WEDDING BELL BLUES: Mark Miller replies to Richard Posner's New Republic review of Evan Gerstmann's Same-Sex Marriage and the Constitution

[Was that convoluted enough for you? Don't worry, the actual post is not hard to follow.--Eve]

Many of Gerstmann's arguments do make sense.

The law against same-sex marriage is not gender discrimination for the obvious reason that it does not discriminate against either men or women. Also, the argument that "homosexual marriage is prohibited as a way of keeping women down" is silly; but I've also never heard that argument from any same-sex marriage supporter. Gerstmann is also correct that labeling a group of people as victims who deserve the special solicitude of the courts demeans them. The difference here is that homosexuals are not asking for "special solicitude" (on this issue anyway). They are asking for the same right that others have--the right to be with the one person they love and to have the government recognize that.

Then Gerstmann uses the analogy of the law forbidding non-citizens to vote in our elections without insisting that citizens demonstrate that they are in fact loyal to the United States in order to be allowed to vote--as an example of a "crude line" of laws drawn for similar reasons--in this case, in order to distinguishing heterosexual marriage from homosexual marriage. But in order for that analogy to work at all, one must compare citizens/non-citizens to heterosexuals/homosexuals. One can go from non-citizen to citizen simply by filling out forms. The difference between citizen and non-citizen is solely for legal purposes. How does that compare with one's sexual preference?

Next is the argument that "society can oppose homosexuality as a moral matter without engaging in unconstitutional animus." I agree that government and society do have the right to oppose certain behavior on moral grounds. But there must be clear evidence that said behavior is immoral and dangerous in some way. The problem is that there is no evidence that homosexuality is immoral (besides biblical grounds). This is not true of other "private" behaviors such as polygamy or drug use. This argument also gives support to my case that this debate is not about defending the institution of marriage--it is about the legitimization of homosexuality.
posted by Eve at 3:01 PM VOTE

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