So I haven't read Vaughn Walker's opinion in the Prop 8 case because, well, travel and day job and impending nuptials and so forth. And there's part of me that doesn't want to have read it so that I can continue ducking questions about my opinion of it with, "Well, I haven't read it yet, and I don't like to venture opinions about judicial decisions without having the read whole thing."
But just one brief note on the policy arguments for and against gay marriage: I am puzzled by this Ross Douthat blog post, in which he cites an Eve Tushnet column on the "thickness" and complexity of the marriage ideal. I actually think that they are mostly right re: thickness and complexity, except that usually, thickness and complexity are conservative arguments against governmental authority over a particular sphere of life. Figuring out, say, the extent of the national demand for steel is also complex, and benevolent central planners tend to screw things like this up, which is why conservatives are generally against nationalizing the steel industry. So by the force of Douthat and Tushnet's logic, the state should get out of the business of recognizing marriage altogether. Yet neither of them get there. Why? Is there something that I am missing? And if the first-best alternative is getting the state out of recognizing marriage altogether, then why is the second best alternative having the state promote a more limited conception of marriage? Shouldn't the second best alternative be letting the state promote open up marriage to gay people?
There is part of me that feels more competent to be the kind of philosopher queen who could manage steel production for an entire nation than a philosopher queen who could design an ideal of marriage for an entire society. I can barely handle giving my best friends competent advice on how to build good lives. Really, I wish I were the kind of friend who could. And if I can't tell my friends how to create good marriages and families, how can I help out millions of people whom I've never met, many of whom are much less like me than my relatively culturally homogenous set of personal friends. How are Douthat and Tushnet so much more confident that they've figured out what seems so hard for me?
Also, re: the first sentence of the second paragraph cited in Tushnet -- "So if humans were perfectly able to control their reproduction, could pick when they had kids and with whom, and men and women are interchangeable both socially and biologically, then you don’t have marriage" -- humans already have significant control over their reproduction given widespread oral contraceptives. We can't completely pick when we have kids and with whom, but developments in reproductive technology are getting us closer to that every day. The third part of her test isn't true -- men and women aren't biologically interchangeable -- but we're getting more and more socially interchangeable. So by her own logic, isn't the marriage ideal destined to evolve into something else? Again, is there something that I am missing?
A Realistic Theory of Law
19 minutes ago