The Unvarnished Truth

This will not be a "popular" post---indeed, it may cost me some loyal readers. But curmudgeons are entitled to that moniker only to the extent they speak the truth. What follows is, I promise you, the unvarnished truth---with perhaps a curmudgeonly edge to it; for that, I hope, you will be generous in indulging my plainspokenness.

I shall speak from the heart, tempered by a life devoted to the law. I know many who are gay, I share communion with gays, and I greatly respect the intellects of those gays I have gotten to know on closer terms. But I cannot respect what the demand for gay "marriage" is doing to our society. A decent regard for my fellow humans who are struggling with the issue demands that I speak my piece; so be it:

1. The “right to marry” cannot be an individual right. It requires two people to marry. But what the law recognizes as “rights” are always the property of individuals. So at the very outset, there is a disconnect in the claim to a "right to marry."

2. Regarded from an individual point of view, you do not have a right to marry someone else without that person’s consent. So immediately, your so-called “right” is completely restricted and limited by everyone else’s right to refuse to marry you. What kind of “right” is that?

3. In a similar way, any individual can file papers to incorporate, and so can be said to have a “right” to incorporate---but the corporation will need at a minimum two officers and two directors to be recognized as a corporation. So one's “right” to incorporate is restricted and limited by the right of everyone else to refuse to serve as a director or officer of one's corporation.

4. All right, so let’s speak about a couple who wants to get married. Can they be said to have a "right to marry"?

5. Generally speaking, as noted above, rights belong to individuals. The reason is that if you have a right, then by definition another person has a duty that corresponds with that right, and duties are owed to individuals. If, for example, you can be said to have a "right" to vote (because you are over eighteen and a citizen), then each other citizen has a duty to allow you to exercise that right, and to see that it is not interfered with.

6. So if a couple could be said to have a “right” of some kind, then there would have to be a corresponding duty owed by each citizen to that couple as a couple. Now an individual is easily recognized, so other citizens have no trouble in telling when they are denying the rights of an individual. But what about a couple? How are you supposed to know when what you are dealing with is a couple owed a duty as such, and not just two friendly individuals? For this and similar reasons, the law does not generally recognize any “rights” that are held by couples as such, or duties owed to couples as such. Duties are owed to individuals, because individuals remain individuals until they die.

7. Moreover, what would such a “right”, if it could be possessed by a couple, amount to? It would be a right that would extinguish itself the moment the marriage ceremony was performed---that couple, once married, could no longer be said to have a “right” to marry. So what kind of “right” could it be that exists only for the purpose of being wiped out? (The individual’s right to vote, for instance, comes into being each time there is an election; and voting in one election does not deny you the right to vote in the next---to the contrary, it ensures it. But getting married would most certainly mean you no longer have a “right to marry” again until you were not married, i.e., either divorced, or widowed.)

8. The very fact that a divorcee or a widow has a “right to marry” that you do not have as long as you remain married shows us that what we are talking about is not a right at all, but a privilege. A privilege is something you have to meet the qualifications for: if you meet them, you are granted the privilege, if you don’t meet them, you have no right to the privilege.

9. A married person thus has no “right” to the privilege to marry, while a divorcee or widow may be said to meet the qualifications to marry, in being single---but to marry whom? (Even a divorcee has no “right” to the privilege of being married to her brother, for example. This is why it is so unhelpful to use the word “right” in connection with a privilege.)

10. Thus if you get accepted to Harvard, you have met its qualifications, and you receive the privilege of attending Harvard. You have no “right” to attend Harvard (but you have a right to apply to Harvard---even if you possess none of the qualifications for acceptance). Do you begin to see the difference? Rights, in some context, can be meaningless (e.g., the “right” to apply to Harvard even if you have an IQ of 40), but privileges are never meaningless; they confer a status that is defined by the law.

11. In the same way, if you pass the driver’s test in your State, you are granted the privilege of a driver’s license. To speak of a “right” to a driver’s license that is independent of race, sex, age or sexual orientation is a misnomer: you have a “right” only to take the driver’s test, and then only if you qualify by being a certain age, are not blind, are able to read English, etc. A driver’s license is thus a privilege, not a right.

12. The qualifications for a privilege always have to be related to the privilege itself. Thus to obtain a driver’s license, no one cares whether you are gay or straight; that has nothing to do with the privilege of driving. But being able to see, and to read English, are both essential to driving. So these are made part of the qualifications for obtaining the privilege of having a driver’s license.

13. Are there qualifications for a marriage license? Most certainly: (a) each applicant has to be an adult; (b) not already married; and (c) the two applicants for any one license, which is unique in granting a privilege not to an individual, but to a couple, must be of the opposite sex.

Well, why is this requirement justified? What does the sex of the partners have to do with getting married?

14. All right, we are going to go back to basics here. Forget for a moment everything you have learned, or think you believe, about human relationships. In fact, let’s turn the question on its head. I would like you to engage in the following thought experiment:

Imagine a society in which homosexual relationships were the norm, and not the exception. Suppose that this society, like that in Orwell’s novel 1984, had completely eliminated the individual burden of child-rearing. All conception and child-raising functions were taken over by the State, which received a constant supply of eggs and sperm from the children it reared to adulthood. Men could live only with other men, and women with women, precisely so the State would not have to worry about individual couples bringing a rogue child into the world. Remember: this is the norm, so that no individual would even conceive of trying to make a lifelong partnership with someone of the opposite sex; if they ever tried it, the penalty would be death. (In fact, you could take the thought experiment even further, and hypothesize that this society had finally discovered the gene that made people gay, and thereafter ruthlessly eliminated all fetuses that did not possess the gene, so that the society was 100% homosexually oriented.)

