On Thursday, President Barack Obama suffered a diplomatic slip in a joint press conference with President Macky Sall of Senegal when he urged African nations to accept gay marriage. Sall countered that his country was tolerant but would not decriminalize homosexuality, much less provide for gay marriage. He added that while Senegal had eliminated capital punishment, the U.S. had not, suggesting each country’s choice deserved respect. While embarrassing for Obama, it was an exchange that illuminates much about gay marriage itself.
On the one hand, Obama deserves credit for defending an American view against those of an Islamic society–the first time he has ever done so, unequivocally. On the other, that defense was a deeply flawed one. Obama’s mistake was twofold: first, imposing his own views on those of another culture, in apparent ignorance of the context in which he was speaking; and second, drawing the erroneous philosophical conclusion that gay marriage, which he also rejected (officially) until just over a year ago, is an inalienable, universal human right.
Senegal, should be noted, is one of the most liberal countries in Africa. Prostitution, for example, is legal in Senegal–which some experts credit with helping Senegal avoid the worst of the HIV/Aids pandemic by enabling the government to regulate brothels. It was at the forefront of the movement for decolonization, as well as the cultural movement for black and African pride, “Négritude.” It is a predominantly Muslim country, but stands out from other Muslim nations with its culture of tolerance and its commitment to democracy.
There are certainly many African nations that actively persecute homosexuals. Across the continent, Islamic law, African traditions, and Victorian mores that endure in the post-colonial era all contribute to an attitude of intolerance to homosexuality. Zimbabwe is one of the worst examples. There, President Robert Mugabe began a public campaign against homosexuals in the late 1990s that foreshadowed his later campaign against whites and political opponents generally, which ultimately condemned his nation to violence and poverty.
Sall attempted to distinguish Senegal from such examples, arguing that his country still respected the rights of homosexuals, even though it did not permit homosexuality or gay marriage. That may not sound convincing, but it points to a distinction between homosexual acts, gay identity, and gay marriage. Those distinctions are often eclipsed, but they help answer the question at the core of the gay marriage debate: whether support for traditional marriage is synonymous with bigotry, as this week’s Supreme Court decision seems to presume.
South Africa, the next stop on Obama’s itinerary, is a useful case study. The new South African constitution, passed in 1996, provided for gay rights on an individual basis, but not gay marriage. The constitution’s “Equality Clause” prohibited the state from discriminating against individuals on the basis of sexual orientation, among other categories. Effectively, the new South African constitution guarded the right to enjoy homosexual acts and recognized gay identity as a protected category. But gay marriage had to wait.
It was only ten years later that the South African parliament passed the Civil Union Act, a year after the Constitutional Court had recognized common-law same-sex marriages. Meanwhile, polygamy had long been allowed in South Africa, both in the Muslim community and traditional African communities, long before the new Constitution. There was a separation, both chronological and philosophical, between the advent of gay rights and the establishment of gay marriage as the latest in South Africa’s polyglot of marital customs.
The South African courts interpreted the Equality Clause to imply a right to gay marriage, much as the U.S. courts have begun reading the Equal Protection Clause of the Fourteenth Amendment to nullify traditional marriage laws (though certainly the authors of the Fourteenth Amendment had no such intention at the time). But if marriage is a right, it is not an individual right; it depends on the consent of another, and of the community. Similarly, love and procreation are natural impulses, but marriage is a social convention.
All rights, to some extent, are social conventions. They allow individuals to make claims on a society only if a society has already agreed to recognize those claims, through a constitution or covenant, as valid. Yet the very ability of individuals to enter that covenant implies that there are certain liberties that precede any social compact. Put another way, individuals have inherent rights that come from God–or, alternatively, nature. They do not come from society or from government–which may, at best, cultivate and protect those rights.
Such rights may be limited by the rights of others, or by social convention. But marriage starts as a social convention. It is therefore subject to different rules in different cultures–rules that may differ without violating the inherent and universal rights of individuals in those cultures. Otherwise, South African President Jacob Zuma may just as well lecture Obama about the importance of accepting polygamy with the same self-righteous vehemence with which Obama lectured Africa about the need to provide for same-sex marriage.
That, in turn, points to the inherent vulnerability of using equal rights as an argument for gay marriage. Once that argument is permitted, there is no reason that polygamy, incest, or other relationships can be excluded–other than on the same grounds that same-sex proponents reject when used by supporters of traditional marriage: namely, that those other relationships are unnatural, immoral, or violate our conventions about what marriage ought to be. Ultimately, arguments for any kind of marriage are arguments about convention.
That was first recognized nearly by John Stuart Mill, writing about the problems posed by Mormon polygamy in his classic On Liberty. Against those of his contemporaries who advocated suppressing polygamy by force, Mill argued that Mormons should be left alone, even though polygamy violated his own sense of what liberty ought to be: “it is difficult to see on what principles but those of tyranny they can be prevented from living there under what laws they please,” just as people elsewhere chose to live under their own marriage laws.
Mill’s argument cuts both ways in the same-sex marriage debate (though he himself did not consider it). It would be unfair for same-sex marriage advocates to impose their views on those who adhere to traditional marriage–and likewise for traditional marriage supporters to impose their views on jurisdictions that permit same-sex marriage. But the definition of marriage, for Mill, was a convention that, while enshrined in law, was to some extent independent of individual liberty, as long as those joining unusual marriages did so voluntarily.
Applied to the Supreme Court’s rulings on gay marriage, Mill’s argument would generally favor allowing each state to define marriage for itself. Mill might therefore agree with striking down Section 3 of the Defense of Marriage Act, which attempted to create a federal definition of marriage–but not on the Equal Protection grounds to which Justice Anthony Kennedy alluded, and certainly not on the grounds that laws enshrining traditional marriage could only be motivated by animus towards same-sex marriage, as Kennedy suggested.
As Justice Antonin Scalia observed in his dissent, and as columnist Charles Krauthammer observed today, Kennedy’s dicta ensure the Supreme Court will nationalize gay marriage–either by ruling that laws upholding traditional marriage violate the principle of equality, or by casting traditional marriage supporters as bigots, making it more difficult for them to win political debates. In the process, the rights of the people to choose their own laws–as Kennedy wrote, ironically, in his dissent on the Proposition 8 ruling–have been cast aside.
Put another way, the argument for same-sex marriage is a cultural one that has been dressed in the language of rights. That may help neutralize opposition, but it has real, and negative, impact on actual rights, such as the rights of the voters who approved Proposition 8, or–potentially–the rights of religious institutions to adhere to their principles. The fact that Obama felt compelled to issue a statement saying he had no intention of targeting those is cold comfort in light of his attempt to lecture Africans on the issue shortly thereafter.
Gay marriage can be a beautiful thing, and a desirable one. But while there have been homosexuals in every culture and in every period of history, same-sex marriage is a unique cultural phenomenon of the post-modern developed world–in its own way, a tribal custom. The effort to transform what is a particular cultural practice into a universal right is disingenuous and divisive. Proponents of same-sex marriage have succeeded lately in the U.S. precisely because they have abandoned such tactics, and argued for gay marriage on its own terms.
It is one of the paradoxes of American life that while our strong federalist structure allows for different laws in different states, we have a cultural predilection for rejecting heterogeneity. As Tocqueville noted in Democracy in America, we take offense at slight distinctions of status. Much of the impetus behind same-sex marriage has been to remove the stigma from homosexuality. But doing so ought not require redefining marriage, everywhere. As Sall reminded us, liberty is robust enough to tolerate a diversity of expressions.
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