Ilana Mercer, February 27, 2004

It might be news to the noisome Mayor Newsome of San Francisco, but it should not be news to libertarians: Not conferring the benefits of marriage on homosexual unions does not in the least violate the rights of gays. Not if we adhere to the libertarian definition of rights as the inalienable rights to life, liberty and property. Since these are the only rights libertarians wish the state to enforce, equality under the law is thus the requirement that the state not deprive any person of life, liberty, or property, without due process.


Having one’s relationship blessed by the state simply does not constitute a basic right.


To suggest this is the case is to equate state-granted benefits with rights, and different treatment with discrimination. To claim gays are denied basic rights is to base one’s claim on a monumental misconstruing of the concept of individual rights.


Furthermore, a linguistic definition is not a semantic flight of fancy, but a description of the nature of a thing. The ever-so-mod New Oxford American Dictionary defines marriage as “the formal union of a man and a woman.” Based on the inherent qualities of the thing being described, “marriage” is clearly different from “same-sex unions.” Setting aside the view some egalitarians hold that this definition must be made more inclusive, why is it irrational or unfair for the state to treat a thing in accordance with its properties or nature?


Notwithstanding that libertarians do not approve of state benefits, for the state to allot different – or no – benefits to different entities does not amount to unequal treatment under the law. If it did, an employed person could demand the “right” to claim welfare benefits while employed.


Egalitarians, however, do not like the fact that reality-based, objective dissimilarities give rise to disparate treatment. They thus resort to inflammatory civil-rights rhetoric. However, it doesn’t change the fact that treating gay couples (or heterosexual cohabitants, for that matter) differently than married people isn’t inequality under the law, because their rights to life, liberty and property are not denied.


More proof that gay couples’ rights are not being infringed is the fact that nothing prevents them from solemnizing their commitments through promises, vows, contracts and living wills. Other than the Social Security provision, which ought to be privatized, there aren’t really many so-called benefits the state confers on married couples that are not available to gays through private contracts.


The rousing raves about discrimination aside, if we define rights properly, we must conclude that gay couples are not being denied their individual rights.


Ideally, government should be entirely divorced from the nuptial business. But from the fact that the state upholds traditional marriage, why does it follow that it is violating the individual rights of same-sex couples who clearly don’t fit the definition or the profile?


Changing the definition of marriage to include gay unions will inevitably broaden the scope of the civil-rights tyranny. If the history of the civil-rights revolution is anything to go by, creating new categories to protect and to privilege is bound to extend the legal reach of these couples (and their lawyers) to pockets and property not their own, in essence leading to more violations of the rights of employers, landlords and … perhaps parents. If the American Law Institute has its way, says Dr. Allan C. Carlson, fathers (and, presumably, mothers) will have to share visitation rights or even custody with the lesbian (or homosexual) partner of their child’s biological parent.


An expansion of this kind in government power is indubitably undesirable.


Ideally, religious institutions ought to act as the ministers of marriage. If marriage were thus privatized, conservatives would have to accept that some liberal churches and synagogues (the mullahs in their mosques would resist) will wed homosexuals.


If federalism were respected, liberals and leftist libertarians would equally have to live with the fact that the people of most states would probably not extend to other unions the protections they afford marriage – 38 states have so far passed laws, the implication of which is to confine marriage benefits to those who fall within the known definition.


Like it or not, the American scheme, and the (now sadly obsolete) 10th Amendment, dictates that whatever is not specified as a power of the federal government and is not prohibited to the states, is reserved to the states or the people.


This applies to the sanctimonious Mayor Newsome whose campy coup – issuing marriage licenses to same-sex couples in contravention of state law – did not rest on any coherent notion of individual rights. It sprung, rather, from the invented, casuistic constitutional doctrine that arose in the wake of the illegally ratified 14th Amendment.


The mayor should meditate on the meaning of one of the most magnificent documents of political philosophy, which states that, “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”



   February 27, 2004

CATEGORIES: Conservatism, Federalism, Gay Issues, Gender Issues, Homosexuality, Individual rights, Left-liberalism, Libertarianism, Religion & Faith, Welfare State