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.

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 response to RWS's analysis, I expand on and clarify my position at the link below:

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062148

Best,
TRC

CTW:

I elaborate on my position at the following link (not at the one reported immediately above):

http://www.becker-posner-blog.com/archives/2005/07/on_gay_marriage.html#c062194

Mea cupla

"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."

The reason I oppose gay marriage (though I only really strongly oppose judicially mandated gay marriage), at this time, is that I do not think it's a particularly good fit for the institution as it exists today. The primary reason for this is I believe the state's principal reason for involvement, regulation, and support of marriage is its role in child rearing. The fact that the state does not require children to award marriage status means little when heterosexual marriage usually and naturally produces children. Homosexual marriage, in these crucial respects, both in its tendency to have and raise children (low), and in its efficacy as a rearing structure, is quite different than traditional marriage.

Even if one assumes, like you do, that there will be no effect either on the number of homosexual or the amount of homosexuality activity, one is still left with the result of encouraging homosexual households to have and raise children. Whether that is a beneficial to society is now an open question.

Further, though the assumption you attack is not a basis for any of my beliefs, I believe you are mistaken.

First, you tellingly neglect any mention of bisexuals. Bisexuals are the perfect margin case. It's not inconveivable that legalizing gay marriage would channel some bisexuals into same-sex marriage. That's probably pretty certain. Whether that number would be significant, I don't know.

Moreover, any increase in tolerance, as gay marriage definitely embodies, would seem to increase the amount of homosexual sex (though this is different than increasing the number of homosexuals). As societal acceptance increases, gays can look for sex in places they formerly were reluctant to (in the work place, for example). There may be an offsetting effect, however. May be gay promiscuity would drop in the presence of greater tolerance because it would be easier and less costly to maintain long-term relationships (especially true for those homosexuals who now wish to keep their sexuality hidden from their employer and even their family). It is difficult to tell which effect would dominate, but I can see it going either way.

You also seem to be caught up into the idea of pretending there are discrete categories of sexuality--homosexual and heterosexual--and you completely avoid the category of bisexual. I think this is probably mistaken. Most here are probably familiar with the Kinsey scale, which rates sexuality along a continuum.

All one has to do to realize the effect of society on sexuality is look at the Greek and Roman examples, where homosexual acts were common even among what today would be regarded as strong heterosexuals. It's not a far out scenario, either, to believe increased tolerance or permissiveness in general would lead to some moderate and strong heterosexuals "experimenting" with homosexuality. The best case of this today exist in prisons, where self-described heterosexuals nevertheless engage in homosexual sex as a substitute.

In short, gay marriage (and increased permissiveness in general) could likely increase the number of homosexuals and the amount of homosexual sex.

TRC's suggestion that heterosexuals and homosexuals will use SSM as a vehicle to the benefits of marriage is something I have thought about. Tax breaks, where they exist, is one such scenario but I think the greatest driver if this sort of behavior would be gaining access to a friend's health insurance. Though it is undeniably understandable, it is definitely the sort of "diluting" effect Kurtz and others discuss.

Palooka -

First, I am not advocating that anyone, no matter their orientation, have sex at work, esp. not at my workplace.

Second, What exactly is your problem with increased homosexual behavior?

Third, I am familiar with the Kinsey Scale only from the movie. I do not know if it is still considered scientifically accurate.

Fourth, You are correct, I have not discussed the position of bisexuals.

To me, two adults ought to be able to get married -- it is an equal rights issue. If some bisexuals choose to go the same sex marriage route, then so be it. I don't see any problem with this. There is still no net gain or loss to any "group," i.e., don't worry, no one has changed sides, no heterosexual switches to homosexual.

Lastly, I don't think you read all of my last post. For me, there is a difference between sexuality and sexual behavior.

The fundamental issue here is laid out well by Judge Posner:

"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. ... It is not clear what weight, if any, society should give to opinions formed on the basis of scientific error."

Those who most fervently oppose gay marriage oppose civil unions. They have attempted to amend the Constitution to exclude any gay rights or legal recognition in all 50 states. This position stems from a personal religious belief, namely that homosexual behavior is a sin, it is chosen behavior, and no one is homosexual.

This is why when one reads Scalia's opinion in Lawrence he refers only to homosexual behavior - he just can't accept that someone might be born gay and that is an integral and inseparable part of their humanity.

This is not to say that a ban on gay marriage might not make sense from some other perspective. Becker's point on child rearing is correct - it is unclear what negative effects are suffered when children don't have a traditional family. The problem with this line of analysis is it just doesn't match reality. No one needs a license to be a parent, the government only intervenes in the grossest cases of poor parenting, and there is no prohibition against being a single parent. If the government really tried to regulate child bearing and rearing, a totalitarian state would be inevitable.

In the Lawrence case Texas tried to make public health arguments to ban gay sodomy (really the same arguments can be made about gay adoption, marriage, etc.) but these arguments simply don't meet rational basis scrutiny. Just as in the Loving v. Virginia case, all kinds of arguments are made about a deeply held moral belief that just don't stand up against reality.

I would amend Posner's paragraph to say no weight should be given to irrational outrage. The best solution is as described; get government out of marriage regulation altogether.

Many here have commented that we should change the wording of marriage to civil union, or that govt should get out of the marriage business altogether. I disagree with gay marriage, and disagree that the government should get out of the marriage business. Governments are organized to benefit society as a whole, not individual segments of that society. Individual rights are certainly important. Freedom of expression is certainly important. However, society has a duty to impose a compass on its members. Gays should not be persecuted, but they are a small minority in our society. The state has a right to protect its people from deviant practices that could cause future harm. Gays marrying and raising children in our society will do more future harm than any future benefits that may be derived from it. Just because we feel emotionally good that gays love each other and are willing to make a public committment to that love doesn't mean society should sanction it as a construct of that society.

