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.
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.
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.
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.
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.
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.
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.
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.
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. ;
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.
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