Gay Marriage

[DavidV]

I'm having an argument with a friend of mine over gay marriage in response to blog post I made. I am going to post it here for any interested parties to critique my argument:

A recent poll shows strong that 55 percent of Americans support a constitutional amendment to ban gay marriage. Whatever one thinks of gay marriage itself, a Constitutional amendment banning it is ludicrous. A constitution is a framework for a nation’s government, not a means by which trendy political disputes are resolved. There is no constitutionally justified reason why gay marriage should even be a federal issue, and hence no justification for the federal government to have any say on what marriage is or is not. Having said that, the policy that states should enact is such: gay marriage should be recognized, but it should be recognized as just that: gay marriage. Allow me to explain:

In a free society, adult individuals are free to engage in any consensual activity they desire. In a rational government, they are also able to form any contract between them and have it be legally recognizable and binding – assuming that the contract does not impose obligations on anyone else and is enforceable. Ignoring its social and moral ramifications, marriage is just such a contract. Certainly there is more to marriage than a legal contract, but from the government’s perspective, that’s all it should be seen as – a contract to share finances, certain legal obligations, and custodial rights. Legally, marriage is a special kind of contract –a standardized way of creating a complex legal entity. It certainly would not be feasible for the courts or for couples to have to draw up their own unique marriage contract, with all the details covering all potential eventualities. It would take dozens of lawyers, and it still wouldn’t have hundreds of years of precedent to cover all the possibilities. To simplify all that, we have a standard marriage contract that can be handled by a single public notary. Are there any valid reasons not to extend this contract to couples of the same sex?

On the face of it, the answer is no -- there is nothing particularly special about the sex of the people entering into a marriage. Now some might cite a harm to children of such relationships, social harms, etc – but that is nonsense I will not go into here. There is clearly a demand for such a contract, and it is the function of government to provide it. Given the above arguments, there is clearly a valid reason to legalize gay marriage.

There is a problem however. The fact of marriage is used by many private entities to provide various privileges when entering into various legal contracts. Examples are spousal benefits provided by employers, insurance firms, and other private business that take marriage into consideration. If no distinction is made between traditional and same-sex marriages, then the firms would not be able to discriminate on the basis of sexual orientation. In fact, this is precisely what the gay lobby wants. If traditional and same-sex marriages are not delineated, then all private (and public) entities that consider marital status would be forced to use the government’s definition of marriage. Now some companies (like Disney) might be fine with that – but many others clearly will not be – and for good reasons, since homosexuality, for example, (is statistically at least) very bad for your health. There are many other valid and invalid reasons to discriminate on the basis of sexual orientation, but whatever they are, it’s not the job of government to judge them. Individuals own their lives and may choose to engage or not to engage in trade with whomsoever they please for whatsoever reason. The “homosexual agenda” – if there is such a thing – does not recognize this. Their goal is to use government coercion to impose a certain non-discriminatory social view on the public. Whether you believe that homosexuality is moral or immoral, using government to force that view on everyone else is clearly wrong.

What’s the solution? The solution is to create a new marriage contract for homosexual couples and treat as such – a separate legal contract. Private individuals will then be free to recognize it -- and provide the same benefits to gay couples or not to. Government should not provide special benefits to anyone – whether they are single, or in a traditional or non-traditional marriage. Since it respects contracts however, partners of gay marriages would still retain the same custodial and inheritance rights as those of straight ones.

[AshRyan]

I'm having an argument with a friend of mine over gay marriage in response to blog post I made.  I am going to post it here for any interested parties to critique my argument...

Out of curiosity, what are your friend's criticisms of your argument? What are his arguments against your conclusion?

[DavidV]

His argument was that (a) homosexuality is immoral ( marriage is a moral contract not, not just a legal one and © government legalization of gay marriage amounts to sanctioning immorality.

He used two examples: (a) you can’t legally marry animals and ( you can’t marry family

My reply is that the morality of homosexuality is irrelevant. Gambling, prostitution, and smoking are in some ways immoral too, but they should be legal. Government involvement in morality is limited to the non-consensual realm. It does not sanction anything by respecting voluntary contracts, regardless of their content. There is no such thing as an “amoral contract” because all human actions have a moral value, and real ethical considerations of marriage are nonetheless outside of legal scope.

