I post some of what I write to both Positive Liberty and Dispatches from the Culture Wars, so sometimes I get comments left at one place and not the other. In response to a recent cross-posted item on the religious right and “special rights” rhetoric, I got this comment left at PL. I’m going to respond to it in detail at both places in its own post. The first thing you will notice about the comment is that it does not even attempt to engage the argument of my post. The post was about the inconsistency and incoherency of the religious rights’s rhetoric of “special rights” when arguing against adding sexual orientation to existing anti-discrimination law. The post did not attempt to argue for or defend gay marriage (though I will gladly do so now). Blake, the commenter, has simply chosen to use it as a pretext for launching an entirely different discussion. That’s fine by me, but let’s recognize that even if everything he says is valid, it does not change the fact that when religious people make an argument against gay rights as “special rights” they are being hypocritical and incoherent. Now on to the substance of Blake’s comment:
What you are missing is that gays are asking for the State to act to affirmatively protect their relationship by giving it the force of marriage. Marriage is an affirmative act of the State to protect particular relationships. The question must be asked: is a gay relationship one that the State has an interest to protect? Frankly, that discussion is by-passed by the non-sense of suggesting that there is a right to engage in sexual conduct with anyone — or anything — and that right ought to be protected.
Well, since I didn’t mention either the right of gays to get married or the right to engage in sexual conduct in one’s own home, I have no idea what you think has been “by-passed”. This issue simply isn’t relevant to the argument I made. But I’ll gladly engage it anyway. I agree with you that a very key question in the debate over gay marriage is whether gay relationships are ones that the government has an interest to protect. And my answer is a confident “yes”.
There is perhaps a corrolary question that should be asked first. Are gay relationships different from straight relationships in any relevant way that would make them less worthy of legal and financial protection? The only possible answer to this question that might argue against such recognition is the one we hear constantly from those who oppose gay marriage – that straight marriages involve children, while gay marriages do not. But this is false, for many reasons.
First, because a large number of gay relationships already involve children when they start (several hundred thousand families are headed by gay parents, according to figures from the last census). And a large number of gay relationships come to involve children later through artificial insemination, surrogate parenting or adoption. And in all of those cases, the same arguments that people make for the importance of conventional marriages apply just as strongly to gay marriages. For a child being raised by a gay parent, do you suppose it’s better on the whole for them to be raised by a parent who has temporary, transient relationships that don’t last, or by a parent in a committed relationship with all of the legal and financial protections that we automatically grant to straight marriages?
All of the practical arguments in favor of such protections and benefits for straight marriages – that it builds a more secure environment for the child emotionally and financially, etc – are just as true for the children of gay parents. Marriage and the protections that come with it helps to provide a more stable and secure environment for the raising of children, the religious right keeps (correctly) reminding us. Yet somehow that all goes away when it comes to the children of gay parents.
But unless you’re planning to take those children away from their gay parents and give them to straight people – and only the most openly bigoted and backward thinking would still suggest such a thing today – those children are going to be raised by gay parents regardless of whether those parents are allowed to get married or not. So by denying their parents the right to get married, you are only preventing all of those benefits of marriage for the child from being applicable to hundreds of thousands of such children. So yes, I think the state has a vital interest in helping make the lives of these children more stable and secure by allowing their parents to enter into permanent, committed relationships with all of the legal protections that come with them. It will provide a healthier, more stable and more emotionally and financially secure environment for those children.
Well, we don’t protect all relationships. We don’t want cousins marrying and we don’t want to encourage them to have sex. So the burden ought to be on the gay community to justify the assertion that gay relationships are such that the State has an interest in protecting their relationship. Perhaps that burden can be carried — but so far, no one has even attempted because they have rushed to make their cause one of civil rights.
First of all, let’s put to bed this notion that only the “gay community” can justify equal protection for gays. I’m not gay and I’m certainly not a member of the “gay community” (nor, by the way, are most of my gay friends, who find the notion that one can build a “community” based solely on this one trait rather silly), and I’m perfectly capable of justifying the assertion you want justified. Indeed, I just did so a couple paragraphs ago. Second, let’s also recognize that it isn’t an either/or between making a practical argument for gay marriage and a principle or rights-based argument for gay marriage. Those arguments can both be true, just as there were both practical and principled reasons to be in favor of ending the ban on interracial marriages and for black civil rights in general.
