Why I Oppose Gay Marriage

Gay marriage is one of the most complex issues of the past twenty years. It is an issue that transcends ideology, despite the media’s attempt to paint this as the “intolerant right” versus the “victim left.” In fact, I know some of you favor allowing gay marriage. It is also one of the most contentious issues of our time because most of the arguments made are emotional in nature. I do not support gay marriage. Here is why.

Let me start by saying that I have nothing against gays. You can’t live in Washington, D.C. without meeting a good number and I’ve found most of them to be pleasant, decent people. But this issue isn’t about “like.” I like eight year olds and puppies too, but that doesn’t mean I think they should be allowed to marry. See, this issue isn’t about what I think or who I like, it isn’t about whether or not something is a sin, or my definition of morality, or whether or not it’s good for society or whether or not it’s been accepted historically. Those may sound like valid reasons for deciding this issue, but they aren’t. They are, in fact, entirely irrelevant. Because we are a constitutional democracy, the only thing that matters is the law.

The Law

Unlike other countries, the United States was formed by the consent of its citizens. The left likes to claim this is a difference without a distinction, but they are wrong. It matters very much. In other countries, the government can change the law as it sees fit. But in the United States, the powers of the government are expressly limited to those granted to it by the Constitution. All other powers are retained by the citizens.

Note: This is not to say the Constitution can’t be changed. It can, but it must be done through the amendment process, with the consent of the public, not by simple fiat.

Why does this matter? After all, aren’t we only talking about giving some people new legal rights? Well, it matters because law is what is called a “zero-sum game.” That means you cannot give a right to one person without taking a right from another -- every right given to one under the law imposes an equal restriction on another.

In the case of gay marriage, the deprivation includes depriving others of the right to refuse to recognize the relationship and all that is associated with that. This would include, for example, (1) employers, who would become legally obligated to extend partnership benefits to gay couples, (2) churches, which could no longer refuse to recognize such marriages, and (3) taxpayers, who would be forced to bear the burden of subsidizing these new marriages through the government benefits that become available to married couples.

Whether or not you like those rights is irrelevant (there are many rights people have that I don’t like and if you want to start playing the game of letting government take away rights because we don’t approve of them, expect to have no rights very quickly). The fact is these are rights, and before the government can take them away on behalf of gay marriage advocates, those advocates must show that their right to marry is legally superior to the rights of the people to refuse to recognize those marriages. They have yet to meet that burden.

Why Pro-Gay Marriage Arguments Fail

Gay groups generally make two kinds of arguments for gay marriage. First, they argue that they are a distinct social group akin to blacks or women, who should be given “equal protection” under the law. Secondly, they argue that it is improper for the government to grant heterosexuals the privilege of marriage, but to deny it to them. Neither argument has merit.

Gays Are Not Like Other Minorities

The primary argument made by advocates of gay marriage is that they are a distinct minority social group akin to blacks. Thus, they argue that having a right to gay marriage is a civil right akin to ending legal discrimination against blacks. But the two groups are not comparable.

First, there is a key difference between “blackness” and “gayness.” Being gay requires action -- engaging in homosexual activity. Being black does not. Our Constitution has never recognized a minority based on behavior rather than status. The reasons are obvious. If we were to start creating minorities based on behavior, anyone could claim minority status -- gays, people with any number of sexual fetishes, hunters, meat eaters, fight-club members, etc. This would make an unworkable mockery of the law.

And while gays will argue that they are like blacks because “they were born that way,” that assertion does nothing to change this analysis. For example, allowing self-report to form the basis for awarding minority status would open the door for anyone to claim minority status by making a similar claim. In that regard, serial killers, pedophiles, addicts, shoplifters and thrill seekers all already claim to be “born that way.” Does that mean they deserve legally protected status? If it doesn’t, why should gays be different?

Moreover, the mindset of the minority group has never been the relevant factor in deciding whether or not to grant legally protected status -- it is the ability of others to identify them that matters. In other words, we don’t extend legal protections to blacks because they feel that they are black, we extend legal protections to blacks because others can spot them instantly and single them out.

