From its inception, the gay civil rights movement has had two basic impulses, both of which I share. One has been equality, holding that gays shouldn't be discriminated against. The other has been liberty, holding that individuals should be largely free of government interference. Together, these impulses have gotten us where we are today: no more bar raids or sodomy laws, the free publication of gay magazines and newspapers, the formation of gay organizations, a smattering of laws protecting gays from employment and other bias. These are large accomplishments.
Yet we have hit a wall of public disapproval on gay marriage and, more broadly, on the morality of homosexuality itself. After moving the polls in our direction for a decade or so, the number of Americans who support gay marriage has now stabilized and even turned slightly against us. The same trend is evident when people are asked about the morality of homosexuality. Republicans, by 68 percent to 27 percent, believe homosexuality is morally wrong. Even Democrats muster only a bare majority for the view that homosexuality is morally acceptable (50 percent approving to 46 percent disapproving).
How do we breach this wall? Not, I think, by more talk of equality and liberty. We have won over just about everyone who will be moved by such arguments. That leaves more than half the public still unpersuaded.
Marriage is the perfect example of why we've hit this wall. Marriage is neither egalitarian nor libertarian. It is practically the opposite of these things and that is why appeals to anti-discrimination principles and individual rights fall flat.
Consider first how inegalitarian marriage is. Marriage, by law and custom, is judgmental. It says that some ways of living are better than others. Some relationships are better than others. Sex within marriage is better for people than sex outside of it. Monogamy is better than promiscuity. People should make babies when they are married, but not when they are not. Children are better off raised by two people than by a single person or by three people or by a commune.
Marriage gives to some relationships, but not to any others, an array of social support, benefits, and legal protections. In other words, marriage creates status hierarchies that are antithetical to the liberal egalitarianism that has dominated the gay civil rights movement for almost 40 years.
One can make an egalitarian argument for gay marriage. This is what many left-progressives have rather uneasily tried to do. One can argue, for example, that gay marriage is justified on the principle that gay couples are relevantly like straight couples and so should not be treated differently. That's right as far as it goes, but it still means we're saying that gay-couple relationships are better than other relationships and many progressives are uncomfortable saying things like that. Gay marriage gives nothing to single people and to relationships - gay and straight - that don't fit the traditional pattern of two-person monogamy.
Honest progressives have long understood this and for that very reason have resisted the gay-marriage movement. They do not like status hierarchies and correctly see gay marriage as reinforcing them. They want everyone to be given legal protections and benefits, regardless of the form, nature, and numerosity of the relationships they enter.
Now consider how unlibertarian marriage is. Nobody is literally forced to get married. But civil marriage, as an institution shaped by the state, puts the government in the position of backing some relationships at everyone's expense. Each of the various legal benefits associated with marriage carries a price that is borne through taxes by everyone, including those who don't want to marry. Marriage is a tax on being single or polygamous.
One could make a libertarian case for marriage by arguing that marrying is a choice that should be freely open to autonomous individuals. But this view misses the point of marriage, which is not a celebration of individual autonomy. Marriage is about duty to others, not freedom for oneself. Further, in marriage, the state is hardly neutral about the choices made by individuals. It encourages people to make the marriage choice and then, once they've made it, regulates the choice by conditioning their conduct in it and their exit from it (through divorce).
That's why some libertarians eschew gay marriage in favor of abolishing marriage altogether and replacing it with a system of allowing people to enter enforceable private contracts for mutual care. Under this arrangement, individuals would choose the terms of their own relationships, not have those terms imposed by the state through marriage. One would "contract" a relationship as one contracts a business deal. This proposal is completely utopian (or in my view, dystopian), since abolishing state-sanctioned marriage after centuries of state involvement is even less likely than the election of a Libertarian Party president. But for a libertarian it has the academic virtue of consistency.
Marriage is founded on neither equality nor liberty. It is in some ways the negation of these. It is a way of binding people together in a union that is thought to benefit the couple, any children they raise, and the community around them, to an extent that other relationships simply do not. That's why it is a social institution. It is shaped by and helps to nurture the society in which it arises.
If we are to get gay marriage, we must be able to appeal to the bulk of the country that properly understands marriage in this way. We must argue for it not primarily on the basis of anti-discrimination principles, or on the basis of individual liberty, but on the basis of community. It is like nothing else we've fought for.