The state's involvement in marriage is, I believe, explained by two societal concerns. One, the protection of unequal gender spouses. Second, the promotion and strengthening of "marriage" as the institution of preference for the rearing of children.

Though history has brought us to a point where conventional and gay marriage have converged (gays can have and raise children through adoption or artificial insemination, and the women's rights movement has eliminated some, though not all, of the need to protect women from their spouses), I believe there remain valid reasons for the state to treat traditional marriage preferentially, and to remain involved in the institution.

Though some gays would certainly have and raise children in their marriage, I do not think it is in dispute that they would do so at a much lower rate than heterosexuals. While the state does not withhold benefits or recognition of marriage from marriages without children, if a marriage lasts long enough it usually (almost always) does. The same cannot be said of gay couples. Thus, the principal reason for the state's involvement in marriage, that of the rearing of children, is not served efficiently by conferring benefits to all gay couples.

Further, as Becker touches on, the homosexual marriage may be an inferior substitute for heterosexual marriage. It may even be superior for all I know, but that is an open question, a question which is best resolved through adhering to tradition and caution, rather than plodding forward despite those unanswered questions.

The state, then, can choose to withhold marriage either because it thinks insufficient gays would have and raise children, its primary concern, or because it thinks gay marriage is inferior to traditional marriage. Both of these rationales seem to be unassailable from an honest application of the "rational basis" test.

The second primary concern of the state in marriage is the protection of unequal gender spouses. The state's regulation of marriage was designed in many ways to protect women from easy abandonment, as well as to protect children from the results of that dissolution. The role of caregiver exposes--and continues to do so to more women than men--one to economic hardships. Though the rise of no fault divorce signals a change in this attitude, I do not think many dispute that the state's involvement in marriage acts as an equalizing factor (marriage as a partnership, even if the economic power is asymetrical).

Of course because homosexual marriages are marriages where both partners are of the same sex this concern does not present itself. However, there may be some need to protect the primary caregiver (if there is one), regardless of the sex, for some of the same reasons. Still, this interest is much reduced, especially considering the likely number of gay marriages producing children.

First off, I would like to assert that I am a strong supporter of gay marriege who is not gay or closely related to someone who is. I feel as if I have a personal stake in the issue based on (among other things) my deep moral belief in promoting equality.

I was in Boston when legal gay marriages began, and I honestly felt overjoyed as if a great victory had been won for civil rights and fairness. It was a happy day. I do NOT agree with the statement that supporters are less passionate or personally invested in the issue than opponents. Nor do I think this is an issue that only affects gays positively. Everyone benefits from promoting equal treatment under the law, and the law becomes simpler to administer and understand.

"Most people don't want their children to become homosexuals, and this aversion is a factor in the utility calculus."

Perhaps it is a factor, but the analysis is complicated by the fact that the main reason many people want their kids to be straight is because they fear discrimination and hate crimes will find them if they are gay. This is similar to arguments from 1950 that would say "misegenation is bad because mixed-race kids will be treated poorly". Well, the correct response to that was/is to stop the poor treatment and discrimination and hate crimes.

While "outrage" is potentially a legitimate thing to include in the utilitarian calculus, you must be careful to only include the outrage that is rational. People argue against affirmative action for many reasons but no one would include among them "affirmative action makes klansmen feel bad". Bare desire to harm is not an interest that should ever be counted! (For the same reason we don't let convicted murderers vote)

Changing the terminology (civil unions v. marriage) in order to placate the hard-right is a clear signal to gays that even if the results are practically the same, they still are not fully equal or accepted in the eyes of society. So, like with school segregation, we would be likely to find that 1) the two things are not really practically equal, and 2) that difference, even if metaphorical, "may affect hearts and minds in a way unlikely ever to be undone."

"Both of these rationales seem to be unassailable from an honest application of the "rational basis" test."

ANY rationale is unassailable from an honest application of the "rational basis" test. It is diverting to sit in Con Law class and try to come up with a position that does NOT have at least one ex post "rational" basis. That is why civil rights lawyers argue for a stricter test.

Many of the first marriages in Mass. were between couples who already had children.

Does Corey's passion for equality extend to polygamy and polyamory as well? Not that they're equivalent, but if we're just concerned with equality than why wouldn't they similarly be entitled?

If a legislature adopts same sex marriage, then of course polygamy needn't follow, even though it might make their case more plausible. But if you propose to use the Court, creating legal principles as you go, in this case a right to marriage on one's own terms, then I don't see much of a barrier from applying those principles to polygamy or polyamory. Or does equality just extend as far as you want it, and no further?

I don't doubt that passion is high among some supporters. But experience in countries which have legalized gay marriage shows that interest in the gay community is remarkably low. The quest for gay marriage does yield many tangible benefits, however. It's a short cut to broader acceptance, and if established by the judiciary the precedent creates a solid footing for more protection from discrimination. Gay marriage, then, seems to me an indirect and expedient way to accomplish a greater agenda, an agenda I am in much agreement with, though I cannot condone the means to which that agenda is now advanced.

"But if you propose to use the Court, creating legal principles as you go, in this case a right to marriage on one's own terms, then I don't see much of a barrier from applying those principles to polygamy or polyamory. Or does equality just extend as far as you want it, and no further?"

On one's own terms? What are the "new terms" for marriage that gays have proposed?

Sir,
you say:

-"The issue is more complicated to the extent that some of the outrage is based on fear that making homosexual relationships respectable by permitting homosexual marriage will encourage homosexuality."



You fail to point out that a lot of the concern with the issue of gay marriage lies in the fear of a loss of values.
Marriage, throughout at least 5000 years of history, has always been the basis for the foundation of a family, through the union of a man and a woman. In effect Marriage is not a right, it is an institution.



as you rightly point out further down:

" The most remarkable aspect of the current controversy is that it is mainly about a word "marriage." "


I haven't seen so far any valid justification to the changing of the meaning of this word.


While i appreciate that homosexual couples would want to have the same legal and economic framework applied to their union as that of a heterosexual married couple, i believe there is also a strong drive behind this within the homosexual community to have the rest of society recognise their union as just as "normal" as that of a heterosexual married couple.

It is unfortunate that one should be branded a homophobic bigot for pointing this out in European countries where "gay rights" are on the verge of being recognised.

Ever since I was 14 and read Robert Heinlein's "The Moon is a Harsh Mistress" I have been a fan of contract based marriages. They represent all of the non-religious aspects of marriage and respect personal autonomy. If the variuos multitudes of religions want to create their own "marriages" let them do so and let them bar whomever they want from participating in their sacrament, but the state should let the markets and choice rule.

Yes, I think this should include polygamy and polyamory. If a group of persons want to associate in this way why not? A facial objection that it has historically been used as a means to subjugate women and marry children can be addressed. Look to contract law itself for solutions: persons under 18 can void/cannot enter into contract, contracts entered into under duress are voidable, contracts without consideration are voidable, etc.

No one has raised it, but just to address it now, supporting polygamy does not lead to support of bestiality, etc. Entering a contract requires consent by both parties. Animals are property and cannot consent. You cannot contract with an animal and you cannot marry an animal.

As for the "rational basis test" not being a real test, see Romer v. Evans where the Sup. Ct. struck down a Colorado Law that prevented any Colorado authority from giving protected status to homosexuals. In doing so it held that there was no legitimate state interest, among other things.

Sorry for not performing a marginal-cost/marginal-benefit analysis, but I think that has been addressed and I didn't really feel like going through a list of benefits of extending marriage at this point.

Sorry for the double post.

Just a brief response to the person posting about the legitimate state interest in marriage being the preferred method for child rearing.

An application of that as a rule of law ic clearly underinclusive if directed at gays and not at childless couples or couples past child rearing age. While underinclusiveness is fine if the case is analyzed as a "gay" issue (not a protected class) it can also be framed as an issue of what can (ontologically) constitute a family. Once it is framed as a "family rights" issue then greater constitutional protection is afforded and underinclusiveness is very questionable.

Getting to a family rights issue is a bit recursive and a chicken/egg problem, but I think that is really what it comes down to. Is a family only a "husband" and "wife" with children. Or, is it a group that lives together and functions as a family unit. There is significant case law on the subject matter really beginnign with Moore v. City of East Cleveland that extended "family" to include intergenerational blood relatives. The chicen/egg issue is that these family rights have only been applied to blood/marriage relations, BUT that is precisely what is trying to be achieved int his instance--the right to marry and live as a family.

Another technique to move into greater constitutional protection is to move into "right" to privacy line of thought based on the Griswald line. Marriage is between a "man" and a "woman." Two persons present themselves as a "man" and a "woman" for marriage. Does the state have the right to verify their "man" and "woman" status. It seems rather invasive to have a crotch check on the spot (althoug some states do demand blood tests). Beyond that, what of hermaphrodites? Is there a statutory definition of "man" and "woman." Is it gender based? Is it chromosome based? Is it gonadic based?

