The Gay Marriage Question, Plus Drugs and Grey Areas

Some might say my priorities are askew if I spent last night with a group entirely composed of fellow straight males, passed up a chance this morning to frolic with attractive bisexual women at the beach (on this sweltering New York Saturday), am scheduled to dine tonight with an ex-girlfriend I didn’t marry, and am now spending part of my much-needed afternoon time writing about gay marriage. Philosophy first, that’s all I can say.

One of the major qualms libertarians might have about voting for Bob Barr, who was the subject of my last few blog entries and is the Libertarian Party candidate for president, is that he’s the man who helped give us DOMA, the Defense of Marriage Act, which essentially defines marriage as male-female for federal purposes but does not, as recent news stories attest, prevent individual states from legalizing gay marriage (as California just did and as New York seems to be in the process of doing). By contrast, the constitutional amendment some conservatives wanted would have defined marriage as male-female for all the states.

I was pleasantly surprised by how forthright, intelligent, and articulate Barr sounded about the issues on which he’s shifted. Unlike a lot of politicians who instinctively take the Orwellian/John Kerry approach of claiming “I have always been at war with Oceania” (but taking several mealy-mouthed, blustery, and upbeat sentences to say so), Barr is quite willing to say what his position was Back Then, what it is Now, and why his thinking changed.

Of course, he pegs the shift in his thinking to the post-9/11 period and watching the expansion of executive power under Bush — which made him more libertarian across the board — while cynics might simply peg the shift to him losing his House seat as a Republican and then adopting a new political party. Regardless, he seems able to quickly and clearly discuss the fine points of his new philosophy without hemming and hawing — and while he now wants the PATRIOT Act repealed, he’s basically sticking to DOMA, while sounding like he’d rather forget the whole issue and isn’t instinctively “bothered” by gays or state-level gay marriage, which is a start (from a socially-liberal perspective).

So he’s clearly an example of a libertarian who leans rightward in the taxonomy discussed in the Response threads of my last two entries — and while I wouldn’t have pushed for DOMA myself, I think that before anyone writes him (or others with his set of positions) off as haters and bigots, it’s worth considering that opposition to gay marriage is one of the most popular and least-divisive political positions in recent American history, with something like 70% opposed and the numbers not that different between the conservative and liberal camps.

Yet some 70% of Americans (I haven’t checked the stats) are probably also fans of Queer Eye for the Straight Guy, Ellen, and Rosie, so like it or not, gung-ho gay marriage supporters have to concede that something other than mere hate is going on here — and I would even go so far as to say that Americans are libertarian enough (in the broadest sense) that they probably don’t think they’re coercing anyone by failing to legalize gay marriage across the nation, or else they’d be more torn up about their position (I hope).

Must Government Recognize Gay Marriage?

So maybe they’re right — about their position not being coercive, I mean (though as an atheist with no moral objection to gays, I don’t mean they’re necessarily right to pick the do-not-legalize position — I just mean they may be right that failure to do so is uncoercive and thus a morally permissible, albeit not to my mind necessary, position).

As usual, the root of the problem is the unfortunate fact that the government exists. Once you have a single, centralized, governmental definition of something (such as marriage), you’re going to end up with some mushy, bland, majoritarian version of it. We shouldn’t, for example, be giving the Presidential Medal of Freedom in the first place, but once it exists, it’s a safe bet it’ll tend to go to widely-respected people as opposed to, say, late law-flouting black-market anarchist Samuel E. Konkin III.

The beauty of the marketplace is the successful avoidance, a billion times a day, of the need for a consensus, one-size-fits-all way of doing things. If we’re dumb enough to render something governmental (whether conservative, moderate, or even progressive-social-democratic), we’re going to get one widely-agreed-upon version of that something. The National Music Album, if there were one, would almost certainly be something by Frank Sinatra, no matter how confident certain pockets of the population are that Doolittle by the Pixies (which I’m listening to right now) is better (or The Wall or Synchronicity or whatever) — and it wouldn’t be because the Frank fans are haters or would-be oppressors. Indeed, given the unfortunate constraints of the situation, Frank might be the correct answer.

Separation of Marriage and State

So the ideal legal situation from a libertarian perspective regarding marriage, I would think, is the one Michael Kinsley defended in a column years ago: get the government out of the marriage business altogether, so that marriage is a purely private contract (and as legally enforceable as any other), which in no way prevents the overwhelming majority of those contracts from following very traditional forms — but also doesn’t prevent gays, polygamists, or for that matter Buddhists (who I’m told sometimes marry in ceremonies that go unnoticed by U.S. law but are treated with respect by their relatives and communities, which surely is the important thing) from making whatever contracts they want.

And despite the argument (which Barr may still buy into) that the diversity of such contracts somehow undermines the old-fashioned, Christian, heterosexual ones, it’s very difficult to see how, say, my parents’ stable, four-decade marriage (congratulations!) would get rockier if two guys in the Village decided to spend the rest of their lives together (as they often already do, of course).