"However, society has a duty to impose a compass on its members."

Umm, by society I assume you meant the guv'ment?
Or do you mean people banding together to paint a scarlet G on "transgressors"?

Are you really prepared to take a step towards either facism or mob rule in order to see your particular "compass" enforced? When you make statements like "freedom/rights are important, however..." you creep some of us out.

"Gays should not be persecuted,. . . The state has a right to protect its people from deviant practices"

Sounds like persecution to me! Didn't someone famous once say "Judge not lest ye be judged"? Yeah, you know, I think it was shortly before he was crucified by the state.

I promise this will be my last reply;

To the poster who really does not like me,

I am sorry that this whole exchange got blown out of the water, and I gather that our actual positions may not be that distinct, but out processes are divergent.

"The concept of equality does not necessarily have any relationship to gay marriage in American politics, because not all conceptions of equality encompass a substantive (political) element."

While I think this statement is true, I think it also precludes any application of the concept of equality to any subject in American politics. The legal issue (as far as an equality argument is concerned)is whether the concept of equality as expressed in the US and various state constitutions (as interpreted by the Sup. Ct.) admits gay marriage. This gets us back to your original point and a question of substantive interpretation not (logical) relations.

"And, as for your "abstract" nonsense, logic need not be abstract. Causation is a relationship of logical necessity that exists in the real world"

Others may disagree, but I would not classify causation as a logically necessity. The classic example of a logical necessity is, "all bachelors are unmarried." A statement that cannot possibly be false, i.e. it is true in all possible worlds. There are other types of necessity, e.g. "biological necessity," "causal necessity," and "physical necessity." Note that there is a long standing tradition in the humanities and science of questioning causality, from Hume, multiple Indian schools of thought, to current experiments in physics where the effect precedes the cause, i.e. faster than light communication. While in the "real world" causation is necessary, you made an appeal to authority by equating it with "logical necessity"--a concept that is largely vacuous.

Also, on the misquote subject, I did not intend to misquote you. I used elipses, "..." for sake of brevity, assuming that any concerned reader would scroll back to the original post. I realize this is inappropriate for formal work, but thought it was okay on a post to a blog. I am sorry this offended you.

Corey, Once again .... Remember, "Render unto Caesar what is Caesar's and to God what is God's.

Right is Right and Wrong is Wrong.
And we could stand here
Playing Bible Ping pong
All day long.

And my favorite, "And what is the Truth?" asked Pilate; but couldn't or wouldn't stay for an answer. And so he washed his hands and walked away.

Palooka talked about whether allowing gay marriage would lead to more homosexuality and more homosexual sex. I guess I'm curious why he thinks this is a sensible topic for government to be trying to manage. Similarly, if we formally recognize Wicca as a religion, we may well have more Wiccans. But it's not the job of the state to try to manage the private religious, sexual, or romantic decisions of its adult citizens, is it?

Imagine someone saying "I propose revoking the right to get married for people unable to bear children. This will decrease the amount of immoral sex for pleasure (as opposed to virtuous sex for procreation)." Does this sound like a sensible proposal?

It sounds crazy, right? And the reason is that we all accept that it's not the job of the state to micromanage how often adults have sex or why they have sex. My feeling is that the gay marriage issue is very similar in this regard. It may lead to more homosexual sex, or less, or have no change. But why on Earth would we want congress and the courts trying to micromanage that? Is there any reason at all to think that this kind of decision can be better made in congress or a court, rather than by individuals deciding for themselves what they'd like to do?

--John

I think the issue of gays raising children is interesting, because it's a place where the state clearly could have a role. That is, trying to minimize the number of people who self-identify as gay seems like a bad thing for the state to do, but trying to minimize the number of children raised in bad environments is very sensible.

This leads to some policy questions, and some empirical ones:

Policy Question: There are gay couples with kids now, though I don't know how common it is. We are pretty reluctant to take kids away from their parents, both because it's a scary intrusive power of the state, and because we really have lousy alternatives for those kids we take away. Given that, we're not likely to start taking gay couples' kids away. Gay marriage seems to improve things for those kids. Does that improvement outweigh the downside of marriage leading to more children?

Empirical Question: Is being raised by a gay couple harder on kids? It seems like it might be somewhat harder because of prejudice, but I'm not sure if there's any empirical data. But I ask this because if you want to use state power to micromanage peoples' private behavior for the sake of children, I think you ought to have some better justification than "Some people think this will be bad for the kids, others don't."

--John Kelsey

A few people on this blog have talked about the issue of homosexuality being a choice. Whether homosexuality is primarily choice or primarily biologically determined raises some difficult conceptual and empirical issues.

Homosexuals tend to argue that homosexuality (understood as an erotic attraction to people of the same sex) is not a choice but is primarily genetically determined. They sometimes bolster this argument with a sensible statement: Why would anyone choose to be homosexual in a society that discriminates against homosexuals?

Behavioral genetics research can inform but not resolve the debate. In BG research, heritability coefficients are computed by comparing groups of people who are similar in genes (monozygotic twins, who share 100% of their genes) to groups of people who are less similar (dizygotic twins, who share 50% of their genes). If homosexuality is primarily genetically influenced, then people who share more genes should be more concordant on the trait.

