an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Robert George, a conservative professor at Princeton, recently wrote a paper titled "What Is Marriage?" with two co-authors. Last week in Slate, I critiqued the common procreation argument made in that paper—the argument that marriage should be defined as a union of one man and one woman because that was the only combination that could lead to "common procreation." George and his co-authors ("George" for short) have written a response, to which I have written a rejoinder.
Andrew Koppelman, writing on this blog, has now joined the conversation. I write here to respond briefly to Koppelman, because I think he has misunderstood the kinds of arguments—-and the value of the arguments—-I am making against George.
Koppelman states that "Yoshino, unfortunately, never takes on any of the details of [George's] arguments, but instead just summarily notes how weird and counterintuitive it is." Instead, Koppelman contends, I "merely stigmatize some analogies they make."
I never described, summarily or otherwise, George's arguments to be "weird and counterintuitive." My argument, rather, was that George's position was "self-destructively over-inclusive." I contended that the principle on which George would seek to fence out gay couples would also, if taken seriously, fence out opposite-sex couples who do not engage in common procreation—couples who cannot or choose not to procreate, as well as couples who create families through adoption or reproductive technologies like sperm and egg donation. George seeks to rescue such couples by observing that infertile opposite-sex couples, for example, are like baseball teams who fulfill the purposes of their organizations even if they do not win. I observed in my critique that this rescue was a false one, as it still demeaned those couples by comparing them to winless baseball teams. So I am not "stigmatiz[ing]" George's analogies, but making arguments about the stigmatic effects of these analogies on couples who cannot or do not have children, which is a different matter entirely.
More broadly, I am doing much more than "just summarily not[ing] how weird and counterintuitive [George's argument] is." I am using a very familiar form of constitutional reasoning: looking to over- and under-inclusiveness. Constitutional arguments often take the form of asking whether state action is properly tailored to a proper state end. If the primary justification underlying the definition of marriage is that it serves the state end of encouraging common procreation, then the ensuing question is whether the exclusion of same-sex marriage is appropriately tailored to that end. If the state end of encouraging common procreation operates not only to exclude same-sex couples, but also to exclude cross-sex couples who do not engage in common procreation, then the tailoring requirement will generally not be met. To be clear, this is not just a matter of constitutional doctrine, but also of simple logic—you cannot argue that a principle justifies the exclusion of same-sex couples from marriage if that principle also excludes individuals you are committed to keeping inside the institution.
At the end of the day, Koppelman and I do not disagree that George is wrong. In his post, Koppelman makes additional arguments against George's analysis, which I find unexceptionable. If he had framed his post as a set of supplementary objections to George's analysis, I would have not felt moved to say more. But I think it is important to take these arguments about over- and under-inclusiveness far more seriously than Koppelman seems to do. They are important parts of how we reason about constitutional law.