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Thursday, April 23, 2009

Gay marriage, liberty, and religious freedom

The meaning of a word like "marriage" has at least two important uses. The first is for purely legal or technical purposes. The word "pickle," for example, has a precise meaning within the North American Free Trade Agreement. It has to have a certain angle in the curve, else it doesn't count as a "pickle." This meaning is a technical meaning.

The second is to communicate our meaning in ordinary conversations to others. And the meaning of words is determined by nothing other than custom and convention (except in France, where they actually have a central committee that rules on what words are "official" French words). The details are a bit messy, but a good heuristic or rule of thumb is the one employed by the Oxford English Dictionary: "...any word can be included which appears five times, in five different printed sources, over a period of five years."

At the moment, the word "marriage" is typically reserved for one man and one woman. That's what you'll discover if you look it up on dictionary.com. But the fourth entry down reads: "a relationship in which two people have pledged themselves to each other in the manner of a husband and wife, without legal sanction: trial marriage; homosexual marriage." Since many jurisdictions are beginning to give it legal sanction, this definition is outdated.

But the semantic argument is irrelevant to what really matters. It is difficult to find persuasive an argument that relies on the sanctity of a word. Words do not have a sanctity. What they signify or mean might have sanctity, but the arbitrary assemblage of letters (when written) or sounds (when spoken) are only of instrumental value or worth. That's as true of "marriage" as it is of curse words -- we get offended at the f-word, but we're wrong to get offended when the word is merely mentioned, rather than used (for this distinction, see here. For a more complicated distinction that captures something roughly similar, see this discussion of de re and de dicto).

What really matters is not the argument about the word, but the argument about whether or not social institutions, whether public or private, ought to give their blessing to a contractual union of something other than one man and one woman. Whether two men or two women ought also to be granted the opportunity to enter a contract like this.

There are a few possible views here. For one, we might think that the whole thing should be a non-governmental affair. It isn't part of the government's job to sanctify or give their blessings to this sort of contract. The decision should be left to non-governmental organizations. The state can step in only to uphold contracts signed by private parties, but not to either encourage or prevent the formation of these contracts.

I'm most sympathetic with this view. I don't see a very pressing reason for the state to be in the business of marriage. And I can't figure out why people insist that the government either frown or applaud when it comes to something like this. If the government should do anything, it's to ensure that the contract follows the five requirements of ordinary contract law -- offer and acceptance; consideration; an intention to create legal relations; legal capacity; formalities.

Assuming that the state will be involved, we might wonder whether or not the state should approve of gay marriage. Here the options are plain: The government can approve of gay marriage, disapprove of it, or offer a third option, like civil unions, that don't get to the level of full-blown "marriage."

If the state is going to be involved, I think the best arguments point in favour of giving approval to gay marriage. But I don't want to argue that point here. I'm happy to do it in the comments, or at another time. Instead, I want to alleviate a concern that opponents of gay marriage have when it comes to permitting gay marriage. Specifically, some people argue that permitting gay marriage is a violation of liberty, of religious freedom in particular.

The claim that gay marriage, itself, is a violation of our liberty is only true if we think that provinces or states ought to have this "liberty." But collective liberties, which is what they are, are a strange conceptual creature. Just what sort of thing is a "collective liberty" anyway?

Maybe there is a clear sense of this when we talk about our freedom to pick a political representative. Here, each of us individually enter the polling booth, and we, each of us, agree to be bound by the outcome. Neither you nor I alone determine who gets to be our representative, but those of us who do vote do get to determine this collectively. And this does get to count as a political liberty, and by extension, we can consider it as an instance of a "collective liberty."

Supposing we do end up thinking that "collective liberty" is a perfectly sensible concept, the real issue becomes a matter of drawing a line appropriately. And it's hard to draw the appropriate boundaries around a "collective liberty." It might be fine in the case of selecting politicians, but it becomes fuzzy, and sometimes dangerous, to extend our endorsement of a "collective liberty" outside of those boundaries.