The behavioral genetic data usually show that no more than 40% of the variance (in individual differences) on the trait of homosexuality can be accounted for by genetic factors, leaving 60% (or more) to be accounted for by nongenetic factors (viz., environmental factors). (The true heritability value is still in dispute, with coefficients generally ranging from around 0% to 60%.) Now compare this to the heritability of intelligence (IQ), which is known to be highly heritable: somewhere between 60% and 80% of the variance in IQ can usually can usually be accounted for by genetic factors, leaving only 40% to 20% of the variance to be accounted for by nongenetic factors. (Note: I suspect that people who strongly advocate a genetic basis for homosexuality are reluctant to acknowledge a strong genetic basis of intelligence.) (See articles in Science, Nature, and other periodicals by Bouchard, Plomin, DeVries, and Bailey; see also, http://en.wikipedia.org/wiki/Genetics_and_sexual_orientation#Twin_Studies)

These data suggest that homosexuality is, in part, genetically influenced. However, they also suggest that the majority of the (individual difference) variation in homosexuality can be attributed to non-genetic factors, including environmental factors (e.g., home rearing environment). Consistent with this possibility, there is at least some evidence that children reared by homosexual parents are more likely to report having engaged in homosexual behavior (see, e.g., Golombok & Tasker, Developmental Psychology, 1997)

TRC

Were the ancient Greeks all born homosexual? Or was their practice of buggery a culturally accepted act? Are prisoners born gay? Are "gay until graduation day" college girls born gay just for 4 years? I don't doubt some people have genetic tendencies, but if you make any behavior more acceptable, you get more of it. Some people are born inclined to violence. If that violence is acceptable, they will behave that way. If not, they may conform their tendencies. We are all human. We can adapt and overcome our genetic weaknesses, whatever they are. Just like many (but not all) prisoners "change" b/c they are in a single sex environment.

I haven't read any but a few comments, so I won't comment on the rest right now. I will just summarize: I don't think I read a whole paragraph of this that didn't make me shake my head in disbelief. The only thing that I liked was the constitutional analysis. That was right on.

This is the weakest thing I have ever read that Posner has written, and I say that as a big fan, and as someone who isn't highly charged against civil unions (I prefer to keep the meaning of the word marriage unchanged -- we change the meaning of too many words for stupid political reasons). I only oppose the Courts forcing it on America. I think this is a political issue -- fight it out in the political arena, not the Courts.

An argument for secular contract based marriage is one thing. But I thought I was supposed to learn something about an economic analysis of marriage in the society we have now. I don't think that subject was really covered b/c of the desire to discuss contract based marriage.

My god, I agree with both Gary Becker and Richard Posner for possibly the first time in my life.

You write: "there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic." Since this is such a key element to your argument, please cite references pro and con such a determination. If the behavior is chosen, government should not provide protections as it does for aged, handicap, race and gender, which are unchosen.

Bill G,

I agree with your reluctance to accept without evidence Posner's statement that, "there is compelling evidence that sexual orientation is an innate (probably genetic) rather than acquired characteristic." The behavioral genetics evidence is not decisive on this issue and could be used to support the influence of non-genetic factors. (I commented on this issue above. The link below references my post.)

http://www.becker-posner-blog.com/archives/2005/07/the_law_and_eco.html#c062250

Best,
TRC

"Palooka talked about whether allowing gay marriage would lead to more homosexuality and more homosexual sex. I guess I'm curious why he thinks this is a sensible topic for government to be trying to manage. Similarly, if we formally recognize Wicca as a religion, we may well have more Wiccans. But it's not the job of the state to try to manage the private religious, sexual, or romantic decisions of its adult citizens, is it?"

I stated that it was not a reason which motived my opinions on the subject, but I think it is absolutely wrong to assume that acceptance of gay marriage could not increase the amount of homosexuals or homosexual sex. For someone, such as RWS, who doesn't want to punish or criminalize homosexual activity but nevertheless would like to reduce what he views as an "unhealthy" behavior, witholding the support and recognition of gay marriage makes sense, for that reason among others.

Whether is it prudent or whether it is sensible depends on one's view of how "unhealthy" one views that behavior.

Your comparison to religion fails because religion enjoys a very elevated and protected role in explicit terms in our Constitution, while sexuality does not. So, at least as a matter of which is permissable from a constitutional perspective, your analogy fails.

I suppose if one is a true libertarian, as I suspect many commenting here are, then one would oppose pretty much any favoritism. For the rest of the population (99.99% of the population) it makes sense to promote or subsidize positive behavior, while withholding that support from less effective or even negative ones.

As a side not, I strongly suspect both Becker and Posner support subsidizes where there are demonstrable positive externalities. This is what I don't get about Becker's and Posner's suggested contractual approach, are they suggesting marriage has no positive externalities and therefore the government has no justifiable role in promoting that behavior?

Palooka,

You're assuming that more homesexuals (and thus more homosexual behavior) is a negative that government must try to stop. I disagree with your premise (only more closeted homosexuals will come out with more tolerance, not more heterosexuals becoming homosexuals) but even if its true where does it stop. There is all kinds of unhealthy behavior, far more unhealthy then dubious sterotypes about gay people, that government could try to stop. Obesity is a huge epidemic with direct cost implications. Should obese people be prevented from being parents (I'm sure there's a greater likelihood their children will be overweight)? How about smokers?

I don't disagree that there are positive externalities to marriage. Those same externalities apply to gay couples as well. It is likely that they exceed whatever negative externality you suggest. Why? Because gay couples have children now, they are in long term relationships now. Marriage would create stability for these familes and relationships.

The reason I support government staying away from this issue is that it creates more problems than it solves. Similar reasoning extends to education and other areas where government must take sides in moral debates that are best left to individuals.

I am not sure how many times I have to say that is not a factor in my opposition to gay marriage. I only bring it up because I believe it is false to argue that gay marriage will have no impact on homosexual behavior in society.

It is probably true that for those children being raised in gay households already that gay marriage would be of benefit to them. Whether the government should encourage even more gays to have and raise children is the question of concern. Is that healthy for society? Nobody can pretend to know that answer.

