I’m seeing a lot of #loveWins tags and colorful profile pictures on Facebook recently. That’s great, I love love and I’m a big fan of all the colors of the rainbow. A full on double rainbow all the way? fuggheddaboutit!
Unfortunately, I think people are getting it wrong here. Not to be a Debbie Downer or anything but the Supreme Court ruling for Obergefell v. Hodges wasn’t about love. It was about five unelected people in black robes people telling millions of other people what to do. It was about institutionalizing an impossibility. It was about some bureaucrats adding to the government bill and making everyone pay for it. Put bluntly, it was about coercion.
The majority opinion, written by Justice Kennedy states, the petitioners’ “hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.” So sweet. But seriously, is the next step of these legalistic romantics to start an online matchmaking service? You have the right not to be lonely, come to SCOTUSlove.com and be a part of civilization! Here’s a news flash: it’s not the government’s job to save people from loneliness! The government has but one job: to protect individuals from infringements on their Natural Rights.
Of course, Justice Kennedy may have heard about that concept somewhere in his lengthy career in law, so he makes sure to include language that at least alludes to rights. He writes that “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In the immortal words of Justice Scalia, “Huh?” You mean the Constitution says we have the right to legally express our identity? What does that even mean? And who can forget this gem of non sequitur: “[Rights] rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” His argument is so bad it’s not even wrong. And it has nothing whatsoever to do with law.
Scalia puts it better than I ever could. With these “silly extravagances . . . The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Confucius Kennedy is saying (I think) is that people have a fundamental right to marry, thus it is the job of the government to protect that right. But the concept of a right to marry is absurd. Having a right to something implicitly means you have the authority to use force to ensure that right. For instance, I have the right to life. If someone threatens my life, I have the authority to use force to ensure the vagrant doesn’t infringe on my right. You do not have the authority to use force to marry someone. The simple question to demonstrate this is what if no one wants to marry you? What happens to your “right to marry” then? Marriage (gay or otherwise) requires consent. You can’t hold a gun to someone’s head and force them to marry you. And you certainly can’t use force to make someone preside over your marriage (which is no doubt one of the goals in this exercise).
Yes, everyone has the right to freely enter into contracts with each other and issue financial and medical power-of-attorney. They have the right to form relationships with and love whomever they want. They have the right to slap each other with rubber chickens if they want (granted all parties are consenting). They don’t have the right to force others to consent. And they definitely don’t have the right to force other people to pay for it. Julie Borowski put it well, “No one needs government PERMISSION to get married. Government isn’t stopping you from having a wedding ceremony. Go ahead. You can write up your own contract and call each other husband and wife. The real fight is over government benefits to married couples.”
It’s about telling people they have to bake a cake for them, preside over their marriage, and pay for their benefits. It’s important to be clear here. No one has a right to these things—these are privileges and benefits not rights and using the government to make people do them or pay for them is coercion.
This whole mess raises the question if marriage can be expanded to include same-sex partners, why should it be restricted to two people or even people who like each other? Why do you even need to know the person to whom you’re extending benefits?
There is an argument that government needs to endorse traditional marriage because it is the foundation of humanity and civilization and society benefits when traditional marriage thrives. I’m not opposed to this premise necessarily, but it definitely encourages the type of “that’s not fair” equal opportunity protest we’ve seen the last few years and rightly so. No, biologically speaking, same-sex couples cannot be in the same type of relationship as dual-sex couples, but it makes perfect sense to want to be treated equally under the law. If those people get stuff, why can’t we get stuff?? But this is what happens when the government sticks its nose in places where it shouldn’t.
The only legitimate solution and reasonable answer to all this is that government should be out of the marriage business altogether. Or, at the very least, “Let the government certify and the churches sanctify.” This is what Alabama is trying to accomplish in order to avoid a conflict of interest and it’s a brilliant move both politically and morally. As a libertarian, I shudder when I see fellow libertarians claim that the Obergefell v. Hodges ruling was a step in the right direction. That’s like saying a step toward getting rid of welfare is to give everyone welfare. It doesn’t make sense. I don’t believe in necessary evils—more government coercion isn’t the quickest way to less government coercion.
And there’s a moral argument for getting government out of marriage. The only reason it was in the marriage business in the first place was a racist ideology to try to keep interracial couples from marrying during segregation. We don’t need bureaucrats telling us who we can or can’t marry. To quote Justice Kennedy, “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” He’s right and government has no role in any of that. If you need government approval—coercion—to legitimize your marriage, then maybe it’s not a marriage. It certainly doesn’t have anything to do with love.