In an op-ed in the Los Angeles Times, David Boaz, the executive vice president of the prestigious Cato Institute, asks why social conservatives focus so strongly on “keeping gays unmarried and preventing them from adopting orphans.” He is a good and decent man and deserves a response, although he may prefer a more authoritative voice since in a decade this editor has hardly dealt with the subject except incidentally.
As a libertarian theorist Mr. Boaz should understand. It is not about homosexuality. It is about overriding property rights and about individuals being forced by the state to accept norms they disagree with. In other words, the issue of homosexual rights is about how those rights might infringe on non-homosexual citizen rights. This is libertarianism 101. It is about the state forcing its citizens to act against their better judgment.
Mr. Boaz would reply that he does not wish to force anyone, and he undoubtedly does not. He only wants equality. Unfortunately, as a practical matter today, “equality” means preferential treatments as he would recognize immediately from the reverse discrimination resulting from racial preferences in college admission or employment. African-Americans have some claim to this status as a result of being forced into the extremity of slavery but as even the Supreme Court has recognized there is some limit even for that.
There were sodomy laws but they were rarely enforced and everyone even fifty years and more ago knew many such couples living the lifestyle very openly. It is often objected that such couples had no inheritance rights. But nothing stopped private contracts to assign such rights. No marital relationship was ever required to name a will or insurance beneficiary. Some say such relationships were not recognized for visitation rights but most hospitals were not so narrow and a designation of “uncle” or “aunt” would admit where they were. The desired equality mostly comes down to receiving government benefits, Social Security, welfare, grants and the like, a strange basis for a libertarian complaint,. Even here recognizing civil unions as well as marriages would solve the matter. So why is there demand specifically for marriage?
As it happens, the editor’s home state of Maryland is at this moment considering designating marriage as between any “two individuals” rather than between a man and a woman and the state is expected to become the sixth with such laws. The revealing matter was the amendments to it. One would allow adoption agencies such as Catholic Charities not to refer children to same sex couples on religious grounds. It was defeated. Another would allow individual state officials to defer from performing such weddings. Defeated. A third would exempt public school teachers from being required to use teaching material promoting same sex unions. Defeated. One amendment thankfully passed saying that religious organizations did not have to “promote” same sex unions in their educational materials. It did not discuss whether they could oppose them in such materials.
Another recent example was Congress eliminating the so-called “don’t ask, don’t tell” policy of homosexuals being allowed to serve in the military only if they kept the matter quiet. To pass the law, promises were made that soldiers who opposed the new policy of open homosexuality would not be required to live with it. The working draft of the new military policy “Top Ten Things You Need to Know About the Repeal of DADT,” does allow individuals to invoke privacy considerations to request different room or sleeping accommodations but the commander may only grant such if it is for the good of the whole organization, which is a standard few would dare to raise whether true or not.
More important, the Defense of Marriage Act was used in the draft to defend limitation of benefits and for not adding sexual orientation as an official equal opportunity (i.e. preference) class. But the same week the Obama Administration announced it would not enforce that Act, whose major purpose was merely to stop one state from forcing its marriage preferences upon others. Presumably sexual orientation will now become eligible for preferential treatment. The original document already recognized sexual orientation as protected from “harassment,” requiring such speech to be punished through military command channels.
In marriage, adoption, military service, public service and elsewhere, it is clear that private straight behavior would have to defer to sexual orientation behavior. Soldiers subject to authority will have no recourse but to live with behavior many reject. Of course, military life is necessarily conformist but to what standard and will the new one affect recruitment and unit cohesion? Heterosexual mixing is already causing insuperable problems for commanders. Domestic policy officials will also be required to administratively sanction such behavior. Perhaps that is the price for public office—but it is clear it is a restriction. Religious organizations will likewise be forced to follow policies they oppose or quit performing the charitable acts they were created to perform. Is this a proper limit to a private organization from a libertarian perspective?
Without set meanings to terms used in everyday life, society becomes chaotic, as even the great libertarian challenger to essentialism Karl Popper conceded. So did F.A. Hayek. Marriage has long had an historical meaning. A civil union has some meaning too. But what happens if reasonable categories are all subsumed under one amorphous umbrella? Surely polygamy, which also has had a long historical meaning and is already endorsed by the Libertarian Party, comes next into the marriage scene. Muslims could demand nothing less. Professor Ronald Dawkins considers Great Apes as holding individual rights. What happens if he shows up at a Maryland county marriage registry and demands a license for himself and his individual hominidae friend?
The fact is marriage is a term that preceded government and became the province not of the state but of religion in Western civilization. Most social activity was outside government as good libertarian theory would prefer. The privatization of marriage was not disturbed until the French Revolution and nationalism forcibly took marriage from the church and gave it to the state. Any libertarian should recognize the copyright to the term marriage as the property of the church and not the state. Homosexuals privately, or even the state, have every libertarian right to contract for other living arrangements but not to the designation “marriage.” The title was stolen and under libertarian theory should be given back.
If it were XYZ Co. trying to steal Coca Cola’s name no libertarian would hesitate for a second.
Donald Devine was the director of the U.S. Office of Personnel Management from 1981 to 1985 under Ronald Reagan and is the editor of ConservativeBattleline Online.
