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September 05, 2003



First point: Eugene Volokh is rubbing off on you.

Second point: Are you assuming that in case (2), no moral objections are valid?


Good point, Ogged. I guess i just take it to be obvious there are no interesting non-religiously-grounded moral objections to homosexuality - hence to homosexual union. Ergo, once you stipulate that religion is set aside, what remains - by way of reason and argument - ought to be pragmatic and politically liberal. That is, it is a matter of arranging best for private individuals to pursue their chosen goods and ends as they see fit, without getting too badly in each others' way.

Can you think of a plausible, plausibly non-religious moral objection to homosexuality?


Oh, and yes you are right about me having been assimilated by the Volokh over-mind, Ogged. The more I think like Eugene, the happier I feel. (I still wish I could write more like Lileks. I am a very moderate leftist - who jumped right after 9/11 then gradually recovered his native bearings - in semi-intellectual and semi-stylistic thrall to those to the right of me. Strange days.) It should be taken as read that this post was semi-inspired by Eugene's posts on religious toleration and religious exclusions, so forth.

There is a fallacy in it, now that I bother to check. Namely, moving to 3) obviously removes the bar, lowered in 2) against religious reasons. Which could well make a difference. But it seems to me - again I am channelling Volokh, but it's also just plain old J.S. Mill and, more recently, John Rawls - that since you cannot demand that folks who do not share your religion accept your religious reasons, this does not get you very far in a politically liberal society. More precisely, what it gets you is the right to vote against when it comes up for a vote. (I suppose it is worth mentioning that I don't think there is an actual right to gay marriage lurking in a penumbra somewhere.) So hold a vote. And, to the degree possible, allow for federalism. Let states decide.

I suppose this is my main objection to the NRO line - which is also the amend-the-Constitution-line. They accept that democracy involves voting on things from time to time. Sometimes you win, sometimes you lose. But they talk as though even allowing gay marriage to be put to the vote would somehow be a betrayal of fundamental values. Is that right? Do they talk that way? I should go back and check whether that's right. This seems to be the logic behind the proposed Constitutional amendment, at any rate: preemptively freeze out those corners of the country that might vote to allow this thing. If this is right, it seems to me this view cannot be coherently maintained unless you also disapprove of the fundamental form of government the US has. I can imagine wanting to ban gay marriage and tear up the Constitution. Wanting to amend the Constitution to ban it seems to me at least mildly schizophrenic.

I suppose they would fire back: then why didn't this bright thought occur to our founding fathers, who never banned gay marriage only because it never occurred to them anyone would ask for it. I suppose the answer is just: our founding fathers didn't know as much as we do now about homosexuality. Gays can be very nice people.

I realize you weren't taking the other side, Ogged.

Mitch Mills

A couple of things:

1) We do allow states to decide, family law is a state law issue. But then there's the issue of recognition. The states generally recognize other states' pronouncements on marriage/divorce. So even if State A only allows people 18 or over to get married, or only allows divorce for serious cause, State A would still recognize the marriage of a couple legally married in State B when they were 17, or the divorce of that couple obtained in State B under a no-fault system.

So the controversy isn't as simple as just letting each state do what it wants vs. not allowing gay marriage anywhwere in the US. One or more states allowing gay marriage creates an issue of what to do if gay couples married there move to other states and ask for legal recognition of that marriage.

2) You state that you "don't think there is an actual right to gay marriage lurking in a penumbra somewhere." But I don't think that's really the issue (although the debate over sodomy laws has been argued in terms of a right to privacy).

I think the real issue is equal protection. If you extend certain legal rights and benefits to some couples, do you have valid legal reasons for excluding other similarly situated couples from these same rights and benefits?


Thanks, Mitch,

You're at least half right about your couple things.

1) There is precedent for different states having different rules for who can marry whom. (Isn't there?) Most notably, lower or higher age qualifications, I think. I don't know whether there was a point at which miscegenation was legal in some states but illegal in others. I rather expect it was. (Times like this, I wish I'd gone to law school to actually learn some legal facts.) I agree that this does create an issue of people travelling to Vermont to get married then going home to Texas. But I think Texas then has the right (doesn't it?) not to recognize those unions. I admit this is an unhappy development - people unable to move state to state because their marriages won't be recognized. It's like a break down in the existing free trade in married couples. Not to mention a problem for tax law. (Married couples blinking in and out, year by year, like will o' the wisp.) But since it only affects those who couldn't get married anywhere before, seems like a net gain in happiness. Geographically-restricted gay marriage is better than none at all.

