Sean Samis has posted a lengthy response to my post expressing “different” thoughts on the Iowa decision on same-sex marriage. I thank him for his response and, while I think he has got it wrong, he’d get a great grade for his efforts in my Law & Theology seminar or Wisconsin Supreme Court class and so he deserves a response. Given the length of the remarks that I am about to make, I once again thought it better to post separately.

I have come to believe that the underlying presumptions of proponents and opponents of same-sex marriage are almost ontological in their differences about the nature of the law and the way in which it shapes and is shaped by society. We are all hard-wired now days to think of constitutional law as, largely, the mediation between the “rights” of individuals and the “demands” of the state. The former are seen as radically subjective, while the latter are the sum of their legal incidents. The former are not to be judged, and the latter are often examined for their “fit” without regard for their interaction with extralegal norms and institutions.

We also are steeped in an almost eschatological view of the law in which we see the claims of some new “discrete and insular minority” as analogous to those advanced during the civil rights movement and somehow validated by an Hegelian move toward “equality” and progressivism.

I understand the attraction of those assumptions, but they are not universally shared and do not underlie the arguments against same-sex marriage. This makes it hard — or so it seems to me — for proponents of same-sex marriage to see the point that opponents are making. We are speaking in a way that cuts against the grain of much of postwar legal and political theory.  As a consequence, much of what I have seen in debates on the issue are charges of religious zealotry, bigotry and, as in Varnum, “irrationality.” I congratulate Mr. Samis for trying to steer clear of these.

The other interesting thing in the academic literature on same-sex marriage is the degree of agreement between the right and the left regarding the consequences of same-sex marriage. They believe that it will change marriage profoundly, only differing as to whether this is a good or bad thing. Yet, at the level of popular discourse, proponents of same-sex marriage deny — even claim to be puzzled by — the very results  that theorists of their position expect and desire.

Mr. Samis says that he had hoped (really?) that I would offer “the reasons that same-sex marriage should be banned, but alas it was not to be so . . . .” Of course, he need not be -– probably will not be -– persuaded by those reasons, but my post expressly distinguished between the differences that justify the state’s distinction of same-sex relationships with respect to marriage as a matter of equal protection and those arguments that say it should not redefine marriage as a matter of policy.

The former dispose of Varnum. I am fairly confident that Mr. Samis did not learn in Con Law 2 that, in this context, “all one needs show is that the right at issue satisfies some legitimate purpose and avoids significant harms” (and I’ll assume that he did not really mean to claim that this is some test for the recognition of constitutional rights or for application of the equal protection guarantee).  Nor do I believe that the analogy to forms of speech that serve different purposes but that, nevertheless, each deserve constitutional protection is apt. There is a difference between defining the express constitutional protection of speech and the application of the equal protection guarantee. The latter does look for similarities between classes, but the heart of the matter is not the similarities but the distinctions. What are the differences between classes and how do they justify differential treatment?

Mr. Samis claims to agree with me on the “purposes” of marriage. I think he does not. What I said is that marriage involves (we hope) the union of two people who love each other and commit to mutual support. Mr. Samis would argue that these are sufficient reasons to extend civil marriage to relationships that exhibit these characteristics. As important as these relationships may be to the people who are in them and as admirable as these people may be, I don’t.

While love and commitment may explain much about why people marry, it does not tell us why the state recognizes civil marriage. Any number of relationships might satisfy the first two requirements, but we don’t allow the participants to marry.

The reason that we allow civil marriage does have to do with channeling potentially procreative relationships into a certain context. It is to communicate the norm that sexual relationships between men and women ought to take place within a marital relationship and that this relationship should be governed by a set of expectations that, whether we acknowledge it or not, are designed and have been developed to facilitate the care of any children that the relationship might create. It assumes — in fact, insists — that children have a right to be — are best off if they are — raised by their biological mothers and fathers.

This is why the charge of “discrimination” on the basis of sexual orientation is unhelpful. While it would certainly be irrational to discriminate on the basis of sexual orientation in, say, hiring law professors, it is not irrational to do so when it comes to marriage. The state acted to encourage certain types of heterosexual relationships (married ones) over others (cohabitation and casual sex) because a man and woman who sleep together might make a baby.

But two men or two women cannot do so. Because of that, the state simply does not have the same reasons to create and encourage a marriage-like status for same-sex couples. It does not have the same interest in structuring their sexual relationships.

I am fully aware of and have spent much time responding to the argument that this cannot be so because we allow men and woman who cannot or will not procreate to marry. That argument is wholly beside the point. For the most part, we cannot know which ones these will turn out to be and it would be intrusive on individual privacy (as well as, in many cases, impossible) to try to find out.

More fundamentally, channeling nonprocreative heterosexual relationships strengthens the norms of conjugal marriage. In fact, if we channeled –- or regarded as equally desirable — heterosexual relationships outside the marital norm whenever a couple could not — or intended not to have — children, we’d actually weaken the marital norm for heterosexual couples, as we have done with no-fault divorce laws and other manifestations of the sexual revolution.

Nor am I much moved by the argument that, having weakened the marriage norm and the value of fathers as fathers in other ways, we are no longer in a position to insist upon it. While it’s true that we no longer criminalize adultery and fornication (and should not), that doesn’t undercut the cultural norm that marriage is trying to preserve. While it’s true that we have weakened the marital norm and weakened fatherhood through liberalized divorce law and more generous attitudes toward out-of-wedlock births and nonmarital relationships, that has come at a cost — one that has been devastating among the poor. Mr. Samis may be right -– unfortunately, he is right — that society has sent the the message that fathers as fathers do not matter. But I would rather rail against the darkness than conclude that we must now live in that long night.

