A Simple Solution

In several cases in recent news, Christian business people such as florists and bakers have gotten in trouble with local authorities for refusing to sell goods and services to weddings between homosexuals. A pizza joint in Indiana was threatened and pressured to close after its owner said she would not want to cater the wedding of a homosexual couple.  In an attempt to turn the tables, a Christian asked various bakeries to produce cakes featuring quotes from the Bible condemning homosexuality and filed complaints with authorities when he was turned down. Presumed mainly Christian sympathizers with the owners of the pizza place raised almost a million dollars for them with an online appeal. Things seem to be both getting hot and being heated up by both conservatives and leftists in the media.

To libertarians the means of dealing with such disputes are  obvious. Simply leave people alone and let them make their own decisions about what they want to do. If a Christian or Muslim baker does not want to bake a cake for the wedding of a homosexual couple,  let him lose the business, and let the people getting married go find a willing vendor and make their purchase from him.  If people find the actions of the baker objectionable and bigoted, let them decide not to patronize his  store and go buy  their cookies and pastries elsewhere.   

That is how such a dispute would be handled in a free and civil society.   In our present environment which is not fully free and far from civil, we often get instead antagonistic groups fighting to use the coercive power of government to make other people obey their dictates.  Such a condition, besides being wrong and violating the rights of the losers, is dangerous for the winners. Political winds change, and a government that can force a Christian to act against his principles today can force someone else to act against his next month or next year.  It is not only more ethical but more prudent to respect and demand respect for the rights of all, including the rights of those who do things one disapproves of. 

Marriage and Government

In considering the present controversy over marriages between homosexuals, it is helpful to look at what marriage means to different people and in different contexts. To two people getting married it is a commitment (partially enforceable and partially not) to join their lives, income, and property as a family and usually a formal declaration of their love and sexual attraction for each other.  To religious authorities and believers (including believers getting married),  it is a sacred rite conveying on the couple the approval and demands of a god or gods in accordance with the doctrines and practices of the religion. To the government it is a contract similar to an incorporation recognized by those in government as legal and giving the couple certain specific benefits, penalties, and obligations under the law. 

Much of the difficulty and  rancor over the issue comes from confusing and conflating these things and their consequences. People can and do marry in the first sense irrespective of legal status, and religious authorities and believers are completely free to make and follow whatever rules  they like with regard to what they will recognize as divinely approved marriages and to condemn and refuse to accept anything else.  It is only in the last sense that  there should be a political controversy at all, and a fairly small one at that.

The issue should reduce to a dispute over whether homosexual couples should be able to execute the same sort of contracts with the government and get the same benefits and penalties with regard to taxation, estate laws, divorce, ownership of property, shared liabilities, and similar things as do heterosexual couples.  While it is not mainly a question of basic rights (no more than, say, renters being treated more harshly on income taxes than people with mortgages is),  it seems to me  that  they probably should, and that people who disapprove of homosexual behavior probably should not mind.

Many who disapprove of homosexuality on religious or ethical grounds object that such marriages would convey a sanction on behavior they believe to be immoral.  However, even in the context of their own beliefs, I think they are mistaken to do so. Given the general level of character and behavior of politicians and bureaucrats, it would be strange to look to them for moral sanction or guidance on anything or to worry about what they thought about anything except as required pragmatically.  

Another argument against governments' recognizing  marriages of homosexuals is that many of the benefits those in government allow married heterosexuals are in recognition of the benefits to society from having and raising children and should not be available to homosexual couples since  they do not produce children. That, though, could be fixed easily by making  those particular benefits contingent on a couple having children. 

However there is a reasonable basis for concern over governments’ recognizing homosexuals’ marriages. It is the fear that those in government will use the fact of that recognition to force private individuals, groups, or businesses to do things they do not want to do. This fear could and should be allayed by both officials and those advocating legal recognition. In addition to being the right thing to do, doing so should help the process of getting recognition move more rapidly.  Having the government treat marriages of homosexuals generally the same way it treats marriages of heterosexuals while forcing no one to agree with, support or participate in such events or extend private benefits because of them  would be an outcome both fair and respectful of the rights of all concerned.   

Cakes and Rights

There is a controversy these days over whether people who sell goods and services for weddings should be forced to provide those services to weddings between homosexuals, irrespective of their beliefs about the propriety of those weddings.

