Debunking Arguments for the Hate Amendment, Part Two

In my never-ending quest to convince people that Wisconsin's Hate Amendment is just wrong, wrong, wrong, I'm looking for arguments by supporters to debunk, since in almost all cases, they are basing their opposition to gay marriage on incorrect facts, faulty reasoning, unacknowledged prejudice, or simple ignorance. I have yet to meet an argument against gay marriage that stands up to the even the barest light.

Last week, I considered several arguments posited by Lucas at Wild Wisconsin. Today, two posts from Cooler by the Lake's Mike, It's the benefits, stupid and It's the benefits, stupid, II. Mike is making what some would call a libertarian argument against gay marriage:

My support of the ban is based upon the fact that marriage is a personal choice and my belief in limited government. Government screwed up when it extended benefits based upon that personal choice and government will only exacerbate the problem by extending the definition. [. . .]

When government gets involved, they have to allow for every future circumstance as best they can. However, government is made up of people who are no better at seeing the future than you and I. 

We can all play the "what if" game. What if this? What if that? The whackiest I have heard is allowing people to marry animals. The best decision is to opt out of the game, because once the decision is made to play, the game never ends. As opinion begins to push for government involvement, it is best to finalize the entry by constitutional amendment. Let the voters decide rather than the politicians. And when it comes time to vote, just remember, it is not about validation of a personal relationship, it's the benefits, stupid!

There are a couple of different ways to read that, including the unwarranted extrapolation-slippery slope argument: Since we can't know what will be required in the future by recognizing marriage now, we shouldn't bother. Well, we can't really unring that bell, can we? Marriage is real and recognized by the state and, unless we roll back the law for everyone, the problems will persist. And the amendment up for a vote next November (barring a miracle in the Assembly) is not the one rolling marriage back to zero. (An aside: In what situation can you imagine anyone seeking the benefits associated with marriage for a union with an animal? "Yeah, I want to be on my goat's insurance!" I just don't see it.)

A second way to read Mike's argument is that he's looking for something similar to what Lucas was looking for when he argued for special rights for heterosexual couples. Don't "extend the definition" any further, Mike seems to be saying, thereby keeping the benefits of marriage to a select group, and away from a second equally worthy group. I don't think that's quite what Mike's saying, but it is the ultimate effect of passing the amendment next fall.

Another worrisome argument shows up in the comments to that post, when Mike writes, "I wish I could truly believe that the issue was hospital visitation, living wills and the such. However, my experience [. . .] is that those issues can avoided with pre-emptive decisions and action." This is a sentiment echoed by the lead legislative wingnut on the issue, Scott Fitzgerald, and his supporters:

Julaine Appling, executive director of the pro-amendment Family Research Institute of Wisconsin and the Wisconsin Coalition for Traditional Marriage, said there is no question the amendment would prohibit civil unions like those allowed under Vermont law. There, civil unions grant gay couples all of the more than 300 rights available under state law to married couples. [. . .]

"If the state Legislature wants to take up adoption and inheritance rights, it can do that" if the amendment becomes law, Appling said.

Of course, Fitzgerald denied that he was banning anything like civil unions during floor debate . . .

The problem is that gay and lesbian couples in committed, married-in-all-but-name relationships should not be forced to make "pre-emptive decisions" that are just the default for straight couples. They should not have to wait for the legislature to get around to granting them the rights that come without special legislative action to heterosexuals.

Mike follows up that first argument with a clarification in his second post. "Whenever any decision is made," he writes, "it boils to down to 'Do the benefits outweigh the costs?' " Then he describes three choices when it comes to gay marriage: "We ban it, we sanction it, or we do nothing."

Mike dismisses the idea of doing nothing, since the cost of continued debate is large with no benefit at all. Then he considers the other two options:

Sanctioning means that government is expanding. It is expanding in the sense that is has to define a new legal category. This new category will require reinterpretation of a vast number precedent setting interpretations of applicable and associated laws. Considered in this context, one sees that the cost is not inconsequential. Proponents of gay marriage have not provided much sense of the benefits from doing this, other than it will make a small portion of the human population 'feel better'. [. . .] Because of the tremendous cost with minimal benefit, my conclusion is that the government should not sanction gay marriage.

That leaves us with banning it. If you have only three options, two of which are irrational, then you must select the third. Can I say that the third option will make us better? No. But in selecting the third option, I know that I will not make the situation any worse than it is now.

There are a number things about this kind of argument that concern me, starting with the cost/ benefit analysis model of decision-making. While it is true that there is little sense in making it our government's policy to do a whole bunch of things that cost more than the reward, there are times when cost should not be our most important consideration. Sometimes we have to do what is right, even if it is more expensive. Is there any possible moral or ethical justification for continuing to grant special rights to the majority while excluding the minority from those rights? If not, does our moral and ethical obligation not outweigh any costs? In other words, isn't equality in and of itself a "benefit" that must be weighed on Mike's scale?

More importantly, though, I challenge the notion that sanctioning gay marriage would be all that costly. Mike argues that it would require defining a new legal category, but this is not true. It merely allows more committed couples to join a pre-existing category. There is a possibility that we may see lower tax revenues from the "marriage benefit" in the tax code, and there will probably be an uptick in licenses filed at county courthouses. Beyond that, it is hard to see how there would be great increases in costs to the State or society through our sanctioning of gay marriage. Considering that there will likely be more weddings--with more caterers, bands and DJs, wedding presents--we could see an infusion of activity into some sectors of our economy.

These faults--that Mike does not consider the moral and ethical benefit, and he asserts cost where there would be little or none--lead Mike to say we must ban gay marriage. Of course, that really is quite the same as doing nothing, since gay marriage is already illegal in Wisconsin. Even the passage of the Hate Amendment would not stifle the debate that he claims is so costly. (Failure of the amendment and repeal of the anti-gay marriage statute also would not stop the debate, either, since the other side will push back.)

A better libertarian argument, I think, is posited by Paul Noonan, in another response to Mike's posts on this subject. He writes,

If everyone has access to [a] resource, the government cannot coerce with that resource. When they limit its availability, they turn it into a club.

Both political parties love to claim that their opponents are in the hands of "special interests." It is legal ambiguity that allows this situation to occur.

If government is going to be in the marriage business, it is imperative that they be egalitarian in their administration of the marriage business, and that means allowing all comers to enjoy the benefits that they have created. The situation that currently exists has already put the government in the position of a tyrant.

And, as Paul notes, writing that tyranny into the Constitution is a horrible (and horrifying!) idea that sets a very frightening precedent. We must, therefore, vote No on the Amendment.