It's dangerous because there really ought to be a sacred sphere the government, even with majority approval, should not have the opportunity to touch. We shouldn't have a vote on whether or not the Western Standard should have published cartoons of Muhammad, for example. That decision ought to be made by those who are put in charge of that private property, in our case, the publisher. That's our business, not the state's, nor the public's. We shouldn't have a vote on what Jimmy can eat, or when he ought to exercise. That's his business, not ours. And I think the same holds true of gay marriage -- we shouldn't have a say in whether or not Adam and Steve or Adama and Eve can get married.

These issues are not collective liberty issues, they are individual liberty issues. Adam and Steve should decide individually whether or not they should enter a marriage contract together. The rest of us shouldn't have the power to intervene in that private sphere, even if a referendum were proposed.

Should Adam and Steve be permitted to get married in a church? That, too, should not be up to us. That should be up to Adam, Steve, and the particular church they approach. There are a number of churches that want to marry homosexuals, after all. Why not let Adam and Steve find a willing church for their wedding?

We might choose to go to another church or try to boycott the church or try to get the priests excommunicated from whatever denomination they belong to. All of that is part and parcel of our liberty -- our liberty to complain, to go elsewhere, to raise a fuss, and to try to persuade private organizations, like religious denominations, to see our side of things. But we shouldn't try to get the government involved to police these sorts of things. That should not be government business.

A lot of liberals argue for the separation of church and state. They don't want the church to influence politics. I think a lot of religious people should be arguing for the separation of state and church. They should be arguing that politics should not influence the church.

Here's a nice video that captures a lot of what I've said above, and hints at what I will say below (h/t: Will Wilkinson, who is now, and always has been, a Canadian. Really!):

My old highschool, Monsignor John Pereyma, is part of the Roman Catholic Separate School Board system. My former highschool accepts money in the form of taxes. There is no exemption on the forms for homosexuals or non-Roman Catholics. If you're gay, an atheist, a Jew, or a Protestant, you have to pay taxes that fund Roman Catholic schools in Ontario. If you think that's ridiculous, that taxpayers either shouldn't have to pay for Roman Catholic schools in Ontario, or every variety of school should have access to the same funds (through a voucher system, say), then we agree.

In the late '90s or early '00s, a gay student wanted to bring his boyfriend to the prom. The school said he couldn't, because that went against their beliefs. The student sued on the grounds that, if the school accepts government money, then it is bound by political anti-discrimination laws, and won. He should have won. If you accept money from taxpayers, then you cannot shield yourself from politics.

Arguing for the separation of state and church means saying "no" not just when the state shows up at your door to enforce political correctness, but also when the state shows up with money in hand. That money is the key that permits the state into private institutions to help determine their code of conduct, and the manner in which it will operate. That money, after all, comes from us, involuntarily, and our only method of controlling our money is through the political process. If you don't take my money, then what you do is less of my business. I'm left with the tools of persuasion, rather than the tools of the state.

Religious freedom is not a collective liberty, it is a private liberty. Religious freedom is the freedom each of us has to choose whatever religion we'd like, or none at all. It is also the freedom for private churches to make up their own minds about how they will worship, and what codes they will uphold. And those churches (better: congregations) have religious freedom when they individually, and not by a vote of all churches in a given jurisdiction, determine what will be done within the confines of their doors.

And here's where it gets interesting: Prohibiting gay marriage violates the religious freedom of those churches and congregations that want to marry homosexuals. The state tells them that they cannot. The state tells them that they cannot do this, even if they think that it is consistent with their faith and their manner of worship to provide this service to gays who want to get married.

Should gay marriage be permitted? I think so. It really is a terrible violation of individual liberty to keep Adam and Steve from entering a voluntary, contractual relationship like that.

Should churches be forced to marry homosexuals? I don't think so. It would be a terrible violation of their individual, private liberty to determine the manner in which they choose to express their religious devotion.

All of which is to say that all of us should be fighting to keep the state out of our lives as much as possible. Once upon a time, social conservatives who oppose gay marriage were the politically favoured group. It would have been good if, from that perch, they had renounced their political power in favour of a greater private sphere, in favour of greater individual liberty.

Some did. And good for them. They can proudly say that they always supported individual liberty against the state. That they supported the individual liberty of gays, and the religious freedom of churches that were willing to marry them, even if they did not approve of homosexuality and were opposed to gay marriage.

