The Libertarian Argument

(Part Six of a Six-Part Series)

by Justin VanLeeuwen

Read Part One     Read Part Two     Read Part Three     Read Part Four     Read Part Five

We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse, or even contrary, will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

— Justice Jackson, West Virginia Board of Education v. Barnette

We come at last to my final plea for understanding. I am not here to make the argument for whether the Bible blesses or condemns homosexuality. I do not identify as Christian and thus have no stake in that argument; others in this organization who are Christian will be more than happy to step up and make the case (several posts in the archives already address this issue). I wish rather to reorient the question and argue that even those who are morally opposed to marriage equality should support it in a legal context if they truly buy into the heart of our civil system.

Growing up at Bob Jones, I heard numerous times that the fight against marriage equality (or as they termed it, gay marriage, a phrase I have already addressed) was to be the battle of my generation, the great 21st century struggle between God and the devil in which we were called upon to engage.¹ The speakers posed the struggle, in this overarching sense, as a spiritual conflict, but in its practical manifestation it did not deal with the souls of the homosexuals – we were not being told to go out and convert them (assuming they were all heathen and that conversion would alter their orientation); it dealt with the law and public policy. The goal was not to persuade gay men, lesbians, and transgender people as individuals to change their views but rather to forcibly guarantee that the laws refused to recognize their existence and their perspectives, in short to reify the presumed Judeo-Christian purity of the nation as an entity.

This mentality stems largely from the misguided notion that we live in a country founded on Christianity and thus have a moral responsibility to preserve that guiding principle.² When conservatives talk about religion and the founding of this country, they constantly make the mistake of referring to the initial colonies of the Separatists (Pilgrims) and the Puritans. The fact is that these colonies, while historically noteworthy, do not constitute the founding of this country which occurred approximately one hundred and fifty years later with the writing and ratification of the Constitution.³ Furthermore, they mistakenly ascribe to these groups the ideal of freedom of religion as a motivation for their travel to these shores. Freedom of religion, a relatively modern concept acknowledging the right of the individual to form, express, and practice his own beliefs, should not be confused with the view of the Separatists and Puritans who merely sought to enshrine their doctrines as the ones protected by law and to punish or expel from the colony anyone whose beliefs or practices differed from the establishment.⁴ They in fact constructed religious states designed to protect one religion to the detriment of all others, an arrangement specifically forbidden in the First Amendment.⁵

Now do not misunderstand me. I do not intend to imply that the U.S. is not a country of Christian people. But it is also a country of Buddhists, Hindus, Muslims, Sikhs, Jews, Atheists, Agnostics, Pagans, and more. And just as is true within the broader Christian religion, none of these groups represent a monolithic whole. Each one contains distinct groups who disagree with one another in practice and belief. The point is that we aspire to be a nation for all peoples, for people of religion and non-religion alike. And the only way to protect the rights of one group is to protect the rights of all. In the case of the Separatists and the Puritans, the only relevant difference between their colonies and the countries they left was that in the colonies, the Separatists and the Puritans had the power of the majority. With that power they put into practice the same principles from which they had fled: enforcing private moral beliefs on the general populace. They just got to make the rules this time. To be fair to them, they merely followed the pattern that had repeated itself for centuries in which the religious majority dictated the way of life for all and suppressed religious opposition. But this model simply glorifies power as the arbiter of right (might makes right). Thus the only avenue to freedom open to religious and non-religious minorities would be either to forcibly overthrow the majority or to move elsewhere, set up their own religious state, and repeat the cycle. But there is nowhere left to go. And hopefully we have progressed beyond religious wars. In the 21st century, we have to learn to live together.

We live in a country in which every citizen has been guaranteed certain legal safeguards, purportedly inviolable. We like to think that those rights exist in some ethereal plane and will protect us inherently, but they don’t. People are the enforcers of rights. We stand as guardians for ourselves and for our neighbors. The social fabric that we put so much trust in is ultimately extremely sheer and fragile; our votes for President, the votes of 535 congresspeople on laws, and the votes of nine judges on the validity of those laws mean nothing if we do not agree to abide by them. And only by a mutual effort to keep faith with each other and protect each other’s rights as vigorously as our own do we have any hope of a functional society. But the moment a group of people through the sheer force of a majority feels it possesses the right and duty to coercively shape the morals of a nation, it not only puts at risk the right of conscience of any who disagree with it, but it also undermines the foundation and sanctity of its own right to religious freedom. Having accepted the might-makes-right philosophy, the group must accept that it has relinquished its claims to protection should it ever lose the power of the majority.

My argument to those who for whatever reason object to gays, lesbians, and transgender people consists of nothing more than a libertarian appeal to your own self interest. If you truly accept the philosophy that we as a nation live for the freedom of the individual; that we construct our laws with an appreciation and a respect for the differences that make us unique; that our commitment to self-determination is what binds us together, not strict uniformity of belief; that our rights and liberties granted us by the Constitution do not depend on the whim of the majority; then you must concede that allowing people of differing views to make fundamental decisions about how to conduct their lives is the essence of being American. If you do not, then you have no reason to believe that your own rights rest on anything more solid than the goodwill of public opinion.