The examples aren’t valid either. (a) contracts require consenting adults and ( incest is illegal because of a hazard to the children

[AshRyan]

Ah, the old "the government must protect the moral fabric of society" argument, eh? Sounds like your friend has been unwittingly influenced by conservatism, and in the worst possible way. Because the premise behind that argument, ultimately, is that human beings exist to serve the state, and not the other way around.

If it were the government's job to enforce morality, then government would necessarily have to initiate force against its own citizens, and you'd have tyranny. So many things would be illegal, that the only practical implementation of that principle would be to have the system of laws outline what is allowed, and have anything that is not specifically permitted be illegal. I agree completely with your response to him. And the solution you offered in your first post is at least plausible, I think. It's certainly the best one I've heard so far.

Is this friend of yours an Objectivist? Because if so, these and some other serious flaws in his line of thinking should be pointed out to him. (If, on the other hand, he's a typical conservative Christian, then it's probably not worth the bother, since you can't argue something with someone for whom it's a matter of faith.)

[DavidV]

Is this friend of yours an Objectivist?

Yup, he has at least $5K of AR bookstore material in his room.. Though that in itself doesn't make one an Objectivist...

Oh, I just realized he wrote a reply here:

http://www.absolutereason.com/archives/000026.html

[MinorityOfOne]

GC,

If the companies have an interest in whether a person is married to somebody of the same sex or somebody of the other sex, why not just ask? Making a whole new term for something which is fundamentally similar seems like a waste; rather, it makes more sense for people/companies just to ask for qualification in situations where such detail is necessary.

[Capleton]

GreedyCapitalist opined:

His argument was that (a) homosexuality is immoral ( marriage is a moral contract not, not just a legal one and © government legalization of gay marriage amounts to sanctioning immorality.

How could it ever be immoral for an Objectivist to uphold and advocate individual rights consistently? A gay couple is made up of two individuals and so is a straight couple are we to believe that the straight individuals have more rights than the gay ones (whereas being able to enter into a contract is concerned)? If anyone answers "yes" then he or she has renounced Objectivism for some perverted and contradictory dogma. Besides as an Objectivist I do not see any reason for the government being in control of marriages. Marriage is a contract between two individuals and the only thing that makes it "sanctified" is if the both parties appreciate the implications of marriage and have undertaken the act of their own free will. Marriage and romantic love are private matters and the government cannot legislate romance so to speak.

Why is homosexuality immoral? It is immoral to act against ones own interest and to consciously seek to sabotage ones long term happiness by faking reality. In that regard it would certainly be immoral for a gay person to sacrifice his or her happiness to the family, the tribe or the nation just because said groups disagree with same sex relationships. If one is attracted to the same sex then one ought to seek after a relationship with a person of the same sex, pure and simple.

Now some companies (like Disney) might be fine with that – but many others clearly will not be – and for good reasons, since homosexuality, for example, (is statistically at least) very bad for your health.

Homosexuality bad for health of individuals! Care to concretize this point? For the record I do not support your proposed solution to this "problem". I disagree!

There is a problem however. The fact of marriage is used by many private entities to provide various privileges when entering into various legal contracts. Examples are spousal benefits provided by employers, insurance firms, and other private business that take marriage into consideration. If no distinction is made between traditional and same-sex marriages, then the firms would not be able to discriminate on the basis of sexual orientation.

Are we to believe that you favor such irrational discrimination? All the firms have to do is insist that they only give benefits to heterosexual couples. On the other hand since we live in a mixed economy the firm would not be able to discriminate on the basis of sexual orientation in any instance. In a society where there is a total separation between state and economy then an employer can discriminate to his hearts desire. I do not see how making marriage something for all individuals to indulge in is going to cause a problem in this case. I also think that it is superfluous to even suggest that gay marriages be given some arbitrary distinction from that of "traditional" marriages. Your argument is a hopeless non sequitur. This is because being married does not preclude one from being discriminated against and neither does it conceal ones sexual orientation (I would like to think that it would make it rather obvious).

What is a marriage?

Marriage: a legally recognized relationship, established by a civil or religious ceremony, between two people who intend to live together as sexual and domestic partners.

It really does not matter whether the individuals are gay or straight all that matters is that they both are considered to be legally married.

