Homosexuals have a right to be tolerated, but social recognition of relationships via the institution of marriage is not about tolerance. It is about approval, and nobody has a right to approval. By trying to force social approval for what most people disapprove, it is homosexuals who are being illiberal, violating the democratic right of the people to by majority rule establish what laws they see fit so long as those laws do not themselves violate natural liberty.
There was a time when marriage was about more than mere social approval, so that being barred from marriage could indeed violate a person’s natural liberty. For instance, sex outside of marriage used to be a crime, often severely punished. This is no longer the case, not just as a practical matter, as society has become more tolerant, but as a matter of Constitutional law. Justice Kennedy’s ruling in Lawrence v. Texas recognized for the first time (and long overdue) a general right to liberty, grounded in the 9th Amendment’s assertion that the sphere of protected liberty is not limited to the enumerated protections.
In the particular instance, Lawrence v. Texas specifically decriminalized homosexual relations, whether homosexuals are married or not. In one stroke, that stripped away the relevance of marriage to constitutionally required tolerance. The remaining legal concomitants of marriage contain only minor liberties (some of suspect propriety, like allowing spouses not to testify against spouses, regardless of the severity of the crime in question). At the same time, the economic arrangements of marriage can be secured by freedom of contract, without requiring society to do anything more than provide enforcement of contracts.
In terms of assistance, our laws don’t provide any significant advantages to married couples, and what advantages do exist are to support the bearing and raising of children. Supporting children indirectly by assisting parents is always hit or miss, and there is no possibility, never mind any constitutional requirement, that all parents or children be supported equally.
All that is left is the issue of social approval. Given that tolerance and approval are opposites of a sort, it may seem obvious that no one has a constitutional or moral right to approval, but it is still important to work through the moral machinery, beginning with the theoretical quesiton of how to achieve the greatest equal liberty. Read the rest of this entry »
