Advocates of same-sex marriage have skillfully rallied around the rhetoric of liberty, claiming that laws defining marriage as between a man and a woman curtail the liberty of gays and lesbians. While that claim makes for nice slogans—like “freedom to marry”—it is not grounded in reality.
This conclusion is persuasively established by two amicus briefs recently filed in the pending Supreme Court marriage case—one by Professor Robert George and 46 other scholars and another by scholars of liberty. As these briefs show, the man-woman definition of marriage simply does not implicate gays’ and lesbians’ personal liberty.
All Adults Already Enjoy the Liberty to Enter into Whatever Romantic Relationships They Prefer
First, contrary to the characterization of man-woman marriage laws as “bans” on gay marriage, those laws ban nothing. They are about legal recognition, not about private behavior.
In fact, like anyone else, same-sex couples are already free to marry privately, to hold themselves out as married to the public, and to legally arrange their affairs to reflect such a companionship. Indeed, because of a long line of U.S. Supreme Court decisions culminating in the 2003 decision abolishing state bans on nonprocreative sex, all Americans are free to order their personal and intimate lives as they see fit, free of civil or criminal sanction.
Accordingly, what same-sex couples are really seeking in gay marriage litigation is not the lifting of a restriction on their liberty. Instead, they seek affirmative government recognition of their personal choices—as well as the government benefits that states provide to married couples because of the benefits that man–woman marriage provides states and society. But as Robert George and others note, “[o]penness and publicity do not require legal status…[and marriage] regulation is justified only where more than private interests are at stake.”
In short, man–woman marriage laws do not threaten liberty.
Tangential Legal Benefits of Marriage Are Separate Concerns Addressable Through Other Means
But, same-sex marriage advocates will counter, some legal rights are tied to marriage, such as adoption, hospital visitation, etc. This is true. It is also a red herring.
As these amicus briefs explain, the constitutionality of a state’s adoption laws, for example, is a separate legal and constitutional question from the constitutionality of a state’s marriage laws. And some states expressly separate the two—refusing to recognize same-sex unions as marriages while permitting same-sex couples to adopt children together.
Likewise such things as hospital visitation rights and other privileges related to but tangential to marriage can be handled via legislation, litigation, and other means that do not require redefining marriage. To claim that those issues require a redefinition of marriage to include same-sex couples is to insist that the tail wag the dog.
Legalizing Same-Sex Marriage Actually Threatens the Liberty of Biological Parents As Well As the Moral Rights of Children
Not only do man–woman marriage laws not imperil liberty, they help protect it. The Supreme Court has long recognized the constitutional rights of natural parents to direct the upbringing of their offspring. By design, however, same-sex marriage implies that in many cases one biological parent may be precluded from exercising those rights and that children will thus be denied their moral right to know and be raised by their biological mother and father whenever possible.
Same-sex marriage, to the degree it shuts out one or both biological parents, thus infringes the liberty of both parent and child. At a minimum, it will create a chaotic scenario in which some children have three, four, or five legal parents. And if that sounds like sky-is-falling fearmongering, it has already begun.
Liberty Does Not Include the Right to Compel Government Endorsement and Benefits
But it gets worse. As these amicus briefs explain, the moral and legal theory underlying the constitutional claim to recognition of same-sex marriages is that, if any two people love each other, and especially if they’re raising children, they should be allowed to marry. But such a definition is conceptually limitless.
Why just two people? Three-person groupings or “throuples” can love each other and raise children together. If states must recognize same-sex marriages, on what principle could one distinguish throuples?
Indeed, once one of the traditional defining limits of marriage—gender diversity, number (just two), and natural personhood—is erased, marriage ceases to serve its original purpose, and the other aspects of marriage can no longer be defended either. Marriage is either between a man and a woman, or it is whatever the adults involved want it to be. And then the state has no constitutionally sufficient reason to regulate it—much less provide it recognition and benefits.
In sum, adult gays and lesbians are already free to love whomever they want; live with whomever they want; share a life with whomever they want; privately marry whomever they want; and (subject only to biology) have a child with whomever they want. Their liberty is not threatened by man–woman marriage laws—unless liberty means the ability to do whatever one wants and to have the government endorse and subsidize it.
But that definition is unworkable and unsustainable. And in the end, it is not really liberty.