[Capleton]

The law discriminates between good and bad behavior and should not sanction deviant behavior. It should not normalize deviancy and that is what altering Marriage to accommodate such deviancy would accomplish.

What nonsensical and fascist drivel is this? Who determines what is deviant behavior in a society? As an Objectivist I designate the government as the agent that protects me from the physical force of my fellows. The government’s concern must be to secure individual rights, i.e., to prevent and punish the violation of individual rights. My rights are not being violated when gay men meet to have sex; my rights are not violated when a bum smokes crack or a rapper smokes weed. Are we to leave the decision as to what is deviant behavior up to the whims of some beurocrat or are we to support an objective system of law? Keep in mind that living as if there were no god can be considered deviant behavior, advocating laisse-faire capitalism can be considered deviant behavior and so too the advocation of (rational) egoism. The role of government is to protect me from physical force and the like. To say that the government must stamp out deviant behavior is to suggest that the government must use physical force against those who did not initiate it. As Ayn Rand said, “The moral is the chosen, not the forced; the understood, not the obeyed. The moral is the rational, and reason accepts no commandments." How then do you support the government legislating morality and seeking to force people to be moral?

[AbsoluteKeenan]

The law discriminates between good and bad behavior and should not sanction deviant behavior. It should not normalize deviancy and that is what altering Marriage to accommodate such deviancy would accomplish.

Unfortunately, that was a quote from me. It was a mistake starting from the premise that government is part of political philosophy, which is derived after moral philosophy. This, however, does not mean that laws directly reflect proper morality, and my error was caught up in that line of reasoning. I have corrected it with the help of a comment by Trey Givens.

On the most part, I agree with the post by Capleton above. We have both come to similar conclusions. I disagree with his definition, though. A marriage is a concept that we have evidence of being around for 6000 years in Mesopotamia. I don’t know the particulars back then, but every dictionary I have looked at refers to a “man and woman” and “husband and wife”.

Here is my corrected post from my site:

The Laws of a proper society are objective and they only prohibit crimes in terms of specific physical acts of physical force. I agree that this means that the law must not intervene with the intellectual or moral life of its citizens; to follow this then is Marriage a proper realm of the Government at all?

The very definition includes "union of a man and woman as husband and wife" and this certainly discriminates other types of unions. A Marriage is one type of the many contracts that men make. It is a very common contract and has become a very special one with many emotive properties. There are already contracts people can make for whatever living arrangements they want. These contracts are similar to Marriages, but is not a Marriage (by its very definition).

But it is the moral ramifications, the legitimacy and sanction that Marriage brings that many of those trying to change the law either desire or want to remove. The idea, though, to create a not-quite-a-real-marriage-but-close does not protect the concept of Marriage. It is simply an invalid multiplication of terms. If you want to remove the moral ramifications that a Marriage brings, you ultimately have to abolish Marriages and form a new Union/Consolidation contract.

So to answer my question about Marriage, yes, the government should uphold the Marriage Contract and all other contracts.

[AbsoluteKeenan]

Here is a point in which I need to state I do disagree with Capleton. I do not over generalize and state that “homosexuality is immoral”, but it is a problem. If a homosexual cannot correct his thinking (and he ought to try), then he ought to be with whoever he is attracted to and try to be as happy as he is able. It *would* be immoral for him to damn himself to try and act normal if the he is not.

I also *do* think it is legitimate to discriminate against homosexual on a personal/business level. Such a deep seated psychological problem cannot be alone. There are too many irrational integrations in such a mind for the man to be trusted.

[AbsoluteKeenan]

In its essentials, marriage is just a contract. Contracts can be between two or more people, it can or cannot take their sexual orientation into consideration, or sexual relationship. The marriage contract primarily focuses on sharing of property, inheriting property, the responsibility of raising children, and medical decisions if one is incapable.

The contract of Marriage discriminates between types of people and amount. There can only be one man and one woman. Another is that it is defined to be only between a man and a woman. And another that has come to mind is incest (adult and consensual in this case). There may be others that I am not aware of. In these cases, they each have their special circumstances and needs. If these people desire some sort of union similar to a marriage, then the government should recognize this as any other contract.

The way Vermont has done this is with a Marriage and Civil Union Certificate. This does seem to keep separated the concept of marriage (between a man and a woman) and the concept of “civil union” (between homosexuals only, I assume).

