Gay Marriage

 

“We celebrate the wars we won
The blood of history’s ancient sons
We followed Judah Maccabee
We fought against inequity

We saved ourselves with help from One
Who loves His children everyone
everyone
everyone
everyone
every one.”
- Mirah Yom Tov Zeitlyn, “Jersualem

The stupidest arguments for the legal recognition for gay marriage comes from those who support it.

Some say, this secures benefits. But how is expanding the welfare state a nobel goal? They say this as if its a benefit of legally recognizing gay marriage, but it is surely draw back.

Some say, this makes hospital visitation easier. But if someone does not understand the law enough to know what a durable power of attorney is, or how one might be constructed, or complemented, a good argument can be made that such a person is not competent to form a marriage contract.

Rather, the strongest argument for the legal recognition of marriage contract between two gays (male homosexuals or female homosexuals) is the same as free commerce in spirits, or marijuana, or prostitution: the right to contract. Since ancient days society has recognized “marriage” as a type of contract. If individuals are not harming others in their contract, it is morally wrong to deprive them of that contract.

The greatest argument against legal recognition of gay marriage (putting aside the ghastly feature of expanding the welfare state) is unintended consequences. The second and third order impact of legal recognition are unknown, and this is not a trivial concern.

Our Constitution allows our nation to handle this through federalism. Different States enact different laws, and the consequences of these different laws can be observed. Some of these laws, like prohibition, do not work out. Others, such as welfare reform, eventually become a model for the nation.

Legal non-recognition of gay marriage has the flaw of taking away the free contract rights of the individual concerns. It has the benefit of not expanding the welfare state. It has the potential benefit of avoiding unintended consequences.

As such, the present political conditions — “gay marriage” is recognized in some places, “civil union” is recognized in others, neither is recognized in yet others — are reasonable. Our political system is working as it should.

7 thoughts on “Gay Marriage”

  1. “Our Constitution allows our nation to handle this through federalism.”

    Sort of. The 14th Amendment allows us to override federalism when it comes to fundamental rights. Marriage has been recognized as a special type of contract that is a fundamental right. The question before our system isn’t so much a cost/benefit analysis of same-sex marriage, as it is how protected a class homosexuals are.

  2. Hey PS,

    Thanks :-)

    I like Mirah’s entire album here, btw. It’s themed on the Old Testament.

    Adam,

    Thanks for the comment. :-)

    The 14th Amendment argument here is very weak, as it relies on homosexuals being a “protected class” in the sense that blacks (but not women) are. I don’t see the stretch, and further we have no history as a country of viewing marriage as a fundamental right. All sorts of marriages are criminal, including plural marriages and (in many states) marriages between cousins.

    Morally the right to contract is a fundamental right, but marriage has long been heavily regulated.

  3. Come now, I’m sure you’re aware of Loving v. Virginia.
    “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…”

  4. Good post Dan,

    I agree with the difficulty in recognizing sexual orientations as a protected class, but partially because it allows for the possibility of fraud. It’s scientifically impossible to prove someone is gay.

    It’s trivial, but marriage IS a contract that allows for a special set of privileges. Do you want your friend to get his Green Card? Marry him! It’s just a contract.

    Personally, I think the best solution to this question is for the government to get out of the marriage game altogether.

  5. Adam,

    The Court’s decision in Loving is basically identically to the Catholic Church’s view of marriage from time immemorial — it’s a foundation of civilization, racial discrimination has no place on it, and it’s inconceivable than its anything other than heterosexual.

    Biz,

    I think you might be right. The procreative aspects of marriage law are probably best rolled into a general eugenics policy, if one could ever be adopted.

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