The thing I find most unsatisfactory about the debate over gay marriage is the widespread misunderstanding about the law as it is presently configured.
Of course, I cannot speak about the law in other countries but here in Britain same-sex marriage is not illegal it is void. There is a world of difference in those two positions.
Allow me to explain. If two men (or two women) in the UK decide that they wish to wed then they are perfectly free to engage in any type of marriage ceremony they desire accompanied by confetti, bridesmaids and any number of drunken, embarrassing relatives reeling around the dancefloor while the band plays ‘Tie a Yellow Ribbon Round The Old Oak Tree’.
Nobody is going to a lift a finger to stop them nor will they ever be subjected to any form of official censure or arrest or prosecution. However, the state will not issue a licence for that marriage and, as far as the law is concerned, there was no marriage. It never happened, it does not exist and the participants remain as two single people. Hence, the gay-marriage campaign (for want of a better term) is not really about rights but about recognition. What they want is not the ‘right’ to get married but the legal recognition of that marriage contract as having the same force and validity as the heterosexual version. In this day and age, legal recognition means state recognition.
Thus far, most governments have refused to concede this not, I believe, out of any antipathy towards homosexuals but rather a combination of the fear that it might be a vote-loser with lots of people who do and the prospect of having to redraft so many other laws (e.g. inheritance, adoption, taxation) as an unavoidable result.
Yes, marriage (in common with so much else) is a state-regulated business but the state did not create it. Traditional heterosexual marriage enjoyed centuries of customary (and common law) recognition long before HMG ever passed the first Family Law Act. In fact, all the government did was to acknowledge that the institution existed and then took over most of administrative formalities from the Church.
The typical (indeed, stock) libertarian answer to this problem is to propose the de-nationalisation of marriage so that same-sex couples will not have to rely on the benediction of the state in order to reap the benefit of a valid marriage contract. I, myself, have taken this same position. However, it occurs to me that the free market might not be the answer to this problem and could even make it worse.
The abiding characteristic of state-made (or state-endorsed) law is that everyone is forced to recognise and deal with it regardless of whether or not they approve of it. However, the opposite must also be true and the inevitable consequence of de-nationalising marriage is to de-nationalise the requirement for recognition.
For example, one of the commonest complaints I have heard from gay couples in the UK is about hospitals who refuse to recognise same-sex partners as spouses and therefore deny them privileges (such as visitation rights) that they grant as a matter of course to heterosexual husbands and wives. Now if HMG were to bestow its blessing on gay marriage then the hospitals would be forced to change their ways. They would have no choice. But, in a free market, they most certainly would have a choice. Without compulsion, they would be enable to set their own policies in this regard and a hospital, say with a very conservative board of governors, might decide that they simply will not recognise same-sex couples as ‘married’ regardless of how many bits of paper they wave around. Furthermore, there is not a damn thing anybody will be able to do about it.
And the same applies to hotels, banks, airlines, travel companies and a host of other industries and institutions? Without compulsion would same-sex marriages be recognised by, say the Roman Catholic Church? The Beth Din? An Islamic Bank? One man’s free market choice is another man’s discrimination but that is equation which never appears in the calculations of those libertarians who take it as read that, without state interventions, everyone will naturally make liberal and enlightened choices. A preposterous conceit. Yes, let the free market speak by all means but no-one should assume they are always going to like what is says.
Of course, the counter-argument is that there will be lots of people who are prefectly happy to recognise gay couples as married couples and treat them accordingly and that is surely true but that will still leave those gay couples facing the equivalent of ‘colour bars’, i.e. hospitals they cannot use and hotels that will not allow them to share a double room. If they feel a sense of grievance now over being treated differently then how much deeper will that sense of grievance grow in a society where it is not just permissable to treat people differently but sound business practice to do so?
It seems to me that what gay couples want is not a just a ‘right to marry’ but a society which naturally and happily regards them as married and no different in any way from heterosexual couples. But that requires a high level of customary acceptance which can neither be demanded nor simply conjured into existance.
This is not to say that customary acceptance will never happen. It may well happen and when it does, then the law will change to accomodate it without the need for noisy compaigns and agitation. But until such time as that level of acceptance has been achieved, gay marriage is going to require state intervention and lots of it.