A recent poll shows strong that 55 percent of Americans support a constitutional amendment to ban gay marriage. Whatever one thinks of gay marriage itself, a Constitutional amendment banning it is ludicrous. A constitution is a framework for a nation’s government, not a means by which trendy political disputes are resolved. There is no constitutionally justified reason why gay marriage should even be a federal issue, and hence no justification for the federal government to have any say on what marriage is or is not. Having said that, the policy that states should enact is such: gay marriage should be recognized, but it should be recognized as just that: gay marriage. Allow me to explain:
In a free society, adult individuals are free to engage in any consensual activity they desire. In a rational government, they are also able to form any contract between them and have it be legally recognizable and binding – assuming that the contract does not impose obligations on anyone else and is enforceable. Ignoring its social and moral ramifications, marriage is just such a contract. Certainly there is more to marriage than a legal contract, but from the government’s perspective, that’s all it should be seen as – a contract to share finances, certain legal obligations, and custodial rights. Legally, marriage is a special kind of contract –a standardized way of creating a complex legal entity. It certainly would not be feasible for the courts or for couples to have to draw up their own unique marriage contract, with all the details covering all potential eventualities. It would take dozens of lawyers, and it still wouldn’t have hundreds of years of precedent to cover all the possibilities. To simplify all that, we have a standard marriage contract that can be handled by a single public notary. Are there any valid reasons not to extend this contract to couples of the same sex?
On the face of it, the answer is no — there is nothing particularly special about the sex of the people entering into a marriage. Now some might cite a harm to children of such relationships, social harms, etc – but that is nonsense I will not go into here. There is clearly a demand for such a contract, and it is the function of government to provide it. Given the above arguments, there is clearly a valid reason to legalize gay marriage.
There is a problem however. The fact of marriage is used by many private entities to provide various privileges when entering into various legal contracts. Examples are spousal benefits provided by employers, insurance firms, and other private business that take marriage into consideration. If no distinction is made between traditional and same-sex marriages, then the firms would not be able to discriminate on the basis of sexual orientation. In fact, this is precisely what the gay lobby wants. If traditional and same-sex marriages are not delineated, then all private (and public) entities that consider marital status would be forced to use the government’s definition of marriage. Now some companies (like Disney) might be fine with that – but many others clearly will not be – and for good reasons, since homosexuality, for example, (is statistically at least) very bad for your health. There are many other valid and invalid reasons to discriminate on the basis of sexual orientation, but whatever they are, it’s not the job of government to judge them. Individuals own their lives and may choose to engage or not to engage in trade with whomsoever they please for whatsoever reason. The “homosexual agenda” – if there is such a thing – does not recognize this. Their goal is to use government coercion to impose a certain non-discriminatory social view on the public. Whether you believe that homosexuality is moral or immoral, using government to force that view on everyone else is clearly wrong.
What’s the solution? The solution is to create a new marriage contract for homosexual couples and treat as such – a separate legal contract. Private individuals will then be free to recognize it — and provide the same benefits to gay couples or not to. Government should not provide special benefits to anyone – whether they are single, or in a traditional or non-traditional marriage. Since it respects contracts however, partners of gay marriages would still retain the same custodial and inheritance rights as those of straight ones.