Individual Rights is the Solution to the Gay Marriage Conflict

Last year, a New Jersey court overturned that state’s ban on gay marriage. Subsequently, reports the Associated Press, courts in several more states—Utah, Oklahoma, Kentucky and Virginia—partially or fully overturned bans in those states. In reaction to this growing trend, religious conservative opponents of same-sex marriage are fighting back.

But there is a fundamental contradiction in their fight. Some of their strategies are rights-violating, while others seek to protect rights.

On the rights-violating side, some religious people are trying to re-ban gay marriage. An example of this tactic, advocated by Alabama Chief Justice Roy Moore, takes the form of an amendment to the federal constitution defining marriage as a union of one man and one woman.

Contrarily, other religious people are trying to carve out a “religious exemption” from anti-discrimination laws, which would allow religious business owners not to serve gay couples. An Arizona law recently vetoed by Governor Jan Brewer is an example of this strategy. What worries religious conservatives are cases like New York’s Liberty Ridge banquet hall, which was sued for refusing to host a gay wedding ceremony, and Colorado's Masterpiece Bakeshop, which faced court-imposed fines for refusing to bake cakes for gay weddings.

Of course, religious conservatives are not the only ones guilty of contradictory stances. The same is true, in reverse, for many same-sex marriage supporters, as indicated in the Liberty Ridge and Masterpiece Bakeshop cases cited above.

But, contrary to what both sides seem to believe, the right of gay couples to marry and the right to religious freedom do not conflict. The solution to the conflict between supporters and opponents of gay marriage is to consistently uphold individual rights; specifically, the right to freedom of contract, a form of freedom of association. Religious conservatives do have a right not to contract with gay couples based on their convictions (however irrational or bigoted those convictions may be). But marriage, in a legal context, is strictly an issue of contract, and gays have a right to marry based on their freedom of contract.

Gay marriage does not violate religious business owners’ rights, and religious business owners’ refusal to contract with gay couples does not violate gay couples’ rights. If contract rights are upheld consistently, neither gay couples nor gay marriage opponents would have anything to worry about. They could simply go their separate ways, each leaving the other side free to contract according to their respective values.

Related Reading:

Gay Marriage Rights vs. Anti-Discrimination Laws

Arizona Governor's "Religious Freedom" Veto Was the Right Move