But once we deviate from that ideal situation — and supporters of government are best thought of as deviants — it’s not perfectly clear what the government should do. It shouldn’t be in the marriage business to begin with, but once in, is it so clear it has to formalize a wide diversity of marriage contracts? It may depend partly on how you define “marriage,” and I think people of a contractarian bent — most libertarians, many modern-liberals, and perhaps people who like philosophy and sci-fi — are prone to have a very abstract definition of marriage in their heads (i.e., Person A unites in bond for life or until dissolution of marriage contract with Person B) that, it turns out, seems very hollow and alien to a lot of our fellow citizens, to whom “marriage” has apparently always connoted something with far more empirical detail and historical, traditional baggage to it, which is not necessarily wrong either lexicographically or morally — so long as they weren’t intending to coercively prevent private commitment ceremonies.

John McCain, for instance, has said he isn’t bothered by commitment ceremonies despite quietly opposing legalizing gay marriage — and gay marriage opponent Barack Obama probably feels similarly. I hoped, back in the 90s when I addressed the topic in a New York Press column, that the rise of commitment ceremonies would lead to some peacekeeping compromise (of a Bill-Clintonian sort, regardless of whether he signed DOMA) in which the parallel institution of “civil unions” was legalized so that “everybody wins”: The gays get de facto legal equality, and most of the population can go on thinking of “marriage” as something slightly different — which it really is, which is to say the tradition-vetted heterosexual union historically lauded by Christianity and other religions and valued in part for its high likelihood of producing offspring (and again, I say this as an atheist who doesn’t want children, with my present goal — as I hope is obvious, but I won’t be shocked if someone gets angry anyway — being deference to and tolerance of traditionalists rather than seizing a chance to be intolerant toward the more marginal group).

Indeed, I know a libertarian non-Christian who has actually had gay sex and still opposes gay marriage (no one living in New York and no one I want to name), on the grounds that you can’t just rewrite a centuries-old tradition with real complexity and meaning to it by legal fiat. Again — perhaps as a sci-fi guy before all else — it had never once crossed my mind before gay marriage became a hot topic that there’d be anything odd about, say, Chewbacca marrying a sentient computer or some other arrangement far removed from heterosexual norms, but I understand now that many people’s working definitions of things — on many, many issues — are a bit more richly-detailed yet more constrained than mine, and that doesn’t automatically make them wrong. To some people, it can’t be a novel without a plot, etc.

Government-Decreed Social Institutions Thwart Markets

One big underlying problem with letting government wade into these matters is that it tends to end up tampering not just with definitions of social institutions that should remain in the province of tradition or private action, but also decreeing things like insurance rates and hospital policies. The truly freedom-loving answer, of course, is to also get government out of the insurance and health businesses and let the reputational chips fall where they may when it comes to new-fangled institutions like gay marriage contracts or very old institutions like polygamy. If the truth is — and this may well be the case, egalitarian naivete and p.c. notwithstanding — that gay marriages tend to be even less stable and more fleeting than heterosexual ones, the demographers and the compilers of insurance actuarial tables should be free to respond accordingly (and if you don’t like it, you make a contract with a different insurance company or you suck it up, so to speak).

(Of course, some conservatives already argue that things like California legalizing gay marriage portend negative economic consequences, like Ed Whelan — no relation to my boss Dr. Elizabeth Whelan — but this seems like nitpicking to me, not so unlike trying to settle the issue of what drugs people can legally use by looking at stats that warn of a .4% decrease in economic output if pot is legalized. We’re not that technocratic, are we? What’s next, mandatory coffee consumption? Capitalism means you do what you want with your body and property — and pay for it all yourself or with help voluntarily given to you — not that we become cogs in a governmental industrial policy.)

If experience leads to a world in which people announce their gay marriages and other people think, based on experience rather than bigotry, “Yeah, that’ll be over in about a month — or they’ll each continue to have other lovers anyway — so I’m not giving them the special rental discount,” so be it. But if, on the other hand, it turns out that gay marriage — or certain types of gay marriages but not others — are as stable and long-lasting and bring as many subsidiary benefits as straight marriage (or, again, certain types of straight marriage — say, conservative marriages vs. Hollywood celebrity marriages, perhaps), then let time and reputational effects confer upon them the same respect traditionally afforded straight marriage.

But as usual, don’t let the government decree the answer instead of letting the magical combo of ongoing marketplace experimentation and traditional codification continually settle (and unsettle and resettle) the issue.

I’m Willing to Call It a Grey Area

And for the religious folks reading all this skeptically: as with countless other things, if God objects, he supposedly has ample power with which to punish the wrongdoers himself without earthly authorities doing it for him. You’re not a Taliban-style religious totalitarian after all, right? Right? No stoning of heterosexual adulterers, I hope? That’s what makes us better than the Islamofascists and all, isn’t it?

