In this op-ed, a Mr. Robert George lays out a new manifesto to gay marriage opposition.
His argument is as follows:
- Legislatures should decide "rights" issues, not justices, despite the fact that this has rarely ever happened.
- Roe v. Wade inflamed the culture war, not because conservatives ideologically opposed the decision, but because of the "judicial usurpation of authority vested in the people and their representatives."
- Parallels between gay marriage bans and inter-racial marriage bans are offensive to gay marriage opponents. Probably because they are stark, morally unambiguous, and easily applicable.
- The government should regulate marriage because "marital intercourse often does produce babies." We all know that non-marital intercourse never does.
- Social norms regarding marriage including including permanence, exclusivity, and guaranteed sex -- which have never ever changed -- preclude homosexuals.
- Gay marriage will lead to polyamorous relationships.
While the article is amusing and I suggest you read it before diving into my rebuttal, it is too full of innuendo, unfounded declarations, and tortured syllogisms to be taken seriously.
Missing in Robert George's commentary is the most essential thing he has to prove: that the government has a logical interest in regulating gender in marriage. Absent a good reason, government regulation would be an arbitrary intrusion into the privately enjoyed rights of citizens, thereby violating the Due Process and Equal Protection clauses of the Fourteenth Amendment. In paragraph 10 of his op-ed, he tries to argue that marriage is "a matter of vital public concern" on the grounds that "marital intercourse often does produce babies." However all intercourse may produce babies -- the sex is the critical part in reproduction, not the marriage. Even if marriage was the critical component, George fails to elaborate on why that would necessitate government intervention. Chocolate, massage oils, scented candles, and Barry White albums also lead to babies, should we regulate them too?
Further, George offers a nice and pretty history of marriage as a cultural and religious institution, completely ignoring that for this discussion we can only focus on the legal conception of marriage. Marriage affirmed in courts of law are fundamentally contracts legally incorporating two individuals as one. As George himself shows, procreation is not a pertinent reason for marriage today as many married couples refrain from reproduction and in some places, reproduction within a marriage is the exception rather than the norm. Instead the essential benefits granted by marriage are shared assets and custody in decision-making. If a loved one goes into a coma, their spouse has the legal standing to make medical decisions on their behalf. While married couples may or may not have children, they will always enjoy these benefits and therefore we can only conclude that these rights are the real essence of "legal marriage"-- as a contract.
We could even use the reductio ad absurdum on his argument: if he says that two guys should not be able to get married, why can they if one undergoes gender reassignment surgery? How does taking hormones or cutting off your penis have anything to do with the norms George so strenuously defended? Yet that's the law. George is also drawing from a cultural history in which gays didn't exist because any who came out were killed. Drawing legal precedents out of such primordial soup to deal with gays today is not sensible.
And to his point that gay marriage will lead to polyamorous marriage (or bestiality marriages, as his more openly bigoted comrades suggest): if the legal conception of marriage is a contract incorporating exactly two individuals into exactly one entity, such "slippery slopes" are not possible. Even with all his scare tactics, why should we care what other people do in their own homes? Unless it affects me, I don't care about Mr. George's private behavior; why should he care about yours or mine?
Other contested issues George casually presents as being resolved:
- While it is true that some pro-choice activists would disagree with the reasoning behind Roe (notably Justice R.B. Ginsburg), that's only because they wish the court went even further. Roe drew on a largely implicit "right of privacy." If it had been based on the equal protection of the 14th Amendment, bans on abortion restrictions would have been absolute and non-negotiable. Basing it on the right of privacy opens the door to changes and limitations, thereby encouraging the anti-choice movement.
- The Courts have always been the safeguard of rights against the angry will of majorities. George is arguing for majoritarianism, not democracy, when he says that rights should be settled in the legislature instead of the courts. Intrinsic in the very idea of democracy is the notion that while the people are sovereign, they individually enjoy protected rights that cannot be alienated by the will of the masses. See: Brown v. Board.
- Judges are impartial umpires in the vast majority of cases that require the simple application of stare decisis, but in the few interesting Supreme Court cases, the law itself is ambiguous and it is up to the individual justices to interpret it as they will.
- Permanence and sexual exclusivity do not define marriages currently affirmed in the US and therefore applications of his norms argument is archaic.
Like many positions of social conservativism, opposition to gay marriage is just a visceral reaction to the gross feeling they get when they see two dudes kissing, and not some principled position on government theory or common law. Don't let them convince you otherwise.