so forth, but marriage itself – could not exist. Marriage has to be granted by the state, in the form of a marriage certificate. Still, it’s an inherent right.

You might as well argue that people can’t have free speech unless the government authorizes what they say, or be free to publish what they want, unless the government gives them a printing press. But that’s the kind of thing that each side of the great gay marriage dispute chose to argue.

Neither side devoted a moment to the obvious libertarian idea that if marriage is so important, it should be left to individuals, with no involvement by the state except to enforce the contracts about property that people are always free to make – inside or outside formal marriage. If you want to get married, there are plenty of churches that will marry you. Or you can conduct a marriage yourself. The Christian contingent (gay or straight) already believes, supposedly, that marriage is a religious rite. The non-Christian contingent (gay or straight) believes, supposedly, that it is a private rite. So go ahead. Marry and be given in marriage.

But now come the voters of the state of California – responding to impassioned pleas that gay marriage be “legalized” – and proceed to ban gay marriage by law. Then the Supreme Court of the state of California refuses to let the voters do that, discovering in the state constitution a hitherto unknown guarantee of the right to be married by the state.

The voters retaliate by passing an amendment to the constitution, stipulating that gay marriage is not a constitutional right. Then the forces of gay marriage respond in a way that seems logical to them: they stage wildcat demonstrations designed to cause the maximum amount of disruption in … gay neighborhoods! (I know; I live in one.) They also start a legal case, maintaining that this particular amendment to the constitution is, well, unconstitutional.

If anything was ever a contradiction in logic, this was it. By what kind of rhetoric could anything like that be justified? Well, said the win-at-any-intellectual-price proponents of gay marriage: the constitution guarantees equal protection of the laws; laws allow straight people to marry; therefore, the laws must allow gay people to marry. Of course, the voters had just passed a law against gay marriage, so what about that? No answer.

On May 26, the same Supreme Court that had ruled in favor of gay marriage was constrained to rule against it, validating the ability of voters to amend their own constitution. The one dissenting justice – who, according to The New York Times, has been considered by President Obama for the Supreme Court of the United States – insisted that the ruling “strikes at the core of the promise of equality that underlies our California Constitution” and “places at risk the state constitutional rights of all disfavored minorities.”

Indeed, many well-meaning people have suggested that the libertarian principles on which the u.s. Constitution is based should be used to override any unlibertarian provisions that are actually and explicitly present in that document. Good hearts, but bad logic. What will these people say about all the various “principles” and “promises” that other, less libertarian people allege to underlie the explicit language of real documents? The California dissenter writes of the “promise of equality.” Well, suppose the legislature decides to confiscate all incomes above 50K and distribute them among the populace. That’s equality, right? Oh no! we libertarians shout. But what’s the problem? Aren’t we going by principles instead of explicit words?

Or suppose the voters of the state of California endorse a referendum to cut taxes for some classes of property holders, and a case comes to court in which the plaintiffs argue that the will of the voters must be overridden because of the principle of equal protection of the laws. (This is actually what happened when Proposition 13 passed in California, a generation ago.) Would the court be right in deciding that this principle trumps the will of the voters? Oh no! we say again. Yet that is the same kind of obscurantism that was exerted in the cause of gay rights – which is, in my own opinion, one of the best causes under heaven.

But what were the arguments of the majority of the California Supreme Court? They wouldn’t have a very difficult time, one would think, just noting that an amendment to the constitution is an amendment to the constitution, and letting it go at that. But no. Everyone in this drama has to maintain the cause of flagrant, ridiculous, preposterous illogic. The majority did say, luckily, that if our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.” But they added:

“Nor does Proposition 8 [the anti-gay-marriage amendment] fundamentally alter the meaning and substance of state constitutional equal protection principles…. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term “marriage” for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.”

In other words, people have rights, but you can carve out.

So, that’s what a right is – correct? It’s something like an old tree, that you can carve your initials in, and that’s OK, because it may not kill the tree, but there’s some point at which you, like, go too far, and then you’ve gotta call in the … uh … whaddya call’em … tree surgeons, yeah, that’s it … Or was it judges? Whatever. Somebody will tell you when you’ve gone too far in meddling with officially recognized rights.

If these are rights, give me duties. Such as the duty to make some sense.

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