As I close this series, I want to take this opportunity to personally plead with you. When you oppose marriage equality, you are not just doing so in the abstract. You are opposing my ability to marry. Gay or straight, not everyone wishes to marry, and not everyone wishes to structure his or her relationships in the same way, but for whatever biological or social reason, I do. I am a 26 year old who at this point has no idea what he’s doing with his life, no ambition for any great career, no desire to scribe my name in history. Of all the many things about which I don’t know what I want, marriage and a family is that one constant, the single thing I know with certainty that I want out of this life. I dream of meeting and growing to love some special person and of living my life with him. And when that day comes, I want to fiercely and proudly declare it from the rooftops, to let the world know that I love. That may be a romantically youthful image to hold on to, but it’s mine, and it’s the one I was given as a child growing up. Why should that be taken away from me now that I know I want to marry a man instead of a woman? When most guys get down on their knee to ask someone to marry them, they ask the love of their lives. Instead I find myself on my knees asking you.

I leave you with this short, animated interview of a husband and wife. I can only hope that one day I find love as deep as theirs.

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¹ Just two days ago on November 5 (the day before the election), Bob Jones III opened chapel with the following pronouncement. Notice the dooms day rhetoric and the way in which he attacks the religious identity of anyone who would disagree with him on the issue of marriage equality, thus using religion as a weapon to bludgeon the timid into submissively voting for the approved candidate/position:

I trust that we’re all in prayer about tomorrow. A great deal of your future hinges — my future, all of our future hinges on the outcome of the vote tomorrow, whichever way it may go on a national level. We will be forever a different people or at least for the next four years a different people. The issues here are very great. They are not just political issues. Political issues stem from heart issues. It is according to what we are as a people that we have the government that we have. And the truth is that while neither candidate for President represents in his faith anything that any of us in this room believe [sic], there is a marked difference in the way they view government and the way they view our founding principles — a marked difference. So the choice is a very important choice.

I do not know how any Christian could vote for a Presidential candidate who is on record as favoring same-sex marriage. Nobody can favor that without being the enemy of God. It marks a man automatically as the enemy of God because God has ordained marriage, and He’s told us what it’s supposed to be. For a man to say it can be something other than what God wanted is to insult God Almighty.

² Though it’s not particularly germane to the progression of my larger point, it’s worth mentioning that The Treaty of Tripoli contained the following language, titled Article 11: “As the Government of the United States of America is not, in any sense, founded on the Christian religion,–as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],–and as the States never entered into any war or act of hostility against any Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” I don’t want to oversimplify the information I’m presenting: the treaty took many months to reach the capital and had already been acted upon in the form of partial payments by the time it arrived, and the language of Article 11 did not appear in the original Arabic version of the treaty. But the English version of the treaty containing this language, after being distributed and read aloud in the Senate, was approved unanimously in 1797, only ten years after the ratification of the Constitution. It was also printed in local newspapers, apparently without comment.

³ Interestingly enough, when Benjamin Franklin proposed opening each day of the Constitutional Convention in prayer, the motion failed. In Franklin’s own words, “The convention, except for three or four persons, thought prayers unnecessary!” -Beeman, Richard. Plain, Honest Men: The Making of the American Constitution. New York: Random House, 2009. 181

⁴ Religious oppression by the Church of England (compulsory church attendance on Sundays being one example) constituted the primary reason for which the Separatists fled England, initially to the Netherlands. However, though they found ample tolerance for their religious practice there, they eventually left to establish a colony in the New World. The government they established in Plymouth Colony, run by the General Court, required Freemen to vote on all legislation. The status of Freemen, open only to males, was further restricted by religious confession (quoting from the Records of the Colony of New Plymouth in New England):

It is enacted by the Court and the Authoritie therof

That noe Quaker Rantor or any such corrupt pson shallbee admited to bee a freeman of this Corporation;

It is enacted by the Court and the Authoritie therof; That all such as are opposers of the good and wholsome lawes of this Collonie or manifest opposers of the true worship of God or such as refuse to doe the Countrey seruice being called thervnto shall not bee admitted ffreemen of this Corporation being duely convicted of all or any of these;

It is enacted by the Court and the Authoritie therof That if any pson or psons that are or shalbee ffreemen of this Corporation that are Quakers or such as are manifest encurragers of them and soe Judged by the Court and of the lawes therof and such as judged by the Court grosly Scandalous; as lyers drunkards swearers shall lose theire freedome of this Corporation;

These religious qualifications again stand in stark contrast to our Constitution which states that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Furthermore, it is ironic to note that among the many morality laws that Plymouth instated was one they had personally found so troublesome in England (again, quoting from the Records):

It is enacted by the Court That whatsoeuer pson or psons shall frequently absent or neglect vpon the Lords day the publicke worship of God that is approued of by this Gou’ment shall forfeit for euery such default; ten shillings;

⁵ It should be noted that the Bill of Rights initially applied only to the Federal Government, not the states. The Incorporation doctrine, by which most of the Bill of Rights was construed to apply to the states as well, began in 1897 or 1925 depending on interpretation, with the religion clauses of the First Amendment being incorporated in 1940 (Free Exercise clause) and 1947 (Establishment clause).