Bench Memos

Law & the Courts

For the Record

Over at Dorf on Law, law professor Eric Segall has a post on the marriage issue that, in several paragraphs, purports to present and respond to my views. He doesn’t see fit, though, to actually quote anything I’ve written or said, and among his many errors he somehow concocts as the lead of my supposed “three rationales” in defense of state marriage laws the proposition that “we don’t know what effects allowing gays and lesbians to marry will have on heterosexual marriage (and maybe children).” (I’m quoting his words purporting to set forth my lead argument.) Oddly, despite giving his readers the impression that he has canvassed my writings (“Whelan has spilled a lot of ink …”), Segall links only to an essay of mine from two years ago that was focused on explaining how the federal Defense of Marriage Act and California’s Proposition 8 were compatible with a sound understanding of federalism.

I think that this recent post of mine far better captures the arguments I’ve long been making, including:

From an originalist perspective, I don’t see the need, as a constitutional matter, to justify the definition of marriage that was universal at the time that the Fourteenth Amendment was adopted.…

In any event, the justification for the definition of marriage as the union of a man and a woman is the same now as it was in 1868. Marriage developed in this country, and everywhere in human civilization, because societies recognized that opposite-sex couples generally have the capacity to procreate. Marriage exists to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence. As Prop 8 proponents showed in their Supreme Court brief (pp. 31-35), leading thinkers over the centuries—including many on the Left, like Bertrand Russell, anthropologist Claude Levi-Strauss and sociologist Kingsley Davis—have consistently recognized the central connection between marriage and responsible procreation and childrearing. This basic truth was commonly acknowledged until the recent movement to redefine marriage to include same-sex relationships made it fashionable to deny or obscure it.

(Just a word or two on [the] claim—which I think irrelevant to the original-meaning inquiry—that the redefinition of marriage to include same-sex couples wouldn’t harm the institution of marriage. How odd to imagine that denying the central connection between marriage and responsible procreation and childrearing, and redefining marriage to eliminate that connection, won’t have a damaging long-term effect on the strength of that connection. Further, the New York Times tells us that there is plenty of reason to think that marriages of same-sex couples are much less likely to model the marital norms of fidelity and monogamy.)

I don’t mean to suggest that Segall’s misrepresentations of my position were intentional. I would suggest, though, that if you’re responding to someone else’s argument, it’s a good discipline to quote the key parts of that argument. Among other things, that will make it more likely that you actually understand the argument that you’re contesting.


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