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I’m going to wade into the issue of same sex marriage for the same reason I wade into other ones: because it’s therapeutic. It’s also timely, and presents some interesting problems. The process is fraught, however, when the issue is complicated and controversial. Moreover, I’m not sure if I’ve thought about it enough. That’s another reason to write, though: it gives you a chance to think about difficult subjects.

Let’s set out a few basics in this area:

  • Marriage is partly a civil and partly a religious institution.
  • Gay people enjoy equal protection of the laws, including equal rights.
  • Nothing in our Constitution, or in our state constitutions, prohibits same sex marriage.
  • The gay rights movement has pushed for the right to marry. Civil unions are not at issue.

Now let me ask a few questions:

  • Why does government – through the courts or otherwise – have anything to say about marriage in the first place?
  • Why does the gay rights movement insist that gay marriage be legal?
  • Why have courts not considered gay marriage an issue of religious freedom, as well as an issue of equal rights?

Government need not make any pronouncements about marriage at all. It only needs to count households, for taxation and other purposes. Any couple can declare itself a household. Government’s need to collect taxes from households is blind to gender.

The gay rights movement has not indicated why civil unions are insufficient. One can guess the reason: full membership in society comes with marriage, not with a civil union. Marriage entails recognition, legitimacy, and membership in a way that civil union does not. Marriage entails acceptance.

Religious organizations and individuals have been the main sources of resistance to same sex marriage. The traditional definition of marriage as a union between a man and a woman has its roots in the church. Objections to same sex marriage are based on this definition, not arguments about rights. The gay rights movement and government ignore the traditional definition. They cannot argue the issue on definitional grounds because they would lose. The most direct way to win the argument is to change the traditional definition under law.

The movement to change our conception of marriage via court rulings plainly implies to churches: you don’t get to define the institution of marriage any more. In protest, churches could say, “Alright, if that’s how you define marriage, we won’t perform weddings any more.” Couples might go to church to have their unions blessed by God and his pastor, but they wouldn’t care to call it a marriage anymore.

Another strategy, somewhat akin to the first one, would be to say: “You can define marriage as you like. If you want to live together and call it married, that’s great. In fact, though, you’re married only because you say are. Your saying it doesn’t make it true.” That response is a little risky, though, given that government still seems to carry so much weight. If the government says it’s a marriage, it must be one, correct?

When Caligula planned to promote his horse to the position of consul, the idea said a great deal about Caligula’s mode of governance, and nothing at all about the poor animal. We will see whether the union of a man to a man, or a woman to a woman, counts as a marriage. Some predict that in a generation or two, we’ll regard same sex marriage the same way we regard racial equality now. Others might look at our society and its court decisions centuries from now and say, what were they thinking?

No matter how much Caligula admired his horse, it was still a horse. Of course, many historians now think the ruler proposed a bad joke for his courtiers and Roman citizens, to test whether they would recognize or support his outrageous pronouncement. After all, if I can make my horse a consul, I can do anything. Will judges who rule on the question of same sex marriage write opinions that, centuries from now, similarly appear as symptoms of unfathomable moral confusion? Government stipulations about religious freedom generally don’t age well.