Once again, apologies for the double post.

"Does Corey's passion for equality extend to polygamy and polyamory as well? Not that they're equivalent..."

The issue this week is gay marriage, which as you admit, is not equivalent to polygamy.

"Marriage, throughout at least 5000 years of history, has always been the basis for the foundation of a family, through the union of a man and a woman."

Who's history? I assume from your tone that you mean Western Judeo-Christian tradition and that you are not accustomed to thinking of the 5 Billion other people on this planet as having a history.

Posner has already given (in his defense of contract marriage) a nice collection of variants on marriage even within western cultural history.
If you look beyond that scope the variations are even more pronounced.

"I haven't seen so far any valid justification to the changing of the meaning of this word."

And I haven't seen any justification for legislatively imposing your narrow ethno-centric definition on an entire multi-cultural society.
How does gay marriage cheapen your own vows between a man and a woman. If it truly is a union then it shouldn't be vulnerable to erosion based on what third-parties do with their lives.

I submit that often with same-sex marriage, tradition is the mask for a bare desire to punish gay people. Those who would claim otherwise have the burden of proving that either they are harmed in some way or that their "outrage" is rational (which is the same thing).

We have progressed far enough with racial civil rights that no one would step up here and defend discrimination with, "well, Blacks have traditionally been discriminated against for over 500 years." Why then should someone be able to deny status to gay couples just "because that is what we have always done"? It should take far more than that.

Perhaps you undervalue the harm that results from the federal government not recognizing gay marriage. For instance, a close friend of mine, who is pursuing his PhD near Boston, recently married his male partner of many years here in Massachusetts. Neither are United States citizens. While their marriage is recognized by the state, it is not by the federal government and thus the spouse of my friend has no legal right to remain in the country while he continues his PhD studies. Of course, the same does not apply to foreign heterosexual couples. A mere contract will not suffice in addressing this issue.

Very interesting post. I find one major flaw in Posner's analysis: recognizing "outrage" as a legitimate factor in a rational evaluation of the gay marriage issue, or of any issue. Did it matter in the 1960s that some southern whites were "outraged" at the thought of ending segregation? Did "outrage" at the Jews justify Nazi Germany? Does the "outrage" of the Arab street justify suicide bombing? It's about time that we stopped talking about "outrage" and started making rational arguments. Otherwise, the world will devolve into different radical groups sharing mutual "outrage" but no rational thought. Politics will become a shouting match rather than a discussion. I already see this happening far too often. Just watch "Hardball." :-)

Posner's analysis would make bigotry a legitimate reason to legalize discrimination, and an especially strong one as well, since bigots often experience a great amount of "outrage" against those whom they deem inferior.

I am waiting for a true victim of "gay marriage" to step forward. When one does, he or she should testify before Congress the next time an anti-gay marriage amendment is considered. If this individual is something less than a bigot, I will be surprised.

All that aside, Posner's suggestion of "contract marriage" is a good one. There is a good argument that the state should not be involved in voluntary personal relationships between consenting adults.

Richard Posner said:

Why so much passion is expended over the word "marriage" baffles me. After all, even today, and even more so if civil unions were officially recognized, homosexual couples can call themselves "married" if they want to.

Imagine that due to longstanding tradition (although not uniform throughout all times and all cultures) marriage was commonly accepted as the union of one man and one woman as long as neither the man or woman were named "Richard".

Imagine that this practice was embedded in both culture and law, implicitly through common law and explicitly through statutes at the state and federal level. Imagine that people named Richard were free to contract and could call themselves "married", although none of the existing cultural and legal standards would recognize such a marriage. Do you think that the Richards of the world would be passionately seeking a change in the culture and law, or would they calmly and rationally pursue civil union statutes which would give them the same rights as married couples without actually being married?

Univeral contract-based marriage would be wonderful but it remains as much a pipe dream as most other libertarian visions of utopia. In the real world there is an abundance of state authority that distinguishes between the married and the unmarried and it is not going away anytime soon. Those distinctions don't simply take the form of tax benefits and adoption rights; the state has reserved for itself the ability to declare a marriage "real" and accordingly worthy of respect and deference. If the state were completely out of the marriage business then fighting passionately over terminology (marriage vs. civil unions) would indeed be pointless. But as long as the state asserts that some people can be married and others cannot, those who are told they cannot marry will fight to control the state's authority and end their exclusion.

Which seems like the least baffling choice: fighting for Richard marriage, fighting for Richard civil unions, or fighting to overthrow the state's monopoly on defining marriage?

Many of us watched the Civil Rights Acts of the 1960's, which ostensibly just called for fair treatment for blacks, metamorphose into a system of hiring quotas, admissions preferences, and racial privileges. Against that background, and given that many of the benefits of marriage can be achieved by gender-neutral contracts, one might reasonably worry that the benefits of same-sex marriage (capturing the remaining benefits of marriage) warrant the risk of laying the government's coercive powers at the disposal of yet another pressure group.

On the bright side, a relaxation of the legal definition of marriage might finally rid us of the inheritance tax: the old and infirm will simply marry their heirs and apply the unlimited spousal deduction.

Judge Posner writes:




Philosophers like John Stuart Mill would not consider that such outrage should figure in the social-welfare calculus; Mill famously argued in On Liberty that an individual has no valid interest in the activities of other people that don't affect him except psychologically. (Mill had in mind the indignation felt by English people at Mormon polygamy occurring thousands of miles away in Utah.) But that is not a good economic argument because there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person.




I think a justification for Mill's view is that, on issues like gay marriage, the offended person, not the offender, is the least-cost avoider of the psychological harm. All he has to do is quit being so offended.

The political argument seems to largely revolve around the word "marriage," as both Posner and Becker pointed out. I think this is an example of both sides wanting to use the law as a tool to advertise their preferred values--whether that's "homosexuality is unacceptable in our society" or "homosexuality is acceptable in our society." In either case, I think it's a poor use of the law, which has enough trouble handling contract enforcement and keeping the peace.

It seems to me that the contract-marriage idea makes a lot of sense in light of what happened to marriage over the last 50 years or so. The terms under which marriages were made changed, as divorces became much easier to get. That was a change in the understood meaning of millions of agreements between individuals, carried out by legislators and courts. That shouldn't be easy to do. If the country moves right over the next 50 years, we could easily see gay marriages un-recognized by state legislatures, or precedent and law set up to treat them very differently than other marriages in divorce court, say. Doing marriage by contract seems like it would make this harder to do.

--John

Homosexual is an outdated and oppressive term. It is a relic of a period when gays were treated as diseased. Most of us now prefer gay or lesbian (although both have their problems). Judge Posner, we would appreciate you refering to it as "gay marriage." Thanks.

Maurile wrote:

I think a justification for Mill's view is that, on issues like gay marriage, the offended person, not the offender, is the least-cost avoider of the psychological harm. All he has to do is quit being so offended.

The least-cost avoider of offense doesn't seem like quite the right model to me. Given the number of likely gay marriages and the number of people claiming offense at them, there is not a one-to-one ratio of offendor to offended. Meaning, if we care the most efficient outcome (assuming gay marriage actually causes the kinds offense we care about, whatever those are), failing to allow gay marriage might be more efficient.

If we are discussing true psychological harm, in my opinion Judge Posner's method should clearly come out in favor of allowing gay marriage. This is because proving actual harm is quite tricky, as is proving actual offense that rises to a level the law could care about.

In what might be my favorite judicial opinion of all time, Posner himself showed that courts are quite capable of detecting meritless claims of psychological harm. If it came down to opponents of gay marriage being forced to present rigorous scientific evidence of the psychological harm gay marriage causes them (of which I am aware of absolutely none), I sincerely doubt he would treat them any more sympathetically than he did proponents of regulating violent content in video games (although, sadly, it would lack the spectacle of Judge Posner devoting a paragraph and a half to descriptions of fighting zombies).

I'd be curious to see an application of economics to a case where moral outrage is genuinely linked to psychological harm, but I can't think of any that I personally find convincing. I'd also like to see a more detailed explanation of why courts are supposed to worry about backlash.

Posner (and Becker) make a lot of interesting and insightful points. As usual, I will focus on what I disagree with. :)

...there is no difference from an economic standpoint between physical and emotional harm; either one lowers the utility of the harmed person. ... It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error.

Emotional harm differs from physical harm in that emotional harm depends on the harmed person's opinions. In the case of emotional harm, the economic utility of the harmed person can be raised (or lowered) by the harmed person changing their opinions. This may be the most economically efficient solution for opinions that are formed on the basis of scientific error.

