Nima at Economics Junkie teaches us how to use the “Against Me” argument to argue against government interference. See, when you ban happy meal toys, you are preventing someone from doing something with threat of force. Since we don’t like forcing each other to do things, only the sociopathic among us would respond to the “Against Me” argument with pure delight, “Why, YES, I am going to kick the crap out of you if you disagree with me!”
Isn’t this the argument that homosexual marriage advocates are really using? “You’re discriminating against me because I was born this way and I can’t change it and I love him and you can’t stop me from loving whomever I wish and you can’t stop me from seeing him in the hospital when he is sick or taking over his assets when he dies!”
Using that “Against Me” argument has always felt contrived. I’ve thought about this for the past few days, and this is what I have come to understand.
The government, in not issuing marriage licenses to same-sex couples, is not doing anything against them or me. People are free to associate however they want. Not having Homosexual Marriage licenses doesn’t prevent two people of the same sex from living together, or having visitation rights, or whatever else they want to agree with each other.
That’s why you can be a libertarian and still say, “Government should offer particular people certain privileges and immunities”. By doing so, they aren’t doing anything against anyone else (unless, of course, the privilege is to harm other.) Yes, that means the law treats some people differently than other people, so it, in a way, makes our government unfair and our laws unjust. Which is why there must be a powerful compelling reason to provide the privileges and immunities.
There are two kinds of good laws on the books, laws which provide privileges and immunities, and they all have compelling reasons. (Other laws are absurd and should be repealed.) I forget the latin names for these, but one kind of laws deal with universal moral issues, and usually boils down to, “Don’t hurt people.” These are the laws that forbid murder, rape, theft, fraud, and so on and so forth. All societies, generally, have these laws on their books to protect themselves from the sociopaths who plague humanity everywhere at everytime. These laws will always be justified by the fact that they protect people from harm, and provide some type of justice in punishment and restitution. These laws give the victims and society at large special privileges and immunities to do harm to those who violate them.
The other kind of laws are laws that don’t describe universal morality but are used to organize society. These laws include laws that say you can’t cross a road except at a crosswalk, and you have to drive on the right side of the road. They are also laws that say you can’t build certain structures on your land, or put your building within so many feet of the property line, and so on. These laws make the cost of doing business in real life much lower. Because we have cars on one side of the road, we can drive 60 MPH down the freeway and get to Seattle from Federal Way in 30 minutes on a good day.
Now, for the other kind of laws, we know from experience that people will naturally develop their own conventions which eventually become almost like a law. These laws and conventions usually don’t allow for punishment for violations, because people don’t like being punished and wouldn’t agree to such a law. They do, however, grant those who obey the law special privileges and immunities. For instance, you can’t use our state-owned roads and freeways unless you agree to abide by the laws we invented to dictate how you can use them. If you violate those laws, then we won’t allow you to use the roads.
Marriage law has an element of the first kind of law, although it isn’t as plain as murder and theft. Let me explain the moral element of marriage. When you understand that every child needs a mother and a father who love each other and model positive behaviors, behaviors we want to see in our society, then you will see how not providing a moral foundation that grows from a mother and a father who love each other is actually injuring children.The injury is akin to not feeding your children food. They will grow up disfigured and handicapped, if they survive at all.
In fact, all things considered, the level of harm to a child when raised by parents who do not love each other, or by one parent alone, is enough to completely ruin a child’s life. We are building a body of statistical data that shows the harm is significant enough to be measured. Because we have so little data on children raised by homosexual couples, we cannot tell, at this time, to any degree of great certainty what harm, if any, befalls the child. However, instinctively I believe, and the vast majority of society believes, that being raised by two parents who are sexually faithful to each other and of the opposite sex is the ideal situation for all children.
The other aspect of marriage has to do with order in a society. Sure, we can leave marriage to the churches, but then we have to have some kind of public record to protect ourselves from the sociopaths. There must be some universal record of marriages, and a universal law of how people get on and off that record. Those laws are the laws of the second type.
Once we agree that homosexual marriage is not equivalent to marriage proper, then we need to decide if that difference is substantial. We can consider whether society is more or less ordered, but especially, whether harm is done to the child raised in such an environment. When we determine that harm is done, and according to the universal moral code, only marriage proper is good for children, then we can write some laws addressing that issue. And since as a society we’d like to order the process of marriage, we need a government to record and officiate the addition or removal of marriage records.
The argument that we are discriminating against homosexuals the same way we used to discriminate against multi-racial couples is really absurd. While we used to, as a society, value racial purity, such preferences have all but vanished. I think my generation is the first generation to live their whole lives without ever feeling that there is a substantial difference between the makeup of the various races of humanity. In fact, I grew up believing that skin color and eye size was nothing more than a variation like eye and hair color.
No matter what conventions or norms change in our societal preferences, it will always remain a biological fact that man and a man lying together will never produce a child, or that men and women are completely interchangeable when it comes to rearing a child.