The first thing to do in considering the question is to look at the principles involved. Homosexuals have the right to practice their sexual choices  with other consenting adults without punishment or interference from any government.   Homosexuals have a complete right to marry if they  want to, in ceremonies performed by anyone willing  to do so, and to attach any meaning to the event they choose to. (So, by the way, do threesomes of various sorts, polygamist Muslims and fringe sect Mormons, and other possible combinations of consenting adults.) Other people have the right to think homosexuality is wrong or perverted and to deny the validity of marriages between homosexuals and view them as shams (just as followers of some religions view civil marriages between heterosexuals as shams and sins). The issue of what types of marriages, if any, get a stamp of approval from the government  should be a purely a political  and rather irrelevant one to be decided by the usual grubby political processes. 

In a free society that would be the end of it. People would be free to hold their various opinions and go their various ways without trying to impose their preferences or beliefs on others. However we are not that free. Having until quite recently condemned practicing homosexuality as illegal, our governments are now making practicing disapproval of homosexuality illegal. (And who knows? In a few years they may switch back. Politicians are fickle that way.)  In particular governments are forcing bakers, photographers, and others  to provide services to weddings between homosexuals whether they want to or not. This is clearly and completely wrong. We all have a right to choose whether or not we wish to associate with another person, and that right does not go away because money changes hands in the interaction or because I or anyone else might thing someone’s reasons for his choices are foolish or bigoted. The government has no more right to force a Christian to bake and sell a wedding cake for a pair of homosexuals than it would to force him to throw them a bridal shower.  

This raises the question of what a person who wants to work in the bridal industry, but has scruples against participating in weddings between homosexuals should do. One answer is simple. He could look people in the eye and lie, just as homosexuals had to look people in the eye and lie when governments were violating their rights. He could turn the jobs down while never admitting why he did so,  and make up false reasons if he needs them. There would be no ethical wrong in doing so. One does not owe criminals or oppressors the truth. You don’t have to tell the mugger about the extra twenty you’ve got in your shoe or the nosy cop about the gun or contraband in your trunk or the would be thought police about your thoughts or motivations.

Homosexual Marriage and the State

A judge ruled recently that homosexuals have a right to state recognized marriages and declared a law in California denying such recognition unconstitutional. Members of homosexual organizations are generally pleased by the ruling, and members of political groups favoring traditional, especially religious, approaches are generally outraged. There may be appeals or new actions in legislatures , and the outcome is not easy to predict.

Irrespective of all that, the ruling is wrong, though not for the reasons conservatives are using. Homosexuals clearly have a right to marry. They can perform any marriage ceremony they want, with any meaning they like, presided over by any willing person they choose, and it is nobody’s business but their own. The ruling is wrong because no one, neither homosexual nor heterosexual, has an inherent right to have his marriage recognized by the state. One can easily imagine a hypothetical country where the government was completely silent on the question of marriage – leaving the question of what is and is not a marriage to the various religious organizations and/or the general opinions of society and writing its laws without reference to marriage at all. Such an arrangement would violate no one’s rights.

One can of course counter that, while this may be true, once the government recognizes some people’s marriages, it must recognize all people’s marriages. However, this argument is rarely pursued consistently. People who want the government to recognize marriages between two homosexuals do not generally also advocate recognition for marriages between parent and adult child, between brother and sister, or among those in relationships involving more than two people. Yet a consistent acceptance of the argument would seem to require that.

The actual fact is that the issue of recognition is not one of rights. Governments recognize different things as marriages in different periods and places for reasons usually based on the mores of the time and the relative power of those demanding and opposing recognition. The question belongs not in a court of law ruling on rights, but in the dreary dogfight we call the political process. Besides, to the extent marriage involves something deep and personally important, recognition by the government is irrelevant anyway, except for pragmatic concerns.

The main pragmatic issues relating to government recognition of marriage, apart from those concerned with raising children, have to do with taxation. Under present law married people can file joint tax returns, pass property to a spouse without gift or estate taxes, leverage Social Security tax payments to obtain credits for a spouse, inherit a spouse’s retirement plans under favorable conditions, make IRA contributions for a non-working spouse, and receive other breaks. Advocates of recognizing marriage between homosexuals argue that without such recognition homosexuals are treated unfairly. This, however, ignores the nature of taxation. Taxation operates under the law of the jungle with the government as the predator and the taxpayer as the prey. Saying homosexuals have a right to the less severe treatment the tax collectors give certain heterosexual couples makes no more sense than claiming that renters have a right to the less severe treatment the tax collectors give certain people with a mortgage. In deciding what and whom to tax, governments are guided by an assortment of political and pragmatic concerns, but rights and fairness are not among them.