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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:



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.

Ryan K. Culpepperr

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.

Bob Howland

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.

Lisa Weinstein

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.


"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.

Elliot Essman

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?

Art Leonard

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.

michael persoon

"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:
(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."

Frederick Hertz

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?



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.

Milk for Free

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.

Cogliostro Demon


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."

Milk for Free

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.

John Kelsey

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.


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