Two Reactions to the Gay Marriage Discussion:

An e-mail that I got today:

Thank you . . . for inviting Maggie Gallagher to guest-blog at your website this week . . . . While it is true my first instinct would be to reflexively disagree with one such as Ms. Gallagher should she write that “water is wet,” I instead find myself intrigued by her writing. Perhaps this is just a function of taking all of my arguments in favor of same-sex marriage from facially reasonable people and the arguments against from those who appear to be, at least, less sophisticated. I whole-heartedly welcome the inclusion of someone who is able to get me to question some of my own assumptions and think more deeply about an issue that is all too often dominated more by sentiment than reason.

And a post I saw yesterday on another blog (a blog subtitled “A collection of real-world libertarian, individualist and laissez-faire rants on law, economics, politics, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar”):

Eugene Volokh is “delighted” that Maggie Gallagher is guest-blogging at his site to debate same-sex marriage.

I’m “delighted” that I de-blogrolled him well over a year ago. It saves me having to do it now.

Gallagher, a notoriously vicious anti-gay bigot, is not a constitutional law scholar (in fact she’s not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage. This “debate” will really be about the “pros and cons” of anti-gay bigotry, rationalized as a legal debate on same-sex marriage.

Perhaps next Volokh will invite some of those Ohio Nazis to guest-blog to discuss the “pros and cons” of anti-Semitism and rationalize it as a debate on the heckler’s veto.

Readers can no doubt infer which of these reactions strikes me as the wiser one; still, let me offer three thoughts about the second reaction:

1. A sense of proportion: If disapproval of same-sex marriage is analogous to Nazism, then I suppose we live in a nation where the majority of the voters — and apparently both major candidates for President last election — are tantamount to Nazis. And of course the parallels are striking. Nazis: Exterminated homosexuals. Opponents of same-sex marriage: Are skeptical about departing from a millennia-old tradition to extend full legal equality to homosexual relationships. Nope, I can’t tell the two apart, either; sounds like a great analogy to me.

2. A sense of tactics: It would seem to me that, given that (1) most Americans oppose legal recognition of same-sex marriage, and (2) supporters of same-sex marriage presumably think that their arguments are more persuasive, the same-sex marriage supporters should welcome online debates on the subject. Silence, I would think, would tend to help the status quo. Debate would tend to help those who would change the status quo. (It’s possible that Volokh Conspiracy readers are somewhat more pro-same-sex-marriage than the public at large, though the opposite is surely possible, too. But in any event, even if factor 1 isn’t applicable among our readers, one would think that factor 2, as perceived by supporters of same-sex marriage, would still lead them to welcome more debate.)

This of course brings up another weakness of the Nazi analogy: It’s actually possible that Nazi vs. anti-Nazi debates might help the Nazis, just because Nazis are so unpopular that maybe there’s no place for them to go but up. But I would think that pro-same-sex-marriage debates (either Maggie Gallagher vs. Dale Carpenter or Maggie Gallagher vs. the commenters on her posts) would be in the interests of the pro-same-sex-marriage forces. Unless, of course, one gets more joy out of calling the other side names than one gets out of actionally winning.

3. A sense of superiority: Oh, and “Gallagher . . . not a constitutional law scholar (in fact she’s not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage” — nice touch! Of course, debate about same-sex marriage absolutely requires a law degree, and preferably constitutional law scholarship, plus something “jurisprudential to bring.” No possibility that maybe some topics actually have more to do with what’s good for society, what’s likely to happen if some policy is changed, and what’s fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines.

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