Further, gay marriage and the “equal rights” demanded by gays assume that gay relationships are entitled to protection as a basic right. Yet engaging in sex of any orientation is not a basic right.
And how, pray tell, are you deciding what is and is not a “basic right”? And what makes a right “basic” as opposed to….well, as opposed to what kind of right? I would argue that all rights are “basic” and that asking whether one has a “basic right” to do something is to ask the wrong question. The right question is whether the government has a compelling interest in preventing gay relationships or regulating them. In some cases, such as where one of them is underage, the state has the same interest in regulating such relationships as they do in regulating straight relationships. But if you can come up with some compelling reason for the state to have the legitimate authority to prohibit gay relationships between consenting adults, I’d sure like to hear it.
You see, the most basic right of all – the basis of all rights – is the right to liberty and self-determination. Each individual must be free to live their life as they see fit, with the government having only the authority to step in when one’s actions deprive another person of their equal self-determination or from harm against their will. That is the entire basis of the concept of natural rights, upon which our system is based. A gay person is merely living their life by engaging in gay relationships – mutually beneficial relationships for the adults involved, relationships that are every bit as much an expression of who they are as our relationships are an expression of who we are. That right to choose who you want to spend your life with, who you choose to commit your life to, is as fundamental to the pursuit of happiness as anything I can imagine. So no, I don’t think it’s incumbent upon gays to show that they have a “basic right” to make this most personal of decisions of who to share their life with; it is incumbent upon those who claim the authority to interfere with such a decision to provide a compelling reason why they have such authority.
Neither can we base such rights easily on orientation without sexual conduct. If gays are allowed basic rights on the same basis as race, such a view ignores the fact that sexual orientation is not an all or nothing equation. Some persons may well be gay but the latest evidence suggests that there is a continuum of orientation ranging from fully hetero to those who can be attracted by either sex to fully gay. The issue is more complex biologically than the simple comparison with protected categories suggests. So to whom would we extend this right without just saying everyone has a basic civil right to be in relationship with anyone they want? In so doing, we emasculate civil rights.
This strikes me as complete nonsense. In fact, I think it hurts your argument rather than helps it, for the obvious reason that questions of race are also a matter of a continuum rather than a simple yes or no. The races have long intermingled and formed a continuum. There is virtually no such thing, in any large society, as someone purely of one race. So it sounds to me like this is very much an apples to apples comparison. And yes, for the reasons I stated above, there is a basic right to form relationships among consenting adults. Indeed, it’s hard to imagine a right more basic than that.
Further, why should we compare sexual orientation with protected categories like race, religion and gender? Do we protect the relationships of those who want to have sex with little boys? Do we protect those who want to marry their cousins? How about a protected category for those who a-sexually love their horses and want to have special benefits to protect that relationship?
Ah, the tried and true pedophile and beastiality comparisons. This is so idiotic that there’s no point in even bothering to point out the obvious differences. Anyone engaging in such a comparison is either too dishonest or too fanatical to ever be convinced otherwise.
There is however a very sound reason to protect religious beliefs. It is on par with free speech. It is essential to an ordered liberty that respects freedom and requires a justification for the State to interfere with relgious beliefs and those acts that can be accomodated without interfering with essential job functions. Heavy equipment operators cannot smoke peyote while operating that equipment even if they otherwise have a religious belief that smoking peyote is sacred. There are rational limits to religious expression — but where are the limits on gay sexual acitivity?
The rational limits are precisely the same as for straight sexual activity. We regulate heterosexual sex with regard to the age of consent and familial relationships now because there is a compelling interest in doing so; the same would obviously be true of homosexual sex. If that’s not a rational limit on gay sex, then please explain why it’s a rational limit on straight sex. If you can’t, then you’re unwittingly making an argument for incest and pedophilia.
Further, granting such rights would grant the same rights to all room-mates since we certainly don’t want police nosing into a relationship to make sure that sex is really a part of the relationship. So extending such rights inevitably results in trivializing them by protecting room-mate relationships on the same basis as basic civil rights. That is a pretty high price to pay.
Why? Do you not think this already goes on in straight relationships? I know older people who have gotten married strictly for a little financial security. They don’t love one another, they don’t live as though they’re married, but as a practical decision it made sense. This already goes on in straight relationships. Does that trivialize your marriage or anyone else’s? Does it change anything about your marriage or anyone else’s? Precisely what high price do you pay because of that reality?