Posted by Alec Rawls on 13 June, 2009 at 10:24 am. 12 comments already!


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.

The inalienable rights of the Declaration and John Stewart Mill’s principle of liberty

The 9th Amendment reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

To locate these unenumerated rights that are “retained by the people,” the obvious place to start is with rights that had already been enumerated in the Declaration of Independence:

that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

For this general protection of liberty to be taken seriously (as Lawrence v. Texas calls for), individual liberties would have to be extended until they interfere with other constitutionally protected values, or with each other.

Extension of individual rights until they interfere with each other is just another way of saying that there is to be the greatest possible equal liberty, and thanks to John Stewart Mill, we already have an effective rule for identifying this greatest equal liberty. If you are not harming other people, says Mill’s famous “principle of liberty,” you are not to be harmed by the state.

Mill’s stroke of genius was in how he defined “harm,” distinguishing between what he called direct and indirect interests (On Liberty, Ch.1, PP12). Direct interests are life and liberty. If someone physically accosts you, or takes your money, then your direct interests are affected. In contrast, Mill distinguished indirect interests as vicarious interests: either a person’s thought’s about the behavior of others, or his concern for other people’s opinion of his own behavior.

In its full articulation, Mill’s principle of liberty says that in terms of the law, all direct interests are to take absolute priority over any amount of indirect interests. Unless you can think of additional distinctions that would allow us to further separate greater from lesser liberty interests, this is as far as we can go in determining the scope of greatest equal liberty and protecting it. It is hard enough to come up with ANY general scheme for distinguishing greater from lesser interests, so that conflicts between interests can be adjudicated in favor of the greater equal liberty, but Mill did it. As far as it goes, his scheme WORKS.

When direct interests are in conflict with direct interests, Mill’s principle of liberty turns the issue over to majority rule. When a person’s behavior does not harm the direct interests of others, but only offends their indirect interests, then law is to leave him alone. This leaves just one more case. What should be done when the only conflict is between different peoples’ indirect interests, with no direct interests on either side?

Mill’s principle of liberty and the right to privacy

Sometimes a person’s interest in engaging in a particular behavior is indirect. He might be specifically interested in other people’s reaction to his behavior, as when San Francisco homosexuals take to the streets for their pornographic parades. On the other side, residents who don’t like these displays have only an indirect interest in having these exhibitionists put their pants back on. The result is a conflict of indirect interests only.

Mill never addressed this case, but logically it should be treated the same as a conflict of direct interests. Since none of the liberty interests that are at stake can be identified as greater or lesser than the others, the greatest-equal-liberty criterion has nothing to say about what should happen. The natural liberty of individuals is not at stake, which means the question must be turned over to majority rule.

Ours is a government of the people, by the people and for the people. The natural liberty of individuals comes first, then come the rights of the majority. So long as the majority does not infringe natural liberty then the democratic ideal holds sway, and the boundary of natural liberty, as far as reason can discern it, is the priority of direct over indirect interests.

In San Francisco majority rule means porno-marches yes. In Fresno, porno-marchers no. The upshot is a right to privacy, created not as a way of protecting a class of inherently private behavior, but as a way of allowing some behaviors to be banned in public.

People DO have a direct interest in being allowed to participate in pornographic acts. It is only engaging in such acts in public that no one has a direct interest in. So long as people have scope to engage in pornographic acts in private, then their direct interests are protected, and only their indirect interests are affected by being barred from this behavior in public, which is not a liberty concern.

Gay marriage is an indirect interest

Since marriage no longer regulates matters of natural liberty, all that is left of the institution of marriage under American law is society’s stamp of approval for married couples. A desire for approval is an indirect interest: an interest in what other people think. To impose it over the indirect interests of the majority is to treat it as a direct interest, and ultimately to impose it over the direct interests of others.

Of course majority rule is imperfect. What it approves will never be what everyone approves, and some people will always be forced to go along with public approval for what they do not approve. Still, one of our individual rights is to have a republican form of government, which means that matters that are properly subject to majority rule ARE subject to majority rule, and that minorities do not get to impose their demands for approval on the rest of us. When that is violated, the harms to direct interests that result are wrongs.

Ted Olson’s suit in favor of gay marriage

In their interview with Larry King, Ted Olson and David Boise outlined the equal protection argument they are going to make in federal court against Proposition 8 (which amended the California State Constitution to define marriage as between a man and a woman).

They appeal to the precedent established in the aptly named case of Loving v. Virginia, where 42 years ago SCOTUS struck down a Virginia law barring interracial marriage. Loving v. Virginia recognized marriage as a fundamental right. Olson and Boise argue that under the equal protection clause, that right must be recognized equally for all Americans, regardless of sexual orientation, allowing anyone to marry anyone.

