Former Utah Governor Jon Huntsman endorses gay marriage in The American Conservative. Here’s a bit of his argument:
All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.
Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans.
This is both the right thing to do and will better allow us to confront the real choice our country is facing: a choice between the Founders’ vision of a limited government that empowers free markets, with a level playing field giving opportunity to all, and a world of crony capitalism and rent-seeking by the most powerful economic interests.
I agree with Huntsman’s take, in particular his suggestion that the issue of same-sex marriage is “not an issue that people rationalize through the abstract lens of the law.” This is one of the reasons it’s such a difficult issue for the courts.
There are powerful policy arguments for recognizing same-sex marriages. As my co-blogger Dale Carpenter has shown, there is even a strong prudential conservative case for allowing same-sex couples to marry. Yet the legal arguments that recognition of same-sex marriage is constitutionally compelled are not nearly so compelling. As I see it, the ultimate issue is the definition of marriage — whether the state may define the institution as a union of a man and a woman or whether an individual’s “right to marry” necessarily entails the right to redefine the institution. Viewed in this light, state laws maintaining a traditional definition of marriage easily satisfy rational basis scrutiny and could likely meet the demands of intermediate scrutiny as well. (The federal government’s refusal to recognize same-sex marriages recognized under state law, on the other hand, is a closer call, as it is not clear there is a sufficient federal interest to satisfy all but the least demanding variants of rational basis review.) So while I hope same-sex marriage ultimately prevails, I wish the battle was being fought in the political arena rather than in the courts.
[An interesting aside: Huntsman's essay, which also calls upon the GOP to be more welcoming of immigrants, appears in a magazine co-founded by Pat Buchanan.]