Commentary

Live and Let Live

This article was published in the Wall Street Journal, July 13, 2004.

Two recent developments have returned same-sex marriages to center stage. At one pole lies the conservative effort to steer a Family Marriage Amendment, banning same-sex marriages, through Congress; and at the other, the implementation of the Massachusetts decision in Goodridge v. Department of Health, which requires equal treatment for same-sex marriages.

These two parallel episodes offer powerful evidence of an unhappy wedge between the majoritarian and libertarian wings of conservative legal thought. Generally — and here the illiberal FMA is a jarring exception — conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes, in the separate states. The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. Both sides struggle to accommodate the rival impulse: All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?

Conservatives regard the Goodridge decision as unprincipled meddling of the worst sort. After all, current canons of constitutional interpretation require judicial deference to legislation. The courts must uphold any statute, however unwise, as long as a rational basis can be discerned. But after Lawrence v. Texas last year, in which the Supreme Court struck down a longstanding Texas antisodomy law, social conservatives are right to ask why — if such laws are struck down as unconstitutional — the prohibitions on same-sex marriages won’t be next on its agenda, notwithstanding the Court’s own disclaimers on this explosive question.

Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals. Those justifications might include stopping pollution and cartels, but they cannot include the offense that the majority takes to practices they regard as contrary to public morals. Their remedy is to refrain from participation in the practices they dislike, not to stop others from doing as they please.

When President Bush, for example, talks about the need to “protect” the sanctity of marriage, his plea is a giant non sequitur because he does not explain what, precisely, he is protecting marriage against. No proponent of gay marriage wants to ban traditional marriage, or to burden couples who want to marry with endless tests, taxes and delays. All gay-marriage advocates want to do is to enjoy the same rights of association that are held by other people. Let the state argue that gay marriages are a health risk, and the answer is that anything that encourages monogamy has the opposite effect. Any principled burden of justification for the ban is not met.

But it is said that marriage is different because it is more than a private association; it is an institution licensed by the state. To which the answer is that any use of state monopoly power must avoid suspect grounds for discrimination. So the state must explain why it will favor some unions over others — without resort to claims of public morals. The restraints on state power are the same as when the state uses its monopoly power to license drivers, or grant zoning permits.

The question here is not just whether the courts will impose their views on the people of the several states. It is whether they will allow a majority of the public to impose its will on a minority within its midst in the absence of any need for a collective decision. The claim for same-sex marriage is no weaker than any other claim of individual rights on personal and religious matters.

But since the state bans polygamy, some ask, why not also ban same sex marriages? Turn the question around, however: Why ban the former, especially by constitutional amendment, when agreed to by all parties? Incest is a different matter, with the high dangers from inbreeding. And people and poodles can’t tie the knot because one half in the relationship (some would say the better half) lacks the capacity to enter into a contract.

The case against state prohibition of same-sex marriages becomes clearer when we ask how much further we are prepared to take the principle of democratic domination. Where is the limiting principle on majority power? Suppose that the proponents of gay rights get strong enough politically to require traditional churches to perform gay marriages, or to admit gay individuals into their clergy. Or to demand that people accept gay couples as tenants in their homes, even if they regard their relationship as sinful. Now the shoe is on the other foot. I think that the paramount claims of individual liberty should not have to yield to democratic decisions intended to impose an alternative enlightened view of public morals.

My fear is that the American left chiefly understands liberty by carving out some preferred class of “intimate” associations of two (but in an unexplained burst of traditionalism, most definitely not more) individuals. After all, even on associational freedoms, the American left has become far more statist in rejecting freedom of association claims in the Boy Scout and campaign finance cases. Its support for gay marriage, therefore, looks opportunistic because it refuses to apply the same standard of free association to economic legislation for fear of what it will do to unions and their fiefdoms.

In its own way, the moral left is as authoritarian as the moral right. Judged against the left’s own fractured standard, the conservative criticisms of judicial activism hit the mark. But the conservatives’ plea for democratic federalism in defense of traditional values, and then for a constitutional amendment, is wholly misguided. Restore individual liberty to center stage, and this state restriction on same-sex marriages falls to the ground with the same speed as the full panoply of employment regulations, and the extension of antidiscrimination laws into ordinary social and religious affairs.

The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes. Defenders of the illiberal FMA should look to their churches, not Congress and the states, to maintain the sanctity of the marriage.

Richard A. Epstein is a professor of law at the University of Chicago, a senior fellow of the Hoover Institution, and an adjunct scholar of the Cato Institute.