Is There a Conservative Case for Same-Sex Marriage?

Despite my misgivings about the lawsuit that led us to this point, the court decision striking down Prop. 8 looks like a win for basic human rights and fairness.

I don't know why, but I can't get Marvin Liebman's voice out of my ear.

Liebman, the veteran conservative activist and close friend of William F. Buckley Jr., generated national headlines in the summer of 1990 when he announced in the pages of National Review that he was gay. He also accused the conservative movement of exploiting homophobia for political gain, and urged the American right to reconsider its skeptical view of the gay rights movement.

Eventually, Liebman washed his hands of the conservative movement, realizing that the "ordered liberty" vision of conservatism could never coexist with gay rights. He died of heart failure in the spring of 1997; perhaps he was literally broken-hearted over his failure to convince social conservatives to embrace libertarianism vis-à-vis the gay rights question.

I hear Liebman's voice every time I read a story about gay marriage, gay adoption, the “Don't Ask Don't Tell” policy, etc. Now, in the wake of U.S. District Judge Vaughn Walker's ruling striking down California's Proposition 8, Liebman's voice is so loud I can barely hear myself think.

I was not in favor of the effort to have the courts invalidate Proposition 8. I felt that the integrity of the ballot initiative process in California should not be compromised, even if it meant maintaining a policy that some might not like.

Yet I always heard Liebman's voice asking why I was not in favor of justice for same-sex couples, why I couldn't see that Prop. 8 was a blatant violation of the Equal Protection Clause. Liebman's voice asked if I even cared about basic human dignity, basic human rights, basic human fairness.

I did not know how to answer.

Is there a conservative case for same-sex marriage? I've long maintained that the answer is no, that while there is a progressive case, a libertarian case, and even a non-partisan case for same-sex marriage, conservatism's reverence for tradition is so strong that it's not possible for a "novelty" like same-sex marriage to be accepted on the right.

Yet I still hear Liebman in my ear, declaring that conservatism is about more than just tradition. Conservatism, he says, is also about freedom and about justice--and from this standpoint, there is, in fact, a conservative case for according same-sex couples equality under the law.

Does he not have a point?

When I see George Will declare that among younger Americans, being gay is viewed as no different than being left-handed, I hear Liebman cheer. When I read stories about how Americans under the age of 35 embrace the gay rights movement unconditionally, I hear Liebman celebrate. Yet, when I notice conservatives questioning American society's increasing acceptance of gay rights, I hear Liebman cry.

I don't know what's going to happen with this Prop. 8 case. When it makes its way to the U.S. Supreme Court, how will the Justices vote? Will the high court declare that bans on same-sex marriage cannot withstand constitutional scrutiny? If so, how will conservatives react?

Again, I don't know. However, despite my misgivings about the lawsuit that led us to this point, I can't get Marvin Liebman's voice out of my ear. In fact, right now, he's yelling, "Let freedom ring, damn it! Let freedom ring!"

Originally published at Red Mass Group.