>>>But as long as rights are being granted to heterosexuals who marry, those rights also rightfully belong to gays.

Rights Rights Rights, three times in a sentence. With rights mentioned frequently but responsibilities never, something's amiss. But I admire the consistency of your view that married people should get no tax breaks either. You might be wrong in both cases (gays marriage & straight taxes), but you are consistent, and that's cool. It makes the this easier to swallow (just a figure of speech) for those of us eager to be persuaded.

And let's be clear, this is over. Gay marriage is here.

"As long as rights are being given to heterosexuals who marry, those rights also rightfully belong to gays"...and anyone who loves their cat with all their heart, or their three really good roommates, or their rich and widowed uncle with Alzheimers, or their fill-in-the-blank. That's where it could go, and probably will. I'd opt for taking away the rights in question from heterosexuals first. This is mostly about establishing control over your own life, isn't it? Strip away the rights bestowed on selected individuals, period. Make it equal no rights for all. Here in the US, we think we are living so much freer than elsewhere in the world. Philosophically perhaps, but the reality is that it's one big regulatory party. License to fish in ocean, permit to hike over that mountain, license to cut hair, license to sell packaged food. You can die without a license, but there is that death certificate thing. The biggest freedom seems to be the freedom to make more laws. Here's an idea...for every new law or regulation created, they have to take two off the books. For every new committee or agency established, put two out of commission for good. Oh, I know, it's so much more complicated than that. No, it isn't. At some point you will be down to protecting only the basic needs of the masses, and that's where a government works best. What are the basic needs? Discuss it among yourselves. I've got to go do my taxes...

Actually, I don't think the state should be in the marriage business at all - nor do I think marriage makes sense for our times. But as long as the state is in the hetero marriage biz, it should be in the homo marriage biz as well.

I love it when the bestiality and the pedophilia arguments come up. I am soooo tired of shooting them down each and every time. Two words: consenting adults.

What part are the gay-marriage-will-lead-to-legalizing-bestiality-and-pedophilia are the theorists in the tin-foil chapeaus not understanding?

David Frum asks 8 questions. The answer in all cases is identical, "exactly what they would do if this were a hetero married couple". Article 4, section 1 of the U.S. constitution makes this mandatory ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State"). Congress doesn't get to trump this by some "defense of marriage" act; it requires a constitutional amendment to make this go away.

Dear Allan Evans --

I like you. You sound fabulously out of your mind. But I bet you haven't gotten laid in a really, really long time.

Lena

Amy,

You're a cool chick, one of the best damned writers I've EVER come across and I couldn't possibly conceive the slightest disrespect for you, personally, in my saying you're horrendously wrong on this whole "gay marriage" issue.

At a more down-to-earth level, it doesn't (I'm inclined to write "horrify" -- but that might be too generous) BOTHER you to contemplate boys and girls being taught in grammar school to consider same-sex intercourse as respectable?? You don't see that there is a high correlation between (increased) promiscuity among children and teenagers and what they are taught in school? Not just of promiscuity, but also of "recreational" bi-sexuality? (Increased recreational bi-sexuality I suppose doesn't bother you, I take it, does it. But it's now a big hit among girls, I know for a fact, at, say, Corona Del Mar High School [the woman I'm now dating has several friends with kids enrolled there. I'll take that as a bellwether]). But I suppose rampant promiscuity among kids/teens is just fine with you (just so long as they remember to bring the condoms, right)?

Society -- nay, government -- has a vital, legitimate interest in promoting healthy family life because of the many great benefits that redound to civilization through the natural (i.e. "traditional*") family.

---

* A neologism in describing the family, since the family exists by nature. A homosexual family, strictly, accurately understood, is A CONTRADICTION IN TERMS.

Oh -- and thus "natural family" is no less a tautology; but no less usefully descriptive for being so; and edequately invoked here to distinguish from those who can't see past ingenious sophisms ("gay marriage," "homosexual family" etc.)

It's called "the naturalistic fallacy" -- the notion that things are good because they're natural. Poison mushrooms and murder are natural. And -- for your information, nature is rife with homsexuality. Bonobos can be gayer than West Hollywood, just to name one.

There's nothing wrong with homosexual sex. If you're heterosexual, you probably won't be all that interested in having it. If you experiment with it, why is that a problem -- whether you're a teen or not. I don't think it's smart for anybody to have sexual intercourse too young, but if two girls are inspired to kiss each other...this is a problem? I'm only troubled if they're inspired to hit each other -- unlesss they get some enjoyment out of that. I'm not into that personally, but if you are -- I really don't have a problem with that. In fact, I find it weird that you even care how anybody else is having sex. Then again, there's no accounting for the irrationality of the religious, whose whole belief system is based on the idea (which they were told and believe even though have no proof for) that there is a god. That's why you think homosexuality is wrong, right? Because somebody told you there was a god and somebody said there were a bunch of lines that say "naughty, naughty" in the bible. Sigh. This is like trying to convince a four-year-old there's no tooth fairy. Impossible.