Also, I don't know what is with the propensity for sloppy analogies here, but saying a smoker cannot be a parent is a whole lot different than saying a gay marriage will not be recognized by the state. I shouldn't have to explain why that analogy is inapt. Moreover, even if your analogy were more precise, in that the smoker was only excluded from having his/her marriage recognized by the state, there is of course the argument that marriage is a fundamental right within its implicit parameters (one man, one woman). It is a different thing entirely to say that an individual has a right to marriage on his or her own terms, society's conceptions be damned.

I feel my opinion has been obscured a bit. Let me reitterate that I do not know if gay marriages will prove to be inferior to traditional marriage in the rearing of children. I do not think that is inconceivable, however. The state of scientific research on this and related questions is in its preliminary stages, and I don't think the results support either contention.

Because of the importance of the institution of marriage, and because of the uncertainty of how this change will effect society and the institution of marriage, I think it is eminently rational to delay fundamentally altering this crucial societal institution.

Palooka argued that gays shouldn't be allowed to marry because a gay marriage might be a sub-optimal childrearing environment, and then suggested that standards of proper childrearing don't apply, to any groups whose inclusion in marriage would make you look like a hypocrite (e.g. smokers). Because, of course, "the right to marry is fundamental within its implicit parameters."

I don't really need to go any further, but just for fun I'll quote:

"It is probably true that for those children being raised in ____ households already that ____ marriage would be of benefit to them. Whether the government should encourage even more ____ to have and raise children is the question of concern."

Fill in the blank with the name of the disadvantaged group of your choice, and I think you'll see how base an argument it really is.

Palooka, you have left SIXTEEN comments on this page! You know, this isn't exactly a chat room...

In reading through the comments, I hope the sexy judge addresses the following questions posed by John Kelsey:

Empirical Question: Is being raised by a gay couple harder on kids? It seems like it might be somewhat harder because of prejudice, but I'm not sure if there's any empirical data. But I ask this because if you want to use state power to micromanage peoples' private behavior for the sake of children, I think you ought to have some better justification than "Some people think this will be bad for the kids, others don't."

It's not the job of the state to try to manage the private religious, sexual, or romantic decisions of its adult citizens, is it?

"Fill in the blank with the name of the disadvantaged group of your choice, and I think you'll see how base an argument it really is."

I take this to mean you think it is wrong to even ask if some family structures are better than others? Polygamy should be "equal" under the law because we shouldn't at all be concerned with its effect on women or its fitness to raise productive citizens. The opposite of the argument that you call base is what I call madness.

"It's not the job of the state to try to manage the private religious, sexual, or romantic decisions of its adult citizens, is it?"

The funny thing is that is precisely what would happen (regulation) if gay marriage equality were adopted. Yes, there are benefits which go along with that regulation, but if one wants to be free of the state's "management", then they would do best not to get married at all, at least not legally. Opps, that's my 17th comment (according to you). I guess this should be my last. =) It's been a good discussion, everyone. Ciao.

The classic example of a logical necessity is, "all bachelors are unmarried."

No, that would be analytic, which is really synthetic, so that isn't necessary either. For someone who doubts causation by referring to Hume, you'd think you might have caught up to this century and read some Wittgenstein or Quine.

I suspect your non-reading of these two is a necessary cause of your silly statements.

"The concept of equality does not necessarily have any relationship to gay marriage in American politics, because not all conceptions of equality encompass a substantive (political) element."

While I think this statement is true, I think it also precludes any application of the concept of equality to any subject in American politics.

No, it doesn't. It permits in all possible worlds what I described, and you left out when you misquoted me: "neutral rules". Again, neutral rules do not mandate the passage of gay marriage laws, in the same way that all dogs are canine.

I think I understand what Palooka is saying regarding state regulation. If the state recognized gay marriage (SSM) then it would be issuing licenses, etc. and regulating it. The people who want "freedom of choice" in marriage are really pushing for marriage de-regulation. The state shall recognize no marriage and then everyone can get married however they want in private, civil covenants (promise to perform in exchange for a promise to perform). Presumably tax benefits, etc. could still be used as incentives to encourage certain TYPES of marriage as the state would still have legitimate/important/compelling interests, e.g. child wellfare.

This is not an equal protection issue. The laws of marriage are the same for everyone: you may marry one person of the opposite sex (subject to age of consent and blood relation limitations) at a time.

There is no discrimination in that context. None. The problem for gays is the desire to move outside of that context.

Marriage has had the same definition forever in about every culture that I know of. Even in societies that recognize polygamy (and there is no logical distinction b/t "gay marriage" and polygamy for purposes of this discussion as I can see), the "marriage contract" was between the man and woman. The multiple wives (or husbands) were not married to each other.

I only offer this to the civil rights advocates. If you want to change the meaning of the word marriage - fine. But admit what you are doing and quit trying to do this in the courts.

As for the constitutional amendment movement, let's also be clear about what that is about. I am a Christian and think homosexual conduct is a sin. I don't support criminalizing it, nor am I particularly troubled by the civil union concept. But if I think that my state Supreme Court is going to force gay marriage on my state, I am going to vote for amendment to keep the Court in line. If I don't have that concern, then fine -- keep it an open topic in the legislature.

First, sorry for my length.

I think there is a flaw in recognizing marriage as a contract, the terms of which can be freely negotiated between the "married" couple.

Marriage is seen as an esteemed institution, I think. As a legal contract, marriage includes certain terms. The terms of the contract play a significant role in making it an esteemed institution. If the terms of the contract are changed, or if everyone has different terms, then part of the esteem may be lost. In a universe where the terms of the marriage contract are highly variable across couples, an individual would not know what to think when a couple tells the individual that they are "married." Really, the individual would have no clue what that meant. The current terms serve as a floor.

This may be presumptious, but I think your comparison to other cultures is unhelpful. Take the instance where marriage signifies the purchase of a woman by the man's family in Culture X. It is true that this is radically different than the American conception of marriage; but "marriage" still means something in Culture X. It each case you cite, while marriage means something radically different than what it means in America, it still means something. If marriage terms are freely negotiable, then marriage loses all meaning.

