John Yoo and Jesse Choper on Gay Marriage

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I’ve long maintained the following:   as unwaveringly committed as I am to being pro-choice and anti-death penalty, I can understand the arguments on the other side.   I completely disagree with them, but I get the logic behind the arguments.   On gay marriage, it’s completely different though.   I have yet to hear an argument against gay marriage that makes one ounce of sense to me.   I’m open to at least trying to understand the arguments against it, but so far not one has fit that bill.   They’re all completely nonsensical.   Damages children?   Nope.   Ruins marriage for straight people?   Are you kidding me?   It’s gross?   Yeah, just like the wonderful sex life of all your straight friends that you want to hear complete details about.   The Bible doesn’t like it?   Move to a different country that follows the Bible.   And so forth.

In light of that, it was nice this morning to see in my daily Westclip email an article about gay marriage and the conservative movement in which one of the most prominent conservative scholars today, John Yoo, took a similar position.   The article (“Can the Government Prohibit Gay Marriage” here via Westlaw), co-authored with Jesse Choper (I don’t know his politics, although I probably should), argues that, although the constitution does not guarantee the right, the federal government doesn’t have the power to prohibit gay marriage.   That part isn’t surprising from a conservative.

However, the last part of the paper is.   It argues that states should not, as a policy matter, ban gay marriage.   The arguments are those that gay rights advocates have been making for decades:

How should an individual state decide the question of gay marriage for itself? Our view is that it should not prohibit gay marriage. States should generally exercise their police power when the social benefit of a regulation outweighs any harm that it may generate. With regard to gay marriage, the cost of a prohibition is the restriction of the liberty of two individuals of the same sex who seek the same legal status for an intimate relationship that is available to individuals of different sexes. This harm may not be restricted just to the individuals involved but may also involve broader social costs. If the government believes that marriage has positive benefits for society, some or all of those benefits may attach to same-sex marriages as well. Stable relationships may produce more personal income and less demands on welfare and unemployment programs; it may create the best conditions for the rearing of children; and it may encourage individuals to invest and save for the future.

On the other side of the ledger, does prohibiting gay marriage create any social benefits that would outweigh the positive consequences of permitting it? We are not aware of any evidence that the marriage of two individuals of the same sex produces any tangible, direct harm to anyone either in the marriage or outside of it. As we understand it, the claim against gay marriage is that it produces negative externalities on those outside of the marriage. First is the contention that gay marriage undermines the institution of marriage, a point often advanced by opponents and mentioned by the Supreme Court itself in Lawrence. The causal link must be that allowing same-sex couples to marry will reduce the respect for the institution of marriage sufficiently that marriage among heterosexual couples will decline. We know of no empirical studies that bear out this relationship.   ****

A second rationale in favor of a ban is that gay marriage provides legitimacy to gay relationships, and this is offensive to significant portions of the American people. Here, the harm is not tangible but rather is psychological. Even though the marriage itself does no harm to third parties, these others experience a cost just by knowing that gay marriages exist in their state or nation. ****

Our approach to the policy issue of gay marriage adopts the harm principle, which urges against government prohibition of any private activity which does not harm any other. It may be that some believe gay marriage to be immoral or offensive, but if it causes no direct harm to others beyond the psychological, we believe a legislature should not ban it. **** Our position here is that without persuasive evidence about the direct harms caused by gay marriage, we would not choose a policy to ban it.

With all the news about John Yoo these days, it’s quite a welcome surprise to find such a prominent player in the current conservative world making these arguments.

- David S. Cohen

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