Sunday, January 31, 2010

Gay Marriage and Individual Rights

In my Introduction to this blog, I wrote:

“[T]he only real guide to understanding human events, their relationships to one another, and where they may lead us, is to discover the fundamental philosophical and moral principles that drive them: hence, the title of my blog. Discovering them is not always an easy task, but with Objectivism as my frame of reference, that is what I aim to do as I analyze and opiniate on today's events.”

Ayn Rand wrote: “Abstractions as such do not exist: they are merely man’s epistemological method of perceiving that which exists—and that which exists is concrete.” Since abstractions as such do not exist but are merely mental tools for understanding reality, they must be logically relative to concrete events and facts. Otherwise, they are merely “floating” … disconnected from reality and thus useless. Since my blog is based on the premise that abstract ideas drive human events, my task is to validate my principles with reference to today’s issues.

Put another way, my blog is about the concretization of abstractions. The number one abstract principle that is my driving passion is the concept of individual rights. That abstract reference point is the focus of this post’s analysis of a very controversial subject. It is also a good demonstration of why we need to make full use of our uniquely human conceptual faculty (i.e., our powers of abstraction), and why without abstractions we are essentially “flying blind”.

On January 6, 2010, the Same-Sex Marriage bill went down to a resounding defeat in my rather liberal state of New Jersey. This result should not have happened, and is a case study on the wrong way to advocate for anyone’s rights. On the same day, the New Jersey Star-Ledger foresaw the defeat, pinning the blame on “political missteps”.

For a change, I agree with the Star-Ledger. The gay marriage ban should have been lifted in New Jersey. I agree with the Editors’ stand, but not their murky logic … the source of the cause of the defeat.

The failure was not political, but philosophical. A look at the Editors’ logic exposes the cause of the inability of so many politicians to take a firm stand – the “soft supporters [who] may run for cover”. The Editors lament this spectacle and ask: “How did this bill become such a long-shot in a state where most polls show solid support, and where the Democratic governor and leaders of both houses supported it?” It was indeed a long shot. The bill was defeated by a heavily Democratic State senate by a decisive 20-14 margin (with three abstentions). Why? We need to take a look at the Star-Ledger’s own reasoning.

I am sometimes asked a question such as: “Do you support or oppose gay marriage?” This question misses the point. The question is, does anyone have the right to employ the government’s power of legalized physical force to prohibit two people of the same sex to forge a marriage contract? I firmly and unequivocally believe the answer is no. My personal opinions are irrelevant here. Upholding the right to same-sex marriage no more indicates my support for gay marriage than my defense of a woman’s right to her own body indicates support for abortion; or my defense of the First Amendment indicates support for pornography among consenting adults; or my opposition to Affirmative Action indicates support for racial discrimination.

The basic issue is individual rights, the inalienable sanction to take the actions necessary to achieve one’s long-term goals, well-being, and happiness – so long as those actions don’t involve the violation of the same rights of others. Since rights are held equally and at all times by all people, the state’s legal sanction of a marriage contract between any two consenting adults must necessarily include same-sex couples, if the 14th Amendment’s Equal Protection Clause means anything. Of course, a private institution like the Catholic Church has every right to refuse to sanction gay marriage. But it has no right to trample the rights of others who disagree.

My opinions aside, it’s hard to see how a marriage between two gay people violates or presents a threat to the rights of anyone else, as would be the case between, say, the parties in a Mafia hit “contract” or the perpetrators of a fraudulent Ponzi scheme. Since the freedom of contract is derived from the right to life and liberty, the burden of proof is on the anti-gay marriage side to validate its stand. It hasn’t and, in fact, cannot do so.

Yet, it won the day in New Jersey.

