Epstein: "The Strange Alliances Around the Gay Marriage Cases"

The Strange Alliances Around the Gay Marriage Cases
Richard A. Epstein
Ricochet.com
March 26, 2013

It is surely a sign of the difficulty of the issues surrounding gay marriage that it has generated a large number of what may be loosely termed political marriages of convenience. As I noted in my earlier column, the Libertarian’s Dilemma on Hoover’s Defining ideas, I see the case as raising, as a matter of first principle, a conflict between two ideals.

The first of these respects individual liberty and the second respects tradition. Ideally, where the two coincide, we should reserve our greatest affection for the protection of traditional liberties. That correspondence, however, is rudely shaken in the gay marriage cases, where, until the last few years, the political sentiment was resolutely against gay marriage, just as the strong libertarian case in favor of it came strongly into focus.

In and of itself, conflicts of interest of that sort often arise in intellectual discussion, where people are free to come down whatever way they see fit. But the issue becomes much more complex when the devotees on both sides try to jam their political and moral outlooks into the language of constitutional law, where the basic principles of interpretation at a minimum require that the interpreter try to decipher the message of the speaker and not impose that message to his or her liking.

Faculty: 
Richard A. Epstein