It is true that particular religions (or groups) could set a different floor on the terms of marriage. Why does the state need to recognize terms? I think this just goes back to the dilution argument. Various groups with various definitions leads to a dilution of the meaning of the word. Why do we want a single recognized term? I do not know, but we do.

I am one of those who is inexplicably worried about the word "marriage," while I would not mind a "civil union" with the exact same contractual terms. It makes no sense to me; yet it still bothers me. I do not know the explanation for my feelings (and they are feelings, not thoughts) on this issue.

Because I cannot put a finger on the explanation, I think it may just be my own prejudices. As a young man, who played sports, being gay was seen as a weakness; the jokes and ribs are endless. But as I consider myself a decent and good person (as everyone does, including racists, I suppose) it is difficult for me to recognize that I have a prejudice against homosexuals. I have friends that are gay, there are gay men at my law firm that I work under. Is a clinging prejudice my only explanation for calling gay marriage "civil union"? I think it may be; in which case, it of course cannot be a good one.

Whatever the explanation, I am a person who is worried about the word "marriage," though I have no good reason why. It has puzzled me for as long as I have thought about the issue.

"Is being raised by a gay couple harder on kids? It seems like it might be somewhat harder because of prejudice, but I'm not sure if there's any empirical data."

I've said this before but no one is reading that far up the comment pile of course (sensibly so):

Even if there WAS empirical data, it isn't any more of an argument against gay marriage as it was when prople tried to use it against interracial marriage.

There are still a few people left who think being gay is a choice, fine, but can't we ALL agree that children of gay parents did not choose to have gay parents? If life is hard for children of _____ parents because of prejudice against ______, then you TEACH TOLERANCE in the schools.

Which is of course already happening, and if anti-gay parents actually let their children speak freely, they would find that these days children know better than parents how to treat everyone humanely.

"Why does the state need to recognize terms?"

Well, because around this country today, gays are being insulted, harassed, beaten, and sometimes even killed for who they are. Inequalities in treatment of gays by the government give tacit approval to those who are actively trying to maintain gays as an underclass.

Many people on this discussion have refered to the supposed negative consequences of tacit state approval of gay marriage. Well, what of the consequences of a constitutional amendment LIMITING rights. What comfort will the bigots who run www.godhatesfags.com take from that?

"However, society has a duty to impose a compass on its members."

Let me preface my comments by saying that although I have argued in favor of gay marriage, I am not necessarily "for" gay marriage or gay practices (to put it mildly, I find the idea of being gay pretty darn distaseteful); rather, I am a staunch libertarian and believe in limited government intrusion in our lives. Having said that, while it may be true that society has a duty to impose a moral compass on its members, the question I always ask is whether government has the power to impose such a moral compass. What the law allows and what society tolerates are frequently two separate things. One poster noted the difficult experiences he had growing gay in the Bible Belt region. Clearly, the culture of the Bible Belt region does not tolerate homosexuality. I think that gays would still find it difficult to gain acceptance in the Bible Belt region regardless of what the law allowed. For example, I know people who still find it difficult to accept interracial or "mixed" marriages despite the fact that the law has allowed such marriages for how many years now.

"I think it is eminently rational to delay fundamentally altering this crucial societal institution"

on it's face, this is a perfectly reasonable position. the only problem is that it's also hypocritical. suppose gay marriage were allowed and then evidence arose that children reared by gays were unequivocally less "healthy" than those reared by straights. by this logic, it would be "eminently rational" to immediately ban gay marriage and possibly to remove the children from those environments.

but it is my impression that we are in exactly that position with respect to marriages involving significantly more numerous groups from which parents are drawn, eg, substance abusers, singles, the desparately poor. and yet few would dream of seriously suggesting that children be removed from such environments or that couples from such groups be banned from marrying. to the extent that the situations aren't ignored completely, bad environments arising from these potentially "risky" parents are treated a posteriori on a case-by-case basis. with respect to those risk groups, it's understood that penalizing individuals based on group identification is discrimination.

this is all reminiscent of the bad ole days when segregationists argued that blacks on average have lower intelligence than whites and admitting them into white schools would lower the average achievement. the appropriate (in the sense of being logical, not sensible) response to that argument was "then propose limiting admission based on intelligence, not race". analoguously, those with a real concern about parental "quality" should propose stringent qualification reviews for bearing children. lotsa luck.

PS - the suggestion of quotas on posts was ridiculous, especially when one is under attack as you have been. please post away!

"Even if there WAS empirical data, it isn't any more of an argument against gay marriage as it was when prople tried to use it against interracial marriage."

Actually, you're wrong. Racial disctinctions are subject to strict scrutiny, and homosexuality is subject to rational basis analysis. Therefore what would meet rational basis does not necessarily meet strict scrutiny.

Moreoever, let us say there is, hypothetically, a statistical differences in, say, black and white family efficacy. This would be because race is a loose proxy to income, education or even culture. Nobody would suggest race is a causal factor in parental efficacy, though gender diversity as a casual factor is not controversial. It is not inconceivable in the least to posit that a mother and a father is a superior family structure to two mothers or two fathers. That's a substantive difference, unlike that of race.

"PS - the suggestion of quotas on posts was ridiculous, especially when one is under attack as you have been. please post away!"

OK, you asked for it =) I am not sure why you suggest that "few" would support the removal of children from the homes of substance abusers. That happens all the time, and depending on the severity of the addiction and the substance, it is completely justifiable. I have also pointed out that there is a plausible argument that marriage (within its historical and traditional boundaries) may be considered a "fundamental right." New definitions, such as that of gay marriage, because of the lack of historical and legal support, is a different story.