This argument begs the exact question that Prop. 8 raises, and answers so succinctly: what is marriage? If it is by definition between a man and a woman, then yes, homosexuals have a right to marry, but they can only marry people of the opposite sex. Otherwise it is not marriage.

Olson and Boise are in-effect trying to use the equal protection clause to change the definition of marriage, but changing the definition of marriage is beyond the purview of the equal protection clause. The definition of marriage as between a man and a woman is established by history and religious tradition, things that the equal protection clause cannot affect. The 14th Amendment can only determine that homosexuals have a right to marry people of the opposite sex, just like everyone else.

Kmiec’s proposal to get government out of the marriage business entirely

Douglas Kmiec thinks the thorny problem of gay marriage can be resolved (or at least swept under the rug) by getting government out of the marriage business altogether. But when government participation in marriage is viewed as a vehicle both for conferring social approval and for directing social assistance mothers and fathers who bear and raise children, abandoning this enterprise is no solution. Kmiec is just dodging the question of what society should approve and disapprove by deciding not to approve or disapprove of anything.

The moral weakness of this approach is well captured by Ed Morrissey’s reason for approving of it:

Kmiec has the better argument, mostly because the “state” gave up protecting marriage and children decades ago.

We already fail to give proper due to heterosexual marriage, so instead of fixing that failing, lets just dump the whole thing.

From the viewpoint of moral science, getting government out of the business of approving or disapproving anything is a violation of the rights of the majority. So long as natural liberty is protected, majority rule properly holds sway. To say that the majority cannot exercise its properly allocated powers is a tyranny of the minority, overthrowing the largest part of republicanism, which is democracy.

The American meaning of republicanism is the system of liberty under law. Democracy has two roles in this system. It allows us to throw off a tyrant who tramples on the natural liberty of the people (a capacity that looks like it is going to be tested in the next two elections); and it allows the people to decide for themselves how they want to be governed consistent with natural liberty. Thomas Jefferson stated the latter in an 1817 letter to Alexander von Humboldt:

The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt.

Tyrannies of majority and minority in California

In the name of anti-discrimination, California has for many years been engaging in both tyranny of the majority and tyranny of the minority. The state government (tyranny of the majority) has passed numerous laws that violate freedom of association and other natural liberties, forcing not just toleration, but actual association with homosexual behavior.

Consider California’s 2003 Fair Employment and Housing Act, which expanded the state’s anti-discrimination laws to include trans-gendered people in employment and housing. What? You didn’t promote that grizzled and graying 250 pound bald man wearing a pink dress and a push-up bra? Yes, I’ve actually seen it, at a local Sear Robuck no less.

Bet he wasn’t dressed like that when he applied, but if they fire him for it, they’ll lose in court. And what sane jury would ever believe that this person’s grotesque behavior did not hold back his career? To avoid losing in court, Sears will actually have to promote him. In California, it is now in effect the employer’s job, not the employee’s job, to keep the employee’s career on track, so long as the employee dresses shamefully.

California’s Democrat dominated legislature has been larding the state up with this garbage for decades. Homosexuals were added to the anti-discrimination laws several years before the trans-gendered. All of these laws are violations of natural liberty. People are allowed to discriminate on the basis of every behavior except homosexual behavior. Again, the upshot is forced approval on the pretense of individual rights, when there is no right to approval.

These bogus rights claims become tyranny of the minority when they are used to keep the majority from enacting restrictions that withhold public approval for homosexuality. The California Supreme Court did this when it struck down the first anti-gay-marriage proposition on grounds that it violated the state constitution. No it didn’t. California has approximately the same equal protection clause as the 14th Amendment. This clause can’t change the definition of marriage any more than the federal clause can. Homosexuals have the same right to marry people of the opposite sex that everyone else does. They do not have a right, legal or moral, to marry each other.

Californians are fighting back against the tyrannies of majority and minority that are being imposed upon them. I have no problem with conservatives who think that gay marriage SHOULD be approved by society, but to force this approval under the guise of individual rights is perverse.

Gay marriage nothing like interracial marriage

The contrast between interracial marriage and gay marriage goes far beyond the simple fact that marriage has traditionally referred to a man and a woman. Even if there was no pre-existing right to heterosexual marriage, bans on interracial marriage would still not stand up to constitutional scrutiny.

In the absence of a constitutionally recognized fundamental interest, the test for constitutionality is the rational relation test: is a ban on interracial marriage “rationally related” to “a legitimate state interest”?

The answer is “no.” There is a legitimate state interest in maintaining the genetic quality of the next generation, but miscegenation laws are an irrational way to pursue that state interest. (The “rational relation” test is not in general a rationality test. Only the relation has to be rational, not the law itself. But if a law is positively irrational, that can call the rational relationship into question.)

