Steven Posner's response to comments about his previous post on the topic seems to justify establishing the right of same-sex couples to marry on the same basis as the civil right of mixed-race couples. The problem is that, like Andrew Sullivan, it fails to recognize that the essential difference between race and sexual orientation isn't whether it's an innate or genetic quality, but with the reason why people marry in the first place. Clearly whether couples are same-race or mixed-race, the institutional interest in mixed-gender unions, as well as the individual-interest of the vast majority of individuals in those unions, is child rearing. Almost by definition this can't be the point of same-sex unions, even though it's possible for such couples to produce children by "borrowing" a resource from a gender not represented in the union. (Forgive the quaint phrasing. Since the Tour de France is over I have to take every opportunity to entertain myself.) The depth of Posner's confusion emerges when he, like Sullivan, expresses a preference for federalism that isn't warranted by the principle of civil rights:
My reasons for nevertheless opposing courts' ruling that it is unconstitutional to forbid gay marriage are twofold. First, the courts would benefit from a period in which experience with gay marriage in one or more states and several foreign nations, together with growing experience with civil unions, would lay a solider empirical basis than exists now for assessing the consequences of gay marriage. There is value in social experiments, and hence in not terminating them prematurely.
So, what happens if the consequences of same-sex marriage are disastrous, or mostly negative? If it's a civil right on par with inter-racial marriage we still have no rights-based argument to deny it, so making such a denial unavoidably undermines the notion of civil rights. Not a very good tradeoff. In fact the very preference for "social experiments" reveals the fact that, at least unconsciously, both Posner and Sullivan admit is the over-riding concern: children. What else would be the dependent variable in the experiment? Although it is possible for marriage to facilitate other functions for society and for people those are not its primary function: to induce those who produce children to stay together while they raise those children. Basically, then, marriage is the attractive side of an obligation, and anything that makes marriage less attractive undermines the fulfillment of that obligation.
The central issue in same-sex marriage has nothing to do with a civil right, which would be a claim on what has been identified as an attractive good (and created to be attractive, with good reason) while ignoring the obligation that gave rise to that good, and remains central to it. The central issue is simply whether modification of the institution undermines the fulfillment of the obligation. Posner and Sullivan recognize this on an emotional level, but simply don't rise to the challenge of recognizing it on an intellectual and social level.
Posner, to his credit, at least admits the primacy of this social function, by arguing that it's not the job of the courts to over-rule a broadly contrary public opinion:
Second, and at the risk of seeming to take a Realpolitik approach to constitutional law, I don't think it's the business of the courts to buck public opinion that is as strong as the current tide of public opinion running against gay marriage.
But this argument surely leaves the issue of civil rights twisting in the wind? The core confusion and incoherence need not be. It's simply inappropriate to grant people a right to something without the recognition that there's a social interest behind the obligations that the "something" was constructed to support. The reason it's inappropriate for the courts to demand the fulfillment of such a right is that there is no such independent right to the attractive half of an institution. This has little to do with what opinion people hold about it one way or the other.
Addendum: Reading the rest of Posner's post suggest that while he is aware that child-rearing is an important aspect of the opposition, he mistakenly believes that the logical and empirical dissent is located in childlessness. Opposition to gay marriage isn't based on whether gay marriages produce children, but rather on the effects of gay marriage on the obligation that parents feel to stay together. With other kinds of childless couples this is almost certainly a wash, because they look like child-producing couples in terms of their "essentials." Same-sex couples simply don't.
Also, it occurs to me that there might be some sort of conviction surviving the notion that there's no such thing as a right to the attractive half of an institution, in the sense that this gap could be fulfilled by some contractual agreement that homosexuals could make. This is entirely sentimental. If homosexuals have an interest in the obligation that child-producing couples feel to stay together it certanly isn't that they participate in such an obligation directly. (All members of society have some interest, even if it's unrecognized or acknowledged.) Most homosexual couples will not produce children. And even if they do it won't be in a way that's analogous to what happens in a heterosexual union.
But I want to be clear. It's at least theoretically possible that the differences might actually contribute to the institution. That is, for instance, the examples that lesbian couples make might actually enhance the sense of obligation that child-producing couples feel. My argument is simply that there's an irreversible risk associated with making the assumption that the institution would not be undermined or harmed. And ironically this risk will be borne (whether recognized or not) by both heterosexuals and homosexuals. It just doesn't appear to be something that homosexuals can mitigate, other than by eschewing same-sex marriage. It might be mitigated by a well designed social experiment, however.
Posted by Demosophist at July 26, 2005 10:48 PM | TrackBack