Why I Do Not Oppose Gay Marriage

OK before I get into this post, a few caveats:

1) Insofar as the Federal Constitution is involved, I still believe that the Constitution cannot legitimately be interpreted either descriptively (based on precedent) or normatively (according to the most proper method of interpretation) to require states to allow same-sex marriage (SSM). I've blogged about this in the past (see here), and stand by much of what I've written.

2) This post is titled "Why I Do Not Oppose Gay Marriage" not "Why Everyone Should Not Oppose Gay Marriage." There are legitimate religious and moral arguments against SSM, which while they do not appeal to me, are perfectly acceptable means of legislating in the United States. I am no Rawlsian and do not limit political deliberation to public reasons. Moral and religious constructs are perfectly legitimate bases for laws in most cases, and I've seen no argument to exclude them in this case.

3) I am not making a case in favor of civil unions or domestic partnerships. There are literally hundreds of undisputed, tangible benefits that accrue to married couples that are denied to same-sex couples when they cannot enter civil unions or domestic partnerships. Frankly, given all these benefits, it's hard to really come up with an argument against civil unions, and I am starting with the baseline that civil unions should be allowed.

Onto the subject at hand. For much of my blogging career I have been opposed to gay marriage. Although I haven't written much about it (here being an exception), I've defended the anti-SSM position on blogs such as Dovbear. But after a number of years of thinking about it, I've come to the realization that there simply isn't any reason for me to oppose it.

What changed my mind? I'm not totally sure, but I believe it was a combination between gaining a greater understanding of the benefits of SSM and no longer placing as much weight on the costs (costs which are mostly illusory).

Let's look at the the arguments pro and con.

Arguments For SSM

The arguments in support of SSM are of two types, deontological and utilitarian. First the deontological:

1) SSM should be permitted a matter of equality. In the past I've opposed this argument since I believed that same-sex couples and opposite sex couples were not similarly situated. As a matter of constitutional law, I continue to believe I am correct. But as a matter of political morality, the essential definition of marriage is constantly evolving and the almost universal opposition to banning gay sodomy coupled with the growing support for civil unions and domestic partnerships leads me to believe that the concept of marriage is currently in flux. As a result, this argument appeals to me more than in the past.

The utilitarian argument is as such:

1) Marriage is clearly a benefit to the individuals involved. As stated above, I am not discussing tangible benefits such as visitation rights and marital property, which are undisputed benefits. I am talking more about the psychological benefits of having one's relationships accepted by society at large, which surely is important. If anyone doubts that society's willingness to stamp a relationship with a measure of approval is a benefit to a couple, imagine tomorrow that New York decided to outlaw Jewish marriages or interracial marriages, and only afford those unions the status of civil unions. Would Jewish or Black civil rights groups stand idly in the background because those couples in a civil union have the exact same rights as married couples? Would anyone reading this post not feel a degree of horror at New York's open and notorious act of discrimination?

Now, the analogy isn't perfect and as a matter of constitutional law there is a huge difference between same-sex couples and interracial or Jewish couples. But this isn't a question of law, but rather political morality, and the essential aspects of the analogy basically hold.

Arguments Against SSM

So now that I've laid out the arguments in support, have opponents of SSM mustered any strong arguments in opposition? I do not believe so and will explain why below. At the end of the day, the benefits of SSM far outweigh the costs. Let's look at these arguments:

1) Marriage has always been between men and women. There are two version of his argument, the Strong version and the Weak version. While I am sympathetic to the Weak argument and will return to it below, the Strong argument is fatally flawed.

The Strong version claims that marriage has always been between people of the opposite gender and therefore SSM is not marriage. As structured this arguments obviously falls prey to the Humean is/ought fallacy. The fact that marriage has always been one way does not entail that it shoul always be that way. Civil marriage is the US is currently in flux, and the aspect of marriage limiting the institution to opposite-sex couples is no longer as clear as in the past. Marriage is shifting and we should not deny the label "marriage" to same-sex couples merely because we have done so in the past.