Regarding the genetics of the next generation, individuals are motivated on their own to find the best partner with which to have a family. Since desirable qualities are spread throughout all races, and since the qualities of any individual can only be judged by those who encounter them as individuals, the expected best outcome for the next generation results when individuals are free to pick their own mates as best as they can. Any interference with this free choice will only block some people from accepting their best available choices, which will harm the genetics of the next generation.

Similarly for parenting quality and for every other legitimate state interest relating to mate-choosing. Thus rationality calls for free choice, and any discrimination against free choice is positively irrational. Interracial couples still have no right to approval. It is just that disapproval in this case fails to meet the most basic test that ANY law must meet (or should have to meet) to pass constitutional muster: that it cannot be positively irrational.

No such affirmative argument can be made in the case of gay marriage. On the contrary, limiting marriage to a man and a woman is perfectly rational for an institution designed to foster the bearing and raising of children. The specific accommodations that society makes here and there for married as opposed to unmarried couples are generally aimed at the accommodation of children.

Homosexual couples CAN have children, but do so at a much lower rate than heterosexual couples, and it is perfectly rational for society to focus its approval and its various accommodations for children towards those who for the most part are bearing and raising the children. The object of such laws is to promote the welfare of children, not to assuage the feelings of adults.

Bans on gay marriage are not just rational, but compelling

If homosexual couples are allowed marry, they will have to be given equal access to babies for adoption. After all, if society has determined not just that homosexual marriages should be approved, but that homosexual couples have a RIGHT to approval, then how can that approval be denied by any part of society? But in fact there is plenty of evidence that children need to be raised by a mother and a father. Children don’t always get what they need, but it is certainly rational for society to try to improve their odds.

Indeed, society’s interest in protecting children is compelling, and to protect children from homosexual adoption, it would be necessary to ban homosexual marriage. This is the test that the Court applies when a constitutionally recognized “fundamental interest” is at stake. A law that infringes fundamental interests must be “necessary” to “a compelling state interest.” Thus even if the courts were to pretend that equal protection can change the definition of marriage, there would still be a strong case to make for the constitutionality of a ban on homosexual marriage.

In sum, the question is whether we are going to take our fundamental institution for supporting the bearing and raising of children and turn it into something very different, something for everybody, based on the fraudulent idea that homosexuals somehow have a RIGHT to approval.

No. They have a right to be tolerated, which they have been granted in full. Now they answer that liberal generosity with this illiberal demand for approval. I would like to see society move in the opposite direction and use the legitimate powers of the majority to suppress public homosexual displays. That is what the right to privacy is really about. It is the public’s right to put behind closed doors that which society is only required to tolerate.

Make the gang trash pull their pants up in public. Give tickets to the parents of foul mouth teenagers. Keep the porno-parades in San Francisco, and ban gay marriage entirely.

ADDENDUM: Privacy and abortion

The Supreme Court has proclaimed a right to abortion, pursuant to a proclaimed right to privacy that is held to be implicit in the Constitution. Suppose privacy rights were to be understood as I suggest in this essay: as a way to allow some protected activities (activities that do not harm the direct interests of others) to nevertheless be banned in public (when only indirect interests are harmed by such a ban). Would such a right to privacy still imply a right to abortion?

Absolutely not. Abortion involves the most extreme harm to the direct interests of the unborn. That means it is not a protected activity in the first place, which means it cannot be protected by a right to privacy.

The ordinary language meaning of privacy says the same thing. Something is a private matter if it does not harm third parties. A child, born or unborn, is obviously a third party.

This does not mean that there is no natural right to abortion. I think there is such a right, stemming from the fact that in many cases, not terminating a pregnancy will mean that another child who would otherwise have been conceived at a later date will no longer be conceived. This is just an extension of the recognition by anti-abortion advocates that an abortion means a child who would have lived does not live. Carrying the same logic one step further, there are also actual children who some years down the road will not be born if their parents do not have abortions today. In fact, we can name millions of these children. Every child born to a parent who earlier had an abortion is a child who would not have been born otherwise.

These lives can no more be discounted than the lives of the unborn in the womb, and in my probably not humble enough opinion, the only people who can choose between these lives are the parents. That makes it a private decision in the private-sphere vs. government-sphere sense, but not in the common language sense of there being no third party interests that need to be accounted. It is just that the best people to account those third party interests (whether to have children now or later) are the parents.

Abortion is about the last thing that can be fit under the unenumerated rights of the Ninth Amendment. Because the direct interests of the unborn are at stake, it does’ not fit under Mill’s principle of liberty (and hence not under the rights of the Declaration, which Mill’s principle logically articulates), and it was not a historically recognized right, available for the people to “retain.” Thus until a constitutional amendment is passed that protects a right to abortion (an amendment I would gladly work for), it ought to be for the states to decide.

The advocates of the “living Constitution” are wrong. The constitution does not say whatever progressive opinion wants it to say. It says what it says, and if we don’t like what it says, it is incumbent on us to amend it, not re-interpret it to suit our will.

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