Gay Marriage

The Status of Gay Marriage and the GOP: It's Complicated

Their evolution is bound to be different from Obama's


If you love "traditional marriage" so much, why don't you marry it?

The press coverage for CPAC today has been focused on the caged matchup between senators Marco Rubio and Rand Paul (there was no actual debate between the two men or anything like that, but no force on earth can stop a media narrative once it reaches full speed).

When CPAC comes around, the Republican Party's position on gay marriage ends up on display, and this year was no different. CPAC did not invite conservative gay group GOProud to participate, but they managed to find their way in anyway thanks to a panel put together by the Competitive Enterprise Institute called "A Rainbow on the Right: Growing the Coalition, Bringing Tolerance Out of the Closet."

With more and more Republicans "evolving" along with President Barack Obama on the issue of recognizing same-sex marriages, it's then worth looking at Rubio's and Rand's recent comments.

Rubio addressed the issue directly in his speech today. Philip Klein at the Washington Examiner thinks the language Rubio used indicates a shift within the party:

[I]t was eye-opening to hear Rubio, a major conservative in the Senate speaking at the largest annual gathering of conservatives, declare: "Just because I believe that states should have the right to define marriage in a traditional way does not make me a bigot." …

Just a few years ago, that sentence might have read, "Just because I believe that states shouldn't be allowed to redefine marriage does not make me a bigot."

It's telling how far the gay marriage debate has moved in the direction of its proponents in such a short period of time.

I'm not sure I necessarily agree here. Conservatives and progressives alike tend to have a new appreciation for federalism when their power in Washington wanes. There's a defensive tone to Rubio's comments (you can watch the speech here and judge for yourself). He's defending tradition, not liberty and not the Tenth Amendment. The way he put that sentence together makes me wonder what he would have said if his home state of Florida had legalized gay marriage recognition. Does he also believe states have the right to define marriage in a non-traditional way?

Paul did not discuss gay marriage recognition in his CPAC speech today, but he endorsed the libertarian "get government out of marriage" position in a recent National Review interview:

Social issues are another area where he thinks Republicans can make a better argument to independents and centrists without departing from their principles. Gay marriage, for instance, is one issue on which Paul would like to shake up the Republican position. "I'm an old-fashioned traditionalist. I believe in the historic and religious definition of marriage," he says. "That being said, I'm not for eliminating contracts between adults. I think there are ways to make the tax code more neutral, so it doesn't mention marriage. Then we don't have to redefine what marriage is; we just don't have marriage in the tax code."

While I don't disagree, what I always worry about these arguments is the lack of a path to get from point A to point B. It seems that often the only time the "get government out of marriage" position comes up is when recognition of same-sex marriage is invoked. Paul's response leaves the reader to wonder whether, in the absence of this massive shift in the tax code, he would allow same-sex couple the same level of federal recognition as heterosexuals, regardless off his own traditions.

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  1. “While I don’t disagree, what I always worry about these arguments is the lack of a path to get from point A to point B.”

    The same thing could be said of the libertarian argument.

    STEP 1: Support govt recognition of SSM
    STEP 2: Private companies are forced to recognize same-sex unions.
    STEP 3: ?????
    STEP 4: Deregulation of marriage!

    1. It raises the issue of if the state should be as least unfair as possible when it goes about fucking things up.

      I’m not sure which answer is best or the most libertarian.

    2. Sigh. At least you’re consistent sir.

    3. Private companies shouldn’t be forced to recognize any unions.

      1. True, but check the text of the SSM bills – they have narrow exemptions for some religious people, but these exemptions scarcely ever apply to for-profit businesses, or even to all religious institutions.

        Go ahead – try to find a genuinely libertarian SSM bill.

        1. The status quo of government enforced recognition of heterosexual marriage isn’t exactly libertarian

          1. Nor are anti-discrimination laws.

            1. Yes, I agree. My point is that Eduard bases his argument on the fact that the proposals are unlibertarian to some degree, ignoring the fact that the status quo is unlibertarian. Just because anti-(private) discrimination laws were a part of the Civil Rights Movement doesn’t mean that desegregation overall was a bad thing

        2. New Hampshire: 457:1-a Equal Access to Marriage. Marriage is the legally recognized union of 2 people. Any person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender. Each party to a marriage shall be designated “bride,” “groom,” or “spouse.”

