Box Turtle Bulletin

Ladies and gentlemen, thank you for having me here today. While some folks might express surprise that I stand here today to speak at the Log Cabin Republicans National Convention, the common ground on which Republicans, Democrats, Libertarians, and other civil libertarians find themselves with increasing frequency standing against government encroachments on liberty, should surprise no one here. I am delighted and honored to be with you, and to encourage you to continue in your work to refresh and restore America’s promise of a society in which individual freedom is maximized, and in which the countervailing and often heavy hand of government power is minimized.

I am here to speak with you about the most important topics of our time in history – individual liberty and the role of government in our lives. The marriage debate is an important element of this fundamental debate of the 21st Century (but certainly not the only one) – have we reached the tipping point in the balance between government power and individual freedom, such that the former has completely overwhelmed the latter?

As Ludwig von Mises wrote, “Government is essentially the negation of liberty.” Certainly, some degree of government is necessary to safeguard our unalienable rights to life, liberty, and property. Any degree of government that is more than necessary itself, intrudes on these rights, and should (must) be opposed. This includes those laws limiting personal choices and relationships that do not harm others.

Just how bad has it become? We lawyers learn and can cite many of the more than 4,400 criminal laws limiting and defining behavior under federal law. All of us likewise are familiar in our professional and community lives with the many thousands more state and local laws and ordinances. What many people tend to overlook, however, are the many licensing requirements that define so many activities in our lives.
A license is a control mechanism; also a means to raise revenue. To license is to grant permission. To license is to control. Which brings us to the real question when discussing whether same-sex marriage should be legal – why do individuals need the government’s permission to marry? The real issue here is not marriage – it is control. Control – the Big C of 21st Century public policy. The important question is whether the government has the proper authority to dictate which individuals can enter into a binding legal agreement. The very nature and history of government action since our nation’s founding reveals it is all about power and control. The effort to define marriage directly or indirectly is but another of many examples of this universal truth.

But how we frame the debate is often times as important as how we actually fight the fight. The perspective we bring to discussion of issues involving personal liberty will largely determine our chances for success in such endeavors. If we define the question narrowly – “the Second Amendment simply protects the carrying of a firearm” – rather than as an element of a fundamental struggle between individual liberty and government power, we make it easier for government to succeed in its efforts to control. Defining the debate narrowly makes it easier for government to divide and conquer, or to trivialize the individual effort. In other words, when defending one’s Second Amendment rights against government intrusion, the question should be framed thus: “the Second Amendment is not simply a mechanism to protect gun owners from having their right to possess a firearm taken away; but rather a means of protecting the fundamental liberty and freedom that comes with being a human being in a free society.”

The same applies to First Amendment freedoms. It is not simply about being able to read a particular newspaper or attend a particular church. Rather it is the fundamental freedom to possess and act on one’s own, private beliefs and desires; to live one’s life as one wishes. This reflects the fundamental right to privacy; the most important of all rights as noted by Ayn Rand in her 1943 novel “The Fountainhead.” Justice Louis Brandeis concluded similarly 15 years earlier when, in 1928, he penned a famous dissent in the Olmstead case; in which he noted, “they [the makers of the Constitution] conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”

Brandeis was right. Our Founders did understand this principle. As James Madison noted in Federalist No. 51, it is every bit as important that government “control itself” as it is to have government control the governed.
Clearly, however, in recent decades we have not done a nearly adequate job of controlling government. In fact, we have permitted the sphere of government control to expand exponentially, with a corresponding shrinkage of the sphere of personal liberty. In modern times, we have done a pitiful job of using government to control government. Government and our Constitution are now used almost exclusively to expand, not limit, the power of government. Marriage is but one example.

With the massive expansion of the regulatory state has come a vast increase in the power of the government to control personal behavior in every aspect of life; from who can marry and how one can defend one’s life or property, to what type of light bulbs illuminate our homes and how much water can flow through our commodes. This is the slippery slope of regulatory creep or incrementalism. A prime example of this slippery slope of using government regulation to tighten the noose of control and restricting liberty can be seen in how the marriage issue has evolved throughout history. What was once a private contract between consenting individuals is now a complex web of laws and regulations affecting with more than 1,100 rights, duties, and entitlements granted only with the state’s permission.

Historically, marriage was considered and recognized simply as “a civil contract to which the consent of the parties is required.” Marriage was for procreation as well as building financial, social and, in some cases, political alliances. Marriage licenses, however, were established to exert control and raise revenues when the state-run Church of England decided it wanted to have a say in approving marriage partnerships. This practice spread to the American colonies, where both the church and states allowed marriage by publication of “banns.” A “bann” was a “public notice that was written, published or orally announced for three consecutive meetings at the churches of the bride and groom.”

Marriage licenses themselves, however, were not issued in America until the mid-1800s. Initially these licenses served a negative function — to prohibit interracial marriages. In the intervening century and a half, such licenses have been employed to establish and enforce myriad prohibitions and benefits. By 1929 every state had adopted marriage license laws. One of the last refuges of individual liberty – common-law marriage – is being rapidly destroyed. Common-law marriage can no longer be contracted in 26 states (including in my home state of Georgia), thus forcing individuals who want to marry to seek and receive permission from the state.

What was once seen as a contract between two individuals, which the state may be called upon to enforce (and which under Article I, Section 10 of the U.S. Constitution, should be protected against impairment by state actions!), became an institution for the state to regulate and control; simply another way for government to dictate how individuals may live. What was once a contract between two consenting individuals, perhaps their God, and possibly even after the groom obtained the father of the bride’s permission, is now a mandated pact between those individuals, their God, and the state; with the state essentially “giving away” the bride and the groom with its grant of permission to marry.

