My Response to Andrew Sullivan's Gay Marriage Post Today

Have you ever had a really intense argument with a really informed intelligent friend on a subject you both care deeply about but you both have legitimate and possibly not an easily reconcilable disagreement? Good things may result.

That is what happens in this fascinating blog exchange between Ross Douthat and Andrew Sullivan that I reference in some form or another here, here, and here. It's fascinating because Sullivan is probably the most persuasive gay marriage advocate I have read largely because he takes on the likes of Ross Douthat, the most persuasive gay marriage skeptic I have read (largely because he takes on Andrew Sullivan).

At any rate, when you are pressed to the limits of your best arguments, you often are forced to admit things that otherwise would not come up.  Andrew Sullivan does so here (which would be fantastic if these points were brought up more often in mainstream discussion assuming Sullivan is right):

Will marriage that encompasses gays and lesbians undermine this?

The first thing to say is that lesbians seem to be far more eager to marry than gay men. Duh. It's not because they're lesbians, it's because they're women. It follows, however, that lesbian couples are likely to be more monogamous than most straight couples as well as more numerous than gay males ones. So adding lesbians to the mix actually reinforces monogamy as an ideal and feminizes marriage in ways that Ross would presumably favor.

Gay men? I think it's fair to say that the fact that they are men makes monogamy less likely than even straight marriages. If Eliot Spitzer had married another Eliot Spitzer, he may have had more sex on the downlow and spent a lot less money on hookers. Male-male marriages that survive are likelier to have some kind of informal level of permission and forgiveness and defensible hypocrisy on this score than most male-female marriages or female-female marriages, especially if the men marry young. I think the honesty within these relationships can actually be a good thing and can help sustain a life-long commitment rather than weaken it. But I can also see why it might worry Ross if this became publicly celebrated rather than privately tolerated. Given the way in which the straight family as a whole is involved in such marriages, I believe private toleration will likely prevail over public celebration. But the defensible hypocrisy of straight marriages may have an extra twist here.

Here Sullivan admits that these three kinds of relationships are not the same, they have different dynamics, temptations and implicit rules built in because of these differences.

But then today he says this:

It’s a surprising move, but perhaps the only possible shred of an argument they have left in the fight to deny marriage equality to gay citizens. In Utah, the state has tried to muster legal arguments as to why they have an interest in marginalizing gay unions as opposed to heterosexual ones. Their first try was to argue that heterosexual-only marriage was important for “responsible procreation.” The Judge agreed, but couldn’t understand why allowing civil marriage for gays would somehow undermine that. In fact, he made the socially conservative counter-point that by mandating that gay couples remain unmarried, “the state reinforces a norm that sexual activity may take place outside of marriage.”

 and this:

And that’s the core thing about this debate. As it has gone on, the logic of equality has proven far stronger than the logic of exclusion. In the courts, often denigrated, the standard of logic applies more rigorously than in the emotional and human maelstrom of democratic votes. If the arguments just don’t stand up to reasonable inspection – and they sure haven’t – what is even a conservative court supposed to do? And if Utah‘s supreme court cannot provide a convincing case to retain this kind of public discrimination, what hope the others?

I understand this is a subtle contradiction but it's there. I'm not sure whether or not the state should care whether they reinforce a "norm that sexual activity may take place outside of marriage" if by sexual activity you mean any kind of sexual activity you can imagine (or choose not to). Maybe, maybe not, but that seems to me a tougher argument to make. Rather I think it makes much more sense that the state would care about sexual activity that may lead to the creation of new life. And the fact that we get into such heated debates about sex education, birth control and abortion, procreative activity is very much a state concern.

I think the larger point is a good one. Will adding gay couples to marriage weaken it? Likely not:

While Douthat continues to cling to his views, another moderate conservative I admire, David Frum dithers. But his logic as to why?... is just dumb:

It's true that marriage, among the educated middle class, has actually strengthened recently which weakens the argument that gay marriage destroys traditional families. But that's only true if you believe gay marriage is the only and the strongest factor that will destroy families. I believe there are a multitude of societal factors at play and changing gay marriage laws is just one of many and not near the most important. I'm not sure how you can separate these out in way to come to the conclusion Frum comes to.

Marriage as well as all of the legal benefits attached to it was designed with straight sexual activity in mind (especially given that birth control did not exist when the marriage construct was developed and if we were still living in that world, I guarantee we would not be having this discussion right now). Does expanding the institution to include couples that simply do not have the same kinds of risks blunt its goals? Maybe or maybe not, but making the case that this is a violation of the equal protection clause is far from clear, to me at least.