...although the margin in the polls by which homosexual marriage is opposed is not great, the opponents tend to feel more strongly than the supporters.

While I don't have strong feelings about homosexual marriage specifically, the broader question of how to balance freedom and conformity (when should I do what I want, when should I do what other people want and when should other people do what I want) is something I feel very strongly about.

Even for opponents of homosexual marriage, the real issue is unlikely to be homosexual marriage specifically. I suspect that for the majority of both supporters and opponents, the real issue is about how to balance balance freedom and conformity. Specifically, it is about the role of moral beliefs in balancing freedom and conformity.

One of the founding principles of the United States was separation of church and state which is very much about the role of moral beliefs in balancing freedom and conformity. Based on the history of the United States, people on both sides would be expected to feel very strongly about the underlying issues of homosexual marriage. Try, for example, suggesting to an average American that they should have exactly as much freedom as Muslim moral beliefs allow. :)

"As for the "rational basis test" not being a real test, see Romer v. Evans where the Sup. Ct. struck down a Colorado Law that prevented any Colorado authority from giving protected status to homosexuals. In doing so it held that there was no legitimate state interest, among other things."

You don't actually believe they were applying the rational basis test as defined by the Court, do you?

What is primarily at stake with gay marriage is the implicit societal endorsement of homosexuality. Gay marriage promotes the idea that homosexuality is normal and proper, rather than abnormal and shameful.

For conservative religious people who regard homosexuality as sinful, gay marriage is essentially the government proclaiming that their religion is false. The use of the word "marriage" adds to the sacrilege, but it's not the central issue.

Given the number of likely gay marriages and the number of people claiming offense at them, there is not a one-to-one ratio of offendor to offended.

If avoidance by the offended person means letting go of (or not forming) an opinion that is based of scientific error then there might be a long term economic benefit (rather than cost) for avoidance in addition to the economic benefits to the offendor.

"For conservative religious people who regard homosexuality as sinful, gay marriage is essentially the government proclaiming that their religion is false."

And for liberal religious people, banning gay marriage is an establishment of the views of conservative religious people. It is just as morally objectionable to me to have the government legislate your views as the opposite would be for you.

So what is the solution? Treat everyone the same legally and Congress shall make no law respecting an establishment of religion. If your only objections to gay marriage are religious then you have a hard sell in a country with so much support for separation of church and state.

If anyone requires the government to punish gay people in order to feel strong in their faith, then I would suggest they reflect on the nature of their faith.

Judge Posner notes, but quickly passes over, the rather interesting question of how much weight we ought to give to antigay animus that is based on the scientifically demonstrable error that homosexuality is chose. Judge Posner suggests that we may not want to pay much attention to opinions that are scientifically unfounded.

Suppose, however, as seems to be true, that antigay animus is based in large measure on religious intuitions about how God wants us to treat homosexuals. Is a religious intuition supported by no evidence, or at least only scriptural evidence, less or more deserving of attention than a merely scientifically ignorant opinion? Is it that disutility based on religious intuitions has social value in a way that disutility based on a factual error does not?

What I think we've got here is a jurisdictional problem. Such that, where does the authority and power of the Civil Law begin and end, and where does the authority and power of the Ecclesiastical Law begin and end. Clearly, the Civil Law is ascendant when it comes to civil unions and as it has stood since time immemorial, Ecclesiastical when it comes to marriage.

It appears that a well connected (or perhaps powerful voting block) wishes to obscure this long standing differentiation, because it wants to have its way and is concerned that the various religious organisations and councils will not appease them (and as some would say, their vices)on religious and moral grounds. So they are trying to pressure the Civil authorities to suppress the Religious authorities by using the power of the Courts to circumvent what has been the Law.

This raises an important fundamental issue for the body politic, which is, do we still believe in the separation of powers between Church and State or should we violate this principle and allow the civil authority and power over the various religious groups; simply to appease a small but vocal special interest group?

"However, they are probably mistaken in thinking that homosexuality is chosen; there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic. It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error."

First, those that still maintain that a person CHOOSEs to feel or not feel sexually attracted to the opposite sex, the same sex, or both sexes are working with a different set of premises than those of us who understand that sexual orientation is not chosen.

Second, how would the policy discussion change if sexual orientation WAS a product of choice? (Here, the response likely involves something like "society's interest in promoting reproduction and the family unit" -- well, ok, but then why don't we make it a lot more difficult to have children, get a divorce, etc.?)

I think there is often a lot of confusion about sexual orientation and sexual behavior. It seems to me that all sexual behovior is a product of choice and therefore can be regulated (that is, it is possible to regulate it). But sexual orientation is not a behavior, so you cannot regulate it -- you can't regulate away homosexuality. This point might seem elementary on this discussion board, yet I think much of the public still feels that society can regulate away homosexuality. That's absurd.

Is there strong evidence for the nature vs nurture side of homosexuality? It's certainly intuitive that it would be mostly nature (do you remember any choice about being sexually/romantically attracted to anyone?), but it's not clear that this is strong evidence, since people often aren't all that good at picking apart the reasons for why they like or dislike things.

I thought this was still hotly debated, as most genetics/personal choice/morality/society overlaps are.

--John

To use the term 'marriage' to refer to same-sex partnerships would not be appropriating a 'traditionally' heterosexual term but would in fact be restituting the full use of the term as it was before it was violently appropriated by the Church.

People should beware of assuming that their idea of marriage is the 'traditional' one when it is really only the currently conventional one.

The ideas that marriage applies only to men marrying women, and that love is more important than contract are historically relatively recent.

For an inormed historical perspective on the history of marriage, one that might shake the religious right out of the belief that they have copyright on the concept and use of the term 'marriage', take a look at Alan Bray's 'The Friend'. It was brilliantly reviewed in London Review of Books. The review can be seen here:

http://www.lrb.co.uk/v27/n11/davi02_.html

Ian

Oh, and Spain the most Catholic country in Europe except Ireland? You Americans! Ever heard of Italy? Portugal? Poland? Stictly speaking the Vatican is a state within a state, and I believe that it's also pretty Catholic.

This has been a very interesting discussion.

The protection of marriage as a procreative institution made up of one man and one woman has been a key stated motivation of those opposed to gay marriage. A child's interest in being raised in a two-parent heterosexual household has been cited particularly often. I have a couple of comments along those lines:

1. The argument seems to assume that homosexuals, denied the ability to marry other homosexuals, would enter into procreative relationships with those of the opposite sex. In my experience, gay people are "catching on" more and more quickly as time goes by. I realized I was gay when I was 15 years old. Some take much longer. I am inclined to believe, though, that very few gay people of my generation will reach adulthood without realizing where their attractions lie. Ruling out team-switching, then, the choice is not between having a child in a gay marriage vs. having a child in a straight marriage, but rather, between having a child as a single person or in an unsanctioned gay relationship, and having a child in a state-sanctioned gay relationship.

2. I'm 23 years old now, but I grew up in a small town in the Bible Belt. I strongly considered suicide when I realized I was gay, largely because I saw no hope of having a normal life as a gay person (nor of becoming a straight person, ha ha). The suicide rate is acknowledged to be much higher among gay teenagers than straight ones. Although I have seen "chilren's sake" invoked often here, it has always been in the context of children reared by gay vs. straight parents. I think this misses the point.

The vast majority of gay kids are born, as I was, to straight parents. I don't know how many children are born to gay parents, but it's safe to assume that fewer children of either sexual orientation will be born to gay parents than there will be gay children born in the country at large. The putative harm in denying a dual-sex household to children reared by gay parents would have to be very, very great to outweigh the benefit that state-sanctioned gay marriage and the prospect of normalcy and happiness would be to gay kids going through the toughest period of their lives.

My understanding of the traditional dowry is different than Posner's. I believe that the dowry money went to the newly-formed couple themselves and was the bride's family's contribution to their shared wealth, intended to benefit the children resulting from the marriage. In many cases, the wife moved in with her husband's family or moved away from both families. In either case, the bride's family would not be able to routinely help the couple.

The brideprice was quite different. The groom's family essentially purchased the bride from her family and it was her family that was enriched, not her.

Regardless of what it is called, I think that there is a real need for a legally-enforceable breeding contract in American law. By this I mean that (1) the man promises to provide some level of support to the chidren resulting from the unition and (2) the woman promises that those children will be his biological offspring. I think that this breeding contract is what most people mean by "marriage".

However, if I understand the "irrebutible presumption of paternity in marriage" correctly ( http://www.sptimes.com/News/061800/Perspective/Can_it_truly_be_Fathe.shtml ), the man's obligations under this agreement are legally enforceable while the woman's are not.