Of course the denial of gay marriage equality is discrimination. The government discriminates--treats different groups differently--all the time. This should not be in itself a controversial thing. You say that one should look to parental "quality" instead of limiting all gay marriages. Well, you seem to believe that substance abuse is a legitimate qualitative factor to consider. Yet I am sure you also know that it isn't a PERFECT qualitative factor. One is bound to exclude parents who are very good parents despite their addiction. This is an inherent problem in ANY exclusion of any group, however rational that exclusion may be on a macro level. The alternative is to have a case-by-case analysis, but that, too, is not perfect. In fact, it may be less perfect (and thus less rational) than a policy of blanket exclusion.

"I am not sure why you suggest that "few" would support the removal of children from the homes of substance abusers."

simple - cynical ignorance. I infer from the mindless "pro-family" rhetoric of most gay marriage opponents that any rational approach to child nurturing is off the table. if that inference is wrong in practice, I am delighted.

"you seem to believe that substance abuse is a legitimate qualitative factor to consider. Yet I am sure you also know that it isn't a PERFECT qualitative factor"

of course, which is my point. substance abuse may result in a home environment that is suboptimal - on a scale of 1-10 with 10 being most promising, say 6. if gay parents result in a home environment that is 5, it would seem obviously prejudicial to restrict gay parenthood but not "junky" parenthood. on the other hand, if the rating for gay parents is 2, then it might be quite appropriate to restrict gay parenthood (altho not necessarily gay marriage).

really, the only disagreement between us is political. you say "there are rational reasons to be cautious" re gay parenthood. I agree, and as noted earlier, also have concerns about the purely economic implications of gay marriage (or more accurately, marriage in general). unfortunately, the dominant anti-gay marriage political forces don't care about rational concerns - they just don't like gays. so, you have the problem of guilt by association, altho I am now convinced that in your case, that is unfair. my apologies for any suggestions to the contrary.

Addressing the fear that SSM might encourage some people to "choose" homosexuality, Judge Posner notes: "[T]here 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."

This is an intriguing point. In private economic matters, the artifacts of commonly held fear may support legal protection, even if the fear is scientifically unfounded. For example, some courts have allowed a homeowner to recover damages for a decline in property value that can be traced to a pollutant spill, or the opening of a sanitarium, on nearby land, even if it is scientifically impossible for any contaminants or contagion to reach the homeowner's property. The point is that the fear, factually unfounded or not, may be real, natural, and widespread enough to have demonstrable economic consequences on the neighborhood. If the neighbor incurs a benefit or avoids a cost based on her behavior, she might be required to pay for that privilege even if, scientifically speaking, the behavior isn't hurting anyone. In these circumstances, the courts do not simply tell the entire neighborhood that its fears are scientifically silly and that its only recourse lies in educating the public so property values can be maintained at the old levels.

All human beings naturally experience xenophobia. Every society and social group supports and reinforces such fear in one area or another. In some instances this naturally arising, socially channeled fear presents itself as profound disgust and takes on moral overtones. It certainly has economic consequences. Indeed, it often demonstrably lowers property values. Nonetheless, our legal system no longer condones discrimination in most settings based on race. Antimiscegenation laws are no longer enforced although mixed-race couples have long faced social rejection and physical violence. As a society we have, at least on paper, declared that our schools, restaurants, hotels, factories, offices, military units, and bedrooms must be shared by all races even though this regime still makes many people profoundly uncomfortable and continues to impose significant economic burdens on the participants, including but not limited to the matters of emotional utility discussed by Judge Posner. In each of those settings, courts previously upheld segregation on the basis of hallowed principles, most of which could be traced to the fact that a substantial number of citizens in the white majority feared that they or their loved ones would be debased by contact with other races. The courts' recent determination to override these fears, and to deprive them of legal sanction, does not merely constitute a finding that the fears are not scientifically accurate, or that they are not natural or widespread. Rather, our society has recognized, or articulated, or discovered, or created, a constitutional basis for declaring such fears unworthy of community support.

A changed legal regime cannot eliminate naturally occurring or socially reinforced xenophobia. Nor should it impinge on religious doctrine as such. But our constitutional jurisprudence and the social framework it creates may, over time, reduce the impact of such fears and their social and economic costs.

Same-sex civil unions or marriages, like homosexuality itself, terrifies some people -- enough to inspire dread, lower property values, and impose other economic costs. Should society support such fear in matters of public accommodation? We have gradually applied the same nondiscrimination principles to matters of sexual orientation as to matters of race. The trend seems clear, even if the timeline is not.

"Actually, you're wrong. Racial disctinctions are subject to strict scrutiny, and homosexuality is subject to rational basis analysis."

Come on, yes I know the current state of the law. The law also says no gay marriage. I think you could reasonably assume that if I am arguing for a change in THAT law, then I probably also don't think sexual orientation should be getting rational basis.

But I'll be clear. I believe sexual orientation AND gender should be getting full strict scrutiny.

And I believe that within my lifetime that will occur, and I will celebrate, and I won't know any of you then, so you can close your eyes for a minute and imagine me saying, "see, I told you so" with a smile and raised pint.

I am a little bit surprised that in light of Lawrence, courts have not laid siege on the military's ridiculous "don't ask, don't tell" rule. I think there are two explanations. First, courts are reluctant to interfere with the military in any way, even in what should be basic matters of civil rights. Second, I think that the "elites" who make up the federal judiciary, liberal and conservative alike, regard military types as philistines to begin with, and thus expect and tolerate a certain amount of bigotry from them. Either rationale, in my view, is shortsighted and wrong.

The same logic applies to rules banning women in "combat." Though, as a practical matter, women in combat support positions participate in combat every day.

I'd like to widen the scope from that of gay marriage to marriage in general, and view that broader subject as proposed here. With that in mind, I bring attention to the decision of Court of Appeal in Balfour v. Balfour (1919).

