I have long argued that the “right” to government recognized same-sex marriage is illiberal and inegalitarian. It is by definition a right to compel the government to use some magic word in a particular way. In essence, it is a right is to say and think, truthfully: Nah, nah, the government calls same sex relationships “marriages,” so there! Conversely, it is right to make others say and think, truthfully: Grr, the government calls those things “marriages”?
No such right can be enjoyed equally with others. No matter what class of relationships the government calls “marriage,” there will always be some individuals for whom the class is too broad (because, say, it includes same-sex couples) or too narrow (because, say, it excludes plural marriages). The right to government-recognized marriage is inherently a right to use the soft coercive powers of the government to discriminate against others.
Some people tell me that this analysis is no more than sophistry. Well, it now turns out that no less an authority than Judge Vaughn R. Walker of the United States District Court for the Northern District of California agrees with me. In his opinion striking down Prop 8, Walker correctly found that same sex couples enjoyed all of the same legal rights, privileges and duties as opposite sex couples, with one exception — namely, the “right” to have the government officially refer to their relationships as “marriages.” If Prop 8 has no legal effect, why strike it down as unconstitutional? Because, says Walker:
Domestic partnerships . . . do not provide the same social meaning as marriage.
A domestic partnership is not a marriage; while domestic partnerships offer same-sex couples almost all of the rights and responsibilities associated with marriage, the evidence shows that the withholding of the designation “marriage” significantly disadvantages plaintiffs. The record reflects that marriage is a culturally superior status compared to a domestic partnership. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution that denies marriage to same-sex couples.
(emphasis added.) In other words, same-sex couples have a right to have the government create “social meanings” that are to their liking and deem their relationships “culturally superior.” If you don’t like those social meanings or have a different view of cultural superiority, then tough. Advocates of same sex marriage get to have their moral views vindicated by the State and (implicitly) to have yours ridiculed and vilified.
Judge Walker’s opinion isn’t about freedom. It isn’t about equality. It’s about using the power of the state to change minds. How any liberal could welcome this development utterly escapes me.