Hi Robert --

PERSONALLY, I'M A LITTLE GROSSED OUT AT THE IDEA OF MEN AND WOMEN HAVING SEX, BUT SOMEHOW I MANAGE NOT TO ELEVATE THAT FEELING INTO A POLITICAL PLATFORM. HONESTLY, IT SOUNDS LIKE YOU'RE JUST A LITTLE HORRIFIED BY THE IDEA THAT SOMEONE MIGHT WANT TO PLAY WITH YOUR BUTT.

"You don't see that there is a high correlation between (increased) promiscuity among children and teenagers and what they are taught in school?"

MEANINGFUL CORRELATIONS AREN'T "SEEN" -- THEY ARE CALCULATED. UNTIL YOU CAN DIRECT US TO SPECIFIC, CREDIBLE SOURCES OF EVIDENCE ON THAT CLAIM, I'LL HAVE TO BELIEVE YOU SEE CORRELATIONS LIKE SOME TROUBLED CHILDREN SEE DEAD PEOPLE. I SEE CORRELATIONS OF PROTECTIVE ARMOR CLUSTERED AROUND YOUR BUTT. LET IT GO!

ìIncreased recreational bi-sexuality I suppose doesn't bother you, I take it, does it. But it's now a big hit among girls.î

AND I IMAGINE YOU GETTING GLASSY-EYED AS YOU CONTEMPLATE THIS UNPRECEDENTED HORROR. PUH-LEEZE. BISEXUALITY HAS ALWAYS BEEN A BIG HIT AMONG GIRLS. WHERE DO YOU GET YOUR ìDATAî?

ìBut I suppose rampant promiscuity among kids/teens is just fine with you (just so long as they remember to bring the condoms, right)?î

NEWS FLASH! KIDS/TEENS DONíT CARE WHETHER ITíS FINE WITH US, AND THEY NEVER HAVE! KIDS HAVE ALWAYS HAD THE DIRTIEST SEX POSSIBLE. THATíS WHY CHILDHOOD IS REMEMBERED WITH NOSTALGIA. DONíT YOU REMEMBER THE WAY WE WERE?

ONE WORD OF ADVICE FOR YOU, ROBERT: RELAX.

love,
Lena, Your Transvestite Pal

Volokh, btw, has now somewhat tempered his opposition to those opposd to same-sex marriage. A most thoughtful blog post. It's genuinely fascinating to see Volokh with his (it goes without saying) agile mind dispassionately work-through the problems and permutations.

And surely it bears emphasizing that Volokh willingly concedes THIS:

But the arguments against same-sex marriage mentioned above are not ridiculous arguments, nor arguments that can only be justified by irrational hostility or contempt. These are arguments that sensibly cautious and methodologically conservative people can reasonably make against proposed changes in a fundamental social institution.

To wit:

[Eugene Volokh, 3/2/2004 09:59:40 AM] (See posts that link to this one)

Refusals to recognize same-sex marriage and refusals to recognize interracial marriage:

Many people argue that state no-gay-marriage rules are just as illegitimate and unconstitutional as state no-interracial-marriage rules. Though I tentatively support allowing gay marriage, I don't buy this argument (which is why my support for allowing gay marriage is only tentative, and which is why I oppose gay marriage being implemented by courts, as opposed to legislatures or voters). Here's a quick sketch of why.

Moral and practical reasons: Let me set aside for a moment the constitutional doctrine (I'll get back to it below), and focus on moral and practical judgment.

I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.

This is why almost all the possible justifications for bans on interracial marriage have to do with claims of racial superiority, or the felt need to maintain racial purity, which is impossible to justify without some judgments of racial superiority. The one potentially decent justification for such bans is that children of interracial marriage might be ostracized or even attacked by racist outsiders. But fortunately, over time this effect has substantially diminished, and in any event I think that usually (with some narrow exceptions that I might blog about in another context) the way the law should deal with the risk of racist reaction is to fight against it, not to give in to it.

But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles.

This means that there's an eminently legitimate argument that society would be better off if male-female couples were set up as the preferred, most legally and socially sanctioned mode. It is plausible to think that future generations would be better raised by male-female couples than by same-sex couples. And it is plausible to think that on the margins the laws related to marriage may subtly shift some people, either through incentive effects or through the law's effects on social norms, towards male-female coupling and childrearing.

Now as it happens I'm not persuaded that these arguments are actually correct. I suspect that a same-sex couple that has gone through substantial effort to have a child will probably be at least as good parents as the average male-female couple, which might have had the child with much less forethought, work, and desire for a child. [UPDATE: I accidentally omitted the following item from the original post.] Moreover, while it's plausible to argue that the main reason for giving special legal recognition to marriage is to promote childrearing, other benefits of marriage -- promoting stability of relationships, and promoting the happiness of the partners -- might counsel in favor of recognizing same-sex marriage even if such recognition might in some small measure harm the average quality of childrearing in society. [END UPDATE.] But the arguments against same-sex marriage mentioned above are not ridiculous arguments, nor arguments that can only be justified by irrational hostility or contempt. These are arguments that sensibly cautious and methodologically conservative people can reasonably make against proposed changes in a fundamental social institution.