Here's my take on it. In Balfour we have a case of a woman trying to enforce a promise made to her by her ex-husband when they were still married. In the spirit that is being advocated by Judge Posner, where marriage is viewed as an institution with its basis in contract law, the lower court applied the doctrine of consideration to enforce this particular promise. Just to underscore the point as I see it, the court viewed the broad institution of marriage through the lens of contract law, and applied contract doctrine to a particular agreement reached between the married couple.

However, the Court of Appeal saw applying contract doctrine to marriage as inappropriate. As I understand it, they reversed the decision of the lower court on the technical grounds that her acceptance of this promise did not constitute consideration. However in looking at the opinions of the judges, they were concerned with greater issues of social policy, not the technicalities of applying the laws of contracts to marriage.

To quote Atkin, "The consideration that really obtains for them is that natural love and affection which counts for so little in these cold Courts....[E]ach house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted...."

If the basis of marriage in general is to be found in contract law because it serves a utilitarian and economic purpose as proposed by Judge Posner, what about the individual agreements that arise between marriage partners? It seems to me that if the principle applies to the broadly defined marriage relationship, then by extension it will inevitably apply to the all the components that make up that relationship. As the judges describe here, agreements never intended as matters of law could come to be litigated as legal grievances.



If that were to be the result, then all the economic and utilitarian advantages that would attain to the marriage qua contract argument would be outweighed by the disadvantages of such a view.



Again, to quote Atkin, "All I can say is that the small Courts of this country would have to be multiplied on hundredfold if these arrangements were held to result in legal obligations."

Hey Corey, Newsflash:

You are gay.

"This is an intriguing point. In private economic matters, the artifacts of commonly held fear may support legal protection, even if the fear is scientifically unfounded."

I think I remember reading once of a law in one state that required a homeowner to disclose to a prospective buyer whether a murder or suicide had occurred in the dwelling. I guess "ghosts" bring down property values.

Why stop at marriage?

I think the whole issue of gay marriage is the tip of a much larger iceberg. Kinship relationships in our society are usually based on relatedness and assumed by state statutes. Living in more mobile societies, it is not unusual for the people that are closest to you to be unrelated by blood or marriage at all.

I like the idea of contracts for marriage. 1 I just don't see why it should stop there, a system of social contracting for kinship would make a lot of sense.

1-I had an unofficial contract for the first 5 years of my marriage, we still look it over as a way to talk about how we want our relationship to work.

In response to the many comments about "xenophobia" and the like:

Disgust or moral revulsion of behavior should not be an inadequate justification in every circumstance.

Let us examine a few examples. Bestiality. It's been brought up in this thread, and has been said that because animals lack the ability to consent, it can thus be criminalized. We don't require animals' consent for work they perform or consent to be slaughtered and eaten, so I don't see why consent for sexual acts would be required. We do outlaw cruelty and torture of animals but this would only mandate that bestiality which was cruel and harmful be outlawed. Is it impossible that an animal could actually enjoy sex with a human? We only need to look at the behavior of a neighbor's dog to find that answer. Oh, and ask Lassie if he thinks getting a blow job is cruel. What about the donkey in a donkey show? I don't mean to disgust or throw rhetorical bombs, but I think it should be obvious the reason society outlaws this sort of behavior is that it is REVOLTING and not because animals lack the ability to consent or that all bestiality is harmful to them. Revulsion is either legitimate or its not, and if it's not I am not sure how one justifies outlawing some forms of bestiality which clearly do not hurt or torture animals.

A second example is that of non-procreative incest. Incest which is potentially procreative can produce offspring with severe abnormalities, so I concede that can be outlawed consistent wtih the sort of Millian philosophy so many here seem to subscribe to. But non-procreative incest is different, from a strict application of Mill's principles outlined in On Liberty, there is no reason the state should outlaw two brothers or sisters from having sex (or an elderly woman and her son).

Does anybody here really believe moral revulsion, even if almost universally held, is a an illegitimate basis of law? And if you do, how do you justify outlawing the examples discussed above in a way which does not offend your principles?

Mr. Posner,
On you column "Bad News" I wish to say, that I am happy there are bloggers and Fox News. For a long time, listening to the MSM, I felt that no one else objected to their opinions like I did and now I have an outlet, a news media that does't slant to the left. There is now a place where I can hear news that isn't anit-American, anti-tradional. A media outlet exists that doesn't accept false documents presented by Rather and CBS in an election year. Yes, finally freedom of the press for all of the people. Vicki Strickland

I decided to change my mind. What did it? Well, Canada has just legalized gay marriage.

Let us say that the cost of changing our law and society so that gay marriage is legal is 5. The cost of transporting all gay people in the United States to Canada (including them becoming Candadians), however, is 3. Should we round them up and send them off?

The obvious answer is yes, because of the cost-savings. It's worth it! All we need is a President brave enough to do it!

OK, so once again someone has decided to post
pretending to be me. Not a very convincing impersonation though. Please stop doing that,
it is very inconsiderate and further dumbs down the debate here. Forging posts is easy to do here, but if it happens much it will become impossible for _anyone_ to maintain credibility.

And as far as I am concerned, this carefully reasoned response...

"Hey Corey, Newsflash: You are gay."

...makes me feel very good about the company I keep over on my side of this debate. Peace be with you.

I am a schizo!

State sponsorship of marriage is a violation of the principle of the separation of church and state. That violation occurs every time a minister on the altar says "By the power vested in me by the State of ...", or every time a minister signed a marriage license in the back of church after the ceremony. We somehow need to do a better job distinguishing civil unions from religious unions.

"Does anybody here really believe moral revulsion, even if almost universally held, is a an illegitimate basis of law? And if you do, how do you justify outlawing the examples discussed above in a way which does not offend your principles?"

