Jewish World Review March 9, 2004 / 16 Adar, 5764

Thomas Sowell

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‘Gay marriage’ confusions

http://www.NewsAndOpinion.com | 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.

Homosexuals were on their strongest ground when they said that what happens between "consenting adults" in private is none of the government's business. But now gay activists are taking the opposite view, that it is government's business — and that government has an obligation to give its approval.

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.

The real analogy would be to Governor George Wallace, who defied the law by trying to prevent black students from being enrolled in the University of Alabama under a court order.

After Wallace was no longer governor, he was within his rights to argue for racial segregation, just as civil rights leaders argued against it. But, using the powers of his office as governor to defy the law was a violation of his oath.

If judges of the Massachusetts Supreme Court or the mayor of San Francisco want to resign their jobs and start advocating gay marriage, they have every right to do so. But that is wholly different from using the authority delegated to them under the law to subvert the law.

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.

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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.

Have we not seen enough anarchy in Haiti, Rwanda and other places to know not to go there?

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?

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.

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.

Centuries of experience in trying to cope with the asymmetries of marriage have built up a large body of laws and practices geared to that particular legal relationship. To then transfer all of that to another relationship that was not contemplated when these laws were passed is to make rhetoric more important than reality.

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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.)

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