The tide is turning, and social conservatives are becoming more and more the politically disempowered group. It would be good if the gay community renounced their new-found, and growing, political power. If they agreed not to push for laws that might force churches and private institutions to marry them, or to rent halls to them.

Some are doing this. The gay Toronto-community newspaper Xtra, for example, hasn't forgotten what it was like to be politically disempowered. They are fierce defenders of freedom of expression, and opponents of section 13 of Canada's Human Rights Act. And, really, good for them. They have an opportunity to exact vengeance, and they are not taking that opportunity. And that is deeply admirable.

But too many, on both sides, are clamouring for the power of the state. They care not a lick for liberty, and are grasping to wield the giant hammer of the state. They want to crush their opposition, and make them live lives according to their vision of the good. They can't seem to sleep at night knowing that their neighbour is busy living her life in her own way, and according to her own lights. And this is not admirable; it is despicable.

We really should agree to clamour less for the power of the state, and resort only to the power of persuasion. True, you can't call the police if your neighbour offends your religious convictions -- whether realized in the form of unflattering cartoons of your prophet, or a gay marriage ceremony -- but they won't be able to call the police when you practice yours. It's not exactly liberty as a modus vivendi, and I suppose you can call it liberty as détente.

I prefer to call it liberty as decency.

Posted by P.M. Jaworski on April 23, 2009 | Permalink

Comments

an accurate head count would dry up sympathy and subsidy overnight.

I disagree. And demographic frequency is a horrible basis for extending a civil right. Less than 10% of Canada's population is black, and I would wince to hear someone use that as a basis for judging the rightness or wrongness of extending equality rights to them.

If anything, the smaller a proportion of the population is the gay and lesbian community, the less people should care about the effects it will have on society.

If a tiny percentage of the population is gay. Then only a tiny percentage of marriages will be gay marriages.

Posted by: Mike Brock | 2009-04-23 4:36:12 PM


"That's absurd."

Why?

"How is disallowing same-sex couples from marrying in law, not discrimination?"

I didn't say it wasn't. However, the change arose, not through groups deciding to freely associate, as in your example, but by state coercion.

It is state coercion, because even though churches received a quasi-exemption, those who hold the faith of those institutions, who argue against ssm, are muzzled. That's state coercion.

Dresden, Ontario was a perfect example of minorities using the power of the state to force business people to engage in trade against their will or face incarceration. Is that not coercion?

Posted by: DJ | 2009-04-23 4:38:37 PM


There's an odd claim floating about that when the law changes a meaning of a term, this coerces people who would prefer to stick to the old meaning.

It's true, I think, that changing the meaning of a term can enable additional coercion. For example, if "religion" were legally redefined to include only those faiths that recognize the divinity of Jesus Christ, this would enable new forms of coercion against Islam, Judaism, and all other non-Christian religions.

But, even then, the change itself would not be an act of coercion.

I still don't see how redefining marriage to include same-sex couples enables coercion in this way, at least not in and of itself.

Certainly, combining a redefinition of marriage with existing anti-discrimination laws might enable new forms of coercion. But if that's what you're worried about, then the anti-discrimination laws are the problem, not same-sex marriage.

Because those laws, along with a bunch of others, already make it illegal to discriminate against gay people in the provision of services (this varies by jurisdiction, of course.) Those are the laws that prevent photographers, caterers, and the like from discriminating.

In this context, the opposition to same-sex marriage is misplaced. Anti-discrimination laws can already penalize people for refusing to service gays. If that's what you're worried about, you should "come out of the closet" against those laws -- all of them, including those that prohibit white racists from refusing to serve blacks.

Any takers?

Posted by: Terrence Watson | 2009-04-23 4:41:34 PM


DJ,

Why is it absurd? Excuse me for presenting it prima facie.

It's absurd because cultural change is not something to be tested and pre-approved before it happens. It's something that happens though the natural forces of many independent actors working towards their self-interest.

How have video games changed the culture? Or Blackberrys and iPhones? I would argue that the effect of mass-media and the internet on the culture is far more reaching than same-sex marriage.