When the issue is defined properly, there are no “soft supporters”. Broad abstract principles leave out personal judgements on how one feels about the concrete issue involved. When one declares his allegiance or opposition to an abstract principle, he offers a yardstick by which others can judge his stand on a virtually unlimited number of concrete issues. The principle of individual rights, properly understood, leaves no room for “flirting with both sides”, “winks and nods”, or “hiding”. The Editors demand to “learn where each senator stands on gay marriage”. The proper question is: “Where do you stand on the principle of individual rights?” Each legislator’s answer to that question leads logically to a specific vote on the gay marriage bill, since it is essentially a vote on individual rights. But modern politicians on both sides of the ideological divide recoil against principled stands on any issue.

The idea of individual rights is much broader than any single concrete issue, and it is sometimes not readily apparent how to apply it to some particular concrete issue. Disagreements concerning practical application can and do arise among people who hold, and understand, a given principle. But first, the principle must be clearly identified. By evading it, the debate was focussed narrowly on homosexual marriage. This forced the politicians to declare whether they are for or against “gay marriage” and, by implication, homosexuality as such. But as I stated above, that is not the issue. It should never have come down to that. The senators should have been obliged to take a firm, either/or stand on the paramount question – Do you support or oppose the number one Founding principle of America, unalienable individual rights?

The debate wasn’t properly framed, so it went down to resounding defeat. The supporters such as the “gay rights” group Garden State Equality are partly to blame here. By basing their argument on the premise that they are fighting for “gay rights” rather than the broader principle of individual rights, they undercut their own case by, in effect, fighting for what one correspondent called “SPECIAL rights”. Fromexperience wrote:

“Marriage is not a right -- civil or otherwise.
In five state and DC, homosexuals have been legislatively "awarded" SPECIAL rights through SSM. Those civil unions and domestic partnerships available ONLY to ss couples are ALSO special rights.”

Marriage is a right, but it’s true that marriage is not a fundamental right. It is a derivative of the foundation of all rights – the right to life. As long as the issue is gay rights, the supporters are vulnerable to this line of attack. Fromexperience is correct that rights are not “special” or “legislatively awarded” or applicable only to gays. But he evades the fact that they are unalienable … i.e., based upon the provable metaphysical facts of reality and, thus, inseparable from man qua man, and possessed equally by each and every individual. That includes the right of free association, which includes contractual freedom, including marriage contracts. The government’s role is to enforce those contracts, equally. Defending the SSM bill on this proper basis explodes fromexperience’s argument, because to deny an unalienable right to anyone is to deny the same right to everyone … including the contractual right to heterosexual marriage.

It’s obvious why not only liberals but also conservatives ignore, evade, and refuse to explicitly endorse the principle of unalienable individual rights. The implications for both would expose each side to a withering critique of their entire agenda. Adherence to principle cuts through the fog of pragmatism, and obliterates any chance of having one’s cake and eating it too.

For the liberal, it becomes necessary to explain why gays should have the right to freely contract with each other in marriage but not with their health insurance company. If abortion is a medical procedure that should be decided solely between a woman and her doctor, the basic logic behind Roe v. Wade, then why shouldn’t that same line of reasoning (non-interference by government) apply to all issues regarding healthcare? If the government has no right to force a woman to bear a child or deny gays the right to marry, then why should that woman or that gay person be forced into any government-run “insurance” scheme like Medicare, or forced to buy a policy full of state-mandated coverages or submit to an “individual mandate”, or be denied the right to refuse to pay for emergency room visits by uninsured people?

Likewise, for conservatives, it becomes necessary to explain why international free trade is good with regard to material goods, but not to people (immigration). Why is it wrong to force people to fund the latest liberal welfare scheme, but OK to force them to fund Bush’s Faith-Based Initiatives? And why is it wrong to restrict freedom of speech, except to demand that the FCC crack down on “obscene” material in the media?