Further, under our legal system, we only extend such protections to groups that were historically legally discriminated against. Blacks were once held as slaves, were denied the right to vote and hold property, and have been systematically excluded from the economy through a series of laws like the Jim Crow laws. The same is true for women. But none of this is true for gays. Sure, you can find some laws that prohibited gay sex, but that is no different than laws that prohibit unlicensed people from practicing medicine or driving. The point is that there were no laws to deprive gays of their property or their legal rights like there were with protected minorities. And before you tell me that people informally discriminated against gays, consider that people discriminate against slobs today -- does that make them a protected group? It is prior legal discrimination that matters.

Thus, the reasons put forth for granting gays protected status simply don’t justify the granting of such a status.

Heterosexual Marriage Is Justified, Gay Marriage Is Not

The other argument gay groups make is that because marriage discriminates by providing benefits that singles cannot get, and the government may not discriminate in handing out privileges, the government cannot allow heterosexual marriage without also allowing gay marriage. But this argument ignores the fact that the government can discriminate where it has a sufficient justification, which it does in this case.

Contrary to what gay groups argue, the government can discriminate in handing out privileges. It does this every time it denies a 12 year old a drivers license, every time it requires a license to enter a profession, and every time it means-tests benefits. The question is whether or not the government has a sufficient public interest in allowing the discrimination. In the case of heterosexual marriage, it does.

To understand this point, one must first understand the reason the government became involved in recognizing marriages in the first place. Marriage began as a religious institution, but was quickly adopted by the state as a means of handling inheritance. When Napoleon ushered in the era of nation states, with their massive citizen armies rather than small professional armies, marriage because a way to encourage “child production.” Toward the modern era, marriage became a way of protecting women at a time when women had few legal rights outside of marriage. For example, despite feminists' claims to the contrary, marriage allowed the state to protect women from men who would marry them for their money and then run away (polygamy and adultery laws), protect women from sexual abuse (sodomy laws and later laws against marital rape), protect women from their husband’s creditors, and finally protect women from being left without support following a divorce.

These reasons constitute the state’s interest in maintain the institution of marriage despite its discriminatory effects. But none of these justifies extending marriage to gays. Inheritance can be handled outside of marriage now. Gays do not produce children. Nor is marriage needed to protect gays. Thus, this argument fails as well.

Moreover, even if gays were right about their assumption that there is no special justification for allowing heterosexual marriage, that argument still would not justify extending marriage to gays. Instead, it would only justify getting the government back out of the marriage business. You don’t correct discrimination by adding new members to the discriminating class.

Conclusion

All in all, gay marriage advocates have been unable to show that they deserve protected status or that it is improper to allow heterosexual marriage without also allowing gay marriage. Thus, there is no legal justification for allowing gay marriage. And under our system it is simply not proper to give a legal right just because we like that right.

Since allowing gay marriage would require the government to force millions of people to extend benefits against their will, act against their religious beliefs or pay more in taxes to support something they oppose, I cannot support such an extension given the lack of a compelling legal justification for giving gays such legal rights.

Moreover, at each turn, I find myself facing the troubling aspect that all of the arguments made by gay advocates leave me wondering why those arguments should apply only to gays. Why couldn’t groups of three or four or ten adults make the exact same arguments? Why couldn’t children make the same arguments? Or bothers and sisters who wanted to marry? Or what about people who want to marry their pets? And why can’t these same arguments be used to expand legal rights well beyond marriage? If these are valid arguments, what right do gays have to say, “they apply to us, but won’t apply to anyone else,” and what right do we have to accept that reason for gays, but not others?

Ultimately, accepting these arguments is truly the slippery slope that leads to legal chaos. Not to mention the practical problems. Heck, how do you even know if someone is gay? What’s to keep a couple friends from using such a law to take advantage of the system? You would be a fool not to be “married” to someone if this becomes law. . . a whole world of benefits, from health insurance to pension plans to per diems on travel awaits.

That’s why I oppose gay marriage.