          1. The NH bill removes heteronormative definitions from the bill.


            I think it *very* likely that this will interact with the state “civil rights” law to ban private discrimination based on the discriminator’s definition of marriage:


            1. IT LEARNS! Their civil rights law would be considered un-libertarian so far as it’s used to force private businesses from operating as they see fit. Using gender neutral language in marriage law does not explicitly force anything on anyone, but expands the options available to individuals.

              1. urgh, end of the day *”prevents private businesses from operating as they see fit.” OR “force private businesses to serve customers they wish not to.”

              2. “does not explicitly force anything on anyone”

                But I’m going to guess it *implicitly* interacts with the “civil rights” law to force private businesses to share the state’s definition of marriage.

                New Hampshire, I admit, is the first SSM law I saw which *doesn’t* contain a limited exception for some private entities but not others, thus sending a clear signal that some private entities (generally secular businesses) are going to be affected.

              3. It doesn’t learn, jesse. He’s here to jerk off over one of his pet issues. It’s not like you’re going to change his mind. He’s a religious nut who thinks gays are bad, mm’kay?

                1. Tell your mom I said hi.

                2. I don’t really want him to learn Epi. My family is wall to wall conservative evangelicals (and one anarcho capitalist). EvH is a delightful opportunity for me to get arguments in order for Easter Brunch. They won’t change either, but I like making them fight for themselves.

                  1. Glad to be of service.

        3. The text of NY’s is formatted terribly for copying and pasting.

          But basically all of the actual SSM bills that I’ve looked at directly explicitly state that marriage is to be treated as gender neutral. None of the bills I’ve looked at contain a non-discrimination clause that forces bakers to make cakes. Those are separate.

          1. Yeah I suspected he pulled that out of his ass.

          2. Did you notice the law’s exemption for charitable and religious groups? There is no reference to an exemption for secular businesses, as the business in this article discovered:


            Here is how the Village Voice described the case:

            “One minor hurdle for the [complaining lesbian] couple — as far as their discrimination claim is concerned — is the fact that because New York’s gay marriage law is so new, there’s no case law for a judge to consider.

            “Be that as it may, the state allows certain exemptions from discrimination laws for venues with religious affiliations or membership — like the Knights of Columbus — when it comes to gay marriage. But Liberty Ridge has no membership program, or religious affiliation; it’s just a farm — owned by bigots.”

            So the narrow scope of the exemption *does* seem to matter, after all.


            1. I’m not sure I understand your point. If I went into a shop and they didn’t serve me because I have a beard I could file a lawsuit. Nothing in NY’s marriage law gives their lawsuit any more traction than if a ginger couple sued because a baker thinks they’re soulless. If they have a separate non-discrimination ordinance then their lawsuit might have more traction.

              1. They *have* a “human rights” ordinance, but this is the first time it’s been used to require a private business to share the state’s definition of marriage. Check my links to impeccably gay-friendly sites, especially the *Village Voice* – the narrowness of the exemption for private parties is mentioned as hurting the business’s defense.

            2. These exceptions are places are actually more “libertarian” than bills that simply make marriage gender neutral. Outside these exceptions gay marriages are treated exactly the same as straight marriages. If a private business is forced to accept a straight marriage then they are also forced to accept a straight marriage.

              So you problem is with laws that force people to accept marriages in general. Attack those laws. The new gay marriage laws do not enforce any new constraints on businesses, in fact they’ve added a few exceptions. It’s not like a religious institution is exempt from recognizing a straight marriage.

              1. I didn’t notice that you were referring to laws against discriminating against customers but was referring more to laws that force businesses to treat marriages a certain way like health insurance or something.

                Still, the problem is the discrimination laws not the marriage law.

              2. “The new gay marriage laws do not enforce any new constraints on businesses, in fact they’ve added a few exceptions.”

                I disagree. Before these laws, private parties were generally not required to recognize same-sex marriage – except in some states like New Mexico, which AFAIK have civil unions and felt free to require equal status for civil-union ceremonies.

                1. It is still those other laws applying constraints not the marriage one.

                  I’ll also say that the issue with these discrimination laws should be the liberty to run your business as you see fit for everyone. I understand why legally (1st amendment) people would focus on religious liberty on this and on things like paying for abortions/contraception but it irks me a bit. Why should my moral objection as a pro-life atheist be any less valid that a religious objection? OT a bit I know.

