A Hero Has Fallen

Chuck Bearden asks in the comment thread to this post how I would respond to secular objections against extending marriage rights to homosexuals, and points to this Thomas Sowell's column as an example.

Let me begin by mentioning my disappointment with the fact that Sowell, who is generally libertarian on most issues, falls down on the wrong side of this one. I admire Sowell greatly, and it's always discouraging to see someone you admire take what you believe to be an utterly incorrect position on an important issue. Radley Balko expressed similar feelings about Walter Williams' recent column on the same topic.

Sowell begins,

Few issues have produced as much confused thinking as the "gay marriage" issue.

There is, for example, the argument that the government has no business getting involved with marriage in the first place. That is a personal relation, the argument goes.

Love affairs are personal relations. Marriage is a legal relation. To say that government should not get involved in legal relations is to say that government has no business governing.

Sowell is conflating government and law. I would argue that the government has no business getting involved with legal relations in the first place. Private arbitration firms already exist which provide, for a fee, contract resolution services. Just as two parties can currently agree, when forming a contract, to resolve any disputes associated with that contract in private arbitration, so too parties to a marriage contract could agree to resolve any disputes privately.

But let's put that objection aside for now. Even if we assume that government courts will be doing the arbitrating, there is no reason why the government needs to determine the contents of this particular contract. The contract itself is a personal relation, and although under current contract law there are many contracts which the government will not enforce, I do not see why a marriage contract between homosexuals should be one of them.

Sowell continues,

Then there are the strained analogies with the civil rights struggles of the 1960s. Rosa Parks and Martin Luther King challenged the racial laws of their time. So, the argument goes, what is wrong with Massachusetts judges and the mayor of San Francisco challenging laws that they consider unjust today?

First of all, Rosa Parks and Martin Luther King were private citizens and they did not put themselves above the law. On the contrary, they submitted to arrest in order to gain the public support needed to change the laws.

As private citizens, neither Mrs. Parks nor Dr. King wielded the power of government. Their situation was very different from that of public officials who use the power delegated to them through the framework of law to betray that framework itself, which they swore to uphold as a condition of receiving their power.

I've already addressed this issue in a previous post, and even more importantly. as Eugene Volokh notes,

A government official is entitled to -- and sometimes possibly even obligated to -- refuse to comply with laws that he thinks are unconstitutional, when there's a serious argument that they're unconstitutional, when there's no clear precedent that says they're constitutional, and when there's no court order ordering him to comply with the laws. That's Mayor Newsom's situation, at least right now. Such challenges to existing laws are part of our rule-of-law tradition.

Sowell moves on,

Gay rights activists argue that activist judges have overturned unjust laws in the past and that society is better off for it. The argument that some good has come from some unlawful acts in the past is hardly a basis for accepting unlawful acts in general.

If you only want to accept particular unlawful acts that you agree with, then of course others will have other unlawful acts that they agree with. Considering how many different groups have how many different sets of values, that road leads to anarchy.

I certainly hope so! If many different groups have many different sets of values, then it might be wise to create a system of law--polycentric law to be precise--where people with similar values have the ability to join together and form private legal communities, thus satisfying more people than a one-size-fits-all legal monopoly.

But notice how Sowell's argument shifts from judges overturning unjust laws directly to everyone accepting unlawful acts. This shift is subtle, but unfounded. When judges overturn unjust laws, they are acting lawfully, not unlawfully.

Current interpretation of the 14th Amendment permits state discrimination only when there is a compelling interest. Unfortunately, as Dave Tepper notes, courts have not yet extended the same protections to homosexuals as they have to racial and ethnic minorities. But a judge who believes, as I do, that a proper interpretation of the 14th Amendment protects homosexuals from unequal treatment under the law just as much as it protects blacks, and who acts upon this interpretation by striking down unjust laws and extending marriage rights to homosexuals, will be acting lawfully.

Sowell starts to lose it at the end:

The last refuge of the gay marriage advocates is that this is an issue of equal rights. But marriage is not an individual right. Otherwise, why limit marriage to unions of two people instead of three or four or five? Why limit it to adult humans, if some want to be united with others of various ages, sexes and species?

Does Sowell believe that property rights are not individual rights? Property rights include the right to enter into a contract and transfer property with another individual. Is this not an individual right? Just because there are two or more parties involved in a contract does not mean that the right to enter into a contract is not an individual right.

And Sowell is correct to ask why we should limit marriage to unions of two people instead of three or four or five. Why indeed? Do we limit business contracts to only two people? Why should marriage contracts entail such limits?

But Sowell is wrong to ask why we limit marriage contracts to adult humans. Is he not aware that we also limit business contracts to adult humans? Might this be because only adult humans have contractual capacity? As I said in a previous post, show me a three-month-old or a platypus with contractual capacity and I'll buy the wedding cake.

Now Sowell descends into National Review territory:

Marriage is a social contract because the issues involved go beyond the particular individuals. Unions of a man and a woman produce the future generations on whom the fate of the whole society depends. Society has something to say about that.

Does Sowell believe that men and women are going to stop fucking each other if the government doesn't limit marriage to heterosexuals? How the hell did society survive before the institution of marriage became regulated by the state? Was it just dumb luck? We sure are lucky that the state had the sense to put a stop to that free-for-all. Who knows what might have happened otherwise.

Sowell is a strong advocate of school choice. But doesn't the fate of the whole society depend upon education? How will society survive without state ownership of the means of education production? Surely society has something to say about how people educate their children, right? How can Sowell support school choice? Won't that road lead to--gasp!--anarchy?

Sowell proves that there are no new arguments under the sun for depriving homosexuals of their equal rights:

Even at the individual level, men and women have different circumstances, if only from the fact that women have babies and men do not. These and other asymmetries in the positions of women and men justify long-term legal arrangements to enable society to keep this asymmetrical relationship viable -- for society's sake.

Neither of these considerations applies to unions where the people are of the same sex.

How does giving homosexuals the right to marry each other risk the viability of heterosexual unions? And if heterosexual marriage is justified only insofar as it promotes having babies, then why do we allow old people and the infertile to marry? Does this not detract from the legitimate reproductive purpose of marriage as well?

Sowell should stick to economics. His arguments are no better than the explicitly Christian arguments we hear so often. While I can understand why it may be difficult to accept challenges to long established social norms, Sowell should recognize that such changes are often necessary.

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One nit I need to pick: Yes,

One nit I need to pick:

Yes, private arbitration firms exist, however they do not have the legal right to use force to enforce their decisions. That is a legal right reserved for government only, and use of that right is determined in the courts.

True, Chris, but it doesn't

True, Chris, but it doesn't have to be that way. Take a private arbitration firm, put it in conjunction with a private security firm, and--bam!--you've got private law enforcement.

No more Emeril for Micha

No more Emeril for Micha before he posts.

- Josh

There's a four word

There's a four word challenge that I hope would stop any constitutional amendment designed to prohibit willing individuals of majority status from entering into social contracts with each other: "Show me the injury".

As Micha says:
Does Sowell believe that men and women are going to stop [performing procreative activities, qua animals, with] each other if the government doesn't limit marriage to heterosexuals?

I think my relationship with my wife has been insulted more by having to submit it for government approval than it has been by the neighbor women who want to make sure that they don't lose their home if one of them dies.