Rational basis for opposing gay marriage

Paul Finkelman paul-finkelman at utulsa.edu
Thu Feb 26 00:22:03 PST 2004


It seems to me there some problems with the rational basis that you 
suggest. There is little evidence that gay people will  choose to marry 
the opposite sex because they can't marry each other; they will just not 
marry; or they will marry and have failed marriages. So, your rational 
basis explodes.  Assuming that you are correct that male-female marriags 
are "better" (I don't assume that) still, that does not mean that 
male-male or female-female marriages cannot be successful at both 
raising children and as economic units.  Yours seems to be a kind of 
"bad tendancy" test for marriage; because some won't be as good as the 
ideal, we should ban them all. There is strong emperical evidence that 
people who marry before 25 are more likely to get divorced; and the 
younger they are, the more likely they are to have a failed marriage; so 
by your analysis we should prohibit all people under age 25 or 27 or 30 
from marrying beacuse  "[older] male-female marriages are better for 
society; they provide a better environment to raise children than do"  
[younger] male-female  marriage."

Paul Finkelman

Volokh, Eugene wrote:

>	But of course there is a secular rational basis for the FMA, or for
>the exclusions of gays from marriage generally.  The argument is simple:
>First, male-female marriages are better for society; they provide a better
>environment to raise children than do male-male or female-female marriage.
>This is a controversial empirical claim, and it may well be wrong -- but of
>course lots of legislation is based on such controversial empirical claims
>that may well be wrong.
>
>	Second, while some people are going to be homosexuals and some
>heterosexuals pretty much no matter what, there are at least some who can go
>either way.  They may either describe themselves as bisexuals today, or they
>might be bisexuals in a society in which there really was no stigma attached
>to homosexuality.  A social norm elevating heterosexuality above
>homosexuality would thus, on the margins, push these people into
>heterosexual marriages.  Again, a controversial claim, but not an irrational
>one.
>
>	Third, some unattached heterosexuals who are ambivalent about
>marriage -- again, there are some who'd marry in any case, and others who'd
>never marry, but some might be on the cusp -- may be more likely to marry if
>they see a strong social norm in favor of heterosexual marriage than if they
>see a strong social norm in favor of heterosexual/homosexual marriage.  This
>is actually the claim that I find least plausible of the lot, but again I
>can't say it's surely, obviously wrong, though I doubt that it's right.  And
>even if this claim is wrong, the second claim remains as an independent
>justification (when coupled with the first claim).
>
>	Now one can surely argue that these claims are empirically unsound.
>Or one can argue that even if they're sound, the social benefit caused by
>these mechanisms is outweighed by the social cost caused by denying gays
>marriage.  Or one can argue that regardless of social benefit or cost, it's
>just wrong to discriminate in marriage laws based on the sex of the parties.
>As I mentioned, I actually support gay marriage as a policy matter, because
>I take a mix of these views (mostly the first and second).
>
>	But if one is really seriously applying the rational basis test --
>the same test applied to social and economic regulations and benefits
>programs generally -- rules providing for male-female-only marriage pass it
>just fine.
>
>	As to the Establishment Clause argument, I stand by my earlier
>point; whether the proposal overturns a discriminatory institution, or for
>that matter one that is grounded on a discriminatory religious theory,
>strikes me as beside the point on that issue.
>
>	Eugene
>
>  
>
>>-----Original Message-----
>>From: Laurence Claus [mailto:lclaus at SanDiego.edu] 
>>Sent: Wednesday, February 25, 2004 7:57 PM
>>To: Paul Finkelman; Volokh, Eugene
>>Cc: 'conlawprof at lists.ucla.edu'
>>Subject: Re: FMA and religion and 13th Amendment and Religion
>>
>>
>> From Professor Finkelman's post we should surely conclude that the 
>>Thirteenth Amendment is best compared with a future provision 
>>for the FMA's 
>>repeal.The Thirteenth Amendment overturned a discriminatory 
>>institution 
>>that, like the present discrimination against homosexuals, drew moral 
>>support from a religious source. Indeed, slavery drew that 
>>support from 
>>precisely the same source. It was St. Paul who supplied the 
>>scriptural 
>>condemnation of homosexuality on which Christians rely, and 
>>it was St. Paul 
>>who enjoined Christian slaves to obey their masters and required the 
>>runaway slave Onesimus, upon becoming a Christian, to return to his 
>>Christian master, Philemon.One cannot read Henry Mayer's beautiful 
>>biography of Garrison without being struck by how much of the great 
>>editor's energy was devoted to religious discourse, but he 
>>wasn't much of a 
>>textualist.His strategy, like that of religious liberals now, 
>>was to invoke 
>>the broad religious principle that all creatures of God deserve to 
>>experience life in as much fullness as they are created capable of 
>>experiencing. Anyone who thought the Bible the last word on the moral 
>>issues to which it specifically speaks would have had to take 
>>the side of 
>>slaveholder. The Thirteenth Amendment's abolition of that immorally 
>>discriminatory institution was, to the extent moral considerations 
>>contributed, a collective acknowledgment of moral development beyond 
>>scripture. That Amendment certainly had a secular, rational 
>>basis. I can't 
>>see one for the FMA.
>>
>>Laurence Claus
>>University of San Diego School of Law
>>
>>    
>>
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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu


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