States will be loath to take this as a precedent to start adding more restrictions on the movements of married people, because ... well, this just creates headaches all around. No nickel in it for anyone, really. So I don't think we're on a slippery slide.

2) I mentioned the penumbra thing just because my somewhat fallacious statement of my position, in my post, might have suggested I think it is somehow impermissible to oppose gay marriage (because the reasons would have to be religious, but those are barred.) But I don't think people are actually disallowed from holding positions for religious reasons. They just can't force other people to hold them.

I do see your point about equal protection. It's that or nothing. But really all a state needs is SOME reason - a legitimate state interest - to make a distinction. I don't really think there are such reasons myself, but I'll bet the 'can't have children' reason could be made to stand up in court without too much undue propping. I guess what's actually the case is that I don't know enough about the law in this area to be shooting off my mouth.

It would sure be a political event, wouldn't it? Of course, a Rep picked (not to say packed) Supreme Court is hardly the type to start such a storm.

Now, rereading your comment, I'm a bit confused. Do you think it's an equal protection issue to such an extent that you think there is a right to gay marriage in the Constitution?

Mitch Mills

Rereading my last comment, I agree it isn’t very clear. Lack of sleep, lack of sleep. The main point I rather poorly tried to make was regarding the rationale behind wanting a Constitutional amendment on the issue.

Now, if you oppose (which I don’t) same-sex marriages, leaving things as they currently stand, where the states decide, is problematic. That’s because a same-sex couple legally married in State A who then moves to State B and is denied a right or benefit accorded to married couples (particularly different-sex couples married in State A who move to State B) has a plausible Constitutional equal protection claim in federal court.

That doesn’t mean they would necessarily succeed with such a claim, but it’s a realistic possibility. A successful claim would mean that no state (or at least no state in that federal district, until the Supreme Court decided to settle the issue) could deny that right or benefit (and probably similar-enough rights or benefits) to legally married same-sex couples, regardless of whether that particular state granted legal recognition to same-sex marriages carried out within its own borders. Of course to reach this stage would require at least one state to legally recognize same-sex marriage. Whether Vermont’s “civil unions” fit this bill I’m not sure.

To be sure states are allowed to discriminate in these matters, but only with respect to certain characteristics, and within certain boundaries. So it wouldn’t be problematic for State B to not recognize as married a couple legally married in State A if one or both of the persons involved were under a certain age. State B has a legitimate interest in protecting minors that allows it to discriminate on the basis of age, provided it does so in a rational manner (i.e. the discrimination is sufficiently related to the interest, actually accomplishes the goal effectively, doesn’t result in very much overspill). State B could most likely set the age limit at 16, probably even a little higher, but it couldn’t set the limit at 35, or set an upper age limit on marriage (e.g. no one over 55 can get married), at least not on the basis of its legitimate interest in protecting minors.

Whether State B can claim a legitimate interest (that would withstand Constitutional scrutiny) in restricting marriage (or at least the granting of particular rights or benefits accorded to legally married couples) only to different-sex couples is a difficult question. I don’t think the “can’t have children” reason would work unless the state also applied this to different-sex couples who are infertile or post-menopausal. Think of the case of two women who are married to each other, at least one of whom is fertile. Yes they need a sperm donor from outside the marriage in order to have children, but I don’t see the relevant difference between their situation and that of a different-sex married couple where the male is infertile. And what of the case of a different-sex couple who use a surrogate mother in order to have children? Not much different from a two-male couple who do the same, I think. Whether there are other reasons that would count as legitimate state interests in court is, as I said, a difficult and contentious question.

I’m not sure what the situation is with regard to, for example, polygamy. I’m pretty certain that there have been legal challenges to state laws forbidding polygamy, but I don’t know on what basis they were argued and decided. Based on the lack of legal polygamy in the States, it would seem that a legitimate state interest in restricting marriage to two people has been recognized, but I don’t know on what grounds. Anyone else out there know?

