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The Gay Marriage Conundrum

by Archives January 20, 2009

As you may have already noticed, conservatives are fain to depict their struggle for individual liberty in quasi-mythological terms. Whether as the Spartans of Thermopylae, waging war with a Medean horde to safeguard the last vestiges of Western democracy, or as Albert J. Nock’s “Remnant” – our flair for principled fatalism is shockingly self-evident. Yet, on a host of social issues, the vast majority of our brethren fall far short of the Hellenic ideal.
On the issue of gay marriage, perhaps more than any other, the conservative movement is remarkably fond of the kinds of regulations it purports to abhor.
A common argument, voiced by the nigh on libertarian thinker Thomas Sowell, is as follows, “Homosexuals were on their strongest ground when they said the law had no business interfering with relations between consenting adults. Now they want the law to put a seal of approval on their behaviour. But no one is entitled to anyone else’s approval.” Indeed, no one is entitled to society’s approval.
However, you don’t have to approve of flagrant alcoholism, or drug addiction, to oppose the neo-prohibitionists at the Marin institute and the DEA. Likewise, you don’t have to approve of the homosexual lifestyle to oppose the arbitrary regulation of marriage.
But, the “equal protection of the laws,” according to Sowell, applies to persons, and not to actions. If the action of marriage has always been defined as the union of one man and one woman – then bans on gay marriage are not discriminatory. But, even within Western society, the definition of marriage has been in a state of perpetual flux.
As recently as 1967, marriage was still defined in parts of the United States as the union of one white man and one white woman, or one black man and one black woman. According to the 1930 Hays Code, which governed movie production, depictions of “miscegenation” were even “prohibited” in Hollywood films. Similar laws existed in Apartheid South Africa as recently as 1985. Until 2001, a 12-year-old girl was legally able to marry in Quebec. Now, one must be 16 and retain parental consent for a union to occur. Apparently, the concept of marriage isn’t as etched in stone as some would like to believe.
Sowell, who is incidentally black himself, argues distinctions of age and ethnicity are more ephemeral than distinctions of gender. He contends the union of man and woman is necessarily privileged as “the state asserts an interest in the outcomes of certain unions, separate from and independent of the interests of the parties themselves.” Namely, he points out society must ensure the continued facilitation of child bearing and family formation.
It is perplexing in the extreme, however, when conservative writers who are comfortable critiquing all manner of social regulations, from prohibition to affirmative action, shift on the institution of marriage. I mean, does society’s basic interest in preserving the traditional family really supersede such relatively minor interests as drug free streets or minority representation in university? Even if it does, would regulation actually be effective in achieving the desired goal?
Consider the case of affirmative action. Sowell notes that schools with a wide disparity in entrance SAT scores, of black and white students respectively, tend to also have a wide disparity in graduation rates. So, at the University of Colorado at Boulder, where the average SAT score of black students was a dramatic 200 points lower than their white peers, only 39 per cent of black students graduated as compared to 72 per cent of whites. Meanwhile, at the University of Colorado at Denver, where the average entrance SAT differed by only 30 points, a roughly similar number of black and white students graduated (50 per cent and 48 per cent respectively). This means that regulation only increased the number of minority students, in tier I schools, who were unable to complete their studies; which is practically the opposite of the intended effect.
The institutions of heterosexual marriage proscribe the rights and freedoms of consenting adults, limiting their ability to break the matrimonial bond, thus ensuring the subsistence of the relationship. Since there is no analogous proscription for same-sex unions – homosexual couples can initiate and dispose of a relationship with far more ease. Undoubtedly, this has contributed to the disparity in AIDS rates between straight and gay populations in North America. In 2003, for example, the Center for Disease Control and Prevention (CDC) in the United States concluded that 63 per cent of new AIDS cases “were among men who were infected through sexual contact with other men.” If only for health reasons, we should probably de-regulate marriage.
Of course, to do so, we must still de-fang the “slippery slope” critique. The Family Research Council (FRC) argues that “once marriage is no longer confined to a man and a woman, it is impossible to exclude virtually any relationship between two or more partners of either sex – even non-human partners.” They contend it would de-stabilize the traditional family, opening the door for polygamy and pedophilia. Legal scholar Eugene Volokh, who supports gay marriage, notes that while “slippery slope” arguments have some merit, in terms of judicial precedent, the problem would evaporate if it were settled by the legislature as opposed to the courts. So, the FRC need not worry about a responsible Congress or Parliament permitting unions with goats, pine trees or children.
Questions over the moral and biological nature of homosexuality will inevitably persist – they are, however, beyond the scope of this article. Instead, I hope to convince my fellow conservatives that, even if they think same-sex marriage is “icky,” it would be hypocritical of them to oppose it in favour of regulation, and short-sighted social engineering. Even if we choose the less loaded term “civil union,” it would go a long way towards proving our commitment to limited government, and personal freedom.

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