Is There a Conservative Case for Same-Sex Marriage?

August 6th, 2010 at 11:36 am | 33 Comments |

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I don’t know why, but I can’t get Marvin Liebman’s voice out of my ear.

Liebman, the veteran conservative activist and close friend of William F. Buckley Jr., generated national headlines in the summer of 1990 when he announced in the pages of National Review that he was gay. He also accused the conservative movement of exploiting homophobia for political gain, and urged the American right to reconsider its skeptical view of the gay rights movement.

Eventually, Liebman washed his hands of the conservative movement, realizing that the “ordered liberty” vision of conservatism could never coexist with gay rights. He died of heart failure in the spring of 1997; perhaps he was literally broken-hearted over his failure to convince social conservatives to embrace libertarianism vis-à-vis the gay rights question.

I hear Liebman’s voice every time I read a story about gay marriage, gay adoption, the “Don’t Ask Don’t Tell” policy, etc. Now, in the wake of U.S. District Judge Vaughn Walker’s ruling striking down California’s Proposition 8, Liebman’s voice is so loud I can barely hear myself think.

I was not in favor of the effort to have the courts invalidate Proposition 8. I felt that the integrity of the ballot initiative process in California should not be compromised, even if it meant maintaining a policy that some might not like.

Yet I always heard Liebman’s voice asking why I was not in favor of justice for same-sex couples, why I couldn’t see that Prop. 8 was a blatant violation of the Equal Protection Clause. Liebman’s voice asked if I even cared about basic human dignity, basic human rights, basic human fairness.

I did not know how to answer.

Is there a conservative case for same-sex marriage? I’ve long maintained that the answer is no, that while there is a progressive case, a libertarian case, and even a non-partisan case for same-sex marriage, conservatism’s reverence for tradition is so strong that it’s not possible for a “novelty” like same-sex marriage to be accepted on the right.

Yet I still hear Liebman in my ear, declaring that conservatism is about more than just tradition. Conservatism, he says, is also about freedom and about justice–and from this standpoint, there is, in fact, a conservative case for according same-sex couples equality under the law.

Does he not have a point?

When I see George Will declare that among younger Americans, being gay is viewed as no different than being left-handed, I hear Liebman cheer. When I read stories about how Americans under the age of 35 embrace the gay rights movement unconditionally, I hear Liebman celebrate. Yet, when I notice conservatives questioning American society’s increasing acceptance of gay rights, I hear Liebman cry.

I don’t know what’s going to happen with this Prop. 8 case. When it makes its way to the U.S. Supreme Court, how will the Justices vote? Will the high court declare that bans on same-sex marriage cannot withstand constitutional scrutiny? If so, how will conservatives react?

Again, I don’t know. However, despite my misgivings about the lawsuit that led us to this point, I can’t get Marvin Liebman’s voice out of my ear. In fact, right now, he’s yelling, “Let freedom ring, damn it! Let freedom ring!”


Originally published at Red Mass Group.

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33 Comments so far ↓

  • jg bennet

    you have to define conservative first. in my barry goldwater conservative mind the answer would be yes. in tony perkins conservative mind the answer would be no. so which conservative are you asking?

  • rectonoverso

    “I felt that the integrity of the ballot initiative process in California should not be compromised, even if it meant maintaining a policy that some might not like.”

    Are you telling me you would be OK if a proposition reinstating racial segregation in the Golden State were to pass?

    When will you people understand that democracy is not the absolute rule of the majority, and that one of the roles of the judicial branch of government is to protect and defend the rights of minorities even if it means applying policies some majority doesn’t happen to like.

  • jg bennet

    “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”
    Thomas Jefferson

    i’m in for republicanism!!

  • Moderate

    “Conservative” is too loose to mean anything. There’s obviously a libertarian case. My pitch for a socially (religiously) conservative case: Gays permitted to marry are probably less likely to view conservative church-dwelling society as “the oppressor” and might consequently be more likely to attend church and advocate for other conservative causes. Opponents of gay marriage won’t stop attending church, although they may switch to churches more aligned to their cultural views.

    I don’t know if I believe the above, but it’s plausible. Really, I’d like conservatives to embrace gay marriage for practical reasons: in the long-term it’s a losing issue for them. Many students my age who could be hypothetically persuaded to conservatism aren’t willing to give their time to a philosophy they view as the province of gay-bashers.

  • JeninCT

    I wish conservatives, ALL conservatives would endorse gay marriage. My kids don’t even blink at gay couples (they have friends who have same-sex parents) and frankly, I am embarrassed that so many states in this country still do not allow for gay marriage.

