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I am one of the people who chose to sign on to the statement (which I did not draft) that carries with it the title “Freedom to Marry, Freedom To Dissent: Why We Must Have Both.” I have received some questions as to why I chose to participate. Here are the basic points.
I think that the efforts to drive people like Brendan Eich from his professional employment via a blizzard of pious statements about the need for universal tolerance, some from Mozilla itself, are themselves representative of a peculiar form of intolerance, which treats this issue as one on which there can be no debate. This effort to drown out disagreement may be legal, but that is beside the point for issues of social discourse. It would have been intolerable for individuals who opposed same-sex marriage to try to silence their opposition in this fashion, and the principle remains the same in the reverse.
I am not a person who comes to this issue with a deep, life-long commitment on the subject. Indeed, my own views of the issue are rather complex, because I have always thought that it is difficult to resolve the conflict between my libertarian views on freedom of association and my views on the importance of continuity and tradition in social life.
More precisely, I think there are meaningful differences between traditional and same-sex marriage that defenders of the latter too infrequently acknowledge. The simplest point is that no society could have operated if they switched the rules around, so that same-sex marriage was legal but heterosexual marriage was not. The procreation of children may not be the only function of marriage, but it is whistling in the wind to pretend that it is not a major — indeed the major — reason for the institution of marriage. To be sure, we have all sorts of rules that allow for childless opposite-sex couples to marry, but none of those arrangement make it more difficult for the procreative function to take place. An argument could be made that same-sex marriage could not function without modern technology and, even today, increases the cost of reproduction, so that if we had to ban one form of marriage and allow another, we know which way we would have to go.
The defenders of traditional marriage therefore are correct to point to important distinctions. But it does not follow that, because these distinctions can be made, they ought to dominate the moral argument. In this regard, the key point to note is that marriage is in fact a relationship that may have preceded the state, but it is also an institution that is today regulated by the state — a state that enjoys a monopoly of force within its jurisdiction.
The central problem of libertarian theory is that it has to explain why a state monopolist can regulate without limiting the liberties of the people whom it regulates. In that regard, any effort to find harms resulting from from same-sex marriage are subject to the usual difficulties that follow any excessive reading of the harm principle, so that it includes factors such as the offense that people take from the actions of others. That offense extends not just to gay marriage, but also to polygamy, and I actually think that the efforts to legaly suppress that form of relationship (which has obvious procreative potential) is singularly misguided.
Indeed, one of the intellectual Achilles’ heels of the same-sex marriage movement is its systematic effort to distance itself from the polygamy issue, which has to be addressed. If the limitation of marriage between one man and one woman is subject to attack, so too is the limitation of marriage to two people. Can it go to three? Or 10? Can it involve four men and six women? My own tentative answer to these questions is “Sure, let people do it if they want.” Underlying that view is the supposition that there are very few people who will choose this alternative. Perhaps if some people do choose to embrace polygamy, we’ll develop a better understanding of why they do it. But possible absurdity is a bad reason to ban particular practices.
There is a further element in the equation, however. The legal recognition of same-sex marriage only neutralizes the force of public opinion to control selective grants of the right to marry. But there are clear limitations there.The first is that we should never, ever, think that freedom of association can be abridged by forcing individuals and groups to recognize these marriages in their private capacities. Firms should be able refuse to hire individuals in same-sex marriages, just as they can do for people in traditional heterosexual marriages. The principle of freedom of association that drives the state to recognize these unions also drives it to respect to the autonomy of all people, all firms, and all religions not to recognize them if they choose not to do so.
Indeed, my own view is that Title II of the Civil Rights Act, dealing with public accommodations, is misguided except when used as a counterweight to monopoly power, a point that I defended many years ago in my book Forbidden Grounds: The Case Against Employment Discrimination Laws, where I called for the repeal of Title VII, prohibiting employment discrimination in competitive markets—a position with which most of my co-signatories disagree.
By these principles, the endorsement of the legality of same-sex marriage need not be understood as a personal approval of the relationship. It should be understood as a duty to recognize these unions whether or not you approve of how other people live their lives. Remember, you don’t ever have to tolerate the practices with which you agree. You only have to tolerate those with which you disagree, a proviso that applies to majorities and minorities alike.
That is the way in which I think about this issue from a public policy point of view. I might also add in closing that the question of civility in discourse is not confined to the marriage issue. We have just seen the very strong dissenting views of Justice Sonia Sotomayor in the Michigan case of Schuette v. BAMN, which upheld, by a fractured set of opinions, the Michigan referendum that introduce a state constitutional amendment for colorblind college admission.
What is so striking is the vehemence with which Justice Sotomayor expresses her views on a set of issues that are legally a real tangle (to say the least), and on which I come down in favor of the state. Once again, there is a tension between what I think is right (which is to allow affirmative action programs of limited extent at state institutions) and what is constitutional. But as one who is on both sides of the issue, I just don’t get how anyone could think that the defenders of the referendum, however misguided, are latter day defenders of Jim Crow. They are emphatically the opposite. Here again, civility is the major casualty of that dissenting opinion, the fury of which undercuts the strength of its intellectual arguments.
Libertarians are often accused of being insensitive to the soft rules that keep society together. One purpose of the “Freedom to Marry” statement was to try to make it clear to anyone with ears to listen that we are not collectively guilty of that sin. All too often, our opponents are.