As libertarian David Boaz, Executive Vice-president of the CATO Institute, has pointed out, “privatizing marriage, would, incidentally, solve the gay-marriage problem. It would put gay relationships on the same footing as straight ones, without implying official government sanction. No one’s private life would have the official government sanction – which is how it should be.” By getting government out of the marriage business, or at least limiting its involvement by bifurcating civil marriages from religious unions with perhaps differing definitions, individuals seeking to marry would be treated as equals in the eyes of the law, a result much more in line with the principles and concepts of federalism, individual liberty, and limited government powers underlying our republic.

As far as regulating is concerned, the Supreme Court has repeatedly held that “marriage” is a fundamental right. In Loving v. Virginia, the seminal Supreme Court decision that struck down bans on interracial marriage, the Court stated, “marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival . . . ” 388 U.S. 1 (1967). In Turner v. Safley, 482 U.S. 78 (1987), the Court upheld a regulation that prohibited inmates at one prison from corresponding with those at another, but struck down another regulation that prohibited inmates from marrying without the permission of the warden. On the latter decision, the Court held that prisoners have the right to marry. In Zablocki v. Redhail, 434 U.S. 374 (1978) the Court said:

“[T]he right to marry is of fundamental importance for all individuals. It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”

A federal law that burdens a fundamental right is – should – be deemed in violation of the principle of equal protection. When viewed as a fundamental personal decision on the right to associate, it clearly falls within the ambit of the XIV Amendment’s notion of “privileges or immunities.” Prohibitions against same-sex marriage violate the equal protection clause by placing more than a burden on this right – an outright prohibition for one group of individuals to exercise that right legally and to have their contracts enforced by the courts.

DOMA (Defense of Marriage Act)

Like most people, my views on many such public policy and legal issues have evolved over time, particularly after the tragic events of September 11th when government greatly intensified the pattern of increasing infringements of our civil liberties. Since that time, the government has become so powerful that it has virtually limitless ability to control people. This brave new world of virtually unlimited government power has caused me, and many others, to reevaluate a number of areas of government influence where we might previously have consented to or supported government encroachment, because there remained a robust sphere of personal liberty. Yet now, in our post-911 world in which the power of government threatens to envelop virtually every aspect of personal freedom, we can no longer accept such balancing.

Moreover, in the case of DOMA, the power granted in that law to the federal government to define marriage as between a man and a woman only, but just for purposes of federal laws, has in fact and unfortunately, become the tail wagging the dog, and is being employed as a hammer with which the federal government and federal officials force states to define marriage similarly (under threat of losing federal benefits). This hardly comports with notions of conservative government or of federalism as understood by our Founders.

It also is – or should be considered – a fundamental and encouraged exhibition of conservative governance, to never be afraid to reevaluate a power once granted the government, in light of changed circumstances and abuse in its execution.

What many so-called conservatives fail to realize also is that defending traditional notions of morality (if consistency is to be a component also of our political philosophy) ought to include keeping the government as much out of our personal lives as possible and limiting its power as much as possible. And, speaking of morality, using the collective power of the state to do what individuals cannot do – impose the will of one group of people on another set of people – is truly immoral. We each were endowed by our Creator with one life and we should be free to live it as we see fit, so long as we do not harm another.

DON’T ASK /DON’T TELL

Speaking of getting government as much out of our personal lives as possible, there is no intellectually honest reason for the government to restrict people from serving in the armed forces based arbitrarily on whether others know the details of their personal, private sexual orientation. There is one important caveat, however, and that is, that personal behavior or sexual orientation should not be a barrier to military service so long as it does not interfere with the good order and discipline of the military. Any disruption of that good order and discipline for any reason – whether it be due to an individual’s sexual acts, acts of violence, or acts of dishonesty in any sphere, or any other manifestation of personal behavior – should be treated as any other disciplinary matter under the Uniform Code of Military Justice. The decision on Don’t Ask/Don’t Tell should be that it be fully rescinded and such behavior as was covered by the policy be judged by the one objective criteria governing other activities of men and women in uniform – only those acts adversely affecting the good order and discipline of the military should subject an individual to adverse action.

CONCLUSION

Until we as a nation decide to begin dismantling the regulatory state we have allowed to be built up around us and which now controls everything from what we can eat to how we illuminate our homes and flush our toilets, and from who treats our illnesses to who we can marry, then we will be doomed to live in a dystopian society. Writers from Jeremy Bentham to Ayn Rand identified to us the dangers of taking away man’s privacy as a prerequisite to controlling him. But modern societies appear blissfully ignorant of such warnings.

The marriage issue, if continued to be viewed as nothing more than a tax problem or in terms of sexual preferences, will continue to serve as a political football for those advocating for state power. Its debate must be centered on fundamental individual liberty. You understand this. After all, this is the clear and fundamental mission of Log Cabin Republicans.

This is a vitally important goal — fully consistent with the goals of our Founders and many great leaders the GOP has fielded over the decades; but which, sadly often are lost now in debates over minutia, personalities and partisanship. In promoting equal treatment under the law, the Log Cabin Republicans must not allow its adversaries to define and pigeonhole it as only a gay rights group. It is more than that – its fundamental mission is committed to the core values of this country – limited government and individual liberty in all their myriad manifestations.