2) Marriage is harmed by SSM. This argument is notoriously slippery. In what way is my marriage harmed if two gay guys down the block want to get married? Rarely is this argument explicated in way that would actually explain the harm.

The most explicable version of this argument was proferred by Amy Wax in a Federalist Society debate over SSM. In a nutshell, Wax argued that marriage is a bundle of criteria that taken together define the institution. One criterion is that marriage must be monogamous (obviously this hasn't always been true, but it is the accepted definition in the Western World today). Since, as Wax goes on to say, gay men tend to be more promiscuous than straight men and have more partners, if we permit SSM, we'll be allowing people who do not believe that marriage must be monogamous to negate the monogamy criterion. How does that work? Since marriage is defined in part by how people act, and 2% of men in this country are gay (and generally do not believe in monogamy), we'll be adding a large number of marriages between participants who do not support monogamy as a rule to the overall number of marriages. Those 2% will obviate the monogamy criterion because they will dilute the total number of monogamous marriages. But since they oppose monogamy as a rule, they will also be openly nonmonogamous openly and others may follow their lead and enter into marriages, which will not be monogamous. The more people who marry with the express intent to not be monogamous, the further the definition of marriage will be away from monogamy. The monogamy criterion will no longer be part of the definition of marriage, and that will lead others to forgo monogamy as well. Hence the change in marriage as we know it.

This argument fails on a number of grounds (I am basically restating Dale Carpenter and Andrew Koppelman's responses). First, most SSMs are between lesbians who are famously monogamous. If anything, they should outweigh the gay men who openly and notoriously enter into nonmonogamous marriages. Secondly, SSM will make up a very small percentage of marriages. It's hard to imagine those marriage will have a substantial effect on the rest of society. Definitional changes cannot be effected by such a tiny minority of marriages. As long as the overwhelming majority of marriages have a monogamy criterion, marriage will still be defined partly as a monogamous institution. Finally, even if a small percentage of marriage could have a real effect on the institution of marriage, there is a serious weakness in Wax's argument. How do we get from "gay men will marry without the intention of staying monogamous" to "others will follow their lead?" How will others know the rules of those gay men's marriages? I have no idea what type of marriage my neighbors practice, even though I realize that odds are some of their marriages are not entirely monogamous. Why would straight couples suddenly decide to have open marriages just because some gay men decided to do so? The logic just doesn't follow.


3) Permitting SSM in other countries has weakened marriage in those countries. This is an essentially empirical argument, most prominently offered by Stanley Kurtz. But Kurtz's statistics say nothing about whether the correlation between the negative effects of marriage and permitting SSM is actually causation. Essentially someone must make an argument to link the two. At the end of the day, this argument is parasitic on Wax's argument, because Wax provides a framework for understanding the data Kurtz and others provide. And Wax's arguments are clearly insufficient to justify not allowing SSM.

The above arguments are the most commonly offered intellectual justifications for not permitting SSM. But they fail to describe any costs to our society if we allowed SSM. And they surely do not provide a basis for denying same-sex couples the benefits of SSM. So I do not see any reason to oppose SSM anymore.

Given the above, why did I title my post "Why I Do Not Oppose Gay Marriage" rather than "Why I Support Gay Marriage?" Well, I'm still a conservative. While the criterion of marriage that only includes opposite-sex couples is in a state of flux right now, there has not been enough of a change on the ground for me to support SSM across the board. Not a single state has voluntarily decided to extend marriage to same-sex couples. 30 states right now have a constitutional ban against SSM. We are still ways away from SSM becoming part of our social traditions. Essentially I accept the weak version of the "marriage has always been this way" argument because I will afford our current practices a presumption of correctness (unless they are scathingly unjust) until the practices are modified organically.

