On “gay marriage” – it may turn out, while I have been active, in such ways an ordinary citizen can be politically active in our society, for the defense of traditional marriage, that I may not be against gay marriage absolutely speaking. That is to say, that given the arguments I have been using, such as the argument from libertarianism below, there is a way of describing gay marriage such that I wouldn’t be against it’s legalization. The clue to that description is based on this post at the Volokh Conspiracy blog. 


Caution: my take on this may not be quite the same as the author’s. 

The example is based on a “just so” story about the origin of Bat Mitzvah. In Judaism, the central importance of the Bar Mitzvah in the tradition fixes the fact that only boys, not girls, can receive it. However, for families who want to have something in parity or near parity for girls as well as boys. They thus contrive a Bat Mitzvah ceremony. Whatever this does for girls and their families, it remains clear that the ceremony is not and cannot be willed to be a true Bar Mitzvah. Some may be content with that. Others may insist that their girl gets an original Bar Mitzvah. But of course, this is impossible since discrimination by male sex is essential to the rite. To require the rite to change would be to war against the tradition. 

In this example, gay marriage is to traditional marriage as Bat Mitzvahs are to Bar Mitzvahs. Tradition (and I would add together with nature) fixes the meaning of marriage as only possible between a man and a woman and thus inherently discriminates on the basis of nature. But gay marriage acknowledges this yet creates this contrived rite to mend the harm of such discrimination being confused with discrimination not based on relevant facts, and to derive some sense of the dignity of the original to the benefit of those who are not able to appropriate it normally. In this sense, gay marriage, like Bat Mitzvah, is conscious of it’s contrived nature vis a vis it’s original and the derived nature of it’s value. The original has it’s value intrinsically or by being instrumental to some other intrinsic value defined by the tradition (or both). The contrived ceremony is instrumental to an alternative value chosen by the participants. 

Such a conception of gay marriage would clearly distinguish itself from traditional marriage but also preserve the meaning of traditional marriage as the prior and paradigmatic sense by which we understand the sense of the derivative rite of gay marriage. So rather than threatening or de-valuing traditional marriage, it would presuppose it and preserve it. 

It would also do much of what is legitimate in the concerns of gay marriage. It would embody and expand on all the rights to freedom of association and contracting that gays have in common with everyone else. It would make a return to anti-sodomy law impossible or at least difficult to legally justify. Finally, thinking of gay marriage this way would certainly protect those gays who are only concerned about such things but it would also perhaps answer to such gays who also realize that there is necessarily some things about traditional marriage that gay marriage cannot capture but that gay marriage can bring some of the gravitas of commitment in marriage to the edification of those for whom traditional marriage is simply not emotionally available. 

This way of looking at gay marriage also brings light on those who would attempt some kind of overreach against traditional marriage. They would appear odd in the same way that a girl insisting on a Bar Mitzvah would appear odd. Such would be the case of someone insisting that gays get a traditional marriage or that a gay marriage must be considered identical in kind (and not just in parity of legal status) to traditional marriage or it’s not “really” marriage. The motive may be that there will still remain the suspicion of a stigma to gay marriage. But it would be clear that this would invoke the Humpty Dumpty approach to semantics of marriage which will not change people’s opinions of gay marriage, except in some Orwellian way. 

On this description of gay marriage, like Bat Mitzvah, the spooky quotes remain there but tacitly. It’s clear that traditional marriage has entailments that gay marriage does not (such as “being able to consummate”) and vica versa. It is also clear that people do not a fundamental right to gay marriage, since gay marriage does not contribute to the perpetuity of the community is the same direct way as traditional marriage, but reflection may determine that gays have a derived right to have a gay marriage as an application of the defeasible principles of beneficence or at least non-malfeasance. 

If gay marriage is understood under this description, then I do not object to it being made a legally available option. My interest is in protecting traditional marriage from cultural warfare through law. It is not my interest to legally force people who don’t share my values to live by them. But traditional marriage is an institution with a specific sense and a subjective value. I think that this way of understanding gay marriage preserves both sets of interests.