When people read the above column, they are always surprised that this is how it works and almost always believe that it is NOT how it SHOULD work. Personally, I'm amazed that supposedly intelligent male lawyers knew about this and got married anyway. Frankly I find their behavior suicidal and stupid.

What a fascinating topic!

The idea of contract-marriage is appealing and it would allow couples the flexibility of setting their own parameters in defining their relationship. Since there are so many differing opinions as to what is acceptable in a marriage, this seems to be an ideal solution.

I agree with the poster who maintained that gays argue in favor of using the word ?marriage? opposed to ?civil union? or other terms, because the word marriage conveys society?s acceptance of homosexual unions. Just because society accepts the term ?gay marriage? doesn?t mean that homophobia will be any less prevalent in this country. For instance, my husband works for Boeing in the male-dominated field of aerospace engineering, and he and his coworkers recently were required to undergo ?sensitivity training,? which was primarily about acceptance of gays in the workplace. I can tell you without a shadow of a doubt that a gay man would not find acceptance in this atmosphere, and he would more than likely be greeted with open hostility. In the past, there was a lesbian working in the engineering department, and general consensus among the other employees was ?she was so ugly that she couldn?t get a man.? Although this comment would probably enrage members of the lesbian community (some of whom are probably quite beautiful), I have to admit this poor woman was indeed one of the most unfortunate looking creatures I?ve ever seen, and in fact, it was almost painful to look at her!

Posner mentions that most parents do not want for their children to be gay or lesbian and I agree. One poster countered that the reason for this is parents would worry about discrimination and hate-crimes, etc. against their son or daughter. I believe the issue is deeper than that. I have a friend who is a prominent liberal-minded professor at Stanford University and his daughter recently announced that she?s lesbian; her father is devastated. My friend?s daughter is a lawyer and a vocal gay-rights activist, which further compounds the social awkwardness and embarrassment that her parents must endure. While I?m sympathetic to the plight of gays/lesbians, I find myself baffled by lesbians in particular. Ever since I discovered my G-spot I?ve been a nymphomaniac, and frankly, I can?t imagine that a vibrating piece of plastic could be better than the real thing, not to mention missing out on the erotic thrill of performing fellatio before intercourse. I don?t consider myself anti-gay, and yet I see a parallel between my thoughts and those of the homophobic men who exasperate me with their narrow-mindedness.

PS: Dear GH, I think you should consider posting a better picture on this blog. The smiling photo posted by A3G on UTR is much better! Your brilliant mind combined with your lofty status as a Federal Judge gives you undeniable sex appeal ? don?t squander it on a photo that makes you look rigid and disapproving when in fact you are anything but.

Not to be controversial, but a number of posters have claimed to support gay marriage because of a belief in equality. By this, I believe they mean a level playing field, the same rules for all participants in the game, fair treatment, equal dignity and respect. It's a principle of neutrality: the State should be neutral with regard to our choices so that we can define our lives for ourselves. Personal autonomy. Freedom. Liberty. Great.

My problem with this claim is that fair, neutral rules equally, respectfully, and impartially applied do not lead to any particular outcome. Neutrality does not lead to any particular outcome; if it did, it wouldn't be neutrality. Fair rules in basketball means that if I am fouled while I am taking a shot, I may get a free throw, because I had a right to take a shot. But it does not mean that points are taken away from my opponent and given to me in the absence of a foul. I don't have a right to free points. I have to take the shots and make them by virtue of my efforts and skill.

For this reason, I'm not sure why a belief in equality necessarily leads to any political outcome or political regime. If you want a legislature to pass a law, by all means lobby for the change and work to persuade your fellow citizens to vote your way. But I don't see how a belief in equality leads to the awarding of a point without the taking of a shot. Equality simply doesn't mandate that "gay marriage" must exist. The two aren't even logically related.

(Which is not to say that I am opposed to equality.)

What the state is doing is granting preferential treatment to the Judeo-Christian "traditional" permutation of marriage--one man and one woman.

I don't see this as any different than a state choosing to prefer hybrid cars over regular combustion engines, or any other sort of incentive used to promote what is believed to be optimal or positive behavior. It may be shown some day that the state is in error, that gay marriage is as effective or superior to traditional marriage. But is it really inconceivable that it is best to have both a mother and a father? Does anybody really here pretend indifference to the alternative--two mothers or two fathers.

Corey's repeated attempts to insert race as the equivalent fail because differences between the genders are not in dispute (to say nothing of the constitutional issues). We all recognize, generally speaking, mothers add some things to the rearing dynamic that fathers generally do not (and vice versa). In Judge Sosman's excellent dissent in the Goodridge case (it may be of interest to note that Sosman is the Mass Court's only gay or lesbian), she points out that promoting the believed to be "optimal" family structure is certainly a legitimate state interest, and the preferential treatment which marriage law gives that optimal structure is certainly rationally related to promoting that structure.

Corey previously brushed aside questions about polygamy and polyamory. This is not susprising, few advocates of gay marriage via judicial fiat want to admit where their loose logic leads. Radical equality demands, however passionate and well-intentioned, lead to radical results.

Corey,
"Marriage, throughout at least 5000 years of history, has always been the basis for the foundation of a family, through the union of a man and a woman."

Who's (whose) history? I assume from your tone that you mean Western Judeo-Christian tradition and that you are not accustomed to thinking of the 5 Billion other people on this planet as having a history.

firstly, with regards to your comment on non-occidental cultures, i think you assume far too much.

Secondly, can you show me an example of Gay Marriage troughout the history of the "5 billion other people"?

I am just stating a fact, unless you can prove me wrong. I'm not opposed to a Gay Union, via some form of contract, but I must object to the use of the word Marriage, which has historically represented something very specific and that can not simply be changed in the name of tolerance.

I haven't read all the comments, so forgive me if mine repeats what's been said before.

In an age of companionate marriage, wouldn't giving people the freedom to contract a marriage freely impose the same costs that lead many couples to avoid signing a pre-nuptial agreement: the risk that the negotiation will derail the marriage and the intrusion of a rational and self-interested process on what people prefer to view as a purely selfless and romantic union? Sure, providing a default state marriage contract avoids these costs, but then we are right back where we started with respect to gay marriage.

Why are we being so legalistic about the issue of gay marriage? One way or another, it has been on its way for quite some time, first as a notion, then as a trend, finally as a movement. If a certain core of articulate people want to throw the issue into the legal limelight, and do so consistently, we lawyers will tweak our thinking to conform to the issues raised. Legal debate on this thirty years ago was good for a law school hypothetical. Now it's real, because real gay people are coupling and demanding the right to be viewed as potentially stable members of society. Inherent in this demand is a sub-demand that they be allowed a say in what constitutes society.

We can never separate our sort of Anglo-Saxon law from its social substrate, and this leaves a tricky question. Hasn't this thousand years of jurisprudence been layered on a society that has taken for given the difference between men and women (legal questions aside, you bet they are different). In legalising homosexual marriage, where by definition both parties are of the same sex, is it enough that we draft our laws well? I know nothing of the homosexual dynamic, which I imagine differs for male and female gay couples, but can it really just retro-fit in?

Fascinating discussion. I'm participating in a panel discussion today on this topic at the Southeastern Association of Law Schools annual meeting, and reading through this has been quite useful.
Just an interesting factual point. I believe it was Judge Posner who commented that same-sex families are much less likely to have children than opposite-sex families. I'm not so sure about this. If, as he contends, about 2/3 of same-sex families are lesbian couples, it seems likely that the proportion of same-sex families raising children will be significant. I remember seeing a news report about ten years ago of a demographic study done in NYC showing that a surprisingly large percentage of lesbian households were raising children, perhaps as many as 1/3 of such households, and I suspect the number may be even higher now. Gay men raise children also, although not in such great numbers. (Another surprise from that demographic study was that the proportion of opposite-sex households raising children was not extroardinarily larger than the proportion of same-sex households raising children. Quite a few two-career couples don't have children.)
In other words, the family-reinforcing aspect of legal marriage for the purpose of providing a stable, supported environment for raising children is highly salient for a significant portion of same-sex households.
In the Hawaii marriage litigation of a decade ago, the trial judge's ultimate conclusion, after hearing several days of expert testimony from both sides, was that the main losers in society's refusal to let same-sex couples marry are the children they are raising, who are deprived of all those societal benefits that go with having married parents.

"equality and gay-marriage are not logically related"

They can be logically related in any number of ways including the one that your statement itself suggests, namely "equality is not identical to gay-marriage." Non-identity is a logical relation. I know it's a silly point, but so was that particular appeal to logic.

Response to the persons involved in the gay-is-choice/gay-is-inherent exchange.

