Robert Justin Lipkin, a professor of law at Widener law school, recently uploaded an article onto SSRN entitled "The Harm of Same-Sex Marriage: Real or Imagined?" Lipkin argues that SSM does harm opponents of SSM, but concludes that this harm is not sufficient to override our adherence to equality.
He posits a harm that relates to what he calls a "normative environment." A person who believes in certain values will attempt to create an environment consistent with them. That environment should extend to the public sphere, because otherwise his normative environment will be violated. If a person strongly opposes religion, he will attempt to limit the influence of religion on himself, his children, his friends, etc. But if the government supports religion openly, that normative environment, his attempt to remain free of of its influence, will no longer serve its purpose. Religion in the public sphere cannot help but influence his life because its values will permeate society. Therefore he is harmed when religion is influential in the public sphere.
A similar harm exists for proponents of exclusively heterosexual marriage. Their opposition to SSM is a fundamental aspect of their normative environment, and since the recognition of SSM (its imposition in the public sphere) will trespass on his individual normative environment, he is harmed. Interestingly, this argument seems similar to my justification of moral legislation.
He concludes that this harm does not reach the threshold necessary to deny equality to a large section of society. If this justification was proper, desegregation would never have happened. But the Supreme Court recognized that harm to a normative environment, by itself, cannot justify such blatant discrimination.
I disagree with Lipkin precisely on this last point. It's not that I disagree with equality; I just don't believe equality is an issue here. Lipkin disagrees with the essential definition of marriage being for the purpose of procreation and child rearing, partly because both those activities can exist outside the marriage framework. While the marriage framework is the optimal place for childbearing and child rearing, he argues, that merely explains why society would want procreation to occur with the context of marriage; it does not explain how procreation is the essential reason for marriage.
I've argued before in the constitutional context that marriage was designed for procreation. Marriage evolved organically (unless one believes that G-d created the institution as we know it, but if one believes that, he'll have to admit that most religions consider procreation a fundamental aspect of marriage). Why would such an institution evolve? The society needs to procreate to survive. The optimal arena for procreation and educating new members of society is in the context of a stable environment between two parents. Men and women both provide differing perspectives on life and both are integral in the proper raising of the child.
Note: this should not be taken as an argument against gay adoption, because my argument only deals with the evolution of the institution, not whether that evolution took the proper path; perhaps today we could argue that society had it wrong, although no conservative worth his federalist society membership card would agree with such an argument.
I've yet to see another legitimate reason why the institution would come into being. To provide a stable environment for two people to express their love? Hardly a reason to recognize their relationship. While society benefits when people are happy, that happiness does not generate the necessary benefits to create an institution that is the bedrock of civilization. To allow a man to acquire property, including a wife? Not any better. Why create a new legal mechanism for this acquisition? Couldn't the property transfer be private? What benefit does society get from creating a separate legal status for property transfers of this kind? Do we have such a concept in the context of other property transactions?
The dearth of essential reasons for marriage leads me to believe that marriage was essentially "created" to promote procreation, which is in a society's interest. Therefore if a couple cannot procreate, the institution of marriage does not cover their relationship (sterile couples are an exception; see here at the end of the post). Hence since they do not fit into the concept of marriage, they are not being denied a right. It would be analogous to saying that society discriminates against men because it refuses to subsidize prenatal care for males. Men cannot have the right to such care because it's inapplicable to them.
My argument shows why Lipkin's recognition of a harm is correct, and why that harm is sufficient to not extend marriage to encompass SSM.
(Hat Tip: Legal Theory Blog)