In any case, you can see that I regard the issue as slightly more complicated than do some of my fellow libertarians, one of whom I recall saying that legalizing gay marriage was the “great civil rights cause of our time!” Meh. We’re talking about something like 2% of the population, many of whom may not want to get married anyway and who always have the option of having commitment ceremonies and becoming economically entangled (and even filling out a form making them de facto next of kin for hospital visits) if they choose. Perhaps they should be able to legally marry, in all states, just like everyone else — but I don’t see the issue as having quite the urgency that some on both the anti-gay right and pro-gay left do.

And I say that for utilitarian reasons suggested above, not out of mere callous indifference (indeed, I think I’m more aware than most people of the degree to which moralistic positions are often conveniently structured so as to impose restrictions on people other than the moralists, which is why I try to be utilitarian in my thinking about these things rather than just consulting my gut to see if I personally feel threatened/offended/elated about some controversy — philosophy first).

So it’s one more issue that, to the horror of its partisans, I’m willing to consign to a “grey area” — along with abortion, foreign policy, the death penalty, the social impact of religion, animal welfare, and a lot of other things about which people sometimes refuse to accept moderation or agnosticism as possible positions. I’ll pick my political allegiances and priorities on other grounds. And when I consign something to a “grey area,” I typically do not mean that I have absolutely no preferred resolution to the issue but simply that I recognize that opposing arguments are sufficiently strong that it might be reasonable to accept a compromise, table the issue, or (in a federal system) make it a state but not federal-level issue, if possible. It also means (I hope) that you’ll find me less likely to “freak out” over the issue than about things that some people might consider less important but that I think have more clear-cut answers (usually econ and science issues and for policy purposes mainly just econ, except to the extent government keeps wading into scientific controversies that should be left to the scientists and public to decide, without federal funding, bans, or official verdicts being involved). It also tends to mean I don’t think the partisans on one side of the issue are as clearly guilty of coercion or rights-violations as some might think.

Jeez, now a 3,000-word-plus blog entry (counting the fascinating stuff about drugs starting in the next paragraph). I don’t know how my column became so long, but I’m striving for short, casual ones for the foreseeable future.

Note on Drugs

One more thought, in reaction to some Responses regarding drugs over the past few days: libertarians, at least in the way the term is routinely used in the media and political philosophy (and carefully distinguished from the broader/more liberal term “civil libertarians” and the old-fashioned European use of “libertarian” to mean left-anarchist), want drug legalization, despite the impossibility of ensuring that everyone using the term “libertarian” understands the whole philosophy or accepts all its consequences (though I think libertarians are, if anything, usually thought of as being far more likely — indeed, annoyingly likely, some say — to accept their philosophy whole-hog and without exception than are liberals or conservatives).

At the same time, Teenage Todd was living proof that one can think in somewhat libertarian ways while still opposing drug legalization. I’m not interested in getting into an embarrassing defense of all my sloppy, incipient philosophical ideas from high school, but they weren’t yet libertarian and at the same time weren’t a morass of authoritarianism and hypocrisy either (something worth keeping in mind for adult ideologues rendering judgments on the unphilosophical bulk of the population).

Before politics, my first concern, since about age fourteen (after my earlier period of being primarily concerned with fostering stoic rationalism while surrounded by hormonal junior high kids), was defending scientific skepticism against superstition and forcibly-decreed solutions. So without having heard of libertarianism at all, I was an admirer of the Enlightenment and reason, an atheist, and a fan of America who was wary of both communism and the religious right. Like my hero James “The Amazing” Randi (a magician turned debunker of paranormal claims), I saw avoidance of drugs and alcohol as a logical extension of the desire to foster a world of rational (rather than nutty) individuals and, lacking my later libertarian qualms, had as yet no problem with the government saying No for us.

Furthermore, I would argue that drugs was not such an arbitrary or illogical issue on which to accept external authority even from a libertarian perspective. Note that I’m not saying that one can be libertarian and favor keeping drugs illegal, but if, as an empirical-utilitarian matter, one favors individual liberty not just for its own sake but because one observes (again, as an empirical matter) that individuals usually make responsible, rational decisions, it’s not so crazy to think (especially if you believe government propaganda that implies all illicit drugs turn people into addicted zombies, as I more or less did in high school) that being drug-free may be a sort of precondition of being a rational, autonomous individual who is ready for liberty.

I mean, I still do think that to some small degree (without accepting any coercive agenda as a result) in the simple sense that, like plenty of other people, I don’t think one should go around drunk all the time or that people should make important decisions while on LSD. As with many other things, I just don’t think (and haven’t since about 1989) that the government should be the means of dealing with such problems.

But I’m willing to see even the legal question as slightly greyer than some others — so if you happen to be a religious, drug-warring, anti-gay-marriage, anti-animal rights, non-anarchist but minimal-statist, pro-life hawk, we may still agree on the issues on which I have the strongest opinions — and the same is true if you’re an atheist-pagan, LSD-taking, married-lesbian, vegan, anarchist pacifist.

I just want budget cuts and deregulation. Is that too much to ask?