The Great Debate

The Federal Society recently sponsored an online debate on marriage equality, featuring four law professors -- two four, two against. Smart people making good points. Good reading if you click here.

Money quote (from Dale Carpenter):

"Consider just some of the incremental steps to gay marriage over the past half century. Sodomy laws were eradicated; homosexuality was removed from the list of “mental disorders”; gay newspapers, communities, and organizations flourished; civil-rights laws were enacted; and openly gay politicians were elected. Positive knowledge advanced through the systematic study of homosexuality and through daily experience with actual gay people, dispelling many widely accepted, long-standing, and hysterical myths about homosexuals. Study and experience discredited hoary fears that homosexuals ruin everything they touch, that any effort to lift stigma and legal repression would practically end civilization.

This was all necessary for the emergence of gay families, which began to spring up. Gay couples lived together openly. Adoption was available to gays in 49 states. Homosexuality ceased to be an automatic disqualification for custody. Second-parent adoptions provided some legal protection to gay families. Gays began raising children in increasing numbers (now more than a million) and no state was stopping them. A quasi-marriage culture sprouted.

This bottom-up momentum led to formal recognition. It started primarily in the private sector, where companies began offering benefits to “domestic partners.” Then cities and counties followed. Then states recognized gay relationships, at first tentatively, offering only some benefits. Now states are approving civil unions, granting all the benefits of marriage. Two populous states have actual gay marriage. Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been more dramatic.

Some of this recognition has been pushed judicially, but it is increasingly a legislative phenomenon. There’s been a counter-movement, but almost one-fourth of Americans now live in a state that legally recognizes gay couples.

Are we at the point where gay marriage is in most functional respects already here, so that sanctioning “technical” gay marriage is the next obvious incremental step to correct the lingering incoherence in our treatment of gay families? Given the numerous and enabling shifts we’ve already seen, I think so. There’s room for disagreement, but we’re surely getting closer."