GUEST COMMENTARY:I oppose establishment of a controversial morality

2013-11-27T00:00:00Z GUEST COMMENTARY:I oppose establishment of a controversial moralityBy Richard Stith
November 27, 2013 12:00 am  • 

Indiana’s Libertarian Party chair, Dan Drexler, announced opposition to a proposed constitutional amendment that would prevent Indiana from issuing marriage licenses to gay couples. But the libertarian reason he gave for his position would not seem to support his opposition to the amendment.

Drexler stated, “Government does not have the authority to define, license or restrict personal relationships. ... Consenting adults should be free to choose their own sexual practices and personal relationships.” He added that he supports efforts “to remove government from intervening in personal relationships altogether.”

Society might have to license and reward different-sex relationships to stabilize them for the sake of any children that may be born of them, but why would a Libertarian wish to extend the bureaucratic regulations and restrictions surrounding marriage to couples that are inherently non-fertile?

Drexler’s position may emerge from a common confusion, the idea that gay people are not now free to form any sort of relationship they wish, and that a governmental marriage (or civil union) registry is necessary in order to liberate them.

But in fact Indiana’s consenting adults, gay or straight, are already “free to choose their own sexual practices and personal relationships” (in Drexler’s words quoted above), and the proposed constitutional amendment would do nothing to limit their liberty.

Gay sex would be in no way prohibited by the amendment. Indeed, despite the amendment, gays would continue to be free to engage in wedding ceremonies and pledge lifelong fidelity to one another, as at present, if they wished to do so.

The amendment would serve only to continue the current state policy of non-supervision by the government of such relationships and ceremonies. That is, Indiana would neither prohibit nor license gay sexual friendships. It would just continue to leave them alone.

Furthermore, the legal validation of gay relationships as “marriages” is not only unnecessary for liberty; it would also limit liberty quite significantly. The legal institution of gay marriage would entail public approval for the kind of sex acts gay couples engage in, for all of us agree there is nothing wrong with sex within marriage.

Indeed, one of the most traditional reasons for two people to get married is so that they can remove absolutely all stigma from sexual relations between them.

The result would be a deep cognitive dissonance in the body politic. The marriage label would proclaim there is nothing wrong with gay sex acts, but many people would continue to believe gay sex acts to be always and inherently wrong.

Gay marriage advocates are asking the government to intervene on one side of a profound moral controversy, are asking in effect that we officially establish sodomy to be right.

This attempt to establish a new moral orthodoxy about a deeply felt and intimate question is most dangerous.

For a more extensive version of this argument, see R. Stith, “On the Legal Validation of Sexual Relationships,” The Jurisprudence of Marriage and Other Intimate Relationships 143-163 (Wm. S. Hein & Co., 2010).

Richard Stith is a law professor at the Valparaiso University School of Law. The opinions are the writer's.

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