Should the government have commissioned a research study into allowing the internet into our lives to "test" it's impact on the culture first?

Of course not. That's why it's absurd; we do not test new cultural ideas before allowing people to practice them.

You claim that allowing people to practice new cultural ideas freely is cultural engineering. I disagree. I believe actively disallowing it is social engineering. The church socially engineers you when they teach that sex is shameful, etc. It's not that your against social engineering, it's that your for one form of it, to the exclusion of all others.

It is state coercion, because even though churches received a quasi-exemption, those who hold the faith of those institutions, who argue against ssm, are muzzled. That's state coercion.

Do. Not. Accept. Money. From. The. Government. If. You. Don't. Want. The. Government. Involved. In. Your. Business.

What is so hard to understand about that?

Posted by: Mike Brock | 2009-04-23 4:45:13 PM


Mike:

The church teaches sex is shameful?

Not my church. I can have all the unprotected sex I'd like.
such a wacky notion?

You made the statement, now prove it.

Posted by: set you free | 2009-04-23 5:33:48 PM


Hey Mike:

Ever heard of ‘go ye forth and multiply.'

My guess is the subject was not mathematics.

Posted by: set you free | 2009-04-23 5:36:07 PM


"It's absurd because cultural change is not something to be tested and pre-approved before it happens. It's something that happens though the natural forces of many independent actors working towards their self-interest."

It's not absurd.

Associate Justice Martha Sosman's dissent [10] in Goodridge v. Department of Public Health, the decision of the Supreme Judicial Court of Massachusetts that mandated legalization of same sex marriage, is an example of the precautionary principle as applied by analogy to changes in culturally significant social policy. She describes the myriad societal structures that rest on the institution of marriage, and points out the uncertainty of how they will be affected by this re-definition. The disagreement of the majority illustrates the difficulty of reaching agreement on the value of competing perspectives. Although the Goodridge case involved interpreting the state constitution, the substantive canon in Anglo-American jurisprudence that derogations of fundamental societal values should be narrowly construed [11] is analogous to the precautionary principle favoring a statutory interpretation that comports with rather than damages the common law and established norms. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892).

Posted by: DJ | 2009-04-23 5:38:30 PM


Catholic schools accept public money to sustain a completely Catholic education/ lifestyle is because of the Quebec Act- the deal the British made with Quebec after they took over Canada nearly 250 years ago..So these Catholic Institutions promote Catholic values at public expense, so what ?

Thats the game in Canada- it is NOT the game in the USA.

Seems the Canadian guy in the video is preaching
to a US audience where neither church nor state are exactlty eager to make marriage a whatever boink contract ,he is not preaching to Canadian audience where homosexual marriage is a fact....

If anyone wants the Catholic school system to embrace transient sentiments as a criteria for accepting public funds, then go back and re write history that way - then go forward in time and shake down multi culturalism..bi lingualism, that way and a host of Constititutional realities.All that political crap for a private lifetsyle issue?

Good luck-- & may the blenders whirl


Posted by: 419 | 2009-04-23 6:17:59 PM


419:

All I know is that there were no TV cameras at my wedding.

Far as I know, the gayrraige frenzy on CBC chronicled every one of these unions.

That 10% figure is a myth, for sure, taken from Kinsey reports and getting stats from prison populations.

Posted by: set you free | 2009-04-23 7:19:21 PM


Whats wrong with polygamy? If three or more mature individuals want to enter a legal concept of marriage then I don't see a problem. If adam + eve and adam + steve is alright, then Adam+Eve+Sarah should also be allowed. Marriage is about love. When you limit it to just two, then many gay marriage supporters are being just as biased as their opponents. I think that Mormons should have their arrangements legalized. I also feel that others that haven't found love in the traditional way should not have their relationships ruled illegal.
I live with two wonderful women and for all effective purposes, we are husband and wives. I can't legally marry both of them. Marrying only one of them would be unfair and give the impression that we have something to be ashamed about. These are the women that I want to be the mothers of my children. I am not a freak. I am college educated with a good job. All three of us have multiple degrees. We all want children and realize that it will probably be best if one of us stays home with them. We are still debating who. We also have concerns about how our children will be viewed by society. In society, I probably come across as rather conventional. I am clean cut and have no tatoos or piercings. I am solidly on the center-right politically. I look like your neighbor. However, it is pretty obvious that even the most libertine adherent to this website would probably have an issue with it.
My response is simple. This was meant to be. For many years, I had written off love. Then, I met two beautiful and smart women who I could love on a level I thought incomprehendible. They changed my life and turned a confirmed bachelor into someone who wanted a wife and children. The only difference was that there were two ladies who both made me feel this way. We talked about it and accepted the situation for what it was. There is no such thing as an ordinary life. I didn't expect this. I didn't plan for this. I'm not some Don Juan with the fancy lines. It just happened. I know what I feel. Better yet, I know how they both feel. I know this is right.

