YDS: The Clare Spark Blog

June 27, 2015

Gay marriage and what “liberty” signifies

Mediaite sign pro-gay marriage

Mediaite sign pro-gay marriage

The SCOTUS decision legalizing gay marriage throughout all the states, despite voter opposition in many instances, has aroused furious debate, including the editorial page of the Wall Street Journal, which is semi-hysterical in nature. This blog situates the SCOTUS decision within the culture wars, and argues that “liberty” and “freedom” are terms that do not invoke a common meaning between factions.

I will not go into the mixed motives that inform defenses of both heterosexual marriage and same-sex marriages (androgyny; misogyny; resentment of male power; defense of, or opposition to, state’s rights; deference to ancestors; monogamy; bisexuality; hyper-masculinity; to mention only a few factors).

Some social conservatives, not content with the religious pluralism inherent in the separation of Church and State, may wish to impose their beliefs on others. Already some comments suggest that “democratic debate,” not decrees from Big Government under pressure from a particular interest group, should have decided the issue, as if social conservatives would suddenly relinquish their belief systems in recognition of rational argument, or similarly would abandon their beliefs in the slippery slope toward perdition (if gay marriage is okay, what is next: polygamy? pedophilia? bestiality? children of gay parents diverted from heterosexual into gay relationships?)

I have argued before that there is no reconciliation possible between libertarians and social conservatives through “democratic debate,” for their conceptions of “liberty” are incompatible. Traditionalists are defending the submission to their gods as “liberty”, while libertarians believe in choice dependent on the individual and her or his unique proclivities, whether chosen or genetically transmitted.

We have been having this fight since the Enlightenment. It is yet another irreconcilable conflict, like antebellum slavery/Reconstruction or abortion rights today.

(For related blogs, see https://clarespark.com/2014/01/23/androgyny/, or https://clarespark.com/2012/05/10/androgyny-with-an-aside-on-edna-ferber/, or https://clarespark.com/2013/03/27/power-in-gay-andor-heterosexual-attachments/.)

Satyr and Goat

Satyr and Goat

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7 Comments »

  1. […] (This is the second of two blogs on the gay rights decision by SCOTUS this week.https://clarespark.com/2015/06/27/gay-marriage-and-what-liberty-signifies/) […]

    Pingback by Are secular societies devoid of “virtue”? | YDS: The Clare Spark Blog — July 3, 2015 @ 12:40 am | Reply

  2. On another thread, I said that the Fourteenth Amendment protects “life, liberty, and property” from incursions by state governments. Justice Kennedy found a “liberty” interest in marrying whomever you please as a matter of self-fulfillment. This, of course, is a legal analysis and a legal argument. I am not alone, and not the first, to note that legal scholars, including conservatives, were surprised, not by the outcome (nationalization of gay marriage), but by the Court’s failure to use the equal protection clause of the Fourteenth Amendment to accomplish this result. Use of equal protection would have defined homosexuals as a protected class whose constitutional rights were not being equally protected by state laws banning gay marriage, and shifted the burden of defending such laws to the states through the use of “strict scrutiny”. State laws subjected to strict scrutiny never survive. Instead, Kennedy defined the right to marry broadly, not limiting the principle to homosexuals. Law, by definition, sets boundaries and limits on what is acceptable behavior. Kennedy’s definition of a constitutional 14th Amendment “right to marry” destroys the old boundaries without new limiting principles. Defining homosexuals as a “protected class” would have set new legal boundaries with clarity. The concern in the legal community, and among conservatives, is that the decision in fact opens the door to– for example– polygamy, polyandry, and any other marital arrangements people choose. This is a libertarian outcome that call into question the institution of marriage itself. Perhaps that”s where the society should go on this issue, but if so, then government should get out of the marriage business entirely, and repeal all marriage laws, divorce laws, tax benefits, and other government interventions in intimate relationships. There will be a cost to such a withdrawal, especially with respect to families and children, but that’s the logical social end point of this process.

    Comment by Harry Lewis — June 30, 2015 @ 1:16 pm | Reply

    • Numerous comments state unequivocally that the Fourteenth Amendment was cited in the SCOTUS ruling. I don’t buy the slippery slope argument. http://www.huffingtonpost.com/2015/06/26/supreme-court-gay-marriage_n_7470036.html. This was one of many reports.

      Comment by clarelspark — June 30, 2015 @ 2:37 pm | Reply

      • “Slippery slope” implies that once you let the camel’s nose in the tent, the rest of the camel will follow. If you want no government regulation of marriage, divorce, and families whatsoever, then it’s OK for the camel to be in the tent. All I’m saying is that the U.S. Supreme Court now has said that it’s OK for the camel to be in the tent, although “gay marriage” is just the nose. As a matter of constitutional law, there now is no legal principle permitting government to keep the rest of the camel out. That may be an acceptable outcome, especially for libertarians, but to say that you “don’t buy” slippery slope evades the larger point. “Not buying” it simply means that you don’t think the camel will follow its nose. That’s a fair point as a prudential argument, but it’s not a legal argument.

        Comment by Harrry Lewis — June 30, 2015 @ 5:07 pm

  3. I’ve responded in a similar way to the abortion debate. I believe the two sides are irreconcilable primarily because they are speaking about two separate issues and refuse to acknowledge the other as worthy of primary consideration. But I have a question. In your response above, you suggest that conservative arguments reside in a religious worldview. Is there a secular argument against re-defining the state institution of marriage to exclude the sex limit? Further, it has long seemed to me that if we can indict the sex limit of marriage as arbitrary, on what basis do we maintain the number limit? I’m not interested in debating as this is your blog and I respect that it is about your view. I’m a dedicated reader, you’ve shifted my views on academia, and confirmed some of my other views, so I thank you.

    I pray you might critique a rough outline of a secular argument:

    I believe that if we didn’t have a social institution specifically limiting heterosexual intimacy through incentive and status for performance, that we’d have to invent one, primarily because of the nature of human reproduction. I also believe that the superior form of heterosexual intimacy is monogamous for both parties because of the psychosocial outcomes of the offspring involved. Research demonstrates this time and again.

    Biologically and socially, a child has an indelible and lifelong relation to two biological “donors.” Unforeseen accidents and other limits of life aside, it has always seemed hypocritical to the point of immorality to intentionally refuse to commit to a lifelong relationship with the other parent of our children, and yet demand (by its very nature) that level of relation with us from them.

    I wonder if you’d critique this view. Feel free, of course, to delete this post if it offends.

    Comment by Terbreugghen — June 28, 2015 @ 5:01 pm | Reply


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