Diverging Paths of the Gay Rights Movement
The battle over same-sex marriage is no longer if same-sex marriage will be legal, but how same-sex marriage will become legal. Proponents of same-sex marriage have used arguments based on either equality or liberty. There is a real distinction between these two arguments though.
Last month, Arizona’s legislature passed a bill that would have allowed businesses to deny services to homosexuals based on the business owners’ religious beliefs. Fortunately, Arizona Governor Jan Brewer vetoed the bill. However, this bill shows that the distinction between equality and liberty will become a real debate.
Equality vs. Liberty
Until this year, media attention has focused on government treatment of same-sex couples. The Arizona bill, and the New Mexico case which spawned it, asks a different question: how should private citizens treat same-sex couples?
The answer, as I said earlier, lies in how we approach gay rights. If same-sex marriage is legal because of equality, then the answer is that private citizens must treat same-sex couples like everyone else. If same-sex marriage is legal because of liberty, then private citizens have no obligation to serve same-sex couples.
The equality argument: This argument proposes that homosexuality is like race or gender. Homosexuality cannot be changed and it would be unfair for people to treat homosexuals differently because homosexuals cannot change who they are. Equality means that homosexuals should be given full protection of the law, whether its marriage, employment, or the right to be served by businesses.
If same-sex couples could be married but be denied other rights, it would be like Brown v. Board, but without the Civil Rights Act to enforce court rulings. Private discrimination would completely undermine equal protection of the law.
The liberty argument: This argument proposes that same-sex couples can be married because it is an extension of the existing right to marriage everyone already enjoys. However, the liberty angle is far narrower; it applies only to marriage. Private employers, landlords, photographers, and restaurants are free to discriminate.
Why would same-sex couples want liberty without equality? First, it’s easier to sell. The equality argument depends on the claim that homosexuals are born that way. Tying same-sex marriage to liberty alone means that we don’t have to argue about whether people are born gay. It wouldn’t matter. Moreover, we would only be extending an existing right rather than creating a new class of persons that the law must protect.
Second, other people have rights too. The rights of same-sex couples end where the rights of others begin. Although the Constitution promises liberty for same-sex couples, it makes that same promise to everyone else. Governments should not be able to control how businesses operate. Governments cannot control what goes on inside our hearts and minds. Libertarians cannot argue for small government to protect same-sex couples, but then argue against small government if private citizens want to close their doors to those same couples.
Homosexuals scored a victory when the Arizona governor vetoed the bill. However, the real battle will be whether the gay rights movement can keep their coalition together. In any case, I predict that same-sex marriage will be legal in the United States within the next few decades.