This week the Supreme Court is hearing oral arguments regarding two potentially watershed cases involving the right of gay Americans to be married. Hollingsworth v. Perry deals with California’s gay marriage ban (known as Prop 8), while United States v. Windsor deals with the constitutionality of the federal Defense of Marriage Act.
Rather than engaging in the tea-leaf reading we lawyers shamelessly refer to as “Supreme Court analysis” or getting bogged down in jurisprudential minutiae, I would like to focus on a promising phenomenon on the American right: the broadening understanding that conservatism and advocacy for limited government necessitate removing the government from the institution of marriage altogether, which will inevitably produce marriage equality under the law.
Though there remains immense hostility in some segments of the American right toward gay marriage, as a matter of both principle and practicality (not to mention political viability) it is time for conservatives to embrace gay marriage.
As a matter of principle, the argument is charmingly simple: from where does the government derive the authority to prohibit consenting adults from marrying each other?
Though the word “traditional” has erroneously become attached to the concept, the state licensure of marriage contracts is not traditional in any sense of the word. State licensing regimes replaced church- and contract-based marriage only in the last few centuries, and are the byproducts of a sordid period of American history when governments took it upon themselves to prevent people of different races from marrying one another (licensing subsequently became a source of revenue generation for the same governments, which is why the practice continued even after the boogeyman of miscegenation was largely snuffed out).
In short, the state co-option of marriage was an exercise in massive government infringement on the natural rights of individual citizens, not a hearkening back to “traditional” values. Prior to that, marriage was widely considered a religious and contractual (i.e., a private) affair, not an institution of the state. For advocates of limited government who believe that the state has only the power to protect life, liberty, and property, it should be easy to condemn and oppose the racist, extortive practice of states usurping marriage regulation from churches and civil society.
There are, of course, certain blocs of conservatives whose support for marriage regulation will not be dissuaded by its statist basis. Many social conservatives hold religious or moral views that compel them to support socially authoritarian policies in furtherance of those views. That viewpoint seems to be losing its hold on the right, but it remains a political force for the time being.
For those who believe such things, there is another, more practical reason to embrace the deregulation of marriage: the Supreme Court is inevitably going to incorporate gay Americans into the “protected classes” of the Constitution’s Equal Protection Clause, thus revoking from the state the ability to discriminate between homosexual and heterosexual marriage. That watershed moment may come in a matter of months (rulings on Hollingsworth and Windsor are expected this June) or years, but the writing is plainly on the wall.
Whenever that ruling comes to pass, the federal and state governments and their social conservative constituents are going to have two choices: sanction all marriages, or sanction none. Once again, the choice for the advocate of limited government seems clear. Social conservatives simply haven’t the power to stem the tide of gay marriage acceptance, but they can subvert the authority of the government to impose that acceptance upon them by removing the government from the process entirely and returning marriage to the churches and to the people.
Marriage belongs to civil society and to individual citizens, not to the state. That is the traditional position, that is the conservative position, that is the moral position, and that is the position that we on the right must adopt if we’re to maintain our limited government principles and any semblance of political credibility.
Adam Bates received a B.A. in Political Science from the University of Miami (FL) in 2007, and a J.D. and M.A. in Middle Eastern & North African Studies from the University of Michigan in 2011.