Shannon Love, writing at Chicago Boyz, makes a very interesting point:
Only in the area of sexuality does the Left demonstrate a pronounced and consistent preference for individual decision-making. Why? I think it merely a matter of individual and group self-interest. Leftism as an ideology exists to provide a mechanism for advancing the economic interest and social status of articulate intellectuals. As an ideology leftism seeks to restrict the freedoms, especially the economic freedoms, of everyone who doesn’t work as an articulate intellectual, while at the same time maximizing the freedom of articulate intellectuals. Advocating sexual freedom, sometimes to the point of subsidizing irresponsibility, lets articulate intellectuals kill two birds with one stone. On a personal level it creates moral permission for individual leftists to make their own sexual decisions. For the group, it lets leftists collectively claim to be increasing personal freedom in one very powerful area (especially among the young) which disguises their destruction of individual choice in every other arena of life.
I think this is largely true, although I hesitate to sign on to an argument that this is a conspiracy—a secretive agreement among the left to empower themselves in this way. That may be true of some of them. But what is really going on is the uneasy blend of individual rights with Progressive political theory. Progressivism envisions individual rights as permissions granted to individuals by the state for the state’s own purposes. The freedom of economic exchange is really just a privilege given to people in order to create wealth that the government can then redistribute. The same is true of speech rights: Justice Breyer and Professor Cass Sunstein quite explicitly envision freedom of speech as an instrumental good, given to people by the government in order to generate new ideas and debate that is good for society. That, of course, means that the privilege of free speech can be enclosed and made to serve such functions—as they advocate in the realm of political speech (i.e., campaign finance laws and Sunstein’s “New Deal for speech”).
This purely positivistic understanding of rights obviously has no room for genuine privacy rights such as sexual freedom, which as Justice Blackmun said, belong to us because they form so central a part of the individual’s existence—rather than because they serve some social end. This is why the original Progressives were quite willing to use the law to restrict sexual freedom. Why is it, then, that the left advocates sexual freedom in old-fashioned natural rights language? It is wildly inconsistent with their basic premise, as Hadley Arkes pointed out some time ago.
The answer is: historical accident. During the 1960s, natural rights arguments were heard most powerfully from the leaders of the Civil Rights movement, who associated themselves with the left. That injected the left with a rhetorical tradition that is powerfully effective. They aren’t able or willing to let that tool go. They often employ it in the most ridiculous ways (esp. environmentalism) but in the area of sexual freedom, they’re on solid ground arguing natural rights, even though it clashes with their view on virtually everything else. Since homosexuals were, of course, an oppressed minority class, they looked to the left for support—and got it, at least some of the time. They certainly had more to hope for from the left than from the right, which from the 1960s to the present has allowed the religious right to dominate its rhetorical channels more and more and more.
And so we’re left with a weird and totally unsustainable situation: the left, which rejects the principle of individual rights in virtually every other sphere, speaks with the most morally grand tones of the fundamental human right of sexual freedom. That situation can’t last. How can it be that a business license or a building permit is a mere government privilege, but a marriage license is a basic human right? But what will bring the change? That’s impossible to say. I know what I’d like it to be: an articulate, charismatic, consistent voice for liberty. But what seems more likely is that the change will come as the left comes to reject the rhetoric of sexual liberty. We are already seeing some hints of this in the religious left movement and in President Obama’s own unwillingness to speak out on behalf of gay marriage. He says he’s opposed to it for religious reasons...which I guess is supposed to take it off of the table of political debate. Funny; that tactic was once the monopoly of the religious right.
Update: See? From today's California Supreme Court decision:
The natural-law jurisprudence reflected in passages from the few early judicial opinions relied upon by the Attorney General [in arguing for greater protection for sexual privacy rights] has been discredited for many years...
