Sunday, June 30, 2013

Same-sex marriage and discrimination, Part II

The most persuasive argument in favour of same-sex marriage is also the most specious:  why should we care what other people do?  It's persuasive because we have a libertarian culture (or a permissive one, depending on your point of view) and we are reluctant to condemn anyone for anything.  It is specious because this has never been about allowing people of the same sex to get married, and it is clearer all the time that this is not the goal.

First of all, the recently-overturned DOMA did not prevent states from recognizing same-sex marriages; it merely defined marriage on a federal level as between two people of a different sex.  The Supreme Court made the bizarre ruling that the federal government has to yield to the states on the definition of marriage, even for purely federal purposes such as estate taxes.  It is a wrong decision because marriages have to be defined at the federal level in some way, and allowing the states to define them differently creates enormous administrative difficulties.  (Let's see what happens when the first state permits polygamy, for instance:  how will federal income tax laws accommodate that?)  It is bizarre because in every other respect the Supreme Court has gone out of its way to allow the federal government to regulate every aspect of our lives to the detriment of states' rights.  To claim in this case that it wants to defer to the states is mind-boggling.

But it's not just the fact that the Supreme Court ruled in favour of the states that demonstrates the speciousness of the libertarian principle that this is all about what two people do in private.  Deferring to the states is a good principle, in my opinion, and I wouldn't complain too loudly about the overturning of DOMA if that's all it was.  Instead, however, Justice Anthony Kennedy ruled that DOMA was illegal on principle because it demonstrated an "improper animus" against a "politically unpopular group."  This brings up the obvious question, by what definition are same-sex couples "politically unpopular"?  But the more important issue is, how did Kennedy determine that those who passed DOMA exhibited an improper animus against them?  By that logic, every government in every state, as well as the federal government, has been breaking the law from the beginning of the republic.  Or does he mean only that the Congressmen and President who passed DOMA exhibited an improper animus?  In either case, one wonders what other kinds of constitutional principles we are unconsciously violating at the present.  Criminals are a politically unpopular group, do we have an improper animus in creating laws that punish them?  Is it unconstitutional to prohibit people below the age of 18 from voting?  How about people below the age of 21 from drinking?

The problem with this kind of logic is that no one has any idea what is "constitutional" according to the Supreme Court.  Chances are that at least some laws which hardly anyone has conceived of as unjust or unconstitutional will be struck down some day on the basis of improper animus.  You can use a court for that, but I don't think that's it's best or most proper purpose.  The idea of a court with the power of judicial review is to overturn laws that violate on clear constitutional principles.  It might not be obvious that the law is unconstitutional prima facie, but the constitutional principle should be.

So, as many other commentators have noted, although the Supreme Court's ruling is technically limited to section 3 of DOMA, it is hard to see how any state laws that don't permit same-sex unions can be regarded as constitutional under the improper animus principle.  Unless, of course, Justice Kennedy knows something more about the people who passed DOMA than I am aware of, and he and the other justices intended to limit their ruling specifically to that law and not to marriage laws in general.

If same-sex unions are a constitutional right, that means that everyone has to recognize them.  This will have implications for the laws in the 38 or so states that don't recognize them currently, quite apart from issues of "full faith and credit" that will likely require them to recognize same-sex marriages from the other states.  So same-sex couples will likely, in the next few years, have the right to marry anywhere in the United States.  If this were a libertarian/leave-other-people-alone issue, that would be the end of it.

Of course, it isn't.  Because same-sex marriages are now a matter of discrimination rather than personal, religious, or moral choice, people who don't recognize same-sex marriages will be forced to acknowledge them in all sorts of ways.  Companies like Chick-fil-a, for example, will almost certainly have to grant benefits to same-sex married couples.  Moreover, anyone involved in the wedding business is going to have to carry out their services for same-sex couples as well.  Already, states are moving to penalize florists and bakers who refuse to accommodate same-sex weddings, even if their states don't recognize those weddings.  The irony of forcing these people to do something against their will seems totally to escape those who argue that same-sex marriage is all about leaving others alone.

The ACLU is actually supporting the same-sex couple that was denied a wedding cake.  It issued the following incomprehensible statement:  "Religious freedom is a fundamental right in America and it's something that we champion at the ACLU.  We are all entitled to our religious beliefs and we fight for that. But someone's personal religious beliefs don't justify breaking the law by discriminating against others in the public sphere."  We support your religious freedom as long as you don't break the law?  Isn't the whole point of the ACLU to get rid of laws that limit freedom?

Ask a same-sex marriage supporter, and he will immediately counter with, "Would they be allowed not to make a wedding cake for a black couple?"  Once again, the country's history of racial oppression rears its ugly head, providing an excuse for stupid laws.  Liberals want to compare everything to race, but not everything is like race.  In fact, nothing is really like race in America.  Homosexuals weren't enslaved.  They can't be judged by sight.  It is an insult to blacks to compare their experience to homosexuals'.  It is also an insult to marriage to compare not providing services to a same-sex couple to not providing services to blacks.

I like to pose the following scenario:  Suppose you run a catering business, and the KKK asks you to provide food for one of their ceremonies.  Should you be forced to do so?  I don't think many people would agree that you should, since you disagree with them.  On the other hand, they aren't breaking any laws.  Do you have the right to decide with whom you want to do business?  Can you choose not to do business with someone whose practices you disapprove?  In normal circumstances, yes.  Why not, then, with same-sex marriages?  By framing same-sex marriages as a matter of "improper animus" and "discrimination," the government has already decided that you have no basis for your beliefs.  It doesn't matter that your belief is backed up by history -- all of it, prior to the past two decades -- or your religious beliefs or your personal morals.

There is, in short, no room for compromise on this issue.  Or rather, there is, but those who support the idea of same-sex marriage are unwilling to tolerate any.  Already there is pressure on military chaplains to curtail any negative comments about homosexuality, and one soldier may have been punished for his opposition to same-sex marriage.  (The military is one place where the federal government clearly needs its own marriage policy and can't rely on the states.)  Because the issue of same-sex marriage is framed in terms of "discrimination," anyone who opposes it is ipso facto considered wrong and forfeits any right to act according to his own morals.

So much for leaving other people alone.

Of course, liberals don't see it this way.  For them, homosexuality (and, indeed, sexuality in general) has no moral component, so anyone who opposes it is simply wrong.  Christian churches may consider homosexuality a sin, but churches have no bearing on government.  Whatever churches thought or taught in the past is irrelevant because we (i.e., liberals) now know better.

This is, I admit, one way of viewing the issue.  It does not, however, correspond to my idea of freedom of religion, nor of libertarianism.

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