                  1. Not off topic at all. My point is that these laws *do* clearly indicate that secular for-profit businesses, unlike most religious organizations, can be targeted.*

                    Before, these businesses had the right to decide for themselves how to define marriage and whether to give differing treatment to employees and customers based on marital status. Now, they have lost that option. Their liberty is more constrained under the gay-marriage statutes than under the predecessor statutes.

                    You can say that’s part of the price of “freedom,” but it is hard to deny that it’s actually happening.

                    *But there are some states like New Jersey and Washington where not even all religious groups are exempt – which is another story.

          3. Are you suggesting that people could punished for not serving at a gay wedding in a state that banned discrimination on the basis of sexual orientation, but that did not recognize gay marriage?

            It seems like it would be hard to make that stick, since the defendant could just claim that they were only discriminating between weddings for marriages that are legally recognized and those that are not. So, essentially, the marriage law would add more teeth to the discrimination law.

            Plus, it would add very contentious teeth — serving a gay couple in a restaurant doesn’t make you a party to their relationship, however you feel about it morally; being coerced into serving at a ceremony centered around socially validating that relationship (and yes, the threat of being sued is a form of coercion) is a whole other can of worms.

            Now, if you have a marriage law without a discrimination law, then there’s no problem, true, but I would imagine that with banning generic discrimination sitting closer to the political center than gay marriage, any place that allows same-sex marriage will already have a discrimination law.

            1. So we agree that SSM inherently isn’t at fault, but the problem is that it’s frequently (possibly always) saddled with non-discrimination ordinances? At that point it becomes awkward to say that SSM shouldn’t be allowed because NDOs can force people to participate in them. I believe the gun enthusiast set would point out that just because some people use them wrong isn’t a good excuse for trying to curtail their lawful use of them. I think that’s roughly the point here.

  2. Isn’t a CPAC something you use if you suddenly stop breathing at night or something?

    1. Maine: Marriage is the legally recognized union of 2 people. Gender-specific terms relating to the marital relationship or familial relationships, including, but not limited to, “spouse,” “family,” “marriage,” “immediate family,” “dependent,” “next of kin,” “bride,” “groom,” “husband,” “wife,” “widow” and “widower,” must be construed to be gender-neutral for all purposes throughout the law, whether in the context of statute, administrative or court rule, policy, common law or any other source of civil law.

      1. Blast, that was supposed to be responding to Eduard.

        1. I like it.

          As I said, a friend of mine would not have been screwed out of a lot of money, were that the law in my state. There was no legal protection for her, since the language is not interpreted to be gender-neutral. So her ex got all her money.

          Should she have drawn up a contract? Probably. But I never have. Someone shouldn’t need a special contract to get common law rights and protections.

          1. Oh wait… I DIDN’T say that here. It was somewhere else. But whatever. The fact remains.

          2. Yeah, I feel like gender neutral language in the law is a no-brainer at this point.

            1. What about sex neutral language? Did Congress outlaw biology?

              1. Zing! Please, tell me where the law should be gender specific.

              2. Sex-neutral marriage isn’t illegal.

                That would be sex without the gears engaged, or marriage with sex that’s neither good, nor bad.

      2. If you mean Maine’s Question 1, it contains this:

        ” 3. Religious exemption. This chapter does not require any member of the clergy to perform or any church, religious denomination or other religious institution to host any marriage in violation of the religious beliefs of that member of the clergy, church, religious denomination or other religious institution. The refusal to perform or host a marriage under this subsection cannot be the basis for a lawsuit or liability and does not affect the tax-exempt status of the church, religious denomination or other religious institution.”


        Again, if private institutions were exempt, there would be no need of this narrower exemption for religious organizations.

        If fishing were legal all week, there would be no need of a law saying “Fishing is legal on Tuesday.”

        If private institutions, secular and religious, were exempt, there would be no need for a narrow exemption for religious institutions only.

        Thus, it appears that private secular institutions are affected.

        1. So legislators put in a specific conscience clause due to the hand wringing of the religious, and then the religious get to come in and say that the conscience clause that THEY DEMANDED is evidence of evil intent?

          Shall I put up a maypole for us to dance around? I do so love skipping in circles around things.

          1. I don’t understand it either Jesse.

            Shall I put up a maypole for us to dance around? I do so love skipping in circles around things.


          2. Never mind evil intent, it’s a basic matter of legal interpretation. If a statute says fishing is legal on Tuesdays, that suggests fishing *isn’t* legal on the other days of the week.

