Volokh and Galois on same-sex marriage, interracial marriage, and equal protection

Eugene Volokh – who favors same-sex marriage – offers a typically well-written post arguing that it’s not clear that same-sex couples have an equal protection right to get married. Here’s a sample:

I oppose bans on interracial marriage because I think that race is literally only skin deep […] 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. 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. 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.

The problem with this analysis, as I see it, is that it fails to acknowlege that men and women are individuals, and should be given the opportunity to live their lives as individuals, not just as representatives of their sex.

Suppose for the sake of argument that Eugene is correct that behaviorial differences between women and men (such as they are) are rooted in biology. So what? When Jane Roe marries Joan Doe, the two individuals are the ones getting married, not a statistical average. Even if it is true that “mom and dad” make better parents on average than “dad and dad” and “mom and mom” (a dubious proposition, which is not supported by any social science evidence), that doesn’t tell us that anything about what Jane Roe and Joan Doe will be like as parents. Forbidding Jane and Joan to marry based on the (alleged) insufficientcies of mom-mom parenting, on average, is pure sex discrimination.

Galois makes a similar argument (although he states it better):

In fact, the idea that what is “equal” should be viewed in terms of the person seeking equality and not as group judgements is quite important when it comes to sex discrimination. To some people the ability to work-at-home and care for one’s children is equal to the ability to work outside-the-home in a profession like the law. They are both noble and worthwhile callings. It would also be reasonable to assume that women’s advocacy styles and childcaring styles would be different than men’s, etc. Yet most people today now find it wrong to restrict one’s profession based on sex. The problem is the same as above. To the person being denied the opportunity the two paths (lawyer and childrearer) may not be equal. This is not to say that one is better than the other, but the two are different and one shouldn’t be denied such an opportunity simply because of his or her sex. This is true no matter the biological or deeply-rooted social differences between the sexes. I find it hard to reconcile the belief that it’s unacceptable to dictate one’s professional opportunities based on sex with the view that it’s somehow all right to dictate one’s most intimate choice of spouse on this basis.
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24 Responses to Volokh and Galois on same-sex marriage, interracial marriage, and equal protection

  1. 1
    Stentor says:

    I think the term you’re looking for is “ecological fallacy.”

  2. 2
    Elayne Riggs says:

    I should think that (“on average”) gay people would probably be less susceptible to biological determinism than straight folks, so right away that calls into question part of the argument Volokh discusses.

  3. 3
    Anne says:

    To oppose same-sex marriage on “biological” grounds opens the door to denying marriage to people on other “biological” pretexts. It’s a dangerous precedent.

    Yes, there’s genetic evidence against procreating with siblings, parents, or even biological first cousins, so those marriages are already prohibited by law but how much further (Farther? I can never keep those two straight.) down that path are we willing to go?

  4. 4
    david says:

    The comparison inbetween straight and gay parental child-rearing styles may be correct (that straight parents tend to do a slightly better job), but that is a bad comparison. How about this one: single parents vs. gay parents. Two parents is better than one parent hands down. So why stop people from getting married?

    Or the state social work programs slogan: it takes a village to raise a child. A child isn’t raised by only two people (or even one person). It takes a lot more than that.

  5. 5
    Erika says:

    That’s absolutely it.

    It’s like saying that, on average, men are taller than women. It may be true, as an average figure, but it ignores the fact that many women are taller than many men. (Or that many men are shorter than many women. Whichever.)

  6. 6
    Simon says:


    Prejudice consists of judging individuals a priori by a generalization applied to the whole group, even if the generalization is correct.

    The Ecological Fallacy explains part of why this is wrong, but not the whole thing.

  7. 7
    tikae says:

    George Saunders addresses this subject rather well, calling for action against samish-sex marriage.

  8. 8
    Patrick O says:

    What a load of ….. well you know :))

    “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. ”

    Even if it were true that male-female couples
    were better for raising kids, the secret, behind
    the scenes assumption here is that if SSM is
    illegal then all children will be raised in
    “better” male-female marriages.

    This is nonsense of course – whether there is
    SSM or not, many children are currently and will
    continue to be raised in single parent homes
    and in same gay households.

    It is simply that those children in same sex
    households will be deprived of the legal
    protections afforded the children in married

  9. 9
    Sidra Vitale says:

    The biggest problem, as I see it, is the cultural icon of “nuclear family” in a species that historically has nurtured young in much larger family groups. Always multiple females, usually one or more males.

    If, based on our understanding of primate behaviour in general (apes, chimps) and that of ‘primitive’ peoples (Kalahari bushmen, Yamamano), and ‘modern’ families (the current uneven distribution of child-rearing duties in a “nuclear” American family), one concludes that women have statistically, and consistently across history, been the primary child-rearers, then the only conclusion you can come to about gay marriage if you want to talk about biological differences in parenting and what’s

    a. the ‘right’ way,
    b. what’s ‘traditional’,

    and it’s a pretty silly one, is that gay men shouldn’t have children together, but gay women should be encouraged to do so.

