Author: Rory B. Bellows
In response to Aaron’s post on gay marriage, I will do something I rarely, if I have ever done on this site, offer some thoughts on social issues.
The fundamental problem with gay marriage is that the debate over it is another example of the dumb downed nature of our society. There is no constitutional scholarship or understanding of what the document says and its intellectual underpinnings.
People run around all day talking about the right to marry whom you want. I realize this will be a losing argument because it cannot be distilled down to a bumper sticker or 30-second TV spot, but there is no such thing as a right to marry. You do not have a right to things. You have a right to be free from government intrusion. If you read the bill of rights, the document is filled with negative rights. It lays out what the government cannot do. This is because it costs nothing to enforce a negative right. If the police kick down my door in the middle of the night with no warrant, it costs society nothing for me to show up to court and prove that they violated my fourth amendment right against unreasonable search and seizure.
Contrast that with marriage. What if no one in America would perform a marriage ceremony, straight or gay? What would you do? Someone would file a lawsuit and some judge would force someone to perform a marriage ceremony. Positive rights, like marriage, mean you have a claim on someone else’s life regardless of them giving their consent.
Another problem with the gay marriage debate, it extends the notion of state sanctioned marriage. Why do we need the permission of some government busy body in the form of a piece of paper issued by the state to be married? The problem with state sanctioned marriage is the 1138 supposed “rights” gays are being denied by states banning same sex marriage. What rights are you entitled to by virtue of being married? The problem is not that gays are denied the right to marry, but that we created almost 1200 “rights” to give to married couples. Again, these are all sorts of positive rights that entitle you to things; these “rights” do not protect you from unwanted government intrusion so therefore they are not legitimate rights in the first place. If Republicans want to reclaim the mantle of limited government and individual freedom they should advocating dismantling the nanny state that creates rights for married couple as opposed to expanding the fictional right to marry
Thirdly, there is nothing in the constitution that even authorizes the parties to take a stand on social issues. Social issues are left out of the constitution for one very good reason. That reason is that the constitution restrains government except to act in certain enumerated ways. In order to ratify the constitution nine of the 13 states had to agree to create the federal government. The document could only be ratified if the enumerated powers of government were such that a broad swath of society agreed those were legitimate functions of government. This idea that the powers of government could only be expanded with large numbers of people agreeing is born out in the fact that it is difficult to amend the constitution. The tenth amendment states that the powers not delegated to the federal government are the province of the states. I do not know about you, but I do not see anything in the document that says the federal government has province over the institution of marriage. The battle over marriage is being fought at the state level, where it should be. No one should have a problem if some states want gay marriage and others do not. If the laws of a state bother you that much you are free to move.
Where the argument and our politics were screwed up was the Roe decision. In Roe, the court intruded on a states’ rights issue to substitute their own judgment to force their views on everyone. People are rightly afraid of unelected, unaccountable courts making policy. This has happened in some states. And you can see the passion the court creating policy creates in states like California with hotly contested proposition 8 which overturned the state supreme court’s decision that gays have a “right” to marry. Contrast this with the quiet nature of the Vermont legislature’s overriding the governor’s veto of a bill that would have legalized gay marriage. When social issues are addressed through the proper channels there is little outcry because if the citizens of a state are so outraged over the actions of their officials they are free to vote them out in the next election.
The final problem with the GOP adopting a national position in favor of gay marriage is the acceptance of the statist notion of group rights. Statists like to claim there are things such as gay “rights” but they do not do it out of a love of liberty but a love of government and its power. Creating group rights is a way for statists to destroy the notion that we are individuals, but rather members of groups. By making us members of groups, statists are able to divide us up into warring camps and stage contests to assemble the largest mobs in order to have control over the levers of power. By dividing us into groups statist politicians are able to sell the idea that unless they are in power groups whose rights are dependent on the government creating them are at risk of losing them. The premise of group rights is that you are entitled to rights because of your membership in a group. Nothing in the discussion over group rights has anything to do with individual freedom and liberty because those concepts are at direct odds with the statist notion of group rights.
I have no problem if Republicans in New Jersey want a different policy on social issues than Republicans in Utah. That is how these issues should be decided. But at a national level, the Republican Party needs to embrace the idea of liberty, not equality. Those two principles cannot be happily married. The position of the Republican Party should be that social issues are best decided at the state level because our constitution established the states as laboratories of democracy. And they should be allowed to experiment.