Gay marriage is “the wrong fight”

The following is an excerpt from The Conservatarian Manifesto: Libertarians, Conservatives and the Fight for the Right’s Future, by National Review writer Charles C.W. Cooke and appears in the chapter “The Myth of ‘Social Issues.”

The best argument in favor of extending marriage to same-sex couples is that the people wish to amend how the state defines matrimony and that governments are able to indulge that desire. Likewise, the best argument against extending marriage to same-sex couples is that the people don’t wish to amend how the state defines matrimony and that governments are able to indulge that desire. Really, the issue is not much more complicated than that.

I do not intend to reiterate here my case for gay marriage. By now, we all know the ins and the outs. What I do wish to do, though, is to state for the record that conservatives would do well to recognize that their battle against the measure has been lost, and that it has been lost badly. Now it is time for some pragmatism—for the tactics of Dunkirk rather than the Alamo. In the next few years, gay marriage will almost certainly be ushered in in all fifty states, and the manner in which that is achieved is going to matter a great deal indeed. Will the Right be ready, or will it continue to rail against the inevitable, thereby forgoing its place at the table?

I hope devoutly that it is the former. Regardless of which side they are on, conservatives and libertarians should currently be banding together, better to insist that reform be placed in its proper legal and philosophical context and that the more excitable advocates of change are not permitted to sacrifice deeply entrenched American principles in the excitement of their moment. Regrettably, my fellow proponents of gay marriage have an unfortunate tendency to abandon all propriety in pursuit of their ends—a tendency that, I would suggest, is far more dangerous to the integrity of the republic than extending marriage to gays could ever be. Resisting their excesses is imperative.

First and foremost, conservatives should vehemently reject the notion that there is any right to marriage contained within the text of the United States Constitution. The Constitution, remember, is not a synonym for “nice thing,” but a codified set of rules and laws. Antonin Scalia, who wrote a blistering dissent to the opinion that struck down the Defense of Marriage Act and led, inexorably, to a host of state laws being overturned, rejected the idea that the issue is any of the court’s business, mocked the notion that the framers of the Fourteenth Amendment had any such thing in mind, and contended that the decision served to “[aggrandize] the power of the court to pronounce the law” and to undermine the “power of our people to govern themselves.” Further, he presciently predicted, the decision “arms well every challenger to a state law restricting marriage to its traditional definition.” Since those words were written, lower courts have gutted state constitutions, often on the most frivolous of pretexts. “It is one thing for a society to elect change,” Scalia concluded, but “it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

Scalia is correct, and conservatives—including those such as myself who wish firmly that each state would permit gays to marry—should be deeply uncomfortable with the matter being taken away from the group to which it belongs, the voters; and vexed, too, by the invention of constitutional rights that are clearly not contained within the charter. In order to ensure the integrity of the law, champions of the existing order must remind the public that we are dealing here with a public policy change of precisely the sort that the Founders left to the discretion of the people, and not with a long dormant provision in a malleable and evolving Constitution that is wholly silent on the matter. Unless constitutionalists wish to get themselves into trouble further down the road, they should continue to press this point, reminding the public at every turn that it is entirely possible to be in favor of gay marriage without losing one’s mind.


Second, conservatives should insist vehemently that those who oppose the change are not to be ostracized, either by society or by the state—not, that is, to be rendered hostes humani generis. By and large, the opponents of reformulation are not “bigots” who need to be beaten down and excommunicated, but skeptics who are understandably nervous about what is a radical— and in many cases hasty— alteration to the social order. Republics such as the United States may reinvent their institutions and redraw their laws if they so wish. Sometimes it is necessary for them to do so. But they are under no obligation to, nor are we compelled to take seriously those who pretend that dissent is necessarily indicative of narrow-mindedness or of diseased and hateful minds. As the inimitable David Burge— better known on Twitter by the handle “Iowahawk”— argued recently, the snippy manner in which the advocates of gay marriage have gone about their crusade is repugnant. “It’s hard to take a ‘human rights activist’ seriously,” Burge wrote in 2013,

while he’s beating someone over the head with a “NOH8” placard for holding the same position Barack Obama held until 5 minutes ago. So yeah, in a secular society maybe it’s time for opponents to recognize a rational basis for legal SSM. But it’s also time for supporters to recognize they are espousing a position that every society in the first 99.99% of human history would have considered nuts.