    So let’s just mandate lesbian marriage and ban everything else, because that’s best for the children, y’know?

  10. 10
    Elayne Riggs says:

    I should have added that another problem I have with this argument is that it centers, again, around “the children” rather than “the marriage.” Lots and lots of straight folks get married and don’t have kids.

  11. 11
    Jake Squid says:

    And lots & lots of straight folks have kids and don’t get married.

  12. 12
    mrkmyr says:

    It is clear that any restrictin on homosexual marriage for the sake of improved childrearing is both overinclusive (many homoesexual parents will do an excellent job) and underinclusive (many hetrosexual partents will to a terrible job).

    The real question is: how are homosexuals protected under the Equal Protection Clause of the 14th amendment?

    Law having classifications based upon race recieve “strict scutiny”, so that the state interest is compelling, and the means are narrowly taylored. Gender has been given a slightly lower standard of review, but still something more than other classifications (like height).

    O’Connor’s concurrence in Lawrence v. Texas named homosexuals as a class that would require equal protection. If homosexuals get some form of heightened review, a restriction on marriage would be a very poor fit for improving child rearing and would be ruled unconstitutional. If homosexuals are not a special protected class, a restriction against same sex marriage will be judged under a low level “rational basis” review, and the law would be constitutional, even though it does a very poor job at fulfilling its goal.

  13. Mrkmyr,

    Any law aimed at homosexuals must inherently classify based on gender. That being said, the Mass SJC determined it wasn’t even necessary to apply a higher scrutiny as the restriction could not even pass a “rational basis” review. The reason is that they couldn’t see how denying same-sex marriage could possibly lead to better childrearing. How does denying same-sex couples a marriage license make them any better parents? How does denying them a license make any other couple better parents? It just doesn’t make sense.

  14. 14
    bean says:

    Volokh’s argument is so ridiculous, I almost have to wonder if it’s a joke. I mean, come on…

    The entire argument relies on assumptions, pre-drawn conclusions, and out right falsehoods.

    There’s the assumption that differences in parenting styles is biological — something that has never been proven. While there are differences (on average) between women and men, there is no conclusive data that shows any of this is biological and not societal. For that matter, this same argument could be used to say that white parents are better than black parents (or vice versa), because there are, most definitely, difference in parenting styles between Blacks and whites. One has to wonder why people are so willing to believe that the differences between Blacks and whites are societal but that the differences between men and women are biological. It’s ridiculous.

    And, of course, there’s the reliance on, as Stentor said, “ecological fallacy.”

    But the worst part is the assumption that heterosexual couples are better at child rearing. Even in the comments, there are statements like “The comparison inbetween straight and gay parental child-rearing styles may be correct (that straight parents tend to do a slightly better job)”. But this has already been shown, in study after study, that this assumption is FALSE. I will not say, “even if it’s true” — because it’s already been shown, even without the benefit of marriage, that it’s NOT.

  15. 15
    mrkmyr says:

    Often “rational basis” review of the Supreme Court is not a rational look at the evidence, but rather a look to see if there is “any plausible connection” between a permissiable purpose and the rule. Actual effect need not be shown. Rational basis review is often seen as merely a rubber stamp. I agree with bean, the argument that hetro households are better is rediculous, but the assumption there is that homosexuality is not immoral, or if it is, the child will not be influenced by the claimed immorality. I don’t think its immoral, but many people do.


    While laws concerning homosexuality necessarily classify on gender, they do not necessarily treat genders unequally. Both men and woman are not allowed to marry one another. You could compare this to restrictions on interracial marriage, but this analogy fails. The Court’s ruling in that case was based on the fact restrictions on interracial marriage were ment to harm racial minorities. Here, restrictions on homosexual marriage are not ment to keep men in a dominant position in society. So, I think the appropriate classification is not gender, but homosexuality.

  16. 16
    Hestia says:

    mrkmyr, if you’re trying to make the argument that it’s possible for the courts to view same-sex couples as worse parents than opposite-sex couples, based on the fact that they’re homosexuals and homosexuality is evil–and yes, I understand you don’t agree–I wonder why you think morality should factor into court decisions or laws at all. I think it would set a terrible precedent if the morality of homosexuality (or, for that matter, heterosexuality) were either considered or assumed by the court system, and I really really hope it won’t be.

    But perhaps I’m misinterpreting your comment.