From an economic perspective, laws based solely on moral revulsion don't make sense. You will probably ask, "Where do you draw the line?" Let's take your bestiality example. If an individual decides to have sex with his dog in the front lawn, that type of conduct should definitely be prohibited. Deviant sexual conduct, and even "normal" sexual conduct, should not be performed in public because: (1) the deviant conduct will actually offend somebody and cause emotional harm; and (2) the normal conduct, even if it wouldn't offend some adults in our population, would be harmful for children to watch. There is a legitimate economic interest here: the preservation of emotional health. Now, suppose that individual had sex with his dog in the privacy of his home, with the blinds closed and doors locked so that curious onlookers could not accidentally walk in on the act. I am not denying that such an act is disgusting because I certainly feel it is. However, does society have a legitimate reason to police what people do in their own homes? If so, how would you enforce it? Enforcement of laws carries with it a real economic cost carried by the taxpayers. Would you be willing to have your taxes increased to pay for extra judicial resources to prosecute the man who likes his dog a little too much but who does it where no one can see? How about more prisons? What would be probable cause for arresting someone for bestiality? Would people who really like animals in a normal way suddenly need to be fearful that an overzealous law enforcement administration is constantly watching his or her every move? As a practical matter, they probably would not. Historically, there were many laws on the books, and some still remain, that governed sexual conduct that was once considered immoral that today would be considered a relatively normal part of a heterosexual relationship. The Lawrence v. Texas sodomy case came about not because the police were looking to arrest two gay men for engaging in sodomy but because the police entered the wrong apartment and accidentally found the two gay men. However, the DA's office can be quite politicaly, and you never know what crimes will be targeted for prosecution.

I'm not sure if you answered the question, MikeTheBear. But you do ask some of me.

Yes, there are enforcement costs. Yes, I am willing to bear those costs (or my portion of them). That said, these sort of laws are more of a moral statement. The ability of laws to stigmatize and reinforce social norms should not be under-estimated.

Political and selective enforcement is always a problem, and these kind of laws present no special case in that regard.

I must first apologize to everybody for the mistake I could have done in the writing, since english is not my mother language.



As I can figure, there are two points in Mr. Posner position :



- Firstly, the economic evaluation of social benefits of same sex marriage have to be done with a diference between the social cost of outrage and the benefits for the would-be married people.



- secondly, the equal protection clause hardly protect the right for gay people to claim for marriage.




Both of these arguments are raising questions.




- On the cost/benefit calculation of the same sex marriage :




One can hardly except the same-sex mariage from the whole debate on civil liberties.



Surely, the law protection of rights may outrage and cause harm to some part (even a major part) of society. But taking that in account supposes a very neutral attitude that can endanger the very basis of a liberal democracy.



Let's, indeed, replace the benefit of marriage by the benefit of the vote and let's replace the gays by jews or coloured people. There is no need to go far deep in history to remember that protect (or deprived people of) such rights have certainly harm a large category of people, and would have been considered as a harm to the majority under the nazi law.




Do we have to admit that such a calculation can lead a society to deprive people of rights or benefits of the law, simply because a majority is opposed to ? Calculation can't be that neutral. Values a democratic society accepts to protect by the law certainly harm a more or less large category of people, and yet we assume it has to be done because everybody is so ensured to benefit of the rights he values the most.




In other words, such a calculation have to integrate the global benefits or costs of the plurality, as the US supreme court does when freedom of speech is at stake.




Deprive a category of rights that everybody else belongs costs everybody else. As noted by Mr. Posner, "Of course it is often the duty of courts to buck public opinion; many constitutional rights are designed for the protection of minorities", which leads us to the second point.




- The constitutionnal basis of the same sex marriage




Il must admit that I can't clearly see the very economic argument that allows Mr. Posner to except sexual orientation from the benefit of a right.




The US constitution does not protect expressio verbis right of marriage between gay people. But neither does it protect the right of mariage between individuals of differents races, neither even protect the right of marriage, which, as far as remember lies in the right to pursuit happiness (which is not expressed in the US Constitution but in the declaration of independance).




For this very reason, I must say that I cannot see how the state government could deprive gay people of the benefits of rights that have been conceded to everybody else ont that ground.

And as far as I am concerned, this carefully reasoned response...



"Hey Corey, Newsflash: You are gay."



...makes me feel very good about the company I keep over on my side of this debate



May we interpret this as tacit acknowledgement of your homosexuality?



The sophomoric "you are gay" swipe, which you do well to sidestep, nonetheless illustrates that by explictly distancing yourself from gays you are implicitly aknowledging there is something wrong with the gay lifestyle.



In fact, distancing yourself from being gay was the very first thing you wrote in your first post. "First off, I would like to assert that I am a strong supporter of gay marriege[sic] who is not gay or closely related to someone who is."



I suppose you thought that this disclosure would breathe legitimacy into your perspective? Your need to assert your heterosexuality only undermines your argument(s).

Your comments overlooked what is probably a driving force behind the push for gay marriage. The new wealth – pensions, employer sponsored healthcare and social security benefits. While a bit of foresight and the help of modestly skilled lawyer can deal with a gay couple’s old wealth such as stocks, bonds, real estate, bank accounts and life insurance, no such options exist for the new wealth.

Pensions either automatically cover the surviving spouse or can the beneficiary can elect coverage. Employer sponsored health care plans for active employees or retirees either automatically cover spouses and children or offer optional family coverage. Finally social security allows the survivor to elect to receive the deceased partner’s benefits. But the new wealth almost never allows a gay couple to have the same options as the married couple.

Result, the gay community sees that same sex marriage would permit it to share those options. In the USA, a naive belief that the full faith and credit clause of the constitution would force all states to recognize same sex marriages contracted in another state, leads to a push for gay marriage.

Regarding the terms "homosexual marriage" or "gay marriage"--it is marriage rights gays and lesbians are looking to enjoy.

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