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The Illusion of Liberty

In one of the places I used to call home, I have a friend who serves in the state House of Representatives. She’s a libertarian-minded lady, and over the years I have supported and admired her efforts to promote legitimate freedoms while putting a check on illegitimate growth of state power.

Not long ago we found ourselves in rare disagreement, however, when she voted in favor of same-sex marriage.

In our correspondence she offered two different but related versions of her motive for doing so, both proceeding from what she believed were libertarian premises: 1) It would be unjust and discriminatory use of government power to favor one kind of relationship over another, and 2) the state really has no business regulating marriage at all; but, in the absence of a viable bill to get government out of marriage altogether, the next best thing is to loosen its grip on marriage by loosening its definition of it.

One hears both these arguments not infrequently nowadays. I suspect that one big reason why public support for same-sex marriage (SSM) is by all accounts waxing is that SSM wraps around both ends of the political spectrum—jibing with the sexual ideology of the moral-liberal left and the general live-and-let-livism of the libertarian right. And then there are some, including good Catholics, who oppose SSM but think the best remaining strategy is to untether marriage from the civil authority, leaving it free for churches and communities to take to the catacombs, as it were.

Now, I’m sympathetic to the latter view (what Christian hasn’t felt the temptation, in the face of mounting oppression, to adopt a bunker mentality?), but I don’t think it’s prudent. First because I believe that the state has an interest in promoting marriage. It’s a symbiotic relationship: Marriage benefits from the endorsement of the law, and the res publica benefits from the stable families that marriage engenders. Secondly, because I don’t see a future for separate-but-equal conceptions of marriage. The forces currently striving to redefine marriage may cry “tolerance” now, but having won this big battle they won’t be content to let us retreat behind our church doors.

But what of my friend’s support for SSM on conservative/libertarian grounds? The import of this question is growing, as political figures on the right begin defecting into the pro-SSM camp. A recent article in First Things examined the matter in light of former Republican National Committee chairman Ken Mehlman’s April 8 WSJ op-ed making the “conservative case for gay marriage.”

Half of Mehlman’s argument is a rehash of Andrew Sullivan’s now decade-old assertion that redefining marriage to include homosexual unions would “change the gay subculture in subtle but profoundly conservative ways”—informing it with what Mehlman calls “family values” of fidelity, commitment, and stability. Depending on where you encounter it, this claim is either mendacious or a pipe dream: anyone but the most Pollyanna-ish should be able to see that the influence tends to go in the other direction, with (male) gay culture’s endemic promiscuity, hedonism, and infecundity—and our culture’s infatuation with same—more likely to corrupt the traditional goods of marriage than be reformed by them. Indeed, the hard-core gay activists, the “queer theorists” whose life project is to tear down “heternormative paradigms,” want nothing less.

The other half of Mehlman’s argument brings us back to my state rep friend’s libertarian stance:

What could be more conservative than support for more freedom and less government? And what freedom is more basic than the right to marry the person you love? Smaller, less intrusive government surely includes an individual deciding whom to marry.

Is this reasonable? Are Mehlman and my friend correct in thinking that redefining marriage would be a blow for freedom against government power? As R. R. Reno summarized in that First Things piece: “That seems tautologically true. If the government isn’t telling you whom you can or can’t marry, then the zone of government power contracts and individual freedom expands.”

But I don’t think it is true, for at least two reasons.

First—and this is the nub of Reno’s counter-argument—because marriage is at heart not a political thing. It is a natural, organic institution: the product of thousands of years of human cultural accumulation. The state may regulate it, both in order to benefit more fully from it and to protect it, but never does it claim to define it fundamentally. Instead it respects and recognizes marriage as something with its own independent value; it was already there when government came along. This recognition alone is a marvelous check on government’s power. The state’s ravenous hunger to politicize everything is thwarted, buffered, by those institutions—including not just marriage but religion, the family, a free press—it can’t control.

With this understanding, it’s clear that allowing the state to redefine marriage is not an expansion of freedom but of its own sphere of influence.

The second reason it’s folly for libertarians to support SSM is that not only would it signal an increase in government’s theoretical powers, it would trigger a multiplication of government’s real and practical powers. The one big law that enshrines SSM across the land will necessarily spawn hundreds of little laws, as we come to terms with novel scenarios not just for marriage but divorce, parenting and custody, taxation, inheritance, and every other thing that once flowed relatively straightforwardly from the traditional marriage structure. Actor Jeremy Irons (Charles Ryder from Brideshead Revisited or, if you prefer, Hans Gruber’s brother, Simon) recently wondered aloud whether a father would be allowed to marry his son to escape punitive taxes. To say “yes” is to descend into absurdity; to say “no” is to create a vacuum that only a new and qualitatively more intrusive new code of family law can fill.

That wouldn’t be the only area where the redefinition of marriage would sprout new laws. To accommodate the new state-sanctioned conjugal paradigm we’ll need speech codes. Official documents—in schools, hospitals, town halls, etc—scripts for movies and TV shows, ads on the sides of the bus, all will need their heteronormative biases expunged.

And so will we: Bigotry has no rights, after all. To this point, the move to brand as “hate speech” what the Bible teaches about homosexuality has to been spotty: picking off a pastor here, a hotel owner or wedding photographer there. But it will touch us all once SSM is the status quo. What, I wonder, will we think of the libertarian argument for SSM when we’re no longer at liberty to disagree with it?

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