Same sex marriage reprised

My post on Friday about same-sex marriage drew some critical comments. I wrote here extensively on same sex marriage in 2006 and am not particularly interested in rehearsing that now. But I do have a few quick responses.

1. My argument is not based, as one reader sarcastically put it, that people will "turn homo." I never said that. My concern is that expanding marriage to accommodate a type of relationship for which it was not designed seems likely to change our understanding of what marriage is for and, subsequently, the rules and mores surrounding it. We have already had a great deal of that over the last fifty years and, while there have been good things about the legal and social changes that have affected marriage, it's decline as an institution has had devastating social consequences.

2. These changes would not come about because someone else's same sex marriage would affect their neighbor's heterosexual marriage. Your neighbor's divorce doesn't affect your marriage either, but no-fault divorce laws did come to affect the way in which we think about marriage. In a legal system that works through precedent and analogy, changes in one rule often lead to changes in another. This is one of the reasons that the fear that same sex marriage will lead to multi-partner marriages is not idle. Indeed, there are legal theorists who explicitly see same-sex marriage as a step in "deprivileging" marriage generally.

3. The analogy between anti-miscegenation laws and laws restricting marriage to a union of one man and one woman is flawed. It is a traditional move on the part of a group that believes itself to be dispossessed to argue that they are just like blacks. Such arguments are almost always wrong. Here, there is a world of difference in interpreting the equal protection clause of state and federal constitutions to prohibit racial discrimination and extending their reach to sexual orientation. They were quite clearly intended to apply to racial discrimination. That courts failed to apply them properly for many years doesn't change that.

They were clearly not intended to apply to sexual orientation. If judges take them to prohibit what they were intended to permit whenever they believe that a democratically enacted distinction is "unjust," we have an imperial judiciary. The only stopping point is are the personal predilections of the court and whatever sense of prudence a majority of justices have at any one time.

Even if you adopt - either for purposes of judicial interpretation or legislative interpretation - a methodology for recognizing accepted distinctions, sexual orientation doesn't fit well within traditional methodologies employed for that purpose. While we can argue whether sexual orientation is immutable. It seems to be less immutable than race or gender but more so than, say, political preference. My sense is that can be changed although not often and only with great - some would argue damaging - effort.

But lots of (even more) immutable characteristics form the basis for distinction in the law. Age, intelligence, disability and even gender are all permissible bases for distinction if they are pertinent to the distinction being drawn. Sexual orientation and gender are relevant to an institution that is designed to channel sexual relationships that are potentially procreative and which occur between genders that experience sexuality in different ways into a form that maximizes the prospect that any resulting children will be raised well and that the different sexualities of men and women will be accommodated.

4. It doesn't matter that not all married couples will or can have children. Marriage is not simply a tool to be taken up when children arise but a social model for the way in which sexual relationships between men and women are best conducted. That the model is overinclusive doesn't undermine it's rationale. In fact, I would be far more opposed to domestic partner laws for heterosexual couples that do not intend to have children than I am to same-sex marriage.

5. Nor does it matter that not all men and women have successful marriages or raise children well. The research is quite clear that children do best when they are raised by their own mother and father in low-conflict marriage. Not all marriages will work out this way and there are single parent and even same-sex couple households that may raise children well, but society has an interest in encouraging the family form that maximizes their chances even while acknowledging that all children will not be raised in this way.

6. The best argument against my view is that there simply won't be enough same sex marriages to matter. I did some research during the campaign to ratify the marriage amendment and it turns out that the number of same-sex couple households is very small and the number with children is not even a drop in a bucket. Of course, this cuts both ways. The absence of marriage for such a small number - to the extent it causes real problems - cannot be a social tragedy and can count for only so much when weighed against concerns about further deterioration in an essential social institution.

But law has expressive as well as instrumental functions. It is not clear that the impact of same sex marriage can be measured by the relatively small number of persons who enter into it.

7. This does not mean that I "always favor" "social engineering" over "individual liberty." First, I certainly don't advocate the criminalization of homosexual relationships. But redefining an institution that is created by the community based upon recent changes in social mores and a desire to appear "tolerant" strikes me as ill advised. This is particularly so given that many of the practical concerns of same sex couples can be addressed in other way.

8. While I am not interested in making arguments about whether homosexuality is a sin (I don't feel that I can make such a judgment), I don't believe that those who do are "haters" or "homophobes." Nor am I willing to say that society has no interest in holding up heterosexual relationships as normative, What I don't think that the law or culture should do is condemn or ostracize those who are gay or lesbian. Refusing to redefine an institution that has arisen for other purposes to include same sex relationships simply doesn't do that.

9. I think it's boring and intellectually lazy to respond to arguments like this by suggesting that those who make it are "really" just motivated by what one commenter calls the "ick" factor. First, the motivation of those who make them doesn't much matter. They either persuade or they do not. Second, while sleeping with men has never struck me as a fun thing to do (women, thankfully, seem to think otherwise) and, on a cerebral level, I am drawn to Roman Catholic theory about the value of complementary in sexual relationships, the "ick factor" is not particularly strong with me. I understand that others can experience the world differently than I do.

10. I'll get to the California case eventually.