{"id":664,"date":"2004-03-03T03:26:12","date_gmt":"2004-03-03T11:26:12","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2004\/03\/03\/volokh-and-galois-on-same-sex-marriage-interracial-marriage-and-equal-protection\/"},"modified":"2004-03-03T03:26:12","modified_gmt":"2004-03-03T11:26:12","slug":"volokh-and-galois-on-same-sex-marriage-interracial-marriage-and-equal-protection","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=664","title":{"rendered":"Volokh and Galois on same-sex marriage, interracial marriage, and equal protection"},"content":{"rendered":"

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

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.<\/p>\n

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.<\/p>\n

Now as it happens I’m not persuaded that these arguments are actually correct.<\/i> 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.<\/div>\n

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.<\/p>\n

Suppose for the sake of argument that Eugene is correct that behaviorial differences between women and men (such as they are<\/a>) 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<\/i> than “dad and dad” and “mom and mom” (a dubious proposition, which is not supported by any <\/i>social science evidence<\/a>), 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<\/i>, is pure sex discrimination.<\/p>\n

Galois makes a similar argument <\/a>(although he states it better):<\/p>\n

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.<\/div>\n

.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[112],"tags":[],"class_list":["post-664","post","type-post","status-publish","format-standard","hentry","category-same-sex-marriage"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/664","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=664"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/664\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=664"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=664"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=664"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}