I must conclude that this is proper.

It has been pointed out to me that there are adoption issues raised. I agree with his what was said to me: “As for adopting children, I think that preference should probably be given to heterosexual couples, assuming other things are equal, but a lot of times there are children that most heterosexual couples don't want to adopt because of physical or mental problems with the child or because the child is not an infant. In those instances, I think that a gay couple raising a child is preferable to the child having no parents at all.”

[MichaelM]

It certainly would not be feasible for the courts or for couples to have to draw up their own unique marriage contract, with all the details covering all potential eventualities. It would take dozens of lawyers, and it still wouldn’t have hundreds of years of precedent to cover all the possibilities. To simplify all that, we have a standard marriage contract that can be handled by a single public notary. ...

There is clearly a demand for such a contract, and it is the function of government to provide it. ...

Government should not provide special benefits to anyone ...

That standard marriage contract devised to spare the cost of lawyers looks more like one of those special benefits the government should not provide than a function it should provide. What act of initiated force would this service shield us from?

Of the infinite possible combinations of vows and agreements between two or among more than two humans pertaining to their mutual responsibilities in a shared life, what standard would the government use to favor one combination over all others? And since it most certainly may not forbid all of the others, why bother to anoint one to be standard or official?

[Capleton]

AbsoluteKeenan Wrote:

Here is a point in which I need to state I do disagree with Capleton. I do not over generalize and state that “homosexuality is immoral”, but it is a problem..

I am afraid that you have yet to state in a coherent and persuasive manner why you deem homosexuality to be immoral and/or not rational. All that you have rendered so far is rhetoric that baffles me. Of course, you are making a hasty generalization (to state a supposed general truth about something on the basis of limited or incomplete evidence). This is because you have not put forth arguments as to why homosexuality is immoral according to the application of Objectivist principles.

If a homosexual cannot correct his thinking (and he ought to try), then he ought to be with whoever he is attracted to and try to be as happy as he is able

What thinking needs correcting? You admit that a person can be attracted to a person of the same sex but you still think that by them seeking a gay relationship something is wrong with their thinking. Everyone ought to seek romance with the individual that they are attracted to (provided that they are not related). To do otherwise would be an instance of faking reality.

In some text or rather in a page linked above you scoffed at the idea that man can be a genetic robot so to speak. How then can one claim that all humans are born to be heterosexual and thus it is right to be one (in all cases)? Can't an individual genuinely fall in love with a person of the same sex? Is it immoral to love (romantically) someone although one cannot have a biological child with that person? Is it wrong to go through life without having children? If memory serves me right Ayn Rand chose not to have children for personal reasons is she then immoral for not having children?

In closing, I will now submit a quote concerning the Objectivist view of love which is provided by Ayn Rand:

"Love is the expression of one's values, the greatest reward you can earn for the moral qualities you have achieved in your character and person, the emotional price paid by one man for the joy he receives from the virtues of another."

My life can be enriched by forming a relationship with anyone who share my values and who values me regardless of their sex.

[DavidV]

GC,

If the companies have an interest in whether a person is married to somebody of the same sex or somebody of the other sex, why not just ask?  Making a whole new term for something which is fundamentally similar seems like a waste; rather, it makes more sense for people/companies just to ask for qualification in situations where such detail is necessary.

They could certainly ask, but there are many existing contracts and policies which take "marriage" into consideration. In all such cases, "marriage" should be taken to mean strictly traditional marriages. Future documents will also need to distinguish between gay and straight marriages. For these reasons, a legal distinction is nessary.

[DavidV]

Of the infinite possible combinations of vows and agreements between two or among more than two humans pertaining to their mutual responsibilities in a shared life, what standard would the government use to favor one combination over all others? And since it most certainly may not forbid all of the others, why bother to anoint one to be standard or official?

Marriage has a parallel in the business world – the corporation. It allows several individuals to create a new legal entity using a government "template." This greatly simplifies things for the individuals involved as well as the courts.

Certainly, people should be able to make any contract they wish, but it is proper for government to aid them by providing predefined contracts (such as marriages, corporations, LLC’s, bankruptcy laws, titles of ownership, etc) to simplify the process for everyone involved.