(Also: thinking back now to Con Law, I seem to remember that for some types of discrimination the state need only have a legitimate state interest, whereas for others (e.g. racial discrimination) the state must have a compelling state interest in order to discriminate, and is thus subject to stricter scrutiny. I should go look this stuff up again before expounding at such length, but I’m pretty sure I have the basic outlines right. Such are the perils of discussing Constitutional law off the cuff . . .)

So, a Constitutional amendment is attractive to same-sex marriage opponents because it would prevent such equal protection claims. The “strong” version would forbid states from recognizing or allowing same-sex marriages. Although I’m absolutely opposed to such an amendment, I don’t agree with you about its proponents being schizophrenic or as showing disapproval of the fundamental form of the US government. One aspect of the fundamental form of our government is that outside a specified range of subject matter over which the Federal government has exclusive or pre-emptive power, the states have the power to decide how to run things within their borders, as long as they don’t violate Constitutional rights (such as equal protection).

While this would seem to argue against a national rule restricting states’ rights to individually decide on the issue, the counter-argument would be that a Constitutional amendment would prevent a single state from foisting its legal recognition of same-sex marriages on other states (via Constitutional equal protection challenges by couples married in that state), and would thereby protect the democratic choices those other states have made on the issue.

Also, a weaker version of such an amendment (I have no idea what version(s) groups opposed to same-sex marriage might be advocating) might just say that no state is compelled to recognize such marriages, i.e. that states are allowed to discriminate, with respect to marriage and its attending rights and benefits, on the basis of whether the couple is same-sex or not. This second version would actually allow the geographically-restricted gay marriage scenario you describe, without the issue of one state’s decision potentially affecting the situation in every other state.

I don’t believe there’s a right to same-sex marriage in the Constitution, but then I also don’t believe there’s a right to any kind of marriage in the Constitution. The Federal and state governments have the power to legally recognize marriage and grant certain rights and benefits to married couples, but once a particular government decides to do so, it should have valid reasons for making distinctions with regard to which married couples receive those rights and benefits.

An analogy: there’s no Constitutional right to tax breaks. But the Federal or a state government can decide to give tax breaks to individuals. However, it can’t decide to give tax breaks only to, for example, male individuals, solely on the basis that it likes males more than females. That violates equal protection rights without a valid justification based on the furtherance of a legitimate state interest.

So, I think same-sex couples have the Constitutional right to receive the same legal treatment as different-sex couples, including the right to qualify for the rights and benefits that the federal or a state government extends to married couples, and I haven’t come across any countervailing legitimate state interest claims that I find convincing. In practical effect I guess this does basically amount to a Constitutional right to gay marriage, since I don’t foresee the federal or any state government deciding to refuse legal recognition to any marriages whatsoever, whether different-sex or same-sex.

On a broader, more idealistic level, I think the right to equal protection under the law, Constitution or no, is a fundamental human right and, as with other fundamental human rights, it shouldn’t be subject to the vagaries of majority rule (even super-majority rule). Having equal protection in the US Constitution is great, but it’s not the primary reason why I support legal recognition of same-sex marriages. That’s why I would oppose the above-mentioned weaker version of a Constitutional amendment on same-sex marriages. Were it enacted, such discrimination would by definition not be unconstitutional, but I still think it would be unjust and wrong. Of course now I’m straying into off the cuff philosophy . . .


I should go to the Heritage Foundation and demand payment for this stuff. Here's one plausible secular anti-gay argument (put it in the genre of political rhetoric, probably best mouthed by a Republican like, say, Alan Simpson, before he came out with his eloquent defense of homosexuality last week):
At least as far back as Aristotle, to be a thing means to have some way of marking an inside and an outside: a border or boundary. Because men, unlike women, can have sex without having their boundary breached, they've been associated with inviolability: guardians of boundaries. Is this a "necessary" association? No. But neither is it completely arbitrary and the fact of our inheritance is that men are the moral exemplars and they are not supposed to let their boundary be violated.

The great mistake of the pro-gay crowd is to believe that they can cast off such a strong taboo in isolation. Making a boundary and guarding it is the organizing principle of the nation-state, of the family, of property ownership, of intellectual property...the list goes on. Must a society be organized around these principles? No. But ours indubitably is. To say that homosexuality is acceptable is to put the basis of all that--family, country, property--in question. Maybe you're a very smart guy, maybe you can think of another way to organize a society, but I'd like to hear it and let people decide if they like it before we start undoing the society we have. Until you give us an attractive alternative, you're proposing to replace order with confusion.

