Todd Epp's praise for my position on gay marriage included some counterarguments on the constitutional questions involved, which were the primary focus of my American News piece. I want to respond to them here.
Todd says this:
I think marriage is a fundamental right and there is no compelling state interest to ban gay couples from marriage.
The "compelling state interest" language begs the question. Under Supreme Court doctrine, a state needs a compelling interest only if it is violating an otherwise recognized constitutional right. To say that marriage is a fundamental right is very unclear. Does this mean a right of anyone to marry anyone else? Here is how I put the matter:
All marriage laws discriminate. A man cannot marry his sister or his mother, or a 10-year-old girl. A man can't marry a horse (though some have tried), nor can any two persons marry a third. Sometimes this involves judgment calls. Can first cousins marry? If not, what about second or third cousins? And what is the proper age of consent? The Constitution provides no clues, and this is sensibly left to the good sense of the people of each state.
I think that Todd means that marriage is a fundamental right for such couples as he is willing to recognize. I think that confuses a preference for a principle.
Todd goes on:
If, as the fundies say, marriage is only for pro-creation, that reason for marriage went out the window a long time ago. People decide to have kids out of wedlock and couples with no intention of having kids get married. People typically get married because they are in—prepare for this—LOVE.
Let me work backwards. Since people can obviously be in love, and in some cases have children, out of wedlock, what do they need wedlock for? If people don't need it to form partnerships, have sex, etc., then in denying marriage to some kinds of couples, we aren't depriving them of anything.
The "fundies," i.e., religious fundamentalists, are clearly right about the origins of marriage. It exists in all cultures because it solves a fundamental biological problem. Men don't know who their children are. Marriage is a familial contract: the woman promises fidelity, so that the man can have some confidence that these children are his children; in return, he promises to support them. That is why marriage exists in the first place.
Of course some husbands and wives cannot or do not wish to have children. In that case marriage has functioned to protect women by securing for them a share of property in the case of divorce. Legal tradition also extends certain benefits from one spouse to another, as in the case of a public heath care plan. More happily, it functions to give each partner certain kinds of access and medical consent. These are secondary functions of marriage. They evolve because marriage already exists for the aforementioned purpose; but they serve good purposes and that is enough reason to keep them.
Homosexual marriage would extend the institution to cover a new case. I am on record as favoring this. But unlike Todd, I do not think there is any constitutional reason why any state should be compelled to accept my policy preference. Love clearly won't do it. I love my brother, Dave. I love my best friend of more than thirty years Kenny Shelton (he's way too ugly for any sexual interest on my part, I might add). I don't suppose that this is any reason why the State of South Dakota should responsible for their medical care.
Todd hopes that "people on my side of the political divide" will consider what I have written. Those are generous words. I would hope, though not expect, that people on his side of the political divide would stop trying to get courts to write their policy preferences into the margins of the Constitution, and instead do the hard work of persuading legislatures to enact good policy.
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