This is a very difficult place to comment because as science moves forward in these matters (a gay gene?) it complicates equal protection status. Currently "gay" is not a protected status, although some may feel that it is treated as such. If it were undeniably an inherent, immutable characteristic rather than a chosen behavior it would likely demand greater protection similar to race.

A similar place that this scientific progress is problematic to is abortion. If the point of viability of a fetus is pushed further and further back (20 wks, 18 wks, 15, wks, etc.), then the government's interest in protecting the potential/actual life comes into play much sooner than the current Roe/Casey structure allows.

"I'm not sure why a belief in equality necessarily leads to any political outcome or political regime."

Imagine that 97% of Americans posess the legal right to play basketball. 3% of Americans do not posess this right because of a status (being gay) that does not correlate to "ability to play basketball." An egalitarian worldview would call this unfair, and would ask the regime to justify the discriminatory restriction.

"Corey's repeated attempts to insert race as the equivalent . . ."

I am not "attempting to insert" race, although, if being gay is indeed an unchoosen status then it is a highly relevant comparison. I merely wish to point out how many of the arguments against gay marriage here are similar to those used by bigots 50 years ago in the context of opposing civil rights. In that sense it is the opponents of gay marriage that are inserting race. Today we look at those arguments in the 1950s context and say, "they were just covering for their own raw intolerance and hate", so when the same logic appears elsewhere...

"Corey previously brushed aside questions about polygamy and polyamory."

OK, I'll tell you but you already know the answer. 1) There is no evidence that polygamy, polyamory, beastiality, pedophilia, or any other practice you want to bring in to change the terms of the debate is an unlearned, immutable characteristic. 2) Either way, my feelings about other people engaging those things would rest on the degree to which someone could prove that they harm third parties. (With pedophilia that is easy, so everyone is rightly against it) 3) NONE of these practices are in any way correlated with being gay.

Want to talk about gay polygamy? Should gay mormons in southern Utah have a right to marry 5 other men?

"Secondly, can you show me an example of Gay Marriage troughout the history of the "5 billion other people"?"

Sure, check out:
http://en.wikipedia.org/wiki/Same-sex_marriage
(this took me 30 seconds to find via google)

Some excerpts:

"In China, especially in the southern province of Fujian where male love was especially cultivated, men would marry youths in elaborate ceremonies. The marriages would last a number of years, at the end of which the elder partner would help the younger find a (female) wife and settle down to raise a family."

"In North America, among the Native American societies, it has taken the form of two-spirit-type relationships, in which some male members of the tribe, from an early age, heed a calling to take on female gender with all its responsibilities. They are prized as wives by the other men in the tribe, who enter into formal marriages with these two-spirit men."

"In the United States during the nineteenth century, there was recognition of the relationship of two women making a long-term commitment to each other and cohabitating, referred to at the time as a Boston marriage; however, the general public at the time likely assumed that sexual activities were not part of the relationship."

"In Africa, among the Azande of the Congo, men would marry youths for whom they had to pay a bride-price to the father. These marriages likewise were understood to be of a temporary nature."

With all due respect for the great intelligence of both authors, I do not believe that they have any real idea of how the ban on gay marriage really affects lesbians and gay men, from an economic perspective. For example, the lack of tax exemption for transfers between partners upon death or dissolution costs gay couples millions of dollars. The lack of state and loca tax exemptions that are enjoyed by married couples costs couples an enormous amount. And, the economic costs to the economically dependent partner (and there are many of them, even with the same-genderedness of gay relationships) can be very significant. There is a great deal of literature on how the ban on gay marriage has affected lesbian and gay families, and I would strongly encourage the authors to spend some time looking at that literature or speaking with experts in the field before making so many incorrect statements.
Frederick Hertz

I want to make one contribution: the point that opposition to expanding marriage to include gays and lesbians is purely or even primarily religious in nature. Rather, it generally arises from a complicated and often well-thought-out consideration of homosexuality and its practical causes and effects. Those that oppose it for a religious perspective do not just see the Bible as Divine Word divorced from human experience. Quite often, if they say that, they mean that traditional teachings that are encapsulated in Biblical writings are so refined and tested through generations of thinking and refining that they deserve deference and reverence that one would ascribe to a divine proclamation.

It is very critical to understand that about Biblically based arguments. Most that dismiss them out of hand flat miss that boat entirely.

Personally, I am Episcopalian and do not consider homosexuality to be morally depraved. I also do not support gay/lesbian marriage, because my experience strongly suggests that the phenomenon has a big choice-based and/or environmental component to it, that it usually causes great psychological trauma and separationist feelings among those that adopt that lifestyle, and many other issues. Recognizing gay/lesbian marriage is a major step towards societal approval and even encouragement, and one I would not support.

There is a difference between moral condemnation and a belief that something is usually not healthy or to be encouraged. I would put myself in the latter category, and many others in the middle quietly do, as well. That is probably the single biggest reason why even "blue" states voted down gay marriage last November.

What do you think of the stuff like the "No Video Games For Kids" activity in the state of Illinois?

http://yro.slashdot.org/yro/04/12/16/1545227.shtml?tid=17&tid=10

1. "Legislatively imposing your narrow" views on the rest of society is what SSM is all about: making homosexuals "accepted in the eyes of society." I therefore cannot take seriously those who support SSM under the guise of legal equality or neutrality.

2. If "diversity" as a "plus factor" can pass "strict scrutiny" analysis (which is supposed to be much stricter than "rational basis"), then virtually any rationale for discrimination can pass muster.

Recognizing gay/lesbian marriage is a major step towards societal approval and even encouragement, and one I would not support. There is a difference between moral condemnation and a belief that something is usually not healthy or to be encouraged.

Not approving of something because it is "not healthy" is itself a moral judgement. In particular, the judgement that people should only do things that are "healthy" is based on moral beliefs.

While a free society should certainly try to provide opportunities for people to be be healthy (and even happy), it is not the place of a free society to require that people be healthy (or even happy).

Of course, a free society must necessarily limit choices that interfere with the free choices of others but it is not the place of a free society to make moral judgements about individual choices. Not all societies are free, though. People who desire moral conformity over freedom can always move to North Korea or Iran. :)

There is little evidence that Lesbianism is genetically determined even in part, though there seems to be evidence for gay males.

Does Corey, using his immutable/genetic characteristic rule, support granting gay marriage for males but not for females? I think he'd have to. Further, does he think bisexuality is an immutable/genetic characteristic, so that polyamory would have to be allowed as well? How about the tendency for males to cheat on their wives (and vice versa, but not as strongly)? That behavior has been around aslong as homosexuals, since time immemorial. Is that immutable and genetically determined as well? My guess is it is, at least in part.

I do not believe genetics or immutability is a relevant charateristic to consider. If, for example, pedophilia was found to be genetically linked, would you support decriminalization or child marriages?

That's an easy one, though. The harm is apparent and nearly everyone short of NAMBLA aggrees there is a real, substantive moral wrong there. With homosexual behavior, that majority is slim, and fewer in that majority would consider the harm great enough to criminalize that behavior. I do not personally consider homosexuality immoral, but I am not certain of the efficacy of gay marriages in the rearing of children. That is, in fact, quite an open question. Given the lack of scientific knowledge on this question, I am perplexed anybody could discribe the state's policy as "irrational" or as a policy which has as its motive "a bare desire to harm." In fact, it would be irrational to expand marriage to include gay marriage at a time when the effects of that family structure are largely up in the air.

A couple of things:

RWS: if you believe that homosexuality is a choice, please choose to be a homosexual for the sake of science, attach a blood pressure cuff to your penis (I'm sure there's a similar measure for women), look at naked men, note the results, choose to become a heterosexual again, do the experiment, and compare your findings. If you believe that there's an environmental component to it, why do you believe that someone should be denied equal legal protections because of something that is no more his fault than if homosexuality were innate (which, not to put too fine a point on it, it is).

A lot of homosexuals in the US do have poor family relations, and I'm one of them. Not so of gays in European countries that have long been tolerant. Homosexual estrangement occurs because of people with ideas like yours, not people with sexual preferences like mine. I love my family as much as I did when I was a kid. I wish I could say that were mutual.

Finally, although opponents of same-sex marriage make me very angry, it is tempered by the vicious pleasure I take in the following:

Anti-gay conservatives are, pardon my language, fucking their way into the ashbin of history. Every year, young people become more accepting of gay people and gay marriage. The children the Right venerates today will undo them tomorrow when young people vote in favor of rights for the gay people they have grown up knowing and loving. I would say to the religious Right: You may not be derided as bigots yet; please trust me that you will be. Know it. Marinate in it. Your children and grandchildren will apologize for you, and I pray you live to hear it.

