E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In USA Today last week, Robert George and Ryan Anderson lament
the past ten years of LGBT policy. They
argue that the legalization of same-sex marriage, which they tirelessly
opposed, is the logical consequence of “the erosion of marital norms in the wake of the sexual revolution — with
the rise of cohabitation, nonmarital childbearing, no-fault
divorce and the hookup culture.”The shift destabilizes heterosexual marriage:“If it isn’t a comprehensive union inherently
ordered to childbearing and rearing, why should it be pledged to
permanence?”
This is a familiar theme in
opposition to same-sex marriage – a cause that they still haven’t given
up.But the marital norms they defend
are alive and well.Those norms
evidently have a more robust basis than they are willing to concede.
Rod Dreher, in the American Conservative, echoes
their concern:“We are well on our way to the
dissolution of our civilization via the dissolution of the traditional family.”The rise of divorce at will, same-sex
marriage, and the acceptance of transgender people show that “Over this past
decade, we have collectively forgotten what marriage is, what family is, and we
are well on our way to forgetting what men and women are.”
George, in a follow
up today on Public Discourse, argues that the
proponents of same-sex marriage won because they “a campaign of intimidation, smearing anyone who opposed their
agenda as a bigot and a hater.”
They are actually conflating two different claims.One, undoubtedly correct, is that marriage is
inherently heterosexual.George elsewhere
elaborates that idea:“What is unique about marriage is that
it truly is a comprehensive sharing of life, a sharing founded on the bodily
union made uniquely possible by the sexual complementarity of man and woman, a
complementarity that makes it possible for two human beings to become, in the
language of the Bible, one flesh and thus possible for this one-flesh union to
be the foundation of a relationship in which it is intelligible for two
persons to bind themselves to each other in pledges of permanence, monogamy,
and fidelity.”
That idea persuades fewer and fewer people.This is not because those who believe it are
intimidated, but because, as George concedes, “even some conservatively oriented people seem to find
themselves stumped” when asked why infertile heterosexual marriages are
better than same-sex marriages.Increasing
numbers of Americans, especially younger ones, including adherents of sexually
conservative religions such as Catholicism, Mormonism, and evangelical
Protestantism, can make no sense of the ideas George has to offer.That’s not a criticism of George’s claims,
which deserve to be addressed on their merits.It is simply a fact.
The second claim is that without that idea to hold them
together, the norms that constitute heterosexual families are bound to
collapse.George and Anderson fear the
end of “norms of monogamy,
exclusivity and permanence.”They write:“We seek to preserve marriage—the real
thing—because of the profound respects in which a flourishing marriage culture
serves and benefits all members of the community, beginning with children.”Dreher fears civilizational collapse: “family formation, and dissolution, has been
inseparable from the rise and fall of civilization,” and “Our task as
traditionalists (cultural conservatives, Christians, Jews, Muslims, what have
you) is to fight hard politically and culturally to create the structures
within which the memory of family, and of God, can be sustained.”
That second claim does not follow from the first, and it isn’t
true.It is indisputable that in
contemporary America, families have become more fragile, there has been a surge
in divorce and single parenthood since the 1950s.Those numbers are down a bit
in recent years.But among the prosperous
educated elites who are most likely to hold the ideology of sexuality that is
deplored by George, Anderson, and Dreher – the top 20% of the income scale -
divorce rates haven’t changed much since the 1950s.
It appears that family fragility has less to do with the
philosophy of sexuality than socioeconomic status, and particularly the economic
instability that Americans inceasingly face.But whatever the cause of these developments,
it isn’t sexual liberationist ideology.
George and Anderson also make a third claim, that the
advocates of gay rights will inevitably persecute those who disagree:“once a campaign that used to cry “live
and let live” prevailed, it began working to shut down Catholic adoption agencies and
harass evangelical bakers and florists. This shows it was never really about “live
and let live” — that was a merely tactical stance.”Perhaps that’s true of some gay rights
advocates, but quite a lot of us really mean it.Dreher’s desire to isolate a saving remnant
during what he takes to be the coming dark age strikes me as misguided, but in
a free society, Dreher’s – and George’s, and Anderson’s - ability to live as they
like shouldn’t depend on my opinion.And
the ability of gay people to live as they like shouldn’t depend on anyone else’s
opinion either.