This is why my view on same-sex marriage is that of cautious and tentative support. I do think that it will probably be good for society to allow same-sex marriage; and I'm pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren't duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not (see this post by Clayton Cramer; I often disagree strongly with him on issues related to homosexuality, but on the historical point I think he makes a lot of sense).

Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner's race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner's sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren't.

To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case:

Racially segregated restrooms Men's rooms and women's rooms
Racially segregated schools Boys' schools and girls' schools
Whites-only basketball teams Girls-only basketball teams

These are most certainly not the same -- and not just because the items in the second category are somehow supported by an exceedingly strong government interest. Most people's (and most judge's) first reaction to the sex examples, I suspect, is that there's much less of a presumptive constitutional problem there than in the race context. Sex discrimination just isn't quite the same as race discrimination, and that's especially so for "separate but equal" legislation or other legislation that treats men and women equally while still providing essentially similar benefits for them. (Note that government-run boys' and girls' schools might be unconstitutional, even if they provide equal education -- the caselaw is unclear -- and officially boys-only teams might be unconstitutional, too, which is why I stress the girls-only teams. But this would be because of a perception that those programs are indeed separate and unequal, not because separate but equal is inherently bad in the gender context.)

And this flows from the point I mentioned in the first half of this post: Men and women are different. They are different in purely obviously biological ways (women get pregnant, men don't, women are shorter than men, especially at the right tail of the bell curve), and in social ways that likely flow from this biology or are at least very deeply rooted (men and women generally want privacy from the opposite sex in certain situations, boys and girls behave differently in mixed-sex settings than in same-sex settings, we think that being the best woman basketball player is a noteworthy achievement in a way that being the best under-6-foot basketball player or the best Vietnamese-American basketball player is not). The law recognizes that there is a difference here.

What's more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex. (Yes, I know that people have argued that it is, but I don't think that's right.) Such a limitation is, to be sure, an attempt to maintain the social and legal supremacy of heterosexuality over homosexuality -- but the Supreme Court has never held that sexual orientation discrimination is generally like race discrimination, nor should it (in part for the reasons given in the first half of this post).

Thus, I just don't think that the Loving rationale of "if it mentions race, it's unconstitutional race discrimination" carries over to the sex discrimination context. Had the Court already declared sex discrimination presumptively unconstitutional by 1967 (actually, it didn't start doing so until the 1970s, and it had treated sex classifications as presumptively constitutional as late as the early 1960s), I suspect the Justices would have articulated this distinction in Loving itself, and make clear that Loving's logic rests on the special status of race, and the nature of even "separate but equal" racial rules as attempts to impose racial supremacy, something that doesn't apply equally to all sex classifications. As it is, I think that Loving has to be understood as limited to the context in which it was decided, which is race; and the analogy to sex should be rejected, for the reasons I mention above.

Finally, let me mention again the point I mentioned above, which is even more relevant to constitutional analysis: The male-female marriage requirement is much more deeply historically rooted in American law than the ban on interracial marriage; and by 1967, only 16 states banned interracial marriage, while 49 states ban same-sex marriage, and the 50th state (Massachusetts) is shifting to allowing same-sex marriage only by judicial fiat, not judgment of its people. The Supreme Court should rightly be very cautious in overturning the nearly unanimous judgment of American lawmaking organs, past and present. Maybe sometimes it ought to do this -- but not when it faces such an absence of dispositive constitutional text, and when the doctrinal case for the overturning is so tenuous.

Conclusion: Let me say it again: I tentatively support allowing same-sex marriage. I would vote for a proposed California law implementing allowing same-sex marriage. I think it's the fairer result, and the practically most useful one.

But I also realize that I may well be wrong. Perhaps we shouldn't be tampering so quickly with an important aspect of a fundamental social institution. Perhaps -- and there is reason enough to think that this is a plausible claim, though not an obviously correct claim -- there is something in male-female relationships that is uniquely valuable for one of the most important tasks of any society, raising the next generation of its citizens, and perhaps the law should therefore officially sanction those relationships in a way that it doesn't sanction others. Perhaps it would be better if people are taught that children are best reared in male-female relationships and not male-male or female-female ones.

These arguments aren't strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.

When Volokh refers to "sensibly cautious and methodologically conservative people," he surely canít be referring to proponents of a constitutional amendment against gay marriage.

Cass R. Sunstein (University of Chicago) published a great piece along these lines last week...

ìIn declaring his support for a constitutional amendment that would forbid same-sex marriage, President Bush is repudiating more than 200 years of American theory and practice. His proposal is radically inconsistent with the nation's traditions. Whatever it is, there is one thing that it is not: conservative.î

http://www.latimes.com/news/printedition/opinion/la-oe-sunstein26feb26,1,1795142.story