Thoughts from
San Diego on Law, Politics, and Culture

 
Marriage, Schmarriage (Part V): Same-Sex Marriage and Lesbians
By Gail Heriot

In my last installment in this Marriage, Schmarriage series (for earlier posts see here, here, here, and here), I said that maybe my next post would be the last. No such luck. I've gotten lots of thoughtful responses, so I have to try to do justice to at least some of them. If you haven't been keeping up with the series, I urge you to go back through the earlier posts to get a sense of what I'm trying to say. As I am sure you are aware, Gentle Reader, this is a bit of a touchy subject with some people.

Brett McDonnell (U. Minn), who is visiting here at USD this semester, urges me not to ignore lesbians in my argument. He writes, "The very same factors that make gay men more promiscuous than straight couples should make lesbians less promiscuous." Brett is, of course, quite right. Both the theory and the empirical evidence suggest that lesbian couples are, if anything, more monogamous than straight couples. The issue of lesbian marriage is thus arguably different, and I can easily imagine thoughtful people coming to a different conclusion concerning it.

But in the public mind the issues are bundled together--in part because most members of the public haven't given it much thought, in part because the same-sex marriage movement and the gay movement generally have presented the issue as a bundled one, and in part because modern constitutional law doctrine would probably make it impossible to unbundle them. As a result, if lesbian marriage were legally recognized, same-sex marriage between men would follow almost immediately (and vice versa). A person who believes that same sex marriage between women by itself would, all others things considered, be a good thing, but that same-sex marriage between men would be a bad thing, must somehow balance the two against each other and arrive at a single conclusion.

Is that a slippery slope argument? If so, it's worth pointing out that it has been repeatedly said that Burkean conservatism and slippery slope arguments are antithetical. And, in a limited sense, that's true. Much of Burke's argument is that cultural context and nuance matter. If he was able to distinguish between the American and the French Revolutions, then Burkean conservatives ought to be willing to distinguish among issues that are similar but not identical, even when other people can't or won't.

But that argument applies only when the Burkean conservative is himself or herself the policymaker. It seems perfectly reasonable for the Burkean conservative to take the position that when two issues cannot realistically be separated from each other in the minds of the ultimate decisionmakers (which in a democracy will ordinarily be the voters, though in our democracy is sometimes the judiciary), it doesn't matter if they are arguably distinguishable. Fate has put them together.
posted by Gail at 1/22/2005 01:58:00 PM