Is same-sex marriage a matter of right + wrong?
The Core
Hugh Gibbons  

The debate over same-sex marriage is frequently cast as a matter of right and wrong. Homosexuality, some argue, is simply wrong and any institutional recognition of it would compound the wrong.


But homosexual behavior is willing behavior. Any sign that it is not, that it is driven by force or compulsion, is dealt with by the criminal law of assault, battery, and the like, just as we deal with similar heterosexual behavior.


Law is generally used to facilitate willing behavior. Contract law makes it far less risky to rely upon others. Corporate law makes it easy for people with ideas to get together with people with money to do something that is mutually beneficial. Property law makes it easy for people with nothing to sell but their time to do so. And marriage law makes it easier for the couple to plan for the future with some expectation of mutual support.

On the face of it, recognizing same-sex marriage would appear to present the same advantages that heterosexual marriage presents. But there's the matter of wrongness to account for. If something is wrong, it doesn't matter how advantageous a behavior is, it is not allowed. We do not, for example, listen to a thief when he honestly argues that the jewelry that he stole means much more to him than to the wealthy person from whom he took it. Taking is wrong. We don't care who is better or worse off.


Is that the way it is with same-sex marriage? Same-sex marriage is wrong. Any calculation of the benefits that might stem from it is just as out of place as would be calculating whether or not we would be happier, on balance, allowing rape. Wrong is wrong.


But, of course, willing homosexual behavior is not wrong. We've finally gotten that straight. So what is the wrong that justifies the ban on same-sex marriage? Well it seems that if we allow it all kinds of unpleasant things may result—children will have confusing role models to emulate, employee benefit laws will have to be rewritten, and on and on. But this is totally confused! All the unpleasant effects in the world don't make something wrong. Any form of freedom has unpleasant effects. The freedom to drive a car, for example, kills thousands each year. No one has yet argued that same-sex marriage will kill anyone.


The debate over same-sex marriage is an illustration of what we refer to in this theory as the “Tangled Twins.” Law has two very closely related aims—liberty and freedom—that are easily confused with each other and, when they are, become almost intractable. Much of the confusion in courts, legislatures, and in public discussion is traceable to the Tangled Twins. It is worth untangling it in the context of same-sex marriage.


Whether or not same-sex marriage should be recognized is a question of freedom, just as is the question of whether or not one should be able to own his own DNA, whether or not copyrights in artistic works should last ten years or ten thousand, and whether or not twelve year old children should be able to execute binding contracts. Contract law, corporate law, property law, marriage law are all entitlement systems. They are used by people to create entitlements in each other (say, by selling stock to them or by promising to support them) that empower them to do what they want.


Entitlement law is justified if it produces freedom, if it misses no opportunity to empower people. If copyright law throttles creativity because it ties up creative people with legal conflict, it is not justified and must be changed. Not because it is wrong but simply because it has sacrificed the opportunity to empower.


Law that assures liberty is of a totally different character. It protects people from the diminution in their freedom caused by others. Criminal law, tort law, health and safety regulations all enforce responsible behavior. They act, in a sense, to enframe a world within which we are free to pursue what it is we are entitled to pursue. An artist, for example, whose paints have been stolen has suffered a wrong. ;


Same-sex marriage institutionalizes willing behavior. That behavior is a paradigm for rightful behavior. Facilitating it cannot be wrong. It can be unwise. It could, I suppose, collapse our GNP, sap our competitiveness, confuse the young more than they are already confused and if any of that is plausible there is reason to question whether or not we would be better off allowing it or not.


But same-sex marriage is not a matter of right and wrong. Characterizing it that way is a rhetorical device that is to the advantage of one side of the debate, because matters of right and wrong trump questions of what is simply good and bad. But that is exactly the cause of the Tangled Twins. It requires intellectual effort to get matters of law straight, to keep them from tangling with each other. When one side benefits from confusing the issue, it is confusion, not liberty or freedom that will likely result.