Recently, same-sex marriage has made news headlines. In March, the Supreme Court heard oral arguments in Hollingsworth v. Perry, which challenges California’s heterosexual definition of marriage, and United States v. Windsor, which challenges the Defense of Marriage Act’s restriction of federal benefits to heterosexual unions. On Election Day 2012, citizens of Maine, Maryland and Washington voted to legalize same-sex marriage. Republican Senator Rob Portman of Ohio, once a staunch opponent of same-sex marriage, publicly endorsed it in March.
In addition to this recent momentum, public opinion has shifted over the last decade in favor of allowing same-sex marriage. The Pew Research Center reports that in 2003, only 33 percent of Americans supported same-sex marriage, while in 2013, 49 percent of Americans support same-sex marriage.
The fate of same-sex marriage will be decided in the courts, legislatures and the forum of public opinion. But why? Marriage is a private matter affecting only the persons in the marriage and their children. What marriage is, whom it is between and how it is preformed should be the choices of individuals, made on a case-by-case basis.
The United States was born out of a movement for greater liberty for the individual. As the Declaration of Independence states, Americans would not live at the whim of a king, but instead individuals would be granted “Life, Liberty and the pursuit of Happiness.” Liberty, though, does not simply mean the right to do anything. Liberty does not give you the right to murder. Liberty means the freedom to act as you choose, so long as that action does not harm someone else. Political philosopher John Stuart Mill defined liberty this way as the “no harm principle” less than a century after the American founding.
What greater act of liberty is there than the choice of with whom to spend the rest of one’s life? Consistent with the “no harm principle,” a union with someone does not harm the rights of others. Same-sex marriage does not infringe upon heterosexual marriage. My property is not damaged by same-sex marriage. My life is not threatened by same-sex marriage. Thus, given that marriage is an act of liberty that does not harm others, government — be it federal, state or local — should not have the power to ban same-sex marriage. Protecting the right to same-sex marriage amounts to a fundamental American principle, no different from protecting freedom of speech or freedom of religion.
One of the strongest arguments against same-sex marriage is that children of homosexual couples may not develop emotionally as well as children of heterosexual marriages. That may well be true. Evidence for both sides of the argument exists, but neither side’s evidence is strong enough to be conclusive. But even if same-sex marriage caused harm to children, there would still be no justification for banning it. Since children are not yet adults, parents assume responsibility for them as they would for themselves. Engaging in actions that harm oneself or unintentionally harm one’s child and no one else may not be advisable, but they should not be banned. For example, it is accepted medical understanding that a woman drinking while pregnant can cause the child to develop heart problems, learning difficulties and other health issues. Yet it is not illegal for a woman to drink while pregnant, nor should it be. So long as others are not harmed, liberty protects the foolish choices as well as wise choices. Thus, it may be that same-sex marriages are not developmentally healthy for children, but that is no basis to ban them.
Ideally, the state should have no business in marriage, same-sex or otherwise. The state should not distribute benefits to marriage or need to define marriage. But since the government is already in the business of regulating marriage, it should not discriminate against certain people’s desires to marry.
It seems humane and logical that the government ought to leave decisions of love and marriage to the individual. But why do many of us get upset over government’s ban of same-sex marriage, but not over the countless other personal freedoms intruded on by government? Why do we not oppose Obamacare’s mandate to buy insurance? Why do we not oppose laws banning online poker? Why do we not oppose laws requiring use of seatbelts and helmets? In general, why is it that we are only outraged against some violations of liberty but not all violations of liberty? If we are to live in the land of the free, we as citizens must stand up for the whole nine yards of liberty.
Oliver Hudson ’14 will advise you not to regularly drink 20-ounce sodas, but the choice is yours. He may be contacted at oliver_hudson@brown.edu.
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