May 07, 2009
A complex issue to say the least...
Gay marriage, liberty, and religious freedom
Posted by: P.M. Jaworski
Thursday, April 23, 2009
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 Since many jurisdictions are beginning to give it legal sanction, this definition is outdated.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 high school, Monsignor John Pereyma, is part of the Roman Catholic Separate School Board system. My former high school 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.
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