  17. Mrkmyr,

    Although most things will pass a “rational basis” test, it is not a rubber stamp as Goodridge shows. See footnote 20 of the decision for more on how rational review is not “toothless”. Even if we assumed that homosexuality is immoral (which the state never claimed), and even if we assumed that the child could be influenced by it, how does allowing the couple to marry make them a worse influence on their child? That is what the court found implausible. (Of course there’s also the issue that parents have the right to determine what values to instill in their own children).

    As for the “equal” treatment issue, first of all it is not at all clear that classification alone does not raise issues. For example, racial quotas are not permitted even though they are not intended to “harm racial minorities”. More importantly, though, is the fact that an individual is not being treated “equally” when they are denied the right to marry someone because of their gender. The court’s ruling in Perez v. Sharp was not based on it keeping whites dominant. After all, segregation itself did this, and at the time of Perez that was legal. Rather the court explicitly said it was “unequal” treatment becuase it needed to be considered from the individual view and not from a group view. Whereas (at the time) it was OK to provide the individual with an “substantively equal” replacement in regards to a school or a train car, there was no “equal” replacement for one’s choice of spouse. The court wrote:

    The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals. In construing the equal protection of the laws clause of the Constitution, the United States Supreme Court has declared that the constitutionality of state action must be tested according to whether the rights of an individual are restricted because of his race. Thus, in holding invalid state enforcement of covenants restricting the occupation of real property on grounds of race, the Supreme Court of the United States declared: “The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.” In an earlier case, where a Negro contended that the state’s failure to give him equal facilities with others to study law within the state impaired his constitutional rights under the equal protection clause, the court rejected any consideration of the difference of the demand for legal education among white persons and Negroes, stating: “Petitioner’s right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity.” Similarly, with regard to the furnishing of sleeping, dining, and chair car facilities on trains, the Supreme Court of the United States has held that even though there was less demand for such facilities among Negroes than among whites, the right of a member of the Negro race to substantially equal facilities was a right of the individual and not of the racial group: “It is the individual who is entitled to equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which, under substantially the same circumstances, is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded.” In these cases the United States Supreme Court determined that the right of an individual to be treated without discrimination because of his race can be met by separate facilities affording substantially equal treatment to the members of the different races. A holding that such segregation does not impair the right of an individual to ride on trains or to enjoy a legal education is clearly inapplicable to the right of an individual to marry. Since the essence of the right to marry is freedom to join in marriage with the person of one’s choice, a segregation statute for marriage necessarily impairs the right to marry.
    Nor can any reliance be placed on the decisions of the United States Supreme Court upholding laws requiring segregation of races in facilities supplied by localvcommon carriers and schools, for that court has made it clear that in those instances the state must secure equal facilities for all persons regardless of race in order that no substantive right be impaired. In the present case, however, there is no redress for the serious restriction of the right of Negroes, mulattoes, Mongolians, and Malays to marry; certainly there is none in the corresponding restriction of the right of Caucasians to marry. A member of any of these races may find himself barred by law from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains. [internal citations omitted]

    To say the appropriate classification here is homosexuality is like saying the appropriate classification in Perez was “miscegenators”. That’s just a specific instance of classifying based on race. Likewise “homosexuality” is just a specific instance of classifying based on gender.

  18. 18
    mrkmyr says:

    Hestia: there has never been a universally accepted definition of “good”. All laws are somehow based on a value system. Why are laws against pollution acceptable? because we value good health. Unlike pollution, homosexuality does not cause some other harm. But, some people believe homosexuality is a harm, in itself, not because it causes some other harm.

    The point made by members of the Court like Scalia is not that the court should consider morals, but rather the court should not consider morals; that they have no right to decide what is “good” or “bad.” That is a job for the legislature.

    Gabe: I still think you have to deal with the fact the 1. laws against homosexual marriage are not ment to harm one gender, unlike interracial marriage laws, 2. Race classifications have always been more suspect than Gender. I said “homosexuality” should be the class, because they are the class being treated unqually. Interracial marriage laws placed a stigma on all minority groups, while same sex laws do not place a stigma on all women or men.

    “racial quotas are not permitted even though they are not intended to “harm racial minorities””, but they do treat members of race classifications unequally.

    I agree that there is a strong argument to say we have a right to same sex marriage under the 14th amendment. I was initially responding to comments that said because the rational for restricting marriage is poor, it necessarily should be ruled unconstitutional. We have numerous illogical, poorly thought out laws, but the vast majority get a pass from the courts.

  19. Mrkmyr,

    I thought I had dealt with those two points, but let me restate them.