"While a free society should certainly try to provide opportunities for people to be be healthy (and even happy), it is not the place of a free society to require that people be healthy (or even happy).

Of course, a free society must necessarily limit choices that interfere with the free choices of others but it is not the place of a free society to make moral judgements about individual choices."

In your passion for the cause, you have forgot what we're talking about. Nobody is talking about "limiting choices" on this thread. We are not talking about criminalization of cohabitation. We are not talking about disallowing gay adoption or artificial insemination. We are asking the simple question: may the state promote traditional marriage and not gay marriage? Gays are free to make every choice you describe. But does the government have to promote and support and recognize all "marriages" equally? That is the question.

Maurile,

I hit the link to "what might be my favorite judicial opinion of all time." Posner wrote, "Now that eighteen-year-
olds have the right to vote, it is obvious that
they must be allowed the freedom to form their
political views on the basis of uncensored speech
before they turn eighteen, so that their minds
are not a blank when they first exercise the
franchise. And since an eighteen-year-old's right
to vote is a right personal to him rather than a
right to be exercised on his behalf by his
parents, the right of parents to enlist the aid
of the state to shield their children from ideas
of which the parents disapprove cannot be plenary
either. People are unlikely to become well-
functioning, independent-minded adults and
responsible citizens if they are raised in an
intellectual bubble."

Wow, an attack on Fox News - "We distort - you imbibe."

Re: Palooka's comments

A biological predisposition to bisexuality would obviously not necessitate legalizing polygamy nor condoning polyamory. Straight men are perfectly capable of wanting to marry multiple women now. There are lots of defensible reasons to outlaw polygamy. First, the things that marriage attempts to make simple, polygamy makes muddy. Inheritance: Split it amongst the wives? Medical decision-making: Take a vote? Perhaps one could accede to polygamists views if polygamists were limited to odd numbers of spouses. Nobody argues that being married shuts off the biological urge to mate with others of one's preferred sex. How many sexes one prefers obviously does not factor in here. One could also, if no other objection were found, object to adultery on the grounds that it complicates the above factors. If a child is conceived to a married couple, but not by the father in that couple, who makes medical decisions for him in the event the mother is unavailble, the biological father or the child's mother's husband?? Does he have the same inheritance rights as the offspring of both parents?

The fact that Palooka raises pedophilia in this context is beneath contempt. Even so, I would point out that the cases listed above all implicitly involve those old enough to enter contractual agreements. Even if pedophilia is biologically determined, a biologically doomed pedophile can't claim a right to exact sex from those who aren't competent to consent to it.

"I do not personally consider homosexuality immoral, but I am not certain of the efficacy of gay marriages in the rearing of children."

The efficacy of gay marriages in the rearing of children is stupidly irrelevant. Gay people are having children now. Denying them the right to a stable family dynamic isn't going to make them choose to enter heterosexual marriages. This is the important point. It doesn't matter whether gay marriages are as good as straight marriages for raising children. What matters is whether being in a gay married household is better for children than being in a gay unmarried household, because that is the only choice at hand. I see no reason why conservatives should oppose unmarried cohabitation for straights but fight tooth and nail to ensure it for gays. Again -- the gays aren't drafting from your team, guy, nor you from theirs.

"We are asking the simple question: may the state promote traditional marriage and not gay marriage?"

No. Simple answer. Thanks for reading.

50 years ago, the question would have been: may the state (of Virginia) promote traditional marriage and not inter-racial marriage?

But really, both those questions beg themselves. It isn't that the state is promoting one instead of the other. It is that the state is/was banning one. Banning something is worse than not promoting it.

I've never been convinced that finding a gay gene would fundamentally change most peoples' attitudes about the morality of homosexuality. Being black is 100% genetically determined, being Mormon is not genetically determined at all (modulo some assumptions about heritability of tendency to religion), but discrimination against both groups is illegal and socially unacceptable today. And both groups faced both official and freelance discrimination in the past.

--John

How close can a gay couple get to getting the same sort of financial and legal arrangements as an officially married couple? I gather there are some areas (like medical decisionmaking and writing wills) where a gay couple can, by spending a bunch of extra money and time, get the same outcome they'd get by default by being formally married. And that there are other areas (like tax and immigration treatment) where they can't get the same outcome at any price.

It seems like putting some numbers, however imperfect, on these added difficulties would make it easier to get some sense of how much well being in the world is lost by not allowing gay marriage. (I have no idea how to put numbers on supposed social costs of benefits of gay marriage, but that would also obviously be helpful, if anyone could work it out.)

--John

Nobody is talking about "limiting choices" on this thread.

I thought that was exactly what was being discussed: should gay people be allowed to choose whether or not to get married or should society limit that choice and not allow them to get married?

We are asking the simple question: may the state promote traditional marriage and not gay marriage?

Actually, I thought the question was: may the state allow traditional marriage and not gay marriage?

My original point was that in a free society "allowing" is not the same as "promoting". Just because a free society allows people to own guns it does not mean that the society is promoting gun ownership or that it wants people to own guns or that it holds the moral belief that gun ownership is good for the owner of the gun.

In fact, even if a free society held the moral belief that gun ownership (or gay marriage or whatever) was bad for the person doing it, a free society should still allow it as long as it didn't limit the choices of other people. Private ownership of nuclear weapons could, for example, be outlawed because of the likelihood that it would limit other people's choice to stay alive but not because of the moral belief that it was bad for the owner of the nuclear weapon.

"I thought that was exactly what was being discussed: should gay people be allowed to choose whether or not to get married or should society limit that choice and not allow them to get married?"

Nobody is saying gays can't get "married," they are saying that they are not married under the law. That is, with the official sanction and support of the state. Gays are free to couple and get "married," and even have and raise children. Does the state have to recognize that "marriage" as the equivalent of traditional marriage? No.

All the state currently does is provide official recognition and support (along with enforcing certain responsibilities) to traditional marriage. That does not prevent someone from coupling with someone of the same sex and raising a family. The state's policy in regards to marriage robs no one of a choice. If the state provides tax subsidies to hybrid engines, does that amount to a denial of "choice" for those who wish to purchase traditional combustion engines? No, the subsidy or incentive seeks to promote one behavior and not the other, but the choices nevertheless remain. The question is: Is there a rational reason for this distinction? The answer, of course, is yes.

Milk For Free raises the bigot card in his first post on this thread. But is quick to dismiss the polygamy and polyamory argument, because of their "complicating" factors. It's curious to see "tolerance" only extends so far. If it's complicated, then tolerance goes out the window.

All the passion wrapped up in the rhetoric of fundamental rights and irratioanal discrimination falls kind of flat when polygamy is brought up and the retreat begins. Moral disapprobation is irrelevant, right? Yada, yada, yada. Then the issue of polygamy is raised, and because polygamy would introduce "complicating" factors polygamists are not entitled to their equality or their civil rights. That's a powerful argument. Good to see how genuine your commitment to equality is.

If heterosexuality cannot be preferred to homosexuality, then I fail to see why monogamy can be preferred to polygamy. In fact, if one buys into the argument that denying gay marriage equality is an unconstitutional "establishment of religion" (Corey introduced this delightful trope earlier) then I do not see the monopoly monogamous marriage now enjoys would be constitutional (a Judeo-Christian heritage if there ever was one). Disregarding moral sentiments as a basis of law is a slippery slope, and it's good to know even the most ardent defenders of radical equality shudder to think where the logic leads--madness.

I did not mean to equate pedophilia and homosexuality, and I understand many try to do so. I was merely undermining the commonly held belief that if a trait is genetically determined that it should be viewed with some sympathy. It is possible, even likely, that any number of very reprehensible traits are in part influenced by genetic factors. So that is not an adequate explanation to why homosexuality deserves treatment similar to race--which as I have stated, I am sympathetic to, as I believe much discrimination against homosexuals is irrational. But it isn't quite the same as race. It's more similar to gender, and as such discrimination in some circumstances is permissable.

Palooka:

First, a hat tip to you; you always have sensible comments on this blog.

In a very odd sense, gay marriage is already permissible: A gay man and a lesbian can marry in any of the 50 states. (I know, I know: This seems odd and improbable - but read on.)

My chief concern about gay marriage is not GAY marriage per se; my chief concern is SAME SEX marriage. Gay marriage will never be legalized, because, as practical matter, the cost of verifying that two adults are gay is extremely high. Compared to gay marriage, same-sex marriage has been legalized - and could be legalized in other states - in part because there is no verification cost. (Obviously, if opposite-sex heterosexual marriage and same-sex heterosexual marriage are permissible, the only cost is verifying that the two individuals are consenting adults.)