Posted by: Alan | 2009-04-23 7:57:56 PM


Alan:

Cool.

Not anywhere did I see any demands that I have to like you for what you do.

Live long and prosper.

Posted by: set you free | 2009-04-23 10:26:45 PM


This is such a poor issue for anyone to argue. Get government out of marriage. You don't require a government license. Do what you want, just get out of my face. The only laws surrounding this should be to protect kids across all relationship lifestyles. Aside from that, government "marriage" is nonsense. Get rid of it. This way, you won't infringe on the rights of the government clerk who is currently being forced to "wed" people. Who needs it?

Posted by: Realist | 2009-04-23 10:30:28 PM


Miss california had it right. Call it anything you want, but leave the word marriage alone.

Posted by: peterj | 2009-04-23 10:43:52 PM


DJ,

Argumentum ad verecundiam is not a proper defence of your logic. Because some judge in some case agrees that the precautionary principle should be applied in matters of cultural significance does not make it so.

I would argue with that judge, the same you. Which is, in fact, why it's not proper argument.

Posted by: Mike Brock | 2009-04-23 11:28:48 PM


It's not just "some" judge it's

an expansion of the English common law concept of ‘duty of care’ originating in the decisions of the judge Lord Esher in the late 1800s. According to Lord Esher: “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think, would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person, or property of the other, a duty arises to use ordinary care and skill to avoid such danger”.

Your last statement is nonsensical.

Because some judge in some case agrees that the the "right to marry the person of one's choice" where that person is of the same sex" is discriminatory does not make it so.

Posted by: DJ | 2009-04-24 12:10:37 AM


DJ,

You argument is an appeal to authority. Plain and simple. Citing a judge's conclusion to support your side of the argument is not an argument most people will accept.

You're trying to say: this judge agrees with me, therefore I'm right.

Posted by: Mike Brock | 2009-04-24 11:31:08 AM


Hey Mike:

Would you disagree with our use of the word gayrriage?

It sounds appropriately greasy.

Posted by: set you free | 2009-04-24 12:34:04 PM


I couldn't care less of fags marry, but only for the benefits that come with "marriage". To do so in a house of God and all that come with marrying in said house, well to me that's like taking a shit in the holy water; total disregard and disrespect for the said religion as most religions (most of the old ones anyway) don't like fags. Did I mention that I'm agnostic? Anyway, respect peoples beliefs and don't marry in God's house if your a fag.

Posted by: NDN | 2009-04-25 1:49:42 AM


I am way late for this debate, but I'll add my two cents just the same.

The original post says that words do not have santicty. I must disagree: they do. Words mean things is an old saw, but a great truism nonetheless. Aristotle says that words are what separate men from the lower animals. Words have dignity because we can speak them and no other species can with any real measure of understanding.

Secondly, when you speak of the five laws of contract, I must add a sixth: the actions agreed upon must be in and of themselves moral. Nobody can write up the contract for a duel and then claim that everything's okay. It is on this point where issues of who can and cannot marry fall into society's lap.

Posted by: Charles Martin Cosgriff | 2009-04-25 6:40:36 AM


Quickly, too, to Mike Brock: I think you ignore the point of the authority cited, by dismissing DJ's quotation of her dissent as wholly and completely an argument from authority. So long as we are not asserting that the point is right solely on the authority's word, we have committed no logical fallacy.

Posted by: Charles Martin Cosgriff | 2009-04-25 8:52:01 AM



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