You can see this confusion in the gay community itself. No one can deny that gay men tend to act in ways we would call effeminate or hyper-masculine. The gay lifestyle isn't "alternative," it's "anti-," and "anti-" isn't a basis for a stable society.
This is plausible, no? And it's pretty good insofar as it doesn't evince any particular animus toward homosexuality; it's just...ahem...straight conservatism which uses some facts of the mass mind (men don't get penetrated, homosexuals act effeminate) to gain assent. Needless to say, I think there are dispositive counter-arguments, but this could be a pretty effective line.

Mitch Mills

Sounds like a good argument against allowing prostate exams too! (insert little winking emoticon thing here so you know I'm joking)


Sorry Ogged, but you definately have not done your research this time. But I'll get to that. First I'd like to address the previous comment that it would appear ludicrous to say that a Democracy cannot vote on whether or not to allow gay marriages. That does not appear to be true. It depends on whether we agree that the Government has specific purposes, and should remain in those purposes. I for one do not believe that the purpose of America's government is to regulate who can marry who. Therefore, I do not think we can vote on this issue as it remains outside governmental boundaries.

A second point was made. and this will lead into my follow-up on Ogged's argument, that the founding fathers never thought that there would be a need for gay marriages. This is probably true. But the rest of the comment wasn't. The founding fathers probably were more familiar with male-male sex (but not homosexuality) than we are. There is a long history of what we would know call bisexuality in the western world, married men with male "companions." Don't believe that practice stopped with the Greeks. Further, some American Indian tribes recognized, privledged to some extent, male-male unions. So, early Americans weren't without examples, although at what point the colonists learned that much about their neighbors I'm unsure.

It seems Ogged is worried that violating the integrity of the male body will extend by analogy further into our social fabric. Boundaries will break down by reducing the male to the female. I'd ask you to consider that they already have. What are nations anymore? Their boundaries have been overan like too-small damns by the internaional money market, the WTO, the IMF, and the WB. Michael Hardt and Antonio Negri in their book Empire make an extensive case for the breakdown of membranes around family, church, prison, hospitol and school, so that no they intermix and intermingle. Quick example: The home is guarded like a prison and imbued with the technologies of school, church, and hospitol. Where are these rigid boundaries that uphold society? Everywhere I see interactions and relations - the crossings of boundaries. Our social space is not seperated by walls but conntected by optic fiber.

Lastly, the point of an "isolated homosexual population." Obviously, one can say that this is not historically been the case that homosexuals have isolated themselves. There are historical reasons for this that can be researched. Further, it is not completely true. The large, silent group of black men who engage in male-male sex goes unrecognized precisley because they are not isolated. They are fully integrated, they are family men. Yet they are one of the largest populations engaging in male-male sex.


Michael, I wasn't actually serious. I was just trying to come up with something that sounded plausible. Of course what I wrote isn't true, but I do think you could make some political hay from it and win some converts to the cause of ant-homosexuality without resorting to religious reasons.

That said, and proceeding now merely as a devil's advocate, lest I give up even the claim to plausibility, here's what the on-the-payroll-of-the-Heritage-Foundation-me would say to your points.

You're absolutely correct that a boundary just isn't what it used to be. It's also true that rates of divorce, unwed motherhood, and murder have all gone up in the last century in which the porousness you describe has come about. Similarly, just as you describe, the international scene is as chaotic as it's been in a long time, because nations can't keep each other, terrorists, and illegal immigrants out. You won't get any argument from (the-Heritage-Foundation)-me that we have porousness and chaos.

But there's a reason the homosexuality taboo is the last to be broken: it's the linchpin. If we can hold the line on homosexuality, we may be able to impose some order on the chaos. But if we give in, thinking that we're only making a small concession that's all but made anyway, then we will really have lost the game.

On your last point about "isolation," we're in agreement and I think you've misread me. My point was precisely that homosexuality couldn't be dealt with in isolation. You prove my point nicely.

Again, not serious! But not hard to imagine someone making the argument, given the disingenuousness and sophistry of political discourse.


Hi, I'm in a Philosophy class and I'm doing research on Gay Marriages. I have no idea how to start it off or where to take it. I'm a fantastic writer, I just need a little help on this one. Anyone have any advice they can give me??


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