    1. The heightened scrutiny in Perez was applied before any analysis of what the purpose of the law was. The law was discrimanatory on its face. The “discriminatory purpose” question only applies to laws that are facially neutral, but have a “discriminatory effect”. Another example is peremptory strike on the basis of gender or race. Such strikes are not intended to harm either gender or race, but are impermissible nonetheless. Furthermore, Perez made quite clear that rights are held as individuals. Thus it’s not an issue of whether women or men as a group are harmed, but whether one’s gender is used to harm an individual. Hillary Goodridge, for example, was certainly harmed because she was a woman. If she had been a man she could have married Julie Goodridge. Finally there is a strong case that the marriage laws were originally patriarchal.

    2. Gender laws are still subject to a heightened scrutiny. In particular the classification must be “substantially related” to “an important governmental” objective. Furthermore, many state equal protection laws treat gender the same as race, particularly if they passed an equal rights amendment.

    Finally, the justices in Massachusetts noted that same-sex marriage prohibitions fail to even be rationally related to any legitimate goverment objective.

  20. 20
    Hestia says:

    But, some people believe homosexuality is a harm, in itself, not because it causes some other harm.

    I still don’t understand, mrkymr. Laws should never cater to people who are merely offended by homosexuality (or anything else), especially since it doesn’t harm them or anyone else.

    [the court has] no right to decide what is “good” or “bad.” That is a job for the legislature.

    I agree that courts shouldn’t come up with concepts of “good” and “bad”–and Congress shouldn’t, either. Our government should work towards a greater tolerance of different lifestyles and beliefs (that don’t harm others), not limiting them. You can disapprove of something and still acknowledge that it’s unfair to force everyone else to disapprove of it, too. In any case, “good” and “bad” aren’t really at issue here. It’s all about the constitutionality of denying marriage to a particular group of people based entirely on who they love. Using only one’s personal relationships to keep someone out of a public institution is insupportable.

    laws against homosexual marriage are not ment to harm one gender, unlike interracial marriage laws

    But they are meant to harm everyone of a particular sexual orientation, which is defined by gender.

    I have never understood the argument that it’s OK to prohibit same-sex marriage because it isn’t technically sexist. So what? It’s still discrimination.

  21. But they are meant to harm everyone of a particular sexual orientation, which is defined by gender

    That’s a good point. It would be like saying it’s okay to prohibit men from entering nursing school because it doesn’t harm all men, only men who want to be nurses.

  22. 22
    Tishie says:

    Volokh said: I oppose bans on interracial marriage because I think that race is literally only skin deep […] But people’s sex is not skin deep.

    See, *I* oppose bans on interracial marriage because there’s no reason on earth to ban it in the first place, and the only reason it used to be banned was because people tend toward bigotry. I strongly support SSM for essentially the same reason. I don’t think the pro-SSM side should have to support itself or scramble around to “prove” that SSM should be allowed; the group trying to restrict the behavior of another group should be the one to demonstrate a good reason for doing so.

    I am left-handed and my husband is right-handed. He is also more than 10 inches taller than I am. I am older than he is. We do not have the same educational levels. We are not from the same religious background. What if a group were to determine that one of these differences is “unnatural” and wrong to have between married persons? Shouldn’t that group be the one to have to make the case and prove that something such as different-handedness in marriage is such a problem that it should be banned outright?

    I don’t see SSM as being any different, except that discrimination against SScouples was built into the institution, rather than added at a later date. I think the anti-SSM people drag us into arguments that we don’t need to have, which is exactly what the anti-choice people have done for years (which shouldn’t surprise anyone, since they are largely the same group).

  23. 23
    lucia says:

    Yes, there’s genetic evidence against procreating with siblings, parents, or even biological first cousins, so those marriages are already prohibited by law but how much further

    First cousins can marry in Alabama, Alaska, Arizona… heck just read the list:

    http://marriage.about.com/cs/marriagelicenses/a/cousin.htm or

    One tantalizing fact:

    First cousins can marry in Arizona, Illinois and Utah provided they can’t have kids. So, if a state legislature permist some marraige one the conditin that no childrend ae born, can we truly believe that raising children is kids the “central purpose” of marriage?

    Actually, it is not clear that the main motive behind prohibiting incestual marriage is necessarily avoiding birthdefects. Historically, there is also the concern about both coercion and excessive concentration of family wealth.

    Cousin marriage has been quite common historically. It was also often the case that women were treated as property and their marriage choices were coerced.

    Often, cousin marriage was arranged for economic reasons and lead to concentration of wealth on ruling families. We tend to disapprove of that these days. This, in part, lead to some of the laws prohibiting these marriages.

    Because the major concerns have often been coercion of accumulating excess family weaith, some states prohibit you from marrying your step-father, step-brother and other step-relatives. So, the “incest” taboo is not purely motivated by concern over birth defects. (If you read War and Peace, you’ll see that the Russian Orthodox Church has a similar incest taboo regarding marrying relatives of in-laws.)

    Concerns about birth defects are more recent than the prohibitions againt incest.

    You can read more here:

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