  • jerseyboy

    With respect the recent court decision, I think the key question is not on the merits of same-sex marriage, but whether a court should overturn a democratic outcome and mandate same-sex marriage by relying on provisions of the U.S. Constitution that indisputably never were intended by the framers or subsequent generations to require it. I think the answer is obvious, an obvious NO!

  • jg bennet

    moderate

    conservative being too loose is why conservative needs to be defined and defining it seems to be the dorian grey topic that republicans hide in the closet.

  • loki1967

    Here is why I feel Conservatives should embrace gay rights. And why rejecting them is utter evil hypocrisy. I know many older male social conservatives still are offended minorities and women have equal rights. But often they bring up two defenses of being bigoted. The first is marriage is a sacred union under God. Well since 50% of marriages end in divorce and 50% of American’s cheat then how is marriage sacred? It’s not. It’s as sacred as a pile of dog crap. Just ask Governor Sanford.

    The second view is the Constructionist View of the Constitution. Well we have passed civil rights laws via the Congress. We have passed Amendments to the Constitution under the rules of the Constitution. So how can you be a proponent of human rights and be against gay marriage. You need to view everyone as neutered humans. We are each human. We have no sex, no politics, no religion. Equal rights for everyone. You can not prevent 2 humans from marrying.

    All I see is hypocrisy and bigotry from the Conservative side. And to me it reeks of evil. Jesus Christ loves everyone. If your a devout Christian God Created Gays! End of story! They wouldn’t exist if God did not create them. And I truly think Bigots if there is a Jesus and Heaven are going to Hell. There is no place in ‘Heaven’ for hateful people. Hateful people go to Hell end of story.

  • jerseyboy

    “Are you telling me you would be OK if a proposition reinstating racial segregation in the Golden State were to pass?”

    Bad analogy. The U.S. Constitution (and its amendments) provide solid ground for invalidating race-based discrimination. (Although note that Jim Crow was mainly put to rest by democratically enacted legislation, not court mandate.) The Constitution provides much weaker basis for requiring that same-sex marriage be permitted. I don’t think that vague language in substantive due process and equal protection provisions make clear that the traditional definition of marriage must change to accomodate homosexuals. Maybe same-sex marriage should be legalized as a matter of policy, but I don’t see a strong and convincing argument that the U.S. Constitution requires it.

  • jg bennet

    loki1967

    i always thought the apostle paul was gay because of the thorn he mentioned. i never looked it up until now and….they say one out of ten people are gay and jesus had 12

    behold i give unto thee the gay apostle
    http://www.gayheroes.com/paul.htm

  • andydp

    Back to Public Admin 601: This is a very simple case of checks and balances. A law was passed. The court felt is was unconsitutional and overturned it. This is NOT the end of the story. The legislature (people) have to rewrite Proposition 8 to meet constitutional requirements. This is the way our Republic has operated since the Constitution was ratified. If Arizona was smart they would rewrite their immigration law to meet constitutional requirements.

    I feel a court ruling willl not end the controversy. It should be done by via legislative action or referendum. That will likely make 99% of the opposition end. Look at South Dakota and the abortion law they tried to pass: it was voted down twice. I haven’t heard of further organized attempts to put it back on the ballot again.

    As Alcuin wrote: Vox Populi, Vox Dei.

    Sidebar alert !!!

    Here’s something that shows the more things change the more they stay the same:

    The full quote from Alcuin:

    And those people should not be listening to those who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always very close to madness

  • whecht

    I have always thought that gay marriage was the conservative view…IF you had same sex partner benefits. Since partner benefits seem pretty common then there is little to lose by allowing gay marriage.

    When I was in college, I needed health insurance. My best friend graduated 2 years before me. He had health insurance and I needed health insurance. He was engaged to be married.

    We decided that since we were living in the same house that I should be his domestic partner. This gave me the insurance I needed and didn’t cost him anything.

    18 months later, he got married. His wife was now covered by his insurance and I was out of luck for 2 months until I got a job with benefits.

    Now, we never could have done that if signing up for benefits had a serious downside. If giving me benefits meant that we would have to get a divorce before he married his wife then we would never have considered it.

    Marriage has consequences. Why should gay people get benefits like health care and avoid the marriage tax penalty and be spared divorce.

    Believe me, I understand there are HUGE benefits that gays don’t get.

    My only point is that the conservative view should be that people should not be able to game the system unfairly like I did.

  • Bebe99

    The modern conservative seems more focused on maintaining tradition than in supporting any particular policy. This leads to some weird inconsistencies: Freedom is good when it means I can own a gun; freedom is bad when someone else can have a relationship I don’t approve of. It saddens me as it seems such a wasted effort.

  • ktward

    I’ve long maintained that … conservatism’s reverence for tradition is so strong that it’s not possible for a “novelty” like same-sex marriage to be accepted on the right.

