WEDDING BELL BLUES: Richard Posner in The New Republic

In June, the Supreme Court, in a case called Lawrence v. Texas, ruled that statutes criminalizing homosexual sodomy are unconstitutional. Immediately lawyers began wondering whether this meant that homosexuals have a constitutional right to marry. ... Evan Gerstmann has now produced a forceful and tough-minded brief for the result that Scalia dreads. But as he explains, the Lawrence decision came down just days before his book went to press, so he was unable to discuss the decision's bearing on the homosexual-marriage issue except briefly in a preface; or to discuss the recent decision of the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health, holding that the Massachusetts constitution creates a right of homosexual marriage.

When I say that Gerstmann's book is tough-minded, I mean that it rejects a number of the arguments made by advocates of a right of homosexual marriage, such as that homosexuals should be considered a "suspect class" (the sensible term would be "suspect classification"), the curious phrase for a group, such as blacks, that has historically been discriminated against; or that forbidding homosexual marriage is a form of sex discrimination, either because it uses a sexual classification (a man can marry a woman but not a man) or because it is part of an overall pattern of discrimination against women, insofar as homosexual marriage would undermine the norm of "patriarchal" marriage in which a man dominates a woman. Gerstmann argues that labeling a group of people as victims who deserve the special solicitude of the courts demeans them. He believes that the prohibition against homosexual marriage is not based on gender, since it gives men and women exactly the same rights; and that it is ridiculous to think that homosexual marriage is prohibited as a way of keeping women down rather than homosexuals down. These are powerful arguments, especially the last two. It might be added that to assimilate homosexual men to women reinforces rather than combats stereotypical thinking about homosexual orientation.

Gerstmann also points out that the fact that sterile people are permitted to marry is not the killer argument against distinguishing heterosexual marriage from homosexual marriage that it may seem to be. The law frequently and unexceptionably draws crude lines--for example, it forbids 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. He even acknowledges that, under current understandings of constitutional law, "society can oppose homosexuality as a moral matter without engaging in unconstitutional animus." Government may not forbid abortion, but it can denounce it. ...

...His argument is that the Supreme Court--rightly, in his view--has ruled that marriage is a "fundamental right," meaning that a state cannot take it away without a compelling reason; and the state does not have a compelling reason in the case of same-sex marriage. In a case called Turner v. Safly, the Court in 1987 ruled that a prison inmate could not be denied the right to marry, although the prison could forbid conjugal visits. If prisoners, why not law-abiding homosexuals?

But Gerstmann overlooks a "fundamental" difference. The Court in Turner was not expanding the basic right to marry as defined by marriage law and custom. It was not as if marriage laws forbade prisoners to marry. The question was whether a prisoner could be denied the same right (actually a greatly diminished right, since it did not permit the prisoner to live with his wife) enjoyed by non-prisoners. When Gerstmann describes the right to marry as fundamental, he means that any person who wants a marriage license has a strong presumptive right to it regardless of how the person defines marriage. He might be a man who wanted to marry his sister (both being sterile), or a very mature twelve-year-old boy (say, a freshman at MIT) who wanted to marry his twelve-year-old girlfriend (say, a freshman at Harvard), or a married man who wanted additional wives so that they might help out his current wife around the house, or a busy professional woman who wanted two husbands, the better to take care of the house and the kids, or a homosexual male who wanted three male spouses.

If the right to marry, irrespective of the conventional limitations on number, object, and so on, is fundamental in the portentous sense of putting on the state the burden of showing that the recognition of the right in the particular case would work some serious social harm, then it is doubtful that a marriage license could be refused in any of the cases that I have described. For what harm does polygamy do, exactly, and what harm does incest do when there is no possibility of children? Gerstmann's approach thus has implications far beyond the question of homosexual marriage as it is ordinarily understood.

He is aware of the problem, but he cannot solve it. ...

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posted by Eve at 10:32 AM VOTE

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