The decline of the marital norm and fatherhood has resulted in enormous human misery. There is nothing in our social policy — not the decline of unions, not free trade, not welfare reform, not the imagined scaling back of government over the past 30 years — that has harmed the poor more. While that doesn’t mean we should or can go back to 1959, it is foolish to ignore the harm and see only the benefits.

There is a much better point for proponents to make here, although they rarely do so. Why, they might say, wouldn’t trying to channel same-sex relationships into marriage help underscore the norm as well? Why might it not help the children (admittedly very few) that are raised by same-sex couples. If gays and lesbians want to commit to the norms that have evolved to restrain and channel heterosexual relationships, why not encourage it?

Here is where we get Burkean. Marriage is a fundamental institution that has been weakened (by no fault of gays and lesbians) at great social cost. The practical problems of the very small number of same-sex couples who would marry (and the almost infinitesimal number of children who would be raised by them –- particularly under circumstances where both partners could have parental rights) can be addressed in other ways. In other words, there is great risk and relatively little need — unless you are compelled by a desire to, as same-sex marriage proponent Andrew Koppelman says, “sanctify” gay and lesbian relationships. To say, incidentally, that this is tantamount to a claim that amounts to no more than “society isn’t ready” strikes me as an extraordinary assertion of hubris and ignores the past fifty years of the social history of marriage.

Nor am I simply alluding so some unknown and unspecified threats. The difficulties with the “no harm” argument are many. The redefinition of marriage would underscore the “close relationship” model of marriage which, as Mary Ann Glendon of Harvard and other scholars have noted, ineluctably weakens the norms of conjugal marriage by loosening the social (if not legal) strictures on individual choice in matters of sexuality and family structure. Remember marriage — at least our traditional conjugal model — absolutely does “endorse” the relationships to which it applies. In fact, it must endorse them because its very purpose is — at least for men and women — to encourage them as opposed to other forms of relationships.

If you don’t believe me (or her), read what the theorists of genderless marriage have to say. They believe that it will advance the close relationship, as opposed to the conjugal, model of marriage. They say that it will change the public meaning of marriage. As one of them noted, “the right wing gets it.” Of course they count this change as a good thing. I do not.

I agree that all children cannot be raised by their biological father and mother. Sometimes the ideal is not possible and we should not let the perfect be the enemy of the good. Divorce is sometimes the best of bad choices and adoption is an attempt to take lemons and make lemonade. But we don’t — at least not yet — marry people with the expectation that they ought to get divorced and thereby impair or eliminate the relationship between a child and her mother or (usually) father. Same-sex marriage necessarily sends a message that it is perfectly fine for children to lack a father or to lack a mother.

Will expanding marriage to same-sex couples have no impact on the norms of marriage itself? Perhaps, but it strikes me as unlikely and, once again, the more sophisticated proponents of same-sex marriage do not believe that. Thus, the Ontario Court of Appeals, in mandating same-sex marriage, expressly demanded that its incidents be changed to accommodate same-sex couples, suggesting that it might require the recognition of (at least) tripartite forms of parental rights since, even if Heather has two daddies, she will also have a mommy. Others have suggested modification of norms and legal rules regarding financial interdependence and the presumption of marriage. Still others have argued that the sexual exclusivity that is a norm of conjugal marriage need not be –- and perhaps should not be –- an expectation of genderless marriage.

This shouldn’t be surprising. To believe otherwise is to believe that sexuality is nongendered in the sense that a relationship between two men or two women is likely to be the same — save for some physical details — than one between a man and a woman. If the norms of marriage developed from a need to bridge the sexual divide between men and women — which is itself a function of the fact that sex makes babies — then why would we expect partners in other forms of relationships to develop — or at least to experience in the same way — the same norms and expectations? There may be much about homosexual relationships that are the same, but it also makes sense to think that there will be much that is different.

Nothing I have said here implicates religion or morality. In fact, it’s probably more rooted in evolutionary biology. To extend marriage to relationships that cannot produce children and whose participants, as a result, are unlikely by evolution or socialization to see them in light of norms and expectations that grow from the nature of relationships that are potentially procreative, seems likely to change them.

It is not an adequate response to say that, well, “I don’t see how your homosexual marriage can affect my heterosexual one.” As Maggie Gallagher writes, that is a sound bite and not a serious thought. Of course, it may not, just as your neighbor’s no-fault divorce did not cause your parents to break up. (Incidentally, Helen Alvare recently wrote an excellent piece in the Stanford Journal of Law & Public Policy demonstrating the way in which arguments for no-fault divorce track those now made for same-sex marriage.)

The consequences that concern me are not an immediate impact on individuals, but a change in cultural understanding — and eventually the law — that would occur over time and in ways that are almost impossible for us to see today. Proponents can shake their heads, praise “progress,” condemn “reaction,” and denounce fear-mongering, but the law of unintended consequences has held up rather well.

If we are concerned by the practical (mostly financial) problems facing same-sex couples that cannot be remedied by private agreement, then I think a better approach would be reciprocal beneficiary schemes.