Rational basis for opposing gay marriage

[Volokh, Eugene]

	1.  Counterproductiveness:  Of course the ban on gay marriage may
prove to be counterproductive, even on the terms that I describe.  (I
actually think it will.)  But the same argument can be made as to a vast
range of other laws -- minimum wage laws, prostitution laws, drug laws, gun
control laws, and so on.

	Here's a simple example from the gun context; set aside for now any
state or federal constitutional right to bear arms.  Some people urge that
the government ban cheap, relatively low-quality guns (often labeled
Saturday Night Specials).  This, the argument would go, will help disarm
some criminals, while still leave people free to own some other guns.  It
might, critics of the laws say.  But it might also lead some of the
criminals to instead trade up to more expensive, higher quality guns, that
are disproportionately higher caliber and thus deadlier.  Such bans, even if
they are complied with (which seems unlikely) may thus yield *more* gun
deaths, as most criminals upgrade to deadlier guns instead of switching to
not having guns.

	I think this argument against Saturday Night Specials bans is
actually correct on the merits -- but surely it doesn't show that the bans
lack a rational basis.  And when "there is equally a rational argument" in
favor of the bans and against them, or in favor of allowing gay marriages
and against it, then *both* satisfy the rational basis test.  That's
black-letter rational basis law, and that's got to be the case, unless
you're willing to give judges tremendous flexibility to strike down a vast
range of laws that the judges think are counterproductive or unwise.

	2.  Fraction of the Burdened Group That Might Be Swayed:  Likewise,
I acknowledge that the mechanism I describe only achieves the law's goals
insofar as the law may affect the behavior of some people (bisexuals or
potential bisexuals); it doesn't achieve the law's goals as to other people
whom the law still burdens (homosexuals).  But that's also true of many
laws; many laws burden a large group of people in order to affect the
behavior of only a fairly small subset.  That is not reason to say that the
laws fail the rational basis test.

	Incidentally, here's the best data I've found on the relative size
of the "potentially swayable" groups and the solely homosexual groups, from
Laumann et al., The Social Organization of Sexuality 311 (1994):

Sexual Attraction		Among men	Among women
Only opposite gender	93.8%		95.6%
Mostly opposite gender	2.6%		2.7%
Both genders			0.6%		0.8%
Mostly same gender		0.7%		0.6%
Only same gender		2.4%		0.3%

(Normal caveats:  The raw numbers in the last four categories are low -- the
total numbers of respondents are 1404 men and 1731 for women -- so the data
isn't that robust; and of course there's no guarantee that the respondents
are reporting accurately.)  Under this measure, there are many more people
who are *in some measure* open to either gender than who are purely
homosexual.  Here's another measure, from the same page:

	*  Of people who have had some same-sex partners in the last year,
25% have had both male and female partners, and 75% only same-sex (the
numbers are roughly the same for men and women).

	*  Of people who have had some same-sex partners in the last 5
years, 50% of the men and 60% of the women have had both male and female
partners.

	*  Of people who have had some same-sex partners since age 18, 80%
of the men and 90% of the women have had both male and female partners.

	Eugene
	

Paul Finkelman writes:

> You are assuming that it would push those people into heterosexual 
> marriage; it might; it might also push them into marriages that are 
> doomed to fail; that will not work; I have known a number of 
> people (not 
> a scientific sample I realize) who were in straight marraiges 
> and were 
> miserable; the marriages failed in the end and they then built lives 
> around same sex partners.  It seems to me there is equally a rational 
> argument (and one for efficiency) that if you have both kinds of 
> marriages we will avoid some marraiges that are doomed to 
> fail and have 
> more people who are happy, satisfied, with their marriage.  
> This would 
> be a rational basis for allowing same sex marriage.  One of the 
> underlying assumptions of your position is that people choose their 
> sexuality, or at least some people do.  That may be true on some 
> margins, but for most it is not.  Thus, thus the rational basis you 
> argue for -- for bisexuals -- seems like a very thin rationale for 
> denying legal equalty and the right to the pursit of happiness to far 
> more consenting adults who would choose same sex relationships.
>