But I would be completely open to NY, which is now completely under Democratic control, voting in SSM. I concur with Justice Brandies, who famously argued that the states should be laboratories of democracy. Let's let some states accept SSM, with DOMA ensuring that other states do not need to do so, and we can see whether SSM is capable of fitting within the norms of our society. We have little to lose and everything to gain. And if it happens in New York, you won't see me picketing outside of City Hall.

Judicial Politics Only Go One Way Apparently

The idea that judges decide cases based on their personal policy preferences is not new, and is often used as a tool by both parties against judges who decide cases in ways they don't like. Conservatives often rail against "judicial activism," which is essentially an empty term, devoid of any real content, and usually means decisions that go against the speaker's preferred outcome. Liberals brand conservative justices as right-wing ideologues who have no interest in interpreting the Constitution, but rather want to impose conservative values on the country.

But in reality the two critiques are not so similar. Many conservative politicians espouse "strict constructionalism," a judicial ideology opposed even by hard-core textualists such as Antonin Scalia as unreasonable. The more sophisticated version understands the Constitution to have a fixed semantic meaning that be derived without looking to morality or politics. But the conservative critique of liberal activism at least starts with the premise that the Constitution has a meaning that can be derived without recourse to moral or political views. Judges who allow their personal moral code or their policy preferences are diverging from the meaning of the Constitution.

Liberals tend to focus on moral concepts such as equality and liberty and expect judges to allow those concepts to illuminate the legal norms embedded in the Constitution. The academic version of the liberal view of judging (e.g., Dworkin, Tribe, etc.) also holds up the Constitution as a moral document that is interpreted based on modern sensibilities. Conservative judges who interpret the text based on semantic meaning are really setting up a facade to cover their naked political decisions because interpretation necessarily requires moral/political analysis.

So frankly I don't understand the this passage written by two pretty liberal legal scholars:

[McCain] voted to confirm every Bush nominee, and has said he will select conservative judges and would not have selected Justices Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, or John Paul Stevens (the latter two Republican-appointed), judges widely respected for placing the law ahead of politics.

If ingredient in constitutional interpretation is the integration of moral values with legal concepts, then in what sense do the above named justices put law ahead of politics? Part of law is politics (or morality or whatever you want to call it) by their own definition. So unless we define "law" as "good liberal outcomes" and "politics" as "bad conservative outcomes" this sentence just doesn't make any sense.

At the end of the day, the liberal critique is arbitrary. If the Constitution must be interpreted morally, then why can't conservatives allow their moral views to influence their decisions? At the end of the day, the liberal critique is reducible to disputes over the most correct moral values. The conservative critique at least would, in theory, countenance liberal outcomes if that's what the semantic meaning of the Constitution mandated. So to some degree the conservative position is a bit more principled.

Thoughts on Election Day

Despite my tepid McCain endorsement, I'm still sort of excited that Obama won. With only a few minor disagreements, Randy Barnett's post sums up my feelings perfectly.

It looks like the Democrats are not going to get to 60 in the Senate. That's a much bigger deal than who ended up being President.

Same sex marriage in California is on the way out. Eugene Volokh has a post about its possible ramifications on the already-existing gay marriages in California. I plan to write a post about SSM in the coming days, but I'm happy to see another attempt to have the courts stick its nose where it doesn't belong shot down. Anyway, California's referendum/amendment system is a ridiculous means to pass legislation, which although probably not unconstitutional, is an only slightly less absurd way to decide important questions of policy.

Why John McCain Should Be President

I've stayed on the sidelines for most of this political campaign, but with one more day to go now is probably the time, right?

I have to be honest, but neither candidate really appeals to me. Not because I'm so conservative that I'm appalled by McCain's realization that we need a pragmatic immigration policy, or because he opposed to the federal marriage amendment. These are good things. And surely Barack Obama's political views leave a lot to be desired.

