February 6, 2007

Reductio ad Absurdum

Preface: If I part company with my fellow Republicans on this issue (I do claim some libertarian tendencies, after all) or otherwise earn unpopularity for my stand, so be it. Part of what I do in this virtual space is write about what I think is right and publicly exercise my moral convictions. And this issue really gets under my skin for some reason.

With that said, I note with interest that a proposed initiative in Washington State would require heterosexual couples to prove their biological ability to bear children before a marriage license could issue to them, and require a license to lapse within three years of issuance if there are no children resulting from the marriage. Ridiculous, I know. It's supposed to be ridiculous. It's intended to fail at the ballot box, but along the way to its intended defeat,* it will accomplish its real goal: demonstrating the falseness of the claim that marriage is about procreation.

Take, for instance, The Wife and I. We're married. We've got the piece of paper that proves it. We've got the joint tax returns that demonstrate that the government recognizes that fact. But, no kids, no plans to have kids. But guess what? Still married. And we should stay that way, because that's the way we want to live our lives. We've chosen to live our lives together and form a family, and that's a right that should belong to every American citizen.

The government supports that choice and even encourages (straight) people to make that choice by giving them joint economic rights -- rights in one another's social security, for instance, the ability to file joint tax returns, and the presumption of mutual ownership of property to increase the earnings and wealth-accumulation power of a household. Kids have nothing to do with it, and more than do pets or houses or cars or political or religious preference.

But if The Wife and I were both men, or both women, we could not do these things, because the government would not recognize that relationship. And as long as the government continues to subsidize and support the joint existence of ordinary-looking hetero people like The Wife and I, and not our similarly-situated gay neighbors, that is an inequality and an injustice, and it is every bit as un-American as a separate water fountain for the Black kids.

Not the most burning issue facing our society, perhaps, but one that ought to be taken seriously nevertheless. If activity "X" hurts someone, then it ought not to be allowed. Same-sex marriage hurts no one. If my gay neighbors marry, The Wife and I are going to stay just as married as we are right now.

Holding on to a "tradition" of marriage only for straight people may have some vague inherent value which has never been articulated well to me; but even if that is the case, it's important to understand what that adds to our society, what beneficial purpose that tradition serves. Slavery was a tradition for a long time, and in the end its value was found to be less than its moral cost. We look back on history and rightly condemn the defenders of slavery and of its bastard child Jim Crow, because the moral cost of such unequal treatment so far exceeded whatever benefit of social and economic continuity they provided. And as between straights and gays, history will not judge contemporary society by how we treat the heterosexuals.

If I part company with my fellow Republicans on this issue and earn unpopularity, so be it. What's right is what's right. Equal rights for all ought to be the presumptive position whenever we are dealing with what the government does to people. The government needs a damn good reason to depart from that default. Such reasons may exist in other circumstances, but no such good reason can be identified with respect to same-sex couples as opposed to opposite-sex couples. And that's what this initative up in Washington is all about -- making us all ask the question of what the government's involvement in marriage is all about, anyway.

* Query if the use of an initiative intended to fail was what was really what was contemplated by the creators of such political devices, or if this sort of thing is another symptom of our national political dialogue run amok. An easy criticism to make when you oppose the initiative at issue; a harder one to make when you support its overall intent, as I do in this instance.


Anonymous said...

"We've chosen to live our lives together and form a family, and that's a right that should belong to every American citizen. "

You are an attorney. Then can my aunt marry here sister?

Burt Likko said...

First of all, whether your aunt can marry her sister or not has nothing to do with whether I am an attorney.

Secondly, if your aunt and her sister want to live their lives together and consider themselves a family unit, then yes, they should indeed have that right. Why should their consanguinuity be relevant to the property rights at issue?

If you want to use a label other than "marriage" to describe that relationship, that's OK with me. I'm concerned with substance rather than form.

Anonymous said...

So again, as an attorney you are saying that the law should allow my aunt to marry her sister?

Since it's a legal issue I wanted to ask you as an attorney.

Anonymous said...

Some libertarians are against gay marriage, because it's more government interference. In other words, we really shouldn't have marriage at all, people should just contract specifically for whatever they want to contract for (assuming it's something the courts will enforce). But since society has a strong tradition of marriage between one man and one woman, we'll put up with special protections and laws for that union.

I'm not saying I agree, just that some would say your position is liberal, not libertarian.

-- Spungen

Sheila Tone said...

P.S. Let me know if you think the Lactation Blog blogroll is luring excessive trolling. Although it certainly wouldn't be the only suspect.

Burt Likko said...

As a lawyer, I can tell you what the law is. The law is that no, your aunt currently cannot marry (or enter into a civil union or domestic partnership) her sister.

The same-sex marriage issue is about whether the law should be changed. I say it should. I would say the same thing if I were an accountant, a baker, or a dockworker.

Your concern is probably about whether I think it would be if it's okay for your aunt to have sex with her sister. That's a different question than whether they should be able to jointly acquire property or jointly file taxes and have medical decision-making authority and such.

I'm familiar with the argument that there should be no marriage at all. It's an interesting concept, but quite unlikely to happen, because that would take things away from people who are already married.