The inconsistencies are manifest on both sides, if the principle of individual rights is the yardstick to measure the validity of one’s stand on concrete issues. But the Star-Ledger wants to have it both ways. Thus, the Editors defend the gay marriage bill with vague references to “civil” rights or “gay rights”, as if rights are privileges bestowed by society or possessions specific to some group. By evading the exact nature of rights, the advocates of this bill can uphold gay rights but not medical rights. I offer into evidence the Star-Ledger’s support for the totalitarian "Affordable Health Care for America Act", or HR3962 (and the Senate’s incarnation of ObamaCare), a massive rights-violating monstrosity that makes a mockery of its support for NJ’s SSM bill. If the Editors were to base their call for passage of the Gay Marriage Act on the proper grounds, they would logically have to oppose those healthcare “reform” bills. Both issues are tethered to the principle of individual rights. But, since the Editors don’t really support the actual rights of gays (just “gay rights”), there is no need to reconcile those contradictory positions.

“Unprincipled inconsistency is the hobgoblin of little minds”, to paraphrase Emerson, who got it exactly backwards. Of course, one must be consistent based on the right principles … i.e., ideas consistent with objective, concrete reality. And it’s not always easy and sometimes hard. Loyalty to principles often means defending or advocating that which runs contrary to one’s personal convictions. Think of Voltaire, who once said in defense of free speech: “I do not agree with what you have to say, but I'll defend to the death your right to say it.” The preservation of freedom demands nothing less than that kind of conviction. That’s what’s been in play in my mind, as I grappled with this issue in recent years. I have always thought of marriage as a union between one man and one woman. That hasn’t really changed. But, over the years, I’ve had to rethink my stand on certain political issues in order to bring them into line with my passionate belief in the rights of the individual. Gay marriage is one. I was against its legalization, but eventually came to support NJ’s 2002 domestic partnership law and 2006 civil union legalization.

But as fromexperience notes, those laws represent “special rights” and are thus untenable. This has led me to full support of the legalization of same-sex marriage. It is the only stand consistent with the principle of individual rights and of our constitution.

Regardless of what one personally believes about it, the overriding principle relating to gay marriage points unequivocally to only one conclusion – same-sex couples have the same unalienable rights to contractual freedom as heterosexual couples. The law should recognize that fact.

It’s not always easy acting on principle. It often puts one’s political opinions at odds with one’s personal values and morals. Announcing one’s fundamental beliefs … wearing one’s moral principles on one’s sleeves, so to speak, as I do on this blog … exposes one to the judgement of others by one’s own standards. This is as it should be. One way to avoid that personal responsibility as well as the inevitable (and proper) judgements of others is to simply run from abstract principles, and declare that anything goes on the whim of any moment or issue. That’s the tactic employed by both sides in this debate, including the Star-Ledger Editors. This “pragmatic” approach enables political factions and pressure groups to battle in a domestic civil war, each vowing to grab some political or economic advantage at the expense of others based upon some newly minted group “right”.

But it should be remembered that we owe the very existence of our America to a revolutionary group of men who pledged “our lives, our fortunes and our sacred honor” on a radical set of political principles to forge history’s greatest and most moral country ever. Principles are crucial. That is why the principle of individual rights must be placed at the political center stage. It is the means of stemming the aggression of rights violators who seek to impose their own moral judgements on others. Individual rights are the means of subordinating society to moral law. Put another way, the abstraction “individual rights” is the means of stopping anyone from taking the concrete actions of physically preventing a survivor from inheriting the pension benefits of his same-sex deceased partner or another from visiting his same-sex partner in a hospital … i.e., from signing a concrete marriage contract.

The concrete gay marriage bill failed for lack of a proper defense – the abstract moral concept of individual rights.


Elisheva Hannah Levin said...

I am impressed with the clarity of thinking expressed here. It is difficult to be consistent in the defense of individual rights--even for those with whom we disagree--until we realize that the alternative is to surrender to tyranny.

Mike Zemack said...

Harold has left a comment regarding this post at Prin-Spec References, where this essay was also published.

Mike Zemack said...


No, it is not easy, I agree. As you indicate, the only choices we ultimately face are a principled defense of liberty, or tyranny.

Thanks for the comment.