A Stitch in Haste

Anybody remember The Day of the Dolphin?

Actually I barely remember it myself, but I do vaguely recall one scene in which Paul Sorvino, who plays some sort of government agent, warns George C. Scott that the government will eventually come after his talking dolphins.

A member of Scott’s team says something like, “The government? Aren’t you the government?”

To which Sorvino responds with a lengthy, fact-filled soliloquy (no doubt a future Kip Clip) along the lines of: What do think “the government” is? The government is not one single enterprise with a single agenda and single chain of command. “The government” is really a vast network of factions competing against each other for money, staff, prestige — and of course power. Or words to that effect.

It’s that same sort of hapless political naivete that leads a writer at the flagship libertarian journal Reason to denounce judicially imposed same-sex marriage rights:

The Connecticut Supreme Court decision that came down on Oct. 10, which echoed the California ruling, was a reminder of the flimsiness of the case for judicial imposition of same-sex marriage. The justices said depriving gays of the right to marry would deprive their children of the “immeasurable advantages that flow from the assurance of a stable family structure.” But the state had already provided those adults and their children exactly that, in a 2005 law giving gays the legal benefits of marriage under the rubric of civil unions.

Under state law, civil unions are, as everyone agrees, substantively indistinguishable from what heterosexuals get.

First of all, that last sentence is simply incorrect as a matter of law and fact, as I have noted previously. A couple in a civil union cannot export their marriage to a state, like New York, or a nation that recognizes but does not offer out-of-state same-sex marriages. A couple in a civil union has no legal standing to challenge federal DOMA. And so on.

But that didn’t particularly impress the state Supreme Court, which says the law deprives homosexual couples of the equal protection of the law. Far from advancing their equality, it concluded, the legislature “has relegated them to an inferior status.” And: “There is no doubt that civil unions enjoy a lesser status in our society than marriage.”

Really? No doubt at all? As one dissenting justice noted, expressing his own doubt, “what is perceived or considered to be an inferior status in a given society may not be readily apparent when the subject is a brand-new institution.” It may be that over time people will come to regard civil unions as a pale imitation of marriage. The alternative is they will come to regard them as the full, though distinct, equivalent.

It’s a comforting cliche that separate means unequal, but we know better. No one thinks that when a university fields sex-segregated sports teams, it brands women as inferior.

Of course, the convenient blank-out in that embarrassingly stupid analogy is that “no one thinks” that there is no legitimate reason to segregate men and women in college athletic activities — there clearly is. (But would Chapman condone, I wonder, gender-segregating college chess or debating teams on a flimsy, “no big deal” assertion that women would have no grounds to feel wrongfully excluded?)

To use Chapman’s phrasing: we know better. There is no legitimate reason for segregating gays and straights in partnership options. The reasons heretofore proffered by anti-gay bigots — tradition, procreation, etc. — are of course wholly illegitimate, at least in an enlightened society with an enlightened jurisprudence. (They are in fact so illegitimate that Chapman himself omits them completely, opting instead for his “no big deal” gobbledygook.)

Going back to Day of the Dolphin, one gets the impression that Chapman is like the naive scientist, seeing only “the government” acting in a way he finds wrong, frivolous or premature. In this the (faux) libertarian argument against gay marriage strikes again: the absurd notion that judges “expanding marriage” equals “expanding government power” (when in reality it contracts a malignant-to-libertarians government power: the power to irrationally discriminate and thereby violate the sacrosanct principle of equal treatment under the law).

To confused, not-quite-libertarians like Chapman, the government is the government and the government is the enemy. Moreover, as a corollary every element within “the government” is also “the government” — and therefore every element within “the government” is also the enemy. A politician is a bureaucrat is a general is a judge. And when any of those elements act — even judges — it is, to Chapman and his ilk, an affront to libertarian sensibilities.

As I once blogged:

I will never — never — be more afraid of judges than of politicians. And I will always — always — be afraid of those who are.

Guess I have to start fearing my fellow libertarians now.

(See also the comment thread to Chapman’s piece, where most of the substantive entries are, quite correctly, critical of his thesis. There is also a refreshing dearth of the “ban gay marriage to stop the expansion of government power” idiocy that I noted in this recent post.)

Previously:
–New Jersey: Are Civil Unions Enough?
–On the Connecticut Marriage Decision

Filed under: Constitutional Issues, Gay Rights and Issues, Law, Libertarianism, Society, Religion, Culture Wars