On Gay Marriage

A person initially stands in relation to the state as free. This being characteristic of the first relationship, the state must justify its actions that limit the freedom of its people. If this cannot be done, then a freedom-restricting law cannot be justly passed, and if such a law were already in place, it would have to be repealed. This is the logic that follows from the claim that a person starts off as free. If the initial relationship between a person and the state were the other way around, if a person had to justify why his freedom in this certain area of life should be granted, then the initial condition of a person would be that of a slave, and such a condition is unjust. It follows from this logic that opponents of gay marriage must provide a good reason why to limit marriage in the way that they propose. They must provide evidence that allowing people of the same sex to get married will bring some type of unquestionable harm to others. To claim that their God denounces it or to claim that it is simply their moral view is insufficient, since neither of those satisfy public reason, which states, in essence, that reasons that are in favor of some political rule must be justifiable to those who are affected.

The proponents of any freedom-restricting law must make three convincing arguments before it can be justly implemented. The first was already mentioned in the previous paragraph, and that is that the proponents must show how the specific action they want to make illegal will hurt others. This is to say that they must show why the state has an interest in making a free person less free. Once this is done, the proponents must show why limiting this specific freedom outweighs other values that we might have that support this freedom. For example, a convincing argument could be made that the interest in maintaining health outweighs the freedom that people have to ride public transportation undressed. The last argument that must be made is that the a freedom-restricting law is the only feasible way to prevent this harm to others. To provide a convincing argument for this, the proponents must show that other methods have already been used and have failed. Liberty is intrinsically valuable and should not be infringed unless it is the last resort to prevent harm.

To my knowledge, the first argument has not been convincingly made by proponents of traditional marriage. However, to give them the benefit of the doubt and for the sake of argument, let us assume that there is an unquestionable harm that will result if people of the same sex were allowed to marry each other. Let us assume, for example, that gay marriage will cause harm to a certain percentage of children by leading to higher divorce rates and more single parenting. And let us assume that those two phenomena unquestionably harm children. The second argument still needs to be made. The proponents of traditional marriage must make a convincing argument that the harm that is done to those children outweighs the freedom that people have to marry someone else of the same sex. This is a much harder argument to make because of the specific type of freedom they want to restrict. It is useful to clarify that not all freedoms are equal; some freedoms are more valuable than others. The freedom to ride the bus without clothes cannot be compared to the freedom that people have to marry someone else of the same sex, for the latter is part of the freedom to pursue happiness. However, once again, let us assume that this argument can be convincingly made. It is now necessary for the proponents of traditional marriage to show that banning gay marriage is the last resort to prevent this harm to children, meaning that they must show that all less freedom-restricting methods have been exhausted. This is a difficult task, and one that is increasingly difficult the more important the relevant freedom is, but one that must be done in order to justly restrict people's liberties.

Perhaps an example will illuminate the argument that I am proposing. Let us look at a possibly unjust law that parallels banning gay marriage, but for which a stronger justification can be provided—the one-child policy in China. Everyone can agree that overpopulation will harm others and that perhaps preventing overpopulation is more important than the freedom to have as many children as one wishes. That said, assuming that not all other less freedom-restricting policies were exhausted, the law is unjust. In the case of overpopulation, the more freedom-respecting solution would have been the empowerment of women. It is quite well understood that as women become more educated and independent, birth rates tend to fall. This would have been the more just way to prevent overpopulation, even though it would have been possibly more difficult. Let us take a look at another example—the sale of cigarettes. The fact that cigarettes cause unquestionable harm and that the benefit of preventing the harm outweighs the freedom to smoke does not lead to the conclusion that we must ban cigarettes. There are other ways to address the problem, and the way the United States did it—with the use of public awareness campaigns—was the right (and successful) way. Likewise, when it comes to the issue of gay marriage, it might be that the just way to do it is with similar public awareness campaigns.

In summary, the three arguments that must be convincingly made are the following: (1) the argument of unquestionable harm; (2) the argument of overriding harm; and (3) the argument of last resort. Until these arguments can be convincingly made, any freedom-restricting law cannot be justly implemented. Having said that, the three arguments above are not applicable in all cases. It is possible that in instances of extreme danger or harm the third argument can be dropped.