    So basically, Conservative ideology is just a socio-political form of Luddism?
    After all, slavery was a millenia-old tradition within many cultures, not just our own. Letter-writing was likewise a long-standing tradition well into the 20th century– are Cons innately incapable of embracing email over USPS?

    This piece screams of some serious, inner conflict: it’s clear that Mr. Tucker has been profoundly affected by Liebman’s experiences and message. Yet, he mechanically excuses away the glaring shortcomings of Conservative ideology as he, himself, defines it.

    As an active Con voice, Tucker ought to have something more to offer this conversation– a conversation so very crucial to the future viability of the GOP– than a bunch of weepy, evasive ‘I don’t knows’.

    What does he know?

  • engelpm

    Moderate sez “Many students my age who could be hypothetically persuaded to conservatism aren’t willing to give their time to a philosophy they view as the province of gay-bashers.”

    This 51-yr-old “student” couldn’t agree more. There are many areas where I differ from my Liberal friends, like immigration and the invasion of Iraq. But despite my differences, I could never contemplate changing parties because of this one single issue. Yes, I believe that as a whole, Conservatives are gay-bashers. Bless you, JeninCT, for your views, and if you were a national voice for your party, I could begin to take your party, your candidates, seriously. And I would think as a matter of survival, the party’s ears might perk up to hear that.

    If the party is interested in growing swing voters your way, this is the moment.

    What is the author Tucker* waiting for? He seems to be on the cusp of just saying it, of just saying that he is rooting for gay marriage. Instead he offers a 3rd-person, Liebman, to do all the cheerleading. This way he can look his fellow conservatives in the eye and say “it wasn’t what *I* was thinking, of course.” A clever loophole but still…weak.

    Fine. So until I hear otherwise from a prominent conservative, this would-be swing voter will continue to view conservatism as “…a philosophy [I] view as the province of gay-bashers.”

    * I don’t know which gender author Tucker is so my apologies for the assumed male pronoun. Writing “he/she” was mangling my text.

  • JeninCT

    jerseyboy // Aug 6, 2010 at 12:38 pm

    “With respect the recent court decision, I think the key question is not on the merits of same-sex marriage, but whether a court should overturn a democratic outcome and mandate same-sex marriage by relying on provisions of the U.S. Constitution…. I think the answer is obvious, an obvious NO!”

    I agree, and Alex Knepper’s terrific column the other day explains your point beautifully. My opinion is that conservatives should, heck all people should accept gay marriage. I really think that by the next generation (or maybe two) it will be legal. It’s as much a cultural barrier as a religious one, to some, and that’s changing with each generation.

  • cporet

    There may be a conservative case for same-sex marriage, but certainly not republican. God hates fags, don’t you know.

  • Oldskool

    The conservative case should be the simplest of all which boils down to minding your own business. It was only when they courted the religious right that conservatism came to mean something else altogether.

  • GEValle

    “Is there a Conservative cause for Gay marriage?”

    No.

    Unless they’re SMOKIN’ hot lesbians. In that case, we may reconsider…

  • busboy33

    @jerseyboy:

    “The U.S. Constitution (and its amendments) provide solid ground for invalidating race-based discrimination.”

    Fine — what about a State law that bans Left-Handed people from getting married? Or getting bank loans? What about redheads? A state law mandating they can’t get driver’s licenses . . . how about that?

    (btw, getting a driver’s license is not a “fundamental right”)

    I assume you’ll agree that there is nothing the Constitution mentioning Lefties, or “Gingers”. Its been a few days but I’m pretty sure the topics never came up in the Federalist Papers or the Con Convention either.

    So . . . you’re cool with that?

  • Shawn Summers

    GEValle // Aug 6, 2010 at 2:21 pm
    “Is there a Conservative cause for Gay marriage?”
    No.
    Unless they’re SMOKIN’ hot lesbians. In that case, we may reconsider…

    GEValle, keeping it classy as always.

  • Rabiner

    Jerseyboy:

    ““With respect the recent court decision, I think the key question is not on the merits of same-sex marriage, but whether a court should overturn a democratic outcome and mandate same-sex marriage by relying on provisions of the U.S. Constitution…. I think the answer is obvious, an obvious NO!””

    The courts have to safegaurd against direct democracy taking away the rights of the minority. In this case, the minority were gays and lesbians. As someone quoted Thomas Jefferson earlier, democracy is simply mob rule. Our system is predicated on the protection of minority rights and where better is that seen than in the judiciary.

  • busboy33

    I’ve never understood the whole straight guy fixation with lesbians.

    (presuming GE is straight, which I’m starting to have my doubts over)

    I mean . . . if they are lesbians, you’re not getting any. So all you’re seeing is two smoking hot women you’ll never, ever be able to have sex with. And they’re having fun because you’re nowhere near them.

