By David Mertz (December 2008)
There is something that has gone wrong in the last 40 years of the gay-rights movement, albeit for generally well-meaning reasons. The justifiable outrage over the passage of Proposition 8 has accentuated this fact in my mind, as did seeing Milk yesterday (not because of anything really about the quite good movie itself, but just because of the times it chronicles).
By way of background, I have something a familial boast: my mother wrote the first gay rights ordinance in the USA, when I was in my first years of elementary school. This ordinance, like most of those that followed in the few years after it, led to a recall of much of the city council, and thereby repeal of the housing-discrimination ordinance before it ever went into effect. The resonances of 1970s discourses still echo in my thoughts about human and civil rights.
Back in the old days, the term “sexual preference” was in use, a better alternative to the “sexual orientation” that has pretty much superseded it. Here’s where the good intentions have led to bad results. In order to combat a silly volunteerist myth promoted by homophobic “post-gay cures” (psychiatry often complicit here), most of the gay-rights movement has embraced some species of essentialism: sex isn’t what we do, it’s what we are. Sometimes that comes with biological reductionisms and determinisms, sometimes not, but in all cases it is a foolishly mechanical antithesis to the equally foolish notion that we simply choose desire as we might an outfit or entree.
The protections advocated by and for gay-essentialists are thereby modeled after the legal protections we should grant on the basis of disability, or even more-so after race (nevermind the false essentialism equally present in that discourse). A class of citizens, being essentially and innately who they are, should have the same marriage rights (and other rights) as those “born differently.” It boils down to a fantasy of genetically distinguished individuals rather than coming back to the far more sensible libertarian principle that the government should get the hell out of the business of regulating behaviors that don’t concern it! Being a libertarian with a small ‘l’, not a large one, it’s not that I think government should be out of all private business: Following a perfectly wonderful history of civil rights jurisprudence and legislation, government should prohibit discrimination on the basis of considerations that are also none of the damn business of companies, organizations, etc.
What about marriage then? Marriage is one of the broadest government mandates for enhanced privileges, financial subsidies, procedural preferences, etc. Discrimination in granting these preferences is deeply offensive for all the many obvious reasons. Step back, however. Why is government going so far out of its way to designate a specific religious practice as especially worthy of these enhanced benefits?! Marriage is simply a religious convention, and making it heterosexual, monogamous, largely still patriarchal, is just endorsing one particular religious doctrine over any others citizens might follow. Separation of church and state ought to weigh against this strongly.
There are a set of rights and privileges that now come in an automatic bundle with marriage, but sensibly these should be divorced from religious convention. Just let individuals designate who they want to have enhanced visitation rights when they are hospitalized. This need not be the one individual they happen to have sex with (but it could be if someone wants that). And who should get inheritance by default. Or who should benefit from tax subsidies of marriage (questionable to start with, but fine, just let taxpayers designate a “tax partner” for their household). And so on. Moreover, there is no reason at all why each of these persons need be the same individual, a “Chinese menu” of names of those who hold each role would be no huge legal burden if sensible laws allowed it. If your God says that your tax partnerships must follow your genitalia, government should not interfere with your faith, but neither should it mandate that belief for everyone.