Third, conservatives should refrain from reacting to the change by seeking to “get government out of marriage.” Perhaps the most outspoken advocate of this approach is Senator Rand Paul, who told National Review in 2013 that he personally believes “in the historic and religious definition of marriage” but considers nonetheless that the law of contract can handle the question without the need for the involvement of the state. “I’m not for eliminating contracts between adults,” Paul said. “I think there are ways to make the tax code more neutral, so it doesn’t mention marriage. Then we don’t have to redefine what marriage is; we just don’t have marriage in the tax code.”

Steven Greenhut, a writer at Reason, has offered a similar argument.

Marriage is primarily a pact between two people and, in the view of many, a sacrament of the church. The state merely recognizes this contract. If, say, a totalitarian government (think the Khmer Rouge or others like them that have meddled in such things) dissolved my marriage, my wife and I would still be married. The state could make our lives miserable, but it couldn’t end our marriage.

Attractive as this may sound—primarily as a useful, if churlish, way of circumventing the issue—it makes little sense on closer inspection. Greenhut is absolutely correct to say that the state’s capriciously changing the definition of marriage does not alter much in the eyes of the church or of any private organization that sanctioned it. Nor, in most cases, can the reluctance of authorities to acknowledge a union drive couples apart. Nevertheless the refusal of the government to endorse one’s nuptials can do some serious damage to what they mean in the real world—which, of course, is precisely why the government’s endorsement is sought by gays in the first place.

As almost all libertarians acknowledge, private agreements ultimately require enforcing by the state. (This in large part is why we have one.) It’s all very well for us to say, “Let private contracts sort this out,” but the practical benefits that those contracts confer still need the acquiescence of the government if they are to mean anything concrete. Necessarily, this raises the question of which contracts the state will agree to enforce and which it will decline to recognize.

Ultimately, Greenhut and Paul are making a semantic point—and one that they do not appear to have fully comprehended. Certainly, the state could agree to stop using the word “marriage.” Certainly, the state could agree to recognize and privilege a collection of contracts that approximated the institution formerly known as “marriage.” Certainly, the state could claim to be indifferent as to how Americans choose to live. But whatever linguistic tricks it pulled, the government could not ultimately avoid the bigger question, which, despite our best efforts, would remain “Who may enjoy the benefits that have traditionally accrued to the married?”

There are some serious questions, too, as to how useful private contracts can actually be in emulating marriage— questions that, once again, raise the possibility that by shifting to such a system we would merely be asking the government to change its language. The libertarian lawyer Doug Mataconis has asked what we would do, for example, about the principles of Tenancy by the Entirety or Spousal Testimonial Privilege, or about the “privileges that a spouse has when the others spouse dies without a will,” none of which are easy to replicate via contracts.

Crucially, those who suggest a retrenchment in the area wildly underestimate the extent to which gay and lesbian couples hope to enjoy the state’s imprimatur. It is no accident that Justice Kennedy’s decision in the Windsor case spent a good deal of time discussing inclusion. DOMA should be struck down, Kennedy argued, because it

undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

In other words, it is not good enough for most gay people that their relationship be legally equal to those of straight people. Instead, they wish to be actively approved of. Instead, according to Kennedy, they wish to see the state “dignify” their marriage. Should it do so? For government, this is an inherently subjective question. But it is impossible to get away from the fact that, ultimately, we are deciding that we wish to extend the definition of marriage because there is a significant demand for us to do so. Whatever we might hear from the courts or from the opinions of our self-appointed arbiters of taste, there really is no hard-and-fast equation that makes this the “right” or “wrong” choice. It is a wholly democratic question that, at its root, comes down to “Those people wish to have their relationship recognized; will you let them?” We now live in a country in which the majority says, “Yes.” Little good can come from the government’s active suppression of a social change that arose organically and over the course of decades.

Conservatives, who respect the complex nature of changes like these, should spend their time on more fruitful endeavors.

Adapted from THE CONSERVATARIAN MANIFESTO: Libertarians, Conservatives, and the Fight for the Right’s Future Copyright © 2015 by Charles C.W. Cooke. Published by Crown Publishers, an imprint of Penguin Random House LLC.

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