Why A Limited Government Must Recognize Natural Marriage

How to Defend Marriage Reality: Part Five

By Jay Richards Published on June 25, 2015

[The earlier pieces in this series are here: OneTwoThreeFour]

Some libertarians argue that the state should simply get out of the marriage business, and then we wouldn’t have these rancorous debates over marriage. At first glance, the argument seems reasonable: If you support limited government and individual rights, shouldn’t you oppose laws that define or favor natural marriage? Shouldn’t it just treat us as individuals? Why should the state recognize marriage at all? Why not privatize it?

In an earlier piece in these pages, I discussed this argument briefly. Now let’s deal with it more fully.

The argument is misguided for the simplest of reasons: marriage is a public institution with public consequences. It is, by definition, public, not private. The state can no more ignore marriage than it can ignore corporations, churches, schools, charities, orphanages, hospitals or the well-being and safety of children.

If marriage weren’t a public institution, no one would be clamoring for same sex “marriage” to be legally sanctioned. Any group of people can have a private ceremony and say they’re “married” any time they want. The reason we’re having this debate is because, by definition, it’s about public recognition and approval, not private vows. Andrew Sullivan, a supporter of same sex marriage, made this clear fifteen years ago. “Including homosexuals within marriage” he observes, “would be a means of conferring the highest form of social approval imaginable.”

The arguments for redefining marriage have been all about individual rights, but the move would actually undermine the foundation of individual rights. Here’s why. A limited government doesn’t try to redefine reality as the Orwellian governments of the 20th century did (including the fictional government of George Orwell’s 1984). A limited government recognizes and defends realities outside its jurisdiction. Our government doesn’t bestow rights on us as individuals. We get our rights from God. A just and limited state simply recognizes and protects this pre-political reality. But a government that gets in the habit of ignoring other pre-political realities is primed to ignore the reality of unalienable human rights.

The individual and his inherent rights are a pre-political reality. Marriage is another. The institution of marriage transcends every political system. Even cultures that had little concern with homosexual acts, such as the ancient Greeks, still knew that marriage was for a man and woman. Since so many different cultures and religions have recognized and protected marriage, we should conclude that it’s based on human nature and is not merely a social convention that we’re free to change once progressives capture the Supreme Court.

In fact, marriage is far more universal and so has more claim to be based on human nature than do our ideals of individual rights and equality. “In the premodern world of clans and tribes,” wrote Elizabeth Fox-Genovese, “one’s people carried even greater significance, for family grounded and defined what today is known as the individual’s ‘identity.’ The self was understood as the articulation or expression of the group, which was viewed as prior to it, not as an ‘autonomous’ being that could assume and discard commitments at will.”

We should be thankful that in the American experiment individual rights and human equality achieved such a clear articulation. It doesn’t follow that these are the only realities that a limited government is bound to accept. It’s a fool’s game to think we can save our individual rights by ignoring or rejecting the relationships that also define us.

Even our individual rights depend on a relationship, namely, that we are created by God and that as social beings with both rights and responsibilities, we find our full humanity by respecting other people’s rights rather than in systematically violating them.

Each of us is by nature a person in relationship. And marriage, a unique union of a man and woman, is one of our most basic human relationships. Appealing to nature and nature’s God to defend individual rights and equality, which most cultures have not recognized, while ignoring the universal testimony of nature and culture on marriage, is like sawing off the branch you’re sitting on. Put another way, you can’t make war on the natural law and then appeal to it for help.

So, just as government can’t redefine our rights as individuals made in the image of God, it has no authority to redefine marriage. Communism was totalitarian because it tried to redefine the individual, to create a new “Communist Man.” We’re now struggling with another totalitarian impulse to redefine reality. As the editors of National Review said after the New York legislature approved same-sex “marriage,” “There is nothing libertarian or neutral about state-imposed moral ratification of revisionist sexual ideology, especially when dissenting citizens and business owners will be forced to comply, token protections notwithstanding.” If the state can redefine a universal institution rooted in human nature, what can’t it redefine?

A Right to Marry?

 In the last few years, though, same-sex marriage advocates have invoked a “right to marry,” and argued that laws that define marriage as between a man and a woman violate the rights of citizens who want to “marry” persons of the same sex. Laws “prohibiting same sex marriage,” they argue, are like the laws that were once used to prohibit people of different ethnic groups from marrying.

But these laws are nothing alike. Racist “anti-miscegenation” laws never denied the nature of marriage. Rather, they assumed that people of different ethnic backgrounds were capable of marrying. That’s why the laws existed — to prevent such marriages. There were attempts to claim that interracial marriages went against nature, with some even claiming that mixed race offspring were somehow less healthy. These pseudo-scientific claims had no basis in biology. In contrast, the difference between male and female is a fundamental fact of biology, despite recent attempts to confuse the matter.

In any case, as we noted in a previous installment, our current debate isn’t about preventing certain marriages. It is about the nature of marriage itself.

No one is being denied a right enjoyed by others. No one has a right to marry someone of the same sex. I don’t have that right, and neither do you, because the idea is an oxymoron. There is no law prohibiting a man attracted to other men from marrying — a woman. Any relationship a man has with another man, however, won’t be marriage. Fundamentally, two people of the same sex cannot marry each other. The law can pretend they can. The pair can throw a big wedding ceremony, say their vows in public and Twitter-bomb anyone who disagrees, but calling it “marriage” doesn’t make it so.

Invoking a right doesn’t create a right. Rights come from our nature, from reality, from the way things are. In the case of marriage, we are dealing with a biological reality first and foremost. A government that puts itself in charge of redefining such things is a menace to human rights and human institutions. And that isn’t right.

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