Blessing gay marriage

This month the legal status of laws prohibiting same-sex marriage will be considered for the first time by the Supreme Court. Though the Court may decide the two cases before it on narrow technical grounds, the underlying issue is whether gays have a constitutional right to marry.

It’s remarkable not only how much public opinion has recently shifted toward endorsing gay marriage, but how thin are the legal arguments now arrayed against it. Neither the brief offered by ProtectMarriage on behalf of California’s Proposition 8 nor the one by House Republicans on behalf of the Defense of Marriage Act attempts to argue that same-sex couples are a threat to society or children. The House brief simply asserts that it is “rational” to believe that children fare better when raised by biological parents of both sexes—without marshaling much evidence for this view.

Both briefs introduce as part of their case against same-sex marriage a curious new argument about the “social risks” presented not by homosexual couples but by heterosexual couples. The point is that reckless sexual relations between unmarried heterosexuals can produce unintended offspring, which are a potential burden to society, whereas reckless sex between homosexual couples doesn’t pose this threat. Therefore, the briefs say, society has reason to offer heterosexual couples, not gay and lesbian couples, the distinct benefits of marriage.