Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America
[A preview though it is far from a gimme that the same sex marriage rulings will be handed down today.]
Two are better than one, because they have a good return for their labor: If either of them falls down, one can help the other up. But pity anyone who falls and has no one to help them up. Also, if two lie down together, they will keep warm. But how can one keep warm alone? Though one may be overpowered, two can defend themselves.
-- Ecclesiastes 4:9-12
I read this book (written in 2004, after the Massachusetts Supreme Court ruling, but apparently before it was applied) as a type of preview to the upcoming same sex marriage cases (to me still the most accurate label & William N. Eskridge used it in his 1996 book). It was well written and covered a lot of familiar ground. A few times, e.g., it cited a book on marriage by E.J. Graff though she in the end comes off as more activist. The homosexual author is also a common thread in all three of these books.
The book has two basic notable aspects -- much of its case relies on marriage being a good thing and explaining how same sex marriage will if anything strengthen the institution. For instance, if you don't have same sex marriage, cohabitation and various "marriage lite" official alternatives will be used, in part because society is growing in its acceptance of gays and lesbians, and supports some rights. But, this watered down marriage is not the same thing and will seem attractive to many different sex couples, if anything, probably more number-wise in the long run. Likewise, marriage will bring positives to same sex relationships, though the discussion here is mainly regarding gay men. Overall, the argument is an equal protection one (though marriage is also seen as a basic liberty of freedom), not an open-ended argument for sexual liberty. Marriage is explained to be a social institution -- society expects something from the couple as much as vice versa. -- particularly as a matter of caring for each other. See, e.g., the vows, which don't focus on sex.
The second notable thing comes in the final chapter (before a type of postscript) -- somewhat suddenly, federalism is promoted. Marriage equality is argued to be basic fairness and good policy, but this is not a constitutional argument as such -- he says at one point that he is not making a constitutional claim for the right to gay marriage. This is a bit curious in that equal protection is a constitutional principle, one he notes goes back to the Declaration of Independence. Rauch, however, is from the "Roe v. Wade was a tragedy" school and has Burkean leanings. Especially in 2004, it was a bit soon to rest on constitutional grounds here.
Anyway, we are left with news that it might take decades for same sex marriage to pass nation-wide. Really now. Loving v. Virginia is barely mentioned. Why is equality a national demand in one place but not the other? The problem with a couple being married in one state but not recognized as such in another is barely covered -- this is a basic part of one's life. You cannot turn it on and off. The glaring bit, given the upcoming ruling, is Section Three of DOMA is not even mentioned. It has to be. It inhibits state discretion by not being evenhanded as to federal benefits. The take it slow approach is reasonable, I even suggested usage of civil unions in MA back in 2003 (sorry Jonathan), but he doesn't do enough heavy lifting.
Putting aside a somewhat weak final chapter, the book as a whole is very good, a sort of warning to conservatives. His take on the Prop 8 orals can be found here.