“We are trying to say to the court that we are judicial and political conservatives, and it is consistent with our values and philosophy for you to overturn Proposition 8,” said Ken Mehlman, the former chairman of the Republican National Committee, who came out as gay several years ago. He is on the board of the American Foundation for Equal Rights, which brought the California suit, and has spent months in quiet conversations with fellow Republicans to gather signatures for the brief.
There are two issues here for me:
1. Is there a right to marry?
2. Would legalizing same-sex marriage strengthen the institution of marriage?
If there is a right to marry, then the question is resolved: all conservatives are absolutely firm in defending the innate, God-given rights of all. But is there a right to marry? Remember, a human right is something endowed upon humans – individually – by God. That is the bedrock, conservative principal about human rights – they are not open to debate because the assignment of rights is not an act of human design, but an act of God’s will. It is in the act of observing humanity that we determine what is a right. All persons – at least in theory – can speak without any assistance of another. So, we have a right to speak. All persons can – also in theory – defend themselves. So, we have a right to self-defense. All persons can hold property. So, we have a right to own property. All persons can live. So, we have a right to life.
Given that marriage requires at least two persons, it cannot be a right. I don’t have a right to marry because to marry I must gain the voluntary consent of at least one other person. It is a privilege, and as a privilege it is right and proper that all the persons affected – which means all of society – have the proper power to regulate whom I may marry and under what circumstances. As it turns out, under American usage we have long determined that the only people who may marry are one man and one woman who are not closely related to one another. Those who are advancing the cause of gay marriage are not working to secure a right – because there is no right to secure – but to alter whom we shall allow to marry. They are adding to existing usage a new thing: that in addition to one man marrying one woman, we shall also have one man and one man, one woman and one women being given the privilege of getting married.
This disposes of the argument that the basic, conservative principal of securing the individual rights of the people is involved in the gay marriage debate. But what of gay marriage, itself? We have long extended the privilege of marriage to all men and women over the age of consent provided they are not closely related or otherwise encumbered by a previous marriage commitment, what of the prospect of allowing them to select among their mates people of the same sex? Conservatism is, at bottom, about preserving what is best and bringing it in to the future in as good a shape as possible. This does not preclude change – indeed, it requires constant change. As Chesterton pointed out, it isn’t true that conservatism is about leaving things alone – leave a white post alone and you will eventually have a black post. To keep a white post, you have to be regularly painting it. Conservatism, noting the value – indeed the absolutely crucial aspect – of marriage, seeks to maintain it and bring it refurbished and strong in to the future. Would gay marriage refurbish and strengthen marriage and help us to bring it with confidence in to the future?
There is no empirical data which would indicate that in those jurisdictions which have allowed gay marriage that there has been a subsequent increase in traditional marriage, nor a reduction in the rate of divorce. We have no evidence that gay marriage helps the institution of marriage, as a thing. And marriage is a good thing – indeed, it is a vital thing because it opens up the most important thing any human being can ever do: start a family which will raise up the next generation of children. Conservatives know that if people don’t marry, don’t stay married and don’t have children to be raised in a two-parent household, societal disaster will result. We know this for certain these days because our warnings against easy divorce and birth control were ignored (laughed off, actually), and the distressing decay of family and social cohesion we see all around us is the result. Our job, as conservatives, is to attempt to refurbish and reform marriage and thus present to the future this crucial institution in as strong a condition as we can. There is no data showing that gay marriage would help us in this effort – and there are reasons to believe that it might even harm the tattered remains of marriage and family we are currently dealing with.
If we are to allow gay marriage it will not be on the point of human rights but upon the Libertarian idea that even if it isn’t a right, per se, then it is at least something that adults can decide for themselves. This is a reasonable position to hold, but it is not conservative – and it is also, in my view, dangerous. The reason why Libertarianism has such limited appeal is because of the common sense of the people – it is all well and good to say that adults should be able to do whatever they please as long as it harms no others, but in practical terms the functioning of a society does require a great deal of restriction upon human action. This is especially true because even an act which does no apparent, immediate harm to others may yet have a larger, detrimental effect on society – especially if more and more people do it. A good case in point is in drug use: really, what concern is it of anyone’s if someone shoots up heroin? Immediately, none – but once you get millions of people shooting up heroin, then you start to get an increasingly bad effect on society as a whole. Whether or not you’ll decide to ban heroin or take different steps to combat the use of the drug is an empirical question. That you’ll have to do something to curb the acts of individuals who are theoretically harming no one else by shooting heroin – but are actually harming millions in the aggregate - is certain.
As marriage is not a human right and given that we have no data showing that gay marriage improves marriage, itself, then the only case for gay marriage is the concept that each adult should be able to do as he wishes. That is a Libertarian principal, not a conservative one. Once allow the principal that any adult may marry any other consenting adult and you do open up a can of worms best left closed – and even as each, individual choice of marriage does no immediate harm, the aggregate effect of everyone deciding on their own hook who they shall marry, and when, you will generate social chaos and perhaps lead to the final breakdown of the marriage that matters: the marriage that does what marriage is supposed to do – induce one man and one woman to issue a life-long commitment to each other so that the children of the next generation can be raised up in the best possible circumstances. Marriage is already sorely beset and ever more of our children are born out of wedlock – and the lack of rational, stable family life is fueling the social pathologies we see among our young. Is it seriously to be thought that it is a conservative principal that the boat of marriage shall be rocked ever more strenuously?
Allow gay marriage and as sure as night follows day there will be demands for an ever expanding definition of whom can marry. It will not stop with one man marrying one man. If you make an exception to the rule, the exception will shortly become the rule. The survival of our civilization requires that strong, stable families for the natural generation and upbringing of children be the goal – and the entry act in to this process is marriage, which thus must be hedged about with as many privileges and protections as society can reasonably afford. Gay marriage appears to me to detrimental to this proper, conservative goal. I can see no argument in favor of gay marriage which convinces me that gay couples will improve marriage; strengthen marriage; ensure that the institution of marriage better carries out its primary function in to the future – the creation of families for the creation and upbringing of the next generation. And, so, as a conservative I remain in opposition to gay marriage.