[MichaelM]

Certainly, people should be able to make any contract they wish, but it is proper for government to aid them by providing predefined contracts ...  to simplify the process for everyone involved.

Instead of answering the questions I posed, you have merely repeated the original assertion.

I still don't know how you got from a government with the sole task of force management to "it is proper for the government to aid them..." It is not the government's job to aid us or to simplify our life, is it?

[Guest Trey Givens]

They could certainly ask, but there are many existing contracts and policies which take "marriage" into consideration.  In all such cases, "marriage" should be taken to mean strictly traditional marriages.

The word "marriage" first refers to a specific type of union1 between two people and second, only for the sake of modern tradition2, refers to such a union between a man and a woman. By subsuming same-sex unions under that word, the nature of the union itself is not changed, only one of the descriptors is removed.

In the context of contractual language one wouldn't have to assume anything new about the word because it still means "the parties referenced herein are linked in this particular kind of contractual relationship." Those who wish to discriminate could just by asking or by amending the contracts for the sake of whatever clarity they wish.

Future documents will also need to distinguish between gay and straight marriages. For these reasons, a legal distinction is nessary.

No such disctinction would need to be made. That would only be necessary if one wanted to discriminate against those relationships in some way.

In both cases there isn't any legal reason why such a clarification would need to be made. If there were some sort of practical reason, you mentioned insurance companies3, or if someone just wanted to be a barnyard collectivist, the implementation of means to do so is a very minor consideration in light of the legal virtue of enforcing laws uniformly across the citizenry.

---------------------------

1 The third entry of Merriam-Webster's Dictionary defines marriage as "an intimate or close union" and in circles of homosexuals, the term isused to refer to a monogamous, romantic pairing. Reality, it would seem at least in some contexts, proves that the word actually does refer to a concept of romantic unions without specificity of gender.

2 Same-sex unions are not anomolous to history including that of western Europe. See also note 1 above.

3 Insurance companies are also not strangers to same-sex unions. Many companies today offer "partner benefits" and to the best of my knowledge, no insurance company actually charges homosexuals different prices from heterosexuals.

[Guest Trey Givens]

The comment about giving heterosexual couples preference in adoption proceedings along with this quotation:

I also *do* think it is legitimate to discriminate against homosexual on a personal/business level. Such a deep seated psychological problem cannot be alone. There are too many irrational integrations in such a mind for the man to be trusted.

Assume a moral judgment on homosexuality.

That judgment has yet to be founded.

The assertion of some deep-seated psychological problem not supported by science and I defy anyone to show that there is a philosophical corruption in connection to homosexuality in otherwise rational individuals.

[DavidV]

It is not the government's job to aid us or to simplify our life, is it?

In a legal context, it is.

[DavidV]

In both cases there isn't any legal reason why such a clarification would need to be made.  If there were some sort of practical reason, you mentioned insurance companies3, or if someone just wanted to be a barnyard collectivist, the implementation of means to do so is a very minor consideration in light of the legal virtue of enforcing laws uniformly across the citizenry.

Let's put it this way: If I ran an insurance company, I would discriminate against homosexual men, whether married or not. I would consider it stupid not to do so, given the fact that gay men are much more likely to get STD's. Futhermore, if gay marriage were suddenly legal, I would want my existing policies to exclude gay marriages by default. This is not "barnyard collectivism" but good business sense, and the government has no business deciding the merit of that decision for me.

[MichaelM]

In a legal context, it is.

In only one single legal context of all possible legal contexts, it is -- it simplifies the task of managing the use of force by or against us. And, per Peikoff (OPAR p.366-7) on the state and its laws: "It has no standards to uphold and no benefits to confer..."

Rand only establishes two standards laws must meet: 1) they must be objective, and 2) they must serve to protect rights (from force). She qualifies rights (and by extension, laws) as being necessarily, and exclusively, negative mandates.

This would exclude all laws that prescribe what one may or should do, such as your templates. Instead, laws could only address prohibited uses of force.

[Capitalism Forever]

This would exclude all laws that prescribe what one may or should do, such as your templates.

I think you misunderstood GC's "templates." They do not prescribe anything, they are just proposed standards, which can be voluntarily adopted if both parties so wish, perhaps with the addition of certain extensions, amendments, etc.