My question is this: In such a society, would there ever evolve, of its own natural force and not by imitation with some other society, an institution which one could fairly call “marriage”?

In other words, would male pairs, or female pairs, in such a society ever be motivated to conceive of a relationship that bound them for life, in which they pledged to the other to be true “in sickness and health, for richer or poorer, until death do you part?” (I grant you readily that many couples might well choose to remain together for life, but what would they add---particularly with no-fault divorces---by making it a legally solemnized relationship which then required the trauma of a divorce to be free of it?) What possible advantage could be seen in such a relationship, given the particular society I have hypothesized?

If you are true to my instructions, and have put aside everything you thought you knew about human relationships, your honest answer would have to be: “No, there is no social reason why an institution such as ‘marriage’ would ever arise in such a society.” Fine: now let’s go back to the logical consequences of that conclusion.

15. It is, however, an historical fact that the institution we refer to as “marriage” did evolve---in a society in which heterosexual relationships were the norm.

16. So the logic of evolution tells us that that the emergence of such an institution must have had a certain “survival value”---that is, it ensured the survival of the species more than would have been the case without its existence. (This is, I’m afraid, self- evident; otherwise we would not be where we are now, able to entertain the idea whether gay “marriage” in this day and age makes any sociological sense.)

17. And now we are in a position to compare the two societies---the primitive, paleolithic (and, if you will, patriarchal) society in which marriage evolved historically as an institution; and the ultra-modern, technologically advanced society which is 100% homosexual and has no need of “marriage”, either to ensure the survival of particular lines (which is not an issue in the society as imagined, because there are no deliberately preserved lines whatsoever) or of the species itself.

18. In this comparison, I submit, the institution of “marriage” may be seen as necessary to the survival of a traditional heterosexual society (because the institution unquestionably evolved, and has led---thus far, at any rate---to that survival), while it has no function whatsoever to fill in the hypothetical purely homosexual society.

19. The only rational conclusion it is possible to draw at this point is that in the case of the demands for marriage as a “right”, in order to eliminate society's supposed “discrimination” of denying the privilege of marriage to gay couples, the demands themselves are guided, like that of the dog in the manger, by a confusion of roles. In Aesop’s fable, the dog would not allow the ox to come into the manger to eat the straw---but the dog itself could not subsist on straw. Yet the dog saw the ox as a rival, and used its bark (and threatened bite) to intimidate the ox away from what only the ox could in the end make use of. The moral of the fable was: "People often grudge others what they cannot enjoy themselves."

20. So we have gay couples demanding that they be allowed to qualify for the privilege of “marriage”, without regard to their sex or sexual orientation, even though such a "marriage" would add nothing to the rights they now enjoy already, and would not advance the preservation of the society that extended them such a privilege. As our thought experiment shows, they cannot want marriage for anything it will do for them, over and above what their own feelings for each other already do, to enhance their relationship. This is especially the case since, with the law finally passed by the California legislature in 2005, they have complete and full equality of rights with those of married couples. [UPDATE 11/24/2008: To complain that the passage of Prop. 8 prevents same-sex couples from receiving the "benefits" of being married under federal laws is to misunderstand the nature of our federal system. The federal Defense of Marriage Act defines "marriage" as between a man and a woman for purposes of federal law, and nothing California enacted could change that. See this post for a fuller explanation.]

I conclude that the expressed desire of gays to be allowed to enjoy the state-conferred privilege of “marriage” as their "right"can be, I am sorry to have to say, only a ruse. For if it were just a case of gays desiring greener pastures, then the foregoing argument would be dispositive, and no gay person would wish to argue for the “right” to marry on the ground that “it looks better than a civil union.” But (and based on the recent demonstrations, I defy you to come forward with even one example) there will not be a single activist homosexual who can be convinced, say, by the foregoing argument that the supporters of Proposition 8 actually have a rational (rather than hate-filled, as most are suggesting) basis for their vote. No, the extremely high level of emotion displayed tells me that there are other reasons at stake here---reasons that can only incidentally have anything to do with the enhancement of gay relationships.




The “gay marriage” movement is thus based on ulterior motives---perhaps having more to do with how they see themselves, and how they think others see them, than with any concern for the role that marriage actually plays in a society, based on how it actually evolved. It has gotten as far as it has by confusing what is a “right” in the eyes of the law with what is actually a privilege, and by persuading everyone that there is a right here which is being denied, unfairly (and hatefully) denied. But if what is involved is not actually a "right," then the entire platform of justice is removed from the dispute. We are back to talking simply whether there is a rational basis for society to decide that only certain people may marry---not brothers with sisters, not children with adults, and not men with men or women with women.

I agree that privileges must be rationally based in order to continue to have legal protection and definition. But I have seen no argument to date that shows me that the definition of marriage as given in Proposition 8 is not rational. (To argue, as did four members of the California Supreme Court, that the definition is "discriminatory" is legal flimflam, as I have demonstrated with the series of propositions set out above. Grant that, and its "unconstitutionality" follows as a matter of course.) But to call a privilege "discriminatory" is to say nothing at all. Privileges have to discriminate, since they entail the drawing of lines. If the right not to be discriminated against trumps the right to define a rationally based privilege, then there can be no privileges at all---and that is the definition of anarchy.

If we cannot maintain that basic distinction in our society, if we are going to allow emotion to override it, then we richly deserve the chaos that will ensue.