The act of restricting freedom should be done meticulously with the utmost care. If it is not done this way, it either does not prevent the feared harm or leads to injustice, and in the most unfavorable cases, it leads to both. Some of the gravest injustices of humankind tend to be intrinsically linked with the unjust implementation of freedom-restricting laws. Given this historical context, it is reasonable for anyone who is knowledgeable of the issue of oppression to put forth criteria that any policy must meet before it makes a person less free, with the criteria increasing in strictness the more valued the freedom. Furthermore, the criteria for such laws should be stricter when they are aimed at historically oppressed groups. The fact that a certain group has been historically persecuted and oppressed justifies an increased sensitivity to their issues, and the reason is this: the effects of tradition, whether they are just or unjust, are extremely difficult to eliminate. The influence of how things were done in the past, and the corresponding mentality, remains for many generations. Consequently, when a specific group has been historically treated unfairly, an increased sensitivity is necessary to prevent the implementation or continuance of any modern law that is based on the elusive vestiges of the unjust beliefs and practices of the past.

The argument presented here is not in favor of a formless marriage, but one that respects the freedom of people. Given this as the starting point, any restrictions on marriage, which are in essence restrictions on freedom, must be justified. Accordingly, if a conception of marriage is to be adopted, it must start from a wide conception and then move toward the narrower, if it is seen to be justifiable that it should be limited in such a way. With this in mind, let us now make an attempt at constructing a freedom-respecting conception of marriage.

First, let us address whether or not marriage can occur between a person and an object, a person and a nonhuman animal, an adult and a child, a child and a child, and a person with himself or herself. An immediate analysis of the conception of marriage should rule out any of these mentioned arrangements. Marriage, at the most basic level, is a contract. Being a contract, the participants must be able to give their consent. Objects, nonhuman animals, and children cannot do this and therefore should not be allowed in any arrangement of marriage. Moreover, the nature of a contract is such that it must take place between two or more people; thus, a person cannot marry himself or herself.

Now let us consider marriage between family members, polygamy, and same-sex marriages. At first, the argument against marriage between family members seems to be the health of the offspring. Assuming that it is true that closely related family members have an increased chance of giving birth to children with genetic disorders, there is a legitimate concern. However, if the health of the children were the first priority in a marriage, then the state would have to restrict marriage between any two people who have any genetic disorders that have a certain chance of being passed down. Though this difficult argument could be made, it is ultimately not the strongest reason why marriage between family members should not be allowed. A greater worry is power abuse, which is an infringement on one's liberty. If the marriage is between a parent and their child, there is a concern that the arrangement is not fully consensual. And given that consent is necessary for a just contract to take place, the state should be reluctant to allow such marriages, if it turns that after an empirical study there is good reason to believe in the existence of power abuse in such cases. If, however, the marriage is between siblings, there might be less worry that there is power abuse and thus should be more acceptable. Like marriage between a parent and their child, the main worry with polygamy is power abuse. And like the former, if after empirical study there is no good reason to believe in the existence of such abuse, then the state would not be justified in banning it. From this reasoning, we come to the following conclusion: any marriage should be allowed by the state if it consists of two or more fully consenting adults. Since gay marriage is consistent with this conception, it follows that same sex couples should be allowed to get married.

Being that a person initially stands in relation to the state as free, and being that consent is the expression of a person's free choice, the state cannot prevent any would-be marriage that consists of two or more fully consenting adults without infringing on people's freedom unless, again, the three convincing freedom-restricting arguments can be made. This is not to say that there is nothing more to marriage than consent—there are certainly elements of intimacy, devotion, and sacrifice that cannot be captured by the idea of a mere contract—but for the state, when deciding what model of marriage should be legally recognized, those elements are of second importance.

I shall conclude with this: Only after the initial relationship between a person and the state is acknowledged can we appropriately begin to speak of restricting freedom. If people are made less free before this is done, I fear that there will always be a group of people whose dignity shall be stripped away from them.