Via Megan McArdle (guest blogging at InstaPundit), I see evidence of a disturbing new trend: an apparent claim -- by gay activists, no less -- that marriage should be restricted on the basis of sexual preference.

This tired issue (same sex heterosexual marriage) is by no means new to this blog. As I said previously:

I hate to inject logic into something so emotional, but homosexuals are already allowed to marry. They are allowed to marry either heterosexuals or other homosexuals. The only restriction is that the partner must be of a different sex. That does not mean that the marriage is necessarily heterosexual, or between heterosexuals. Thus, it is not logically accurate to say that only heterosexuals are allowed to marry.

In an earlier post, I complained facetiously that by not being allowed to marry myself, I was being discriminated against as a single person. Why should not a single person be allowed to marry himself and derive the same "benefits" of marriage that two people derive? Why are two persons more worthy of protection than one? What is the magic of coupling, anyway?

Just as homosexuals are not barred from marriage, nor are they barred from becoming pregnant. That does not guarantee that they will be able to become pregnant, though. But the fact is that men cannot get pregnant. Does this biological fact discriminate against men? Does pregnancy (with its concomitant tendency to render women vulnerable and in need of some contractual legal protection) offer a reason for marriage? Is there something about the different biological natures of men and women which makes them uniquely predisposed to enter into marriage? If there is, then is it necessarily discrimination for the law to treat such couples differently than couples of the same sex?

What about same sex heterosexual marriage? As a practical matter, I recognize that there will not immediately be long lines at the county clerks' offices in the event that marriage is opened up to same sex couples, but is anyone seriously suggesting that there be proof of homosexuality in order to marry a spouse of the same sex? Why shouldn't two women living together who want a tax break or insurance benefits simply marry? How about two criminals who want to prevent each other from being forced to talk to the authorities and marry so they can invoke the marital privilege? Or two men who simply want a tax break, or company insurance benefits? Why the hell not? Should prisoners be allowed to marry each other?

Seen this way, same sex marriage would do more than merely extend to homosexuals rights currently held only by heterosexuals.

It would allow any person to marry any other person. (Well, I suppose there would still have to be two people -- but is that any more fair than saying they have to be of the opposite sex? I guess they would both spouses would have to be alive, and above the age of consent.)

True, it would be a new right. But it would not be a new right solely available for homosexual consumption.

It would be a new right for everybody.

Clearly, there's a lot of misunderstanding -- both about existing marriage laws, as well as laws which would legalize same sex marriage.

What gives?

Via a Joe's Dart Blog link recently, I found an argument against gay marriage which seems to highlight this misunderstanding:

Where the special rights come in is in the fact that gays want the exception to be given to them and only them. They want marriage to be tweaked in their favor, and to create special circumstances for them. What about other unions that also desire to be included in the marriage definition? What about people who fall in love with their siblings, should they be allowed to marry also? What about polygamists, should we now include marriage to include multiple wives? What about multiple husbands? Do these other groups not get ‘equal rights’ too? No, of course not, only gays get them, and not these other groups.

So what gays want are not equal rights, they want special rights.

As I've pointed out before, under the "Opposite Sex Marriage" system, any man -- hetero or homosexual -- can marry any woman -- heterosexual or homosexual, or vice versa. No proof or test of heterosexual orientation is required. Similarly, were same sex marriage allowed, no proof or test of homosexuality could or should be required. Any man could marry any man, and any woman could marry any woman.

I think that any official inquiry into the sexual preferences of marriage license applicants would be illegal, and I'm sorry to see gay rights advocates even raising this issue.

Megan McArdle's characterization is right. The gay activist in question is:

Trying to restrict marriage to his tired, outworn definition!

This is yet another reason why I'm unsympathetic to the argument that marriage laws discriminate on the basis of sexual preference, unless they specifically say so. They might discriminate on the basis of sex, but then, that seems to be bound up with the whole marriage idea.

While I don't think same sex marriage would destroy the fabric of society (or the "institution" of marriage) and I remain vehemently opposed to criminalizing "incidents of marriage", I still don't see why a "right" to a piece of paper (a marriage license) is so obsessively defined as a fundamental right of citizenship. As I've warned many times, such government "rights" can carry onerous responsibilities, and I'll summarize my views again:

I have discussed the backlash issue regarding gay rights, and the win-or-lose nature of these "Culture War" arguments many times. I have expressed reservations that same sex marriage might become involuntary. The issue is certainly a contentious one, but no matter what happens I don't think any of it is worth another civil war.

UPDATE: Do not miss Sean Kinsell's wickedly brilliant insights on this matter.