However, I must admit that McCain isn't exactly the most inspiring leader. And the campaign he's run is undoubtedly negative. Just last week Obama spent enough money to buy actual network TV time in what was effectively a half an hour commercial. On the same night, McCain appeared on Larry King Live. As one pundit put it, Obama spent almost the entire time talking about Barack Obama; McCain spent the time talking about ...... Barak Obama. While the candidate who is down in polls tends to attack his opponent (the old "tear him down to bring me up" approach), McCain's campaign has been overwhelmingly negative in the past few weeks. I have to say that I'm not a huge fan of constant negative campaigning.

On the other hand, despite Obama's tremendous political skills and ability to inspire, his unprecedented lack of experience is quite worrisome. For all effective purposes, he's been in the Senate for two years. It's rare for senators to be elected as President. But when was the last time a senator was chosen with so little experience? Has there ever been a senator elected president before even completing his term? While experience is not everything, it provides all-important data when making fundemental decisions. I have a hard imagining that a potential President could really respond effectively to difficult and urgent foreign policy problems without some serious leadership experience.

Despite the personal flaws elaborated on above, at the end of the day Presidents must be chosen based on policy, not personality. And on policy I tend to lean more towards McCain than Obama ( I know, shocking). McCain's foreign policy appeals to me primarily because of his views on Iraq. A hasty withdrawal would be a disaster in that area of the world. If Iraq collapses in civil war, the region could explode. While I believe that McCain's foreign policy overall could use a little advice from professional diplomats such as Dennis Ross, McCain's willingness to make the difficult, if unpopular, choices, gives him a leg up over Obama, who does not seem to believe that we can win in Iraq.

And then there are economics. McCain wants to cut taxes across the board, while Obama wants to raise taxes on the top 5%. But raising taxes during a recession is a terrible idea. Even the great liberal economist, John Maynard Keynes, proposed increasing spending to get economies out of recessions, not raising taxes. Raising taxes only hurts economies when times are tough.

Divided government is also an important consideration. Surely the excesses of the Bush administration can be traced to one part controlling the Legislative and Executive branches. When the branches do not properly check each other, they tend to run wild. A democratic President with a filibuster-proof Senate and a huge majority in the House would be able to implement whatever extreme policies they feel would solve our national problems. Even a Democrat should be wary of that possibility. Just look how the eight years turned out for us Republicans.

Politics aside, I believe both candidates could be good Presidents and would be fine seeing either one occupy the White House in January. But I hope the American people make the right choice tomorrow and give McCain a shot. And, hey, if it doesn't work, maybe Obama will actually be ready in 2012.

Update on Rafi

It's been a while since we last posted on the blog, and we wish to update our venerable readers about Rafi's status. At the end of the day, Rafi is doing pretty well. He's actually reaching his developmental milestones, which at this point aren't really much. He sleeps through most of the night, which makes so much easier for both of us. While he's still eating exclusively from the feeding tube, our (especially Shifra's) increased experience has made the feedings more efficient and consequently less difficult for Rafi and both of us.

That's the good news. The bad news is Rafi has undergone a battery of tests over the last month, including an audiology test, a sleep study, and a meeting with a phalanx of doctors. These tests, of course, exclude his periodic appointments with his cardiologist and pediatrician. We have one more test tomorrow, and next week the doctors at NYU will decide whether Rafi needs surgery now, or can wait until he's older. As it stands, it looks like surgery can be delayed, but we're not holding our breath.

Rafi has also started early intervention. Luckily the therapists come to our apartment and save Shifra the exceptionally difficult task of schleping Rafi out to their offices on public transportation.

All things considered, Rafi is quite a tough kid. He rarely cries for no reason and smiles frequently. Despite seeing doctor after doctor, and having undergone two surgeries, he's a well-adjusted baby. Most of the credit goes to Shifra, but Rafi has to get some too (I come in a distant third and my contribution mainly involves playing superbaby and burping him after his innumerable feedings).

Rafi is not out of the woods yet, but as his condition is no longer life threatening (at least at this stage), I feel as if we can breath easier. Despite everything he's the world's cutest baby, and we can't imagine life without him.