Mixed-Up on Gay Marriage

Black people, better than most, should understand the importance of being able to choose who to love and who to marry.

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As columnist Earl Ofari Hutchinson notes, many blacks “seethe” at the comparison. As the argument goes, interracial marriage should not be compared to gay marriage because of the oppression blacks have suffered. Hutchinson dismisses that as being “self-serving.” It is also myopic, a case of a former slave putting on his former master’s clothing and wanting others to be treated as slaves.

The way to view this issue is to understand that government prohibition against marriages between consenting adults is a form of government oppression and a denial of individual liberty. In 1948, when the Supreme Court of California became the first state to strike down a ban on interracial marriage, Justice Roger Traynor wrote on behalf of individual liberty: “A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable.” [Emphasis added]

If you do find that someone special whom you consider irreplaceable, why would you want or need the government to give you permission to marry? At most, government should, in this case, fulfill the role of a clerk who takes down your basic information and files it away. For citizens making marital plans, we should give the government the equivalent of name, rank and serial number.

My former Cato Institute colleague David Boaz suggests that privatization is a “simple solution” to the battle over marriage in its various forms. “Make it a private contract between two individuals. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. This would “allow gay people to marry the way other people do: individually, privately, contractually, with whatever ceremony they might choose in the presence of family, friends or God.”

When it comes to our voluntary, consensual associations with other adults, we may need to give the government notification, but that should not be confused with seeking permission. If there was ever an issue in which government and other third parties should butt out, it is the choice of a spouse. My conservative friends who say “you can’t legislate morality” nevertheless want to do so when it comes to gay marriage.

Gay people are now fighting for the right to marry the person they choose, someone they consider irreplaceable. I hope they get what they want. I would also advise that they try to find a client with a surname like Liberty or Freedom to be a plaintiff. It worked out for the Lovings.

Casey Lartigue is a former policy analyst with Cato’s Center for Educational Freedom