Gay marriage seems to be a popular political issue, but I have not heard one legitimate reason why it shouldn’t be allowed and mandated by the courts. Essentially, I see no difference between gay marriage and interracial marriage. In Loving v. Virginia the US Supreme Court struck down laws that banned interracial marriage. Can anyone explain why laws against gay marriage should be treated any differently?

To see how this comprehensive response works, let’s try it on a letter by Sen. Cornyn [via Volokh]:

[O]nly one kind of relationship has received such historic and multicultural elevated status in law, culture, and morality: the traditional marital union of two people of the same race. That is not because other kinds of relationships are unimportant, but rather because stable unions of two people of the same race are the strongest foundation mankind has ever known for ensuring the healthy upbringing of children. A wealth of social science research and data attest to this fact.
It does not disparage other kinds of relationships for society to recognize that children are raised best when they are raised by two people of the same race. Indeed, it is difficult to imagine an institution that has enjoyed such overwhelming consensus as traditional marriage. The traditional institution of marriage has existed as such throughout human history, across numerous and diverse cultures, countries, and civilizations as well as party lines, and in the laws, judicial precedents, traditions, and historical practices of all [] states.


I’m interested in hearing ways of distinguishing gay marriage from interracial marriage. Arguments that lead to the conclusion we should also ban adoption, infertile marriage, or other well-established practices that society doesn’t seem to have a problem with don’t count. This includes “correlation” arguments (e.g. married gay people are more likely to commit crime, abuse children, etc.).

On the practical side, here’s my understanding of what’s going to happen with gay marriage:

Massachusetts will rule it legal. Gay people will get married in Massachusetts and try to have that marriage respected in other states. Their resulting court case will be appealed to the Supreme Court, which will overturn all laws against gay marriage and make gay marriage legal in every state in the US.

Meanwhile, Congress will try to pass a constitutional amendment that will overrule the Supreme Court, but it won’t make it out of Congress and if it does it will never get ratified.

posted September 18, 2003 12:01 PM (Politics) #


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Aaron Swartz (