    Seems kind of self-loathing to me.

  • abk1985

    In my personal experience, lesbians are a lot more flexible about walking on the straight side than gay men. As with all sexuality, it all comes down to the _person_, not the gender.

  • sinz54

    There used to be a strong libertarian component to conservatism. Barry Goldwater for one. William F. Buckley was a proponent of decriminalizing marijuana.

    And in the 1970s, the National Review opined that gay Americans have much the same concerns as straight Americans: They work hard, they pay taxes, they worry about inflation and getting laid off, etc. And therefore, there is no reason why conservatives couldn’t appeal to gays on those issues.

    But circa 1978, the marriage (pun intended) of the more libertarian economic conservatives with the social conservatives ended that libertarian side of conservatism. From then on, it was going to defend the status quo socially.

    As long as conservatism’s philosophical base is Christianity rather than capitalism, it will continue to be opposed to gay marriage.

  • Rabiner

    Sinz54:

    “As long as conservatism’s philosophical base is Christianity rather than capitalism, it will continue to be opposed to gay marriage.”

    You make a strong point regarding why Gay Marriage is so opposed by current conservatives but would of been accepted by past ones. Since 1978 (I’d say 1980 but I’ll use your year) when the Moral Majority gained power within the establishment Republican Party this country has become much more divisive regarding cultural issues. One side advocates a hands off approach and one advocates state mandated control. It just so happens that the hands off approach is not advocated by conservatives but rather liberals. It’s a weird flip of the script which I’ve experienced my entire life since I was born in 1983.

  • busboy33

    A self-interested buisnessman can look at any situation dispassionately and assess its potential benefits and detriments. “Gays? Well, a vote is a vote. Works out for everybody. Don’t like it, but that ain’t got nothing to do with buisness.”

    A zealot cannot adapt. Rather than figuring out “how do I use the current situation to match my best interests” the zealot says “how do I change the current situation to mirror my best idea”.

    @Sinz — do you think its possible to change that base? I mean, obviously All Things Are Possible, but is it reasonable to think the GOP can make that shift?

  • noufa

    Why should people embrace the gay rights movement (or ANY movement) unconditionally?

    Why should libertarians promote positive rights for married people, gay or straight?

    Why should I equate tax cuts with basic human rights?

    “If so, how will conservatives react?”

    Probably by refusing to submit their church definition of marriage to the state definition of marriage.

  • jerseyboy

    You can’t “take away” a right that heretofore has never existed. Your assumption that same-sex marriage is a right begs the question, i.e., it presumes as true the very point that is in dispute in this debate!

  • busboy33

    @jerseyboy:

    “You can’t “take away” a right that heretofore has never existed. ”

    Marriage by itself has been considered a fundamental right:

    “THE RIGHT TO MARRY PROTECTS AN INDIVIDUAL’S CHOICE OF MARITAL PARTNER REGARDLESS OF GENDER
    The freedom to marry is recognized as a fundamental right protected by the Due Process Clause. See, for example, Turner v Safely, 482 US 78, 95 (1987) (‘[T]he decision to marry is a fundamental right’ and marriage is an ‘expression[ ] of emotional support and public commitment.’); Zablocki, 434 US at 384 (1978) (‘The right to marry is of fundamental importance for all individuals.’); Cleveland Board of Education v LaFleur, 414 US 632, 639-40 (1974) (‘This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’); Loving v Virginia, 388 US 1, 12 (1967) (The ‘freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.’); Griswold v Connecticut, 381 US 479, 486 (1965) (‘Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.’).
    The parties do not dispute that the right to marry is fundamental.”
    Perry, p.110

    Prop. 8 was specifically designed to stop gays and lesbians for exercising that right:

    “Finding of Facts –
    #63. Proposition 8 eliminates the right to marry for gays and lesbians but does not affect any other substantive right under the California Constitution. Strauss, 207 P3d at 102 (‘Proposition 8 does not eliminate the substantial substantive [constitutional] protections afforded to same-sex couples[.]‘) (emphasis in original).”
    Perry, p.90

    The question in the case was NOT whether gays have a right to marry. The question was whether the State had a compelling enough reason to limit that right. Citizens have a right to Freedom of Speech, but the State has a compelling interest in preventing you from yelling “Fire!” in a crowded theater.
    If your approach is that since gays wern’t married before, then the right didn’t exist, unfortunately Rights aren’t “verified” in the same way as empirical datum — for example, a new species is only verified when you actually see it. Basic Rights are inherent in the nature of Humanity — a society not acknowledging that Right doesn’t mean the Right doesn’t exist . . . but rather that the Stare is failing to honor that Right.

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