            If a law says that private organizations of a religious nature are exempt, that suggests that private organizations of a secular nature are *not* exempt.

            “the hand wringing of the religious”

            You mean, asking assurances that they won’t be treated like religious groups in New Jersey and Washington state, which have to give access to same-sex weddings if they are in the habit of charging money for access?

            If these legislators wanted to grant full exemptions to private groups, they could have easily done so. The fact that they grant only a limited exemption to some groups says all you need to know about their designs on secular for-profit businesses.

      3. Ridiculous. Everyone knows that anytime two ore more people get together for anything it’s called a “government.”

  3. “It’s complicated.”

    Heh. I see what you did there, Shackford.

    1. Blame it on Rand Paul’s invocation of the Facebook Generation at CPAC.

  4. It seems that often the only time the “get government out of marriage” position comes up is when recognition of same-sex marriage is invoked.

    Where, one wonders, would one find articles arguing this position? I am certain there are dozens of articles on this very site that don’t ever fucking mention “get government out of marriage” but instead talk about “fairness” like they were written by Tony.

    Are you saying that there is some group who hold the position that government should get out of marriage? I don’t believe it.

    Here is a fabulous idea, Scott. Write an article about how the government should have no place in marriage and defining contracts. How about a little “fairness” for single people? They don’t whine enough so they don’t count?

    If it is unfair for same sex couples to not be recognized by the State it is just as unfair for single people to not be recognized.

      Gay Marriage, Like All Marriage, Not Worth Celebrating

      Beware of governments granting the “right” to enter onerous lifelong contracts.


    2. What unfairness is being dealt to single people? That they’re not being given government goodies? Is this an equal protection argument?

      I say let single people have their day in court. In the meantime, do you have an opinion on the actual issue?

  5. Just because I believe that states should have the right

    You Fail Liberty Forever.

  6. I got to attend that panel and it was actually pretty good. Even better the room was packed, it was at a competing time spot with Paul Ryan, and it ended with a standing ovation.

  7. That dude jsut looks liek he knows whats going on. Wow.

  8. So now why diudnt I ever think of that? Wow

  9. Our Prediction is Simple:If our countries U.S. Supreme Court liberates these 20,000 Same Sex Married U.S.Couples,their new legal community within 5 years will be calling (lobbying Congress) for their own same sex Marriage Family Court Gay Judges !

    There are over 100 million+ Religious Americans who can all count on future Gay Family Court Judges sitting roost over straight family values for all our Religious USA families..

  10. I reject the insinuation that Sen. Paul should be prepared to recognize same-sex “marriage” in the federal tax code.

    Removing the state from marriage and confining it to civil unions evinces merely agreement that “we” need not evaluate motive, merely keep records. A Hawai’ian legislator years ago proposed allowing any two people to civilly unite. As the commentary said, the law would allow an aunt and nephew to civilly unite, because it was that neutral. So what? Maybe the nephew takes care of the aunt, so they want to make their property communal and have hospital visitation rights.

    I would promote my own state being that neutral, but I would not support the state giving public approbation to the idea that two people joining in a mere civil union constitutes a marriage, because I do not believe it does. I’m as entitled to my belief as you are to yours. Once you keep something in the “commons”, the majority has a right to discretion over it.

    Sen. Paul is saying he is prepared to take something out of the commons, and what can be more libertarian than maximizing the size of the PRIVATE sphere, where we all (to quote his father so humbly) “mind our own business”!

    If I’m forced to keep a matter in the public sphere, then I’m going to promote it being as close to my own “druthers”, because private alternatives are crowded out. People don’t go to the trouble to contract private marriage contracts because the state has a ready-made definition on standby.

  11. Religious Americans need to be properly educated to the realistic future USA Family Court ramifications of this Same Sex Marriage horror becoming law !

    The American Amish were smart and found great legal minds to protect their community from outside influences.Religious America now also needs these same keen legal minds for proper protection from future Gay married Judges sitting roost in U.S. family Courts & deciding straight family values..

  12. For all those Religious Americans who have already been involved previously with our U.S. Family courts we can only say,you were lucky to not have been forced to allow a Same Sex Married Judge sitting roost over your Straight Family Values !

    The U.S. Supreme Court should never side with liberating these 20,000 Same Sex Married couples knowing their legal decision will drastically affect 100 million+ Religious Americans nationwide..

    Where are these bright Amish American Lawyer’s when our Religious Masses need them ?

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