In this context, my chief concern - and one that I believe has not been expressed in this blog (there are close to 60 entries on the subject!) - is that if same-sex marriage were legalized, over time SAME-SEX HETEROSEXUAL couples who were primarily interested in securing the benefits of marriage, would begin to avail themselves of those benefits by marrying. As a practical matter, it would be impossible for the law to discriminate between same-sex heterosexual couples and same-sex gay couples. Consequently, the definition of marriage would be expanded to include not only gay adult couples but also same-sex heterosexual couples.

Pragmatists might say, ?So what if this happened?? Or, ?This might even good thing.? I wonder, however, whether broadening the definition of marriage would increase marriage rates or decrease marriage rates. (Marriage may attain some of its status because of its exclusiveness; some people don?t want to join a club that everyone can belong to.) Furthermore, if broadening the definition of marriage rates decreased marriage rates, this could have adverse effects on children, who, if the experiment in Scandinavia is any indication, would probably not benefit from such an expansion. See, e.g., Kurtz?s article in the Weekly Standard:

http://www.weeklystandard.com/Content/Public/Articles/000/000/003/660zypwj.asp

Keep on blogging (I read you and the others - even Corey. I just can?t post too often - my job and wife don?t permit it.)

Marriage came about largely for economic reasons, not moral ones. In the Europe of the Middle Ages, when land was a precious resource, passing down rights to property was a big deal. Marriage was based less on love than it was on marrying the right person. Ever hear of arranged marriages? The idea was to marry the “right” person and have heirs who would then inherit title to land so that property could be kept in the family. That’s why the concept of legitimate and illegitimate children became important. Illegitimate children had no inheritance rights. That was because the landed gentry didn’t want a bunch of illegitimate kids getting rights to their land, which was reserved to the proper children of a “proper” marriage. (Today, the distinction between legitimate and illegitimate children is no longer relevant, at least not in Colorado.) Religions became involved in marriage mainly because of enforcement. It’s much easier to keep someone in an arranged marriage where there is probably little affection between the spouses by telling them that they will be punished for eternity if they divorce or cheat on their spouse. From this we have our notions of traditional marriage as being a loving bond between two persons of the opposite sex.

When people say they favor civil unions over marriage for gay couples, my question, from a purely legal perspective, is “What’s the difference?” There is really very little that the law can beyond enforcing the economic purposes of marriage. For instance, the law can’t force someone to love and honor their spouse. The law provides rights in property on divorce and on the death of one spouse. That’s really about it. Marriage, from a legal standpoint, is really nothing more than a “civil union” for mutual economic benefit. Now, before anyone says I don’t value my own marriage, that’s far from the truth. I value my marriage much more than a mere economic benefit. However, this is my own definition of marriage; what the law says about my or anyone else’s marriage is irrelevant to how I perceive my relationship with my wife.

"All the passion wrapped up in the rhetoric of fundamental rights and irratioanal discrimination falls kind of flat when polygamy is brought up and the retreat begins."

Marriage is a partnership, not a corporation. As you may have noticed if you read Becker's post, I am not satisfied with being able to finangle a nubuck marriage (in addition to the inadequacy of these arrangements with regard to tax laws, spousal privilege, etc). My point about polygamy is that it shouldn't factor into the discussion because polygamy complicates exactly those matters marriage is supposed to make simple. What happens to a hospitalized man with two wives, whose wives disagree on treatment? One could designate a wife for making important decisions, but that would destroy the equality marriage is supposed to be based upon. Preferring gay marriage to gay contractual entanglements, however, is a matter of preferring being able to gain admission to a hospital room by saying "I'm his husband," instead of trying to find legal papers in a safe-deposit box.

Perhaps some discrimination on gender is permissible. But it can't defensibly be arbitrary, and if you concede that childrearing isn't really an issue (as I assume you have, as you haven't mentioned it in your reply), I see no other reason to oppose gay marriage. Most people, of course, cite religion, and that's what it boils down to, in the end. I can only say that it never ceases to amaze me that people who won't trust a two-day old newspaper defend arbitrary beliefs citing a book that hasn't been updated in 2,000 years.

Nobody is saying gays can't get "married," they are saying that they are not married under the law. That is, with the official sanction and support of the state. Gays are free to couple and get "married," and even have and raise children. Does the state have to recognize that "marriage" as the equivalent of traditional marriage? No.

OK. So how about...

Nobody is saying gays can't "live in Utah," they are saying that they are not living in Utah under the law. That is, with the official sanction and support of the state. Gays are free to move to Utah and "live in Utah," and even buy houses. Does the state have to recognize that "living in Utah" as the equivalent of traditional living in Utah? No.

If the state provides tax subsidies to hybrid engines, does that amount to a denial of "choice" for those who wish to purchase traditional combustion engines?

If the state refused to acknowledge hybrids and would not provide license plates and registration for them then that would very much be a denial of choice.

What I am trying to get at is that a free society does not try to influence a person's choice on the basis of moral beliefs about whether the choice is good for that person. A free society would not provide incentives for hybrid ownership solely on the basis of a moral belief that hybrid owners were more likely to get into heaven.

A free society is, however, certainly free to influence a person's choice on the basis of providing other people with more of what they want (taking a least cost avoider analysis into account, of course). It is entirely valid to say "I oppose legalizing gay marriage because that would be bad for me." but it is definitely not valid to say "I oppose legalizing gay marriage because that would create an opportunities for people to choose things that would be bad for them."

"equality and gay-marriage are not logically related"

They can be logically related in any number of ways including the one that your statement itself suggests, namely "equality is not identical to gay-marriage." Non-identity is a logical relation. I know it's a silly point, but so was that particular appeal to logic.

"They can" is not THEY MUST. Perhaps, since you purport to be a logician you should learn to read carefully and quote honestly. What I actually wrote is: "Equality simply doesn't mandate that "gay marriage" must exist. The two aren't even logically related."

Meaning there is no necessary connection. "They can" does not assert a necessary connection. Modality is not necessity. (Even worse, necessity need not be identity -- I never suggested that it must.) Furthermore, your sloppy misquote of the relevant sentences is taken out of the larger context of the parapgraphs in which I intentionally placed them: talking about politics. Neutral rules in politics have do not mandate the passage of gay marriage law. Your interpretation of what I meant is not nitpicky at all; it is just wrong. It's a bad interpretation. Period. That you didn't even quote me accurately reflects the weakness of your argument and the dishonesty of its maker.

"I'm not sure why a belief in equality necessarily leads to any political outcome or political regime."

Imagine that 97% of Americans posess the legal right to play basketball. 3% of Americans do not posess this right because of a status (being gay) that does not correlate to "ability to play basketball." An egalitarian worldview would call this unfair, and would ask the regime to justify the discriminatory restriction."

Again, here is the same inability to read on display. I clearly wrote "necessarily". Equality does not necessarily mandate gay marriage legislation. One CAN ask for it, a legislature COULD pass it, but there is no reason that it MUST. Egalitarianism per se is not even a reason, because one could presume that all human beings have equal capacity to achieve political outcomes, which is an egalitarian view that leads to the conclusion that the status quo is just fine. Even egalitarianism does not necessarily lead to gay marriage.

Which, again, is not to say I am against the passage of such laws. But equality or egalitarianism do not necessarily get you there; Corey and his ilk make appeals to fairness and equality knowing full well those catch-phrases are a cover for what they want. They want gay marriage regardless of whether it is justified by appeals to fairness or equality. That is a purely contingent (modal) political stance totally unfettered from any larger objective truth.

It's about as justifiable as misquoting someone and then attacking the straw-man you made out of the misquote: and it's about as logical as a fallacy.

Hey, people here on this blog are the ones that took to calling me a "radical egalitarian". (Also a communist, and lots of other contradictory things.) Its good that I have a strong self-image.

"one could presume that all human beings have equal capacity to achieve political outcomes, which is an egalitarian view that leads to the conclusion that the status quo is just fine."

Yeah, and if one also assumed that people are incapable of communicating with each other and forming coalitions to oppress minority views, then one would have a typical broke-down socio-political model to write a neo-liberal thesis on. Papers that justify the status quo are very popular with the rich, you might even get a fellowship.

"A free society is, however, certainly free to influence a person's choice on the basis of providing other people with more of what they want. It is entirely valid to say 'I oppose legalizing gay marriage because that would be bad for me.' but it is definitely not valid to say 'I oppose legalizing gay marriage because that would create an opportunities for people to choose things that would be bad for them.'"

Our society is not “free.” The Constitution was not free. Freedom is not free. We are not free to do whatever we want. There are limits. On a daily basis government prevents people from choosing. True, we have protections and freedoms given to us from the Constitution, but we also have laws that are based on morals.

