Volokh on the same-sex marriage issue

When a big legal matter hits the fan, I always click over to Volokh's legal team blog.

I may or may not buy completely what they are saying there but it is almost always clearly presented and not shrill.

Check out Volokh's latest post on the subject. Excerpts:

Moral and practical reasons: Let me set aside for a moment the constitutional doctrine (I'll get back to it below), and focus on moral and practical judgment.

I oppose bans on interracial marriage because I think that race is literally only skin deep (with a very few exceptions, such as certain hereditary diseases that are more common in certain racial situations). A black-white couple is no different, morally or practically, from a white-white couple or a black-black couple. There is no inherent, either biological or very deeply rooted social, difference between a black parent and a white parent.
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But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles.
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But the arguments against same-sex marriage mentioned above are not ridiculous arguments, nor arguments that can only be justified by irrational hostility or contempt. These are arguments that sensibly cautious and methodologically conservative people can reasonably make against proposed changes in a fundamental social institution.

This is why my view on same-sex marriage is that of cautious and tentative support. I do think that it will probably be good for society to allow same-sex marriage; and I'm pretty sure it will be good for gays and lesbians. But the real differences between men and women (differences that aren't duplicated as to race) give me pause. So does the fact that the male-female marriage model has been broad, deep, and longstanding in our legal system in a way that bans of interracial marriage were not....
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Constitutional: But, people say, what about Loving v. Virginia, the 1967 case in which the Supreme Court struck down bans on interracial marriage? Loving held that a law which considers a partner's race in deciding whether a marriage is allowed is a form of unconstitutional race discrimination (even if both whites and nonwhites are equally covered by the law). Later Supreme Court cases held that sex classifications are similar to race classifications. Therefore, a law which considers a partner's sex in deciding whether a marriage is allowed is a form of unconstitutional sex discrimination (even if both men and women are equally covered by the law). QED.

Not so fast: Analogies between race discrimination and sex discrimination are sometimes helpful, but often not. This is one case where I think they aren't.

To begin with, let me just make some observations that should remind us that race and sex discrimination are not the same. Consider these pairs of case:

Racially segregated restrooms
Men's rooms and women's rooms

Racially segregated schools
Boys' schools and girls' schools

Whites-only basketball teams
Girls-only basketball teams
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Men and women are different. They are different in purely obviously biological ways (women get pregnant, men don't, women are shorter than men, especially at the right tail of the bell curve), and in social ways that likely flow from this biology or are at least very deeply rooted (men and women generally want privacy from the opposite sex in certain situations, boys and girls behave differently in mixed-sex settings than in same-sex settings, we think that being the best woman basketball player is a noteworthy achievement in a way that being the best under-6-foot basketball player or the best Vietnamese-American basketball player is not). The law recognizes that there is a difference here.
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Conclusion: Let me say it again: I tentatively support allowing same-sex marriage. I would vote for a proposed California law implementing allowing same-sex marriage. I think it's the fairer result, and the practically most useful one.

But I also realize that I may well be wrong. Perhaps we shouldn't be tampering so quickly with an important aspect of a fundamental social institution. Perhaps -- and there is reason enough to think that this is a plausible claim, though not an obviously correct claim -- there is something in male-female relationships that is uniquely valuable for one of the most important tasks of any society, raising the next generation of its citizens, and perhaps the law should therefore officially sanction those relationships in a way that it doesn't sanction others. Perhaps it would be better if people are taught that children are best reared in male-female relationships and not male-male or female-female ones.

These arguments aren't strong enough to persuade me to oppose same-sex marriages. But they are strong enough to persuade me that same-sex marriage rights ought not be imposed on the whole country by unelected federal judges, or imposed on most states by the actions of one or two states.

I think Volokh makes excellent points here. My provisional and tentative bottom line for now is this: (1) the FMA is doubtful to be approved and probably isn't a good use of the energies of the pro-traditional marriage side (2) allow the states to hash it out with calm discussion from both sides (will that actually happen?) (3) are