Richard Posner v. Evan Gerstmann on gay marriage, &c.


I appreciate Richard A. Posner’s respectful review of my book, Same-Sex Marriage and the Constitution (“Wedding Bell Blues,” December 22). Nonetheless, I believe he misses the mark in several ways. Marriage is one of life’s most important relationships, and social science has amply documented its positive effects on people’s health, happiness, and longevity. Posner says this is irrelevant to the debate over same-sex marriage because “all of the studies are of heterosexual marriage.” Of course they are––because gays and lesbians are forbidden to marry. This is all too typical of the double-binds often imposed on gays and lesbians: First they are told they may not marry, and then they are told there is no evidence that marriage is beneficial for them.

Posner also says I overestimate the number of children living with same-sex parents, but he is missing the forest for the trees. There is no dispute that many, many children live in such families or that one of the main effects of the same-sex marriage ban is to deprive these children of the important protections a family gains when the parents are married. The irrationality of punishing the children for the perceived sins of the parents was a central concern of the Massachusetts Supreme Court in striking down the heterosexual monopoly on marriage.

Posner also avers that my argument that marriage is a fundamental constitutional right proves too much; he asks whether I may marry my “beloved dachshund” or a mature twelve-year-old. But dogs and children cannot consent to any contract, so obviously they cannot consent to a marriage contract. The harder examples are polygamy and incestuous marriages, just as its supporters analogize the ban on same-sex marriage to the ban on interracial marriage. These analogies are at the heart of the question, and the Supreme Court has spelled out principles that may be used to help decide whether same-sex marriage is the type of union that the Constitution protects. Laying out these principles is a major purpose of my book. Posner and I come to different conclusions here, which is fair enough.

But it is surprising that a federal judge would dismiss the whole project of legal reasoning as a mere fig leaf and argue that majority preference should be the guidepost on this question. James Madison surely was not thinking about same-sex marriage during the Constitutional Convention, but he was very much thinking about tyranny of the majority. Despite sky-high divorce rates, the heterosexual majority shows no stomach for limiting its own freedom to marry and divorce at will, even when children are involved. For this majority to cast itself as a defender of marriage by banning gays and lesbians from marrying cuts closer to Madison's concerns than Posner concedes.

Evan Gerstmann
Los Angeles, California

Richard Posner replies:

Of course Professor Gerstmann is correct that, because homosexual marriage is forbidden, there is no evidence of the effect of such marriage on health. My point was only that experience with heterosexual marriage cannot automatically be extrapolated to homosexual marriage, as Gerstmann tries to do in his book.

I also agree that many children grow up in gay or (particularly) lesbian households; my objection was only to Gerstmann’s greatly exaggerating that number.

Finally, I do not believe, and I don't think my review should be read to suggest, that legal reasoning is bosh and majority preference should decide constitutional questions. My argument rather was that the kind of legal reasoning deployed by Gerstmann, though entirely competent, does not have the cogency that would justify a court in overriding the enormous sentiment against homosexual marriage. The more tenuous the basis in constitutional text and precedent for overriding democratic preference––and the stronger that preference––the weaker the case for such overriding. We should let the states decide, one by one, what legal regime to create for homosexual couples who, quite understandably, want to have the rights of married persons.

Poll Vault

In response to Jeffrey Rosen’s article “Immodest Proposal,” I must point out the results of a recent Boston Globe poll (December 22). Of those asked, 50 percent of Massachusetts residents supported gay marriage, and 38 percent were opposed. Regarding the Goodridge decision, 53 percent stated that they want the government to enact laws in conformity with the ruling. Only 23 percent would favor Rosen's “modest” separate-but-unequal system of civil unions, and a mere 16 percent favor defiance of the court.

For months, Rosen has been predicting backlash and urging those entrusted to protect and interpret the integrity of state and federal law to tread softly on gay rights, lest the sensibilities of social conservatives be injured. Rosen is stuck in 1996. The Massachusetts constitution and U.S. notions of justice, equality, and liberty fully justify Goodridge. Turns out, public opinion does, too.

Daniel Redman
Allston, Massachusetts

Jeffrey Rosen replies:

The backlash to court-ordered gay marriage that I feared was national, not merely local, and that backlash, unfortunately, has indeed materialized. Galvanized by the Goodridge decision, the Ohio legislature voted just this week to pass one of the most sweeping bans on same-sex marriages in the country. Also citing Goodridge as a motivation, at least a dozen other state legislatures are expected to take up state constitutional amendments banning gay marriage. National polls confirm a similar backlash.

Singled Out

Cass R. Sunstein argues that keeping gays and lesbians from the benefits of marriage makes them “second-class citizens” (“Federal Appeal,” December 22). But, if the benefits of marriage are so crucial to full citizenship, then the very institution of civil marriage creates an even broader class of “second-class citizens”––namely, single people. Marriage discriminates against those unwilling or incapable of entering into long-term, monogamous relationships by denying them tax and other benefits available to those who are married.

The government need never have recognized civil marriage, as Sunstein acknowledges; it could have left the matter to religious and social groups. But, in choosing to attach benefits to certain relationships, the government steps squarely into the game of rewarding some behaviors and not others. Once the government starts this, social standards of morality are the only possible basis for deciding what kind of behavior to encourage.

Eugene Kontorovich
Arlington, Virginia

Cass R. Sunstein replies:

Eugene Kontorovich trivializes the problem of discrimination. If we made a list of those who remain second-class citizens in the United States, it’s ridiculous to believe that single people would qualify. “Single people” probably have a legitimate complaint or two, but they're hardly subject to the forms of unfair treatment and hatred that face gays and lesbians.

This correspondence appeared in the February 16, 2004 issue of the magazine.