Arguments that suggest that most objections to SSM are based on religious standards fail to see that these standards are also moral, not just religious. If “religious” laws were deemed unconstitutional because of the “separation of church and state” argument, then a terrorist could claim that the dominant Judeo-Christian dogma is oppressive, unfair, and unconstitutional (“Thou shalt not kill comes from the Bible, but my religion says I must fight a Holy War.”). If the terrorist example is too extreme, then you can insert drug dealer, thief, polygamist, take your pick.

My point here is that if citizens choose (as evidenced through various referenda last year) that their country should not recognize SSM, then that is the law, and we all have to keep it barring any unconstitutionality determined by the courts. Therefore, in order for SSM to be “legal,” there 1) must be a constitutional argument (which there may be) or 2) legislation/judicial precedence that would make SSM recognized by law.

Briant, I have a tendency to agree with you. All this talk of "rights" and "freedoms" as if they were unfettered and unrestrained absolutes. When the reality is more in the realm of privleges and liberties. It's all in the words and their power to cloud people's minds.

I think what's needed is some good Analytical philosophers to get it all straightened out.

Apropos the implications of sexuality being the product of genetic predisposition: to explain is not to justify.

If the genetically determined constitiution of a person's amygdala predisposes that person to violent tendencies, I would NEVER say that that person's violent actions were justified on the basis of his biological predisposition. (That logic would be catastrophic for our society, as it is composed of homo sapiens sapiens, a species pre-programmed with all sorts of reprehensible urges, desires, etc.)

However, the fact that homosexuality is NOT a choice can and should be brought to bear on this discussion precisely because so many people say that they object to same sex marriage because it "encourages" people to become homosexuals. If that claim is baseless (and I believe it is), then that argument seems to be no good.

(Of course, what these people might mean is that same sex marriage would encourage homosexual behavior -- which it probably would, at least in a more public way -- and here the dynamic gets trickier, because in most places homosexual behavior is NOT illegal. But it seems to me that behavior is easier to legislate upon than the sexuality of individuals.)

Also, if homosexuality is a choice, then is there any distinction between a heterosexual and a homosexual? Only on the basis of behavior. That is not how I think of the terms. I think someone can be homosexual or heterosexual without having sex with anyone or anything. It's the person't orientation, i.e., desire, that matters. Maybe I am all wrong here, but I think these terms are used and understood differently and ambiguously all the time.

Here is my “free market” approach to fostering good marriages. Hold on to your seats, because my argument will lead to the seemingly contrary conclusion that allowing gay marriage will actually strengthen heterosexual marriages. Here goes. The justification for banning gay marriage is to enforce society’s values that homosexuality is wrong. This societal pressure will discourage the homosexual lifestyle and, presumably, cause homosexuals to “switch sides” and adopt a heterosexual lifestyle. Obviously, this won’t work in all cases, but let’s assume it will work in some. Is this necessarily a good idea? Suppose an individual who, because of this societal pressure, decided not to pursue a homosexual lifestyle and instead entered into a heterosexual marriage. Will this person be happy with his or her choice? And if not, will this person be a good spouse and parent? Depressed individuals tend to negatively affect those around them. My guess is that such individuals will not make good spouses and parents and such marriages will more than likely end in divorce – exactly the opposite of society’s goal of fostering good marriages. To put this in less politically correct terms, if a person is unsure of whether they are gay or straight, let that person be gay if he or she so chooses because it is not necessarily in society’s best interest to “force” them to become straight.

I can hear the responses now – if that’s the case, then why don’t we allow pedophiles to prey on children? This comes down to consent. Children cannot, nor should they be allowed to, consent to a sexual relationship with adults. Pedophilia poses a direct harm to children. Homosexuals, on the other hand, are adults capable of consenting. The only harm that homosexuals cause to society, as Judge Posner mentioned, is “outrage.” The question comes down to what is the cost of this outrage.

You ranted,

"They can" is not THEY MUST. Perhaps, since you purport to be a logician you should learn to read carefully and quote honestly. What I actually wrote is: "Equality simply doesn't mandate that "gay marriage" must exist. The two aren't even logically related."

...Furthermore, your sloppy misquote of the relevant sentences is taken out of the larger context of the parapgraphs in which I intentionally placed them: talking about politics.... Your interpretation of what I meant is not nitpicky at all; it is just wrong. It's a bad interpretation. Period. That you didn't even quote me accurately reflects the weakness of your argument and the dishonesty of its maker.

End Rant

Wow...I have never been so attacked for what was primarily a joke of a post pointing out the ineffectiveness of an appeal to pure logic in a substantive debate. But since I was attacked, I really should respond.

There is a necessary logical relation between the terms. "The two aren't even logically related." Assuming "the two" refers "gay marriage" and "equality," then your statement is premised on the existence of both things (if it is to have any truth value). If they are not logically related, then they are not identical since identity is a logical relation. Therefore "gay marriage" [is not identical to] "equality". This is not just possible, but a "necessary" relation if your statement is true. There are other ways to go about this, none of which gives anything more than purely "logical" answers that have no relevance to the real world. That was the point--logic itself shows nothing except relations between defined terms. Where reality checks in is in how persons agree to the defined terms. Obviously your conception of what "equality" is differs from other posters. THAT is where the disagreement is. NOT in whether or not it is "logically" related to gay marriage.

There was no intentional misquote or hidden agenda to set up a "straw man" argument. I like to think that I am honest and am sorry if you felt I misrepresented or harmed you through my "sloppy misquote."

PS--I never claimed ot be nor represented myself as a logician, a person who should have a doctoral and ahve defended a thesis whose subject matter was in the field of logic.

...we also have laws that are based on morals. ... Thou shalt not kill comes from the Bible...

Murder is illegal because people dislike being killed. It would be illegal regardless of whether the bible was in favor of it or against it (unless the bible somehow made everyone want to be killed).

...but my religion says I must fight a Holy War.

It's totally fine if someone decides to fight a holy war as long as it doesn't affect other people. Once it starts affecting other people then it is a case of forcing moral beliefs on other people which is in conflict with separation of church and state.

My point here is that if citizens choose (as evidenced through various referenda last year) that their country should not recognize SSM, then that is the law...

Even though modern politicians use "freedom" and "democracy" interchangeably as meaningless feel-good words, they are actually two very different things (not opposites - just orthogonal). Democracy is relevant when people have to make a single decision (everyone has to have the same president, for example). Freedom is relevant when each person can make their own decision (not everyone has to eat the same breakfast cereal, for example).

The idea underlying separation of church and state is that moral beliefs are like breakfast cereal: it is not necessary or desirable to (democratically) make a single decision that applies to everyone.

That is not to say that someone should not be required to accommodate other people's preferences even when those preferences are based primarily on moral beliefs (being required to wear clothes in public, for example) but with respect to the current topic it should be noted that naked people are (in many contexts - eg. the subway but not the beach) harder to ignore than gay marriage.

I second TRC's economic perspective on SSM, at least to the extent that it addresses the broad issue of the economic benefits attendant to marriage.

at first, I was opposed to SSM because of concerns about extension of economic benefits that are attendant to marriage but (IMO) of questionable equity to a wider class of recipients. my naive hope was that a rational debate on SSM would include these economic issues. unfortunately, it became clear immediately that the dominant basis of objection to SSM was merely disdain for gays and that no rational discussion of any aspect of it was going to occur, at least not in the public arena.

in any case, the contract approach to "marriage" seems potentially to address not only "legitimate" benefits like property rights and presumably visitation rights but also "questionable" benefits such as employer-subsidized family medical plans and dependent tax deductions that perhaps should be - and at least in theory, would be - eliminated rather than propagated if the state's involvement in marriage were terminated. so, I'd love to see public discussion of it but am not holding my breath.

There has been a lot of discussion above, including replies to my post. I just want to reiterate my belief that there is definitely a difference between moral condemnation and considering something unhealthy or unwise. Hurting another person, in my view, is morally wrong. Eating fast food all the time, or getting a big tattoo, or sleeping in late is not morally blameworthy, to me, but rather more along the lines of unhealthy or something that is preferably avoided. Homosexuality, given all the evidence I have seen from scientific articles to history (see Greeks and Romans) to observation, is that homosexuality has at least a strong, if not quite dominant, environmental and choice-driven causal factor, so I would tend to put it in the latter category but not view it with total indifference.

Also, I want to reiterate the point that those that use Biblical references generally have very practical and experience-based approaches to the subject, but they use the Bible as the justification for their view for complicated intellectual reasons. It would be a mistake, however, to view them as generally intellectually simplistic or not cognizant of the real-world debate in the question.

CTW:

Thanks for the kind words, and I agree with your sentiment. RWS has an excellent economic analysis of the issue on Becker's blog at the link below:

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062182

In re