Refusals to recognize same-sex marriage and refusals to recognize interracial marriage:

Many people argue that state no-gay-marriage rules are just as illegitimate and unconstitutional as state no-interracial-marriage rules. Though I tentatively support allowing gay marriage, I don’t buy this argument (which is why my support for allowing gay marriage is only tentative, and which is why I oppose gay marriage being implemented by courts, as opposed to legislatures or voters). Here’s a quick sketch of why.

     Moral and practical reasons: Let me set aside for a moment the constitutional doctrine (I’ll get back to it below), and focus on moral and practical judgment.

     I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.

     This is why almost all the possible justifications for bans on interracial marriage have to do with claims of racial superiority, or the felt need to maintain racial purity, which is impossible to justify without some judgments of racial superiority. The one potentially decent justification for such bans is that children of interracial marriage might be ostracized or even attacked by racist outsiders. But fortunately, over time this effect has substantially diminished, and in any event I think that usually (with some narrow exceptions that I might blog about in another context) the way the law should deal with the risk of racist reaction is to fight against it, not to give in to it.

     But people’s sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they’re biological, too. Certainly given the current state of biological knowledge, the claim that there’s a biological difference in men’s and women’s parenting styles is much more plausible than there’s any such difference in blacks’ and whites’ parenting styles.

     This means that there’s an eminently legitimate argument that society would be better off if male-female couples were set up as the preferred, most legally and socially sanctioned mode. It is plausible to think that future generations would be better raised by male-female couples than by same-sex couples. And it is plausible to think that on the margins the laws related to marriage may subtly shift some people, either through incentive effects or through the law’s effects on social norms, towards male-female coupling and childrearing.

     Now as it happens I’m not persuaded that these arguments are actually correct. I suspect that a same-sex couple that has gone through substantial effort to have a child will probably be at least as good parents as the average male-female couple, which might have had the child with much less forethought, work, and desire for a child. [UPDATE: I accidentally omitted the following item from the original post.] Moreover, while it’s plausible to argue that the main reason for giving special legal recognition to marriage is to promote childrearing, other benefits of marriage — promoting stability of relationships, and promoting the happiness of the partners — might counsel in favor of recognizing same-sex marriage even if such recognition might in some small measure harm the average quality of childrearing in society. [END UPDATE.] But the arguments against same-sex marriage mentioned above are not ridiculous arguments, nor arguments that can only be justified by irrational hostility or contempt. These are arguments that sensibly cautious and methodologically conservative people can reasonably make against proposed changes in a fundamental social institution.

     This is why my view on same-sex marriage is that of cautious and tentative support. I do think that it will probably be good for society to allow same-sex marriage; and I’m pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren’t duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not (see this post by Clayton Cramer; I often disagree strongly with him on issues related to homosexuality, but on the historical point I think he makes a lot of sense).

     Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner’s race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner’s sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

     Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren’t.

     To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case:

These are most certainly not the same — and not just because the items in the second category are somehow supported by an exceedingly strong government interest. Most people’s (and most judge’s) first reaction to the sex examples, I suspect, is that there’s much less of a presumptive constitutional problem there than in the race context. Sex discrimination just isn’t quite the same as race discrimination, and that’s especially so for “separate but equal” legislation or other legislation that treats men and women equally while still providing essentially similar benefits for them. (Note that government-run boys’ and girls’ schools might be unconstitutional, even if they provide equal education — the caselaw is unclear — and officially boys-only teams might be unconstitutional, too, which is why I stress the girls-only teams. But this would be because of a perception that those programs are indeed separate and unequal, not because separate but equal is inherently bad in the gender context.)

     And this flows from the point I mentioned in the first half of this post: Men and women are different. They are different in purely obviously biological ways (women get pregnant, men don’t, women are shorter than men, especially at the right tail of the bell curve), and in social ways that likely flow from this biology or are at least very deeply rooted (men and women generally want privacy from the opposite sex in certain situations, boys and girls behave differently in mixed-sex settings than in same-sex settings, we think that being the best woman basketball player is a noteworthy achievement in a way that being the best under-6-foot basketball player or the best Vietnamese-American basketball player is not). The law recognizes that there is a difference here.

     What’s more, though Loving did rest partly on the formal race-consciousness of bans on interracial marriage, it also stressed what was obvious to all the participants in the case: Bans on interracial marriage, like segregated restrooms or segregated schools, were part of an attempt to maintain white social and legal supremacy. Limitation of marriage to male-female couples is not an attempt to maintain the supremacy of any one sex. (Yes, I know that people have argued that it is, but I don’t think that’s right.) Such a limitation is, to be sure, an attempt to maintain the social and legal supremacy of heterosexuality over homosexuality — but the Supreme Court has never held that sexual orientation discrimination is generally like race discrimination, nor should it (in part for the reasons given in the first half of this post).

     Thus, I just don’t think that the Loving rationale of “if it mentions race, it’s unconstitutional race discrimination” carries over to the sex discrimination context. Had the Court already declared sex discrimination presumptively unconstitutional by 1967 (actually, it didn’t start doing so until the 1970s, and it had treated sex classifications as presumptively constitutional as late as the early 1960s), I suspect the Justices would have articulated this distinction in Loving itself, and make clear that Loving‘s logic rests on the special status of race, and the nature of even “separate but equal” racial rules as attempts to impose racial supremacy, something that doesn’t apply equally to all sex classifications. As it is, I think that Loving has to be understood as limited to the context in which it was decided, which is race; and the analogy to sex should be rejected, for the reasons I mention above.

     Finally, let me mention again the point I mentioned above, which is even more relevant to constitutional analysis: The male-female marriage requirement is much more deeply historically rooted in American law than the ban on interracial marriage; and by 1967, only 16 states banned interracial marriage, while 49 states ban same-sex marriage, and the 50th state (Massachusetts) is shifting to allowing same-sex marriage only by judicial fiat, not judgment of its people. The Supreme Court should rightly be very cautious in overturning the nearly unanimous judgment of American lawmaking organs, past and present. Maybe sometimes it ought to do this — but not when it faces such an absence of dispositive constitutional text, and when the doctrinal case for the overturning is so tenuous.

     Conclusion: Let me say it again: I tentatively support allowing same-sex marriage. I would vote for a proposed California law implementing allowing same-sex marriage. I think it’s the fairer result, and the practically most useful one.

     But I also realize that I may well be wrong. Perhaps we shouldn’t be tampering so quickly with an important aspect of a fundamental social institution. Perhaps — and there is reason enough to think that this is a plausible claim, though not an obviously correct claim — there is something in male-female relationships that is uniquely valuable for one of the most important tasks of any society, raising the next generation of its citizens, and perhaps the law should therefore officially sanction those relationships in a way that it doesn’t sanction others. Perhaps it would be better if people are taught that children are best reared in male-female relationships and not male-male or female-female ones.

     These arguments aren’t strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.