In a free society, anyone can propose standards for voluntary adoption, provided that they do not violate anyone's rights in the process. (Obviously, that implies that no funds can be used for such a purpose without the consent of the donor, and that no attempt must be made to forcibly obtain a monopoly on the creation of such standards.) If all the citizens consent, the government could rightfully issue some document with proposed standards. (I wouldn't consent, though, so if you want your free society to include me, the point is moot.)

But another, more interesting question is whether we ought to have laws clarifying the meaning of certain words, such as "marriage." If for any reason I asked a person if he was married, I would want to know the exact meaning of his answer without having to refer him to a detailed definition of the term. (Or, if I had to, then at least I wouldn't want him to come back later and say he misunderstood it because he didn't know the meaning of the word "is" ...)

[Trey Givens]

If I ran an insurance company, I would discriminate against homosexual men, whether married or not. I would consider it stupid not to do so, given the fact that gay men are much more likely to get STD's.

As I mentioned, I don't know of any insurance companies who look at this the way that you do. In fact, the ones I do know of (and I admit they are few) do not discriminate in this way.

Also, I think you're probably focusing on only one STD, HIV, in making this comment. The CDC reported in 2000 that men who have sex with men are only responsible for 42% of the new HIV infections reported annually in the US. The other 58% must come from somewhere else.CDC: Tracking the hidding epidemics: Trends in STDs in the United States 2000

Further, minorities tend show a greater statistical liklihood of having STDs over all.

I realize this point is somewhat off the topic of gay marriage in terms of proper governance but in so far as it is used to argue that there are practical, business reasons why a distinction should be made between gay marriages and straight marriages, this argument should be abandoned.

As I said, before, if you wanted to discriminate, you could. Just say that all your contracts signed before X date refer to heterosexual unions and of course they do. That's hardly a consideration for the government.

[Trey Givens]

I think the contractual template idea is a great idea. (Clearly, it works very well in this case.) And as you've pointed out, is that the word "marriage" refers to a specific type of union with certain terms and conditions. That's different from other common contracts out there.

In all other cases, if you asked someone if they're in such-and-such kind of contract, you have to further inquire after the terms. Marriage contracts aren't like that.

They assume monogamy and affection in return for some property rights and some other specific powers of attorney. That's why we assume we know what someone is talking about when they say "I'm married." I think that's probably a good thing.

But I don't think it's necessary that such contracts assume heterosexual couples because it is possible for homosexual couples to also fullfill the terms of such a contract.

[MichaelM]

In a free society, anyone can propose standards for voluntary adoption, provided that they do not violate anyone's rights in the process.

I'm going to have to stick with a no on this one, unless someone can do a better job of justifying it. Anyone except the government may propose standards is how that should read.

And CF, I understood GC's position exactly as you described it. My problem with yours, his, and Trey's comments is that they are all dragging around the status quo. You have not tried to start from no government at all and to then trace the steps through the formation process until you arrive at a point where your positions become required for the defense of rights.

The point being that it is dangerous enough to let the government perform its primary mandate without adding superfluous benefits to its can-do list. The proper entity to provide contract templates to the populace is the legal products aisle at Wal-Mart (among others).

When the government suggests other formats for ideal contracts, it interferes in the competition between Wal-Mart and any other company marketing legal products. Furthermore, because their "proposals" come from the same entity that will be settling disputes over contracts, they will unavoidably cast a shadow over any different templates offered in the free market.

OPAR p.366: "Government is inherently negative. The power of force is the power of destruction, not creation, and it must be used accordingly, i.e., only to destroy destruction. For a society to inject this power into any creative realm, spiritual or material, is a lethal contradiction: it is the attempt to use death as a means of sustaining life."

This means that the government may not do anything it wants to that its donors will condone. It means that if templates are as great an idea as Trey thinks they are, he should start a business producing them for sale, but that urging the government to produce them can constitute a conspiracy to violate rights.

And, while I agree with GC that the corporation is a parallel to marriage, I see a better one in the prenuptual agreements that are currently in vogue (and sans any template at all). But in the end, it is the word "marriage" itself that is overladen with past baggage. Instead of trying to squeeze laws into it, just forget it, and let a whole new vocabulary emerge to denote all the various versions of shared-life agreements free individuals will create.