Love, American Style
Text by David Baucom | Winter 2010
Maine’s gay marriage referendum, called Question 1, was decided by popular vote in November. It was essentially a replay of California’s Prop 8 drama, in which a court decision granting gays marriage rights was reversed ― by virtue of majority opinion. In California the "Yes" and "No" campaigns spent over 80 million dollars to sway the votes of fellow citizens. With the polarizing issue still considered open in most states, it would appear its cauldron hasn’t yet reached a boil. But what is most interesting about the issue is what isn’t being debated.
To some, particularly of the liberal persuasion, it might seem surprising that a philosophically consistent perspective for viewing, and reframing, the issue would be echoed in a speech imparted to a cheering group of mostly conservatives at one of the recent Charlotte tea parties, in what might have seemed just an economic diatribe, had one failed to tune into its core message. The speaker, Dr. John Lewis of Duke University, didn’t mention gays or marriage, but the implications of his message extended to all political areas including that one, transcending views of liberalism and conservatism, indicting with a radical voice their mutually held premises. Lewis’ view is one of classical liberal perspective (to be quite opposed from modern liberalism). He morally championed the philosophic view that human beings have a full right to their own lives, and that accordingly the only legitimate purpose of government is to protect individuals from the coercion of others, so they can act to pursue their own happiness in accordance with their nature, which Lewis described as "autonomous moral beings." The role of government is otherwise one of non-interference in human affairs, socially and economically ― the principle called "laissez-faire."
In this view, adults are free to engage in any relationships and agreements they choose, without violating the rights of others. Government is not a paternal authority prescribing or encouraging behavior, and has no more business in defining or licensing marriage than it does in defining or licensing friendship. Privately, marriage can be defined and practiced according to individual beliefs and choices. What necessitates a government role in marriage is that marriage implies legal issues of property (and children, etc.) involving a contract, for which government must be the legal enforcer, as it is with other types of contracts. Once the political aspect of marriage is viewed as one of mere contract enforcement ― rather than government privileging and regulating ― the issue becomes transcendently clear-cut and manageable. It’s simply a legal agreement between individuals. The laissez-faire view is the general philosophic view underlying the Constitution: the classical liberal idea of individual rights.
A proper understanding of rights, as individual in nature rather than collective, leads to the dispelling of a popular fallacy. America is not, and was never meant to be, a democracy. Pure democracy is majority rule, in which rights can be taken away by majority vote. The distinctive American model is that of individual rights as inviolable: the sovereignty of an individual’s rights is never to be subjected to a vote. Our legitimate element of democracy, as in elections, has strict limits. Most Americans only have a vague sense of this distinction, and the word "democracy" has become ambiguous and misused in politics to legitimize majority rule and its violation of individual rights on all kinds of issues. The voting campaigns over marriage rights show evidence of this confusion.
Ryan Puzycki, a gay laissez-faire activist, reproached: "Californians simply do not have the right to deny a right of their fellow citizens. It was patently immoral for the state’s executive branch to allow Prop 8 onto the ballot. We need a ‘Roe v. Gay’ kind of decision from the courts."
Indeed, challenging the propriety of a vote is the moral stand, and it is in federal court that the issue must be addressed, because this issue of rights is a Constitutional one. Sexual orientation has no bearing on an individual’s right to engage in legal contracts. The right of gays to all other types of contracts is undisputed. There’s only one decision a federal court should hand down.
Beyond the basic Constitutional and moral justice in such, a positive "Roe v. Gay" Supreme Court decision would forestall much waste of human energies. With a Constitutional coup de grace to the majoritarian dogfights, the issue would instead simply be taken off the table. Religious coalitions would have no more motive left for such legislative campaigns than they would for campaigns for prohibition of atheist literature. The full freedom to be gay, to engage in adult unions and legal agreements on the same level as everyone else, would no longer be the tiring skirmish of today’s culture battlefield. The issue would no longer brandish the same flashpoint angst, nor squander millions of dollars that could instead go to productive ends.
So rather than arguing whether the official standard is going to be inclusive of gays, we should be arguing against the idea of an official standard. Politically and legally speaking, marriage should be just another contract about issues of property (and/or children).
Heterosexuals too are bound up in a system that institutionalizes official regulatory policy for committed loving unions. The existing legal structure attempts to define a whole set of laws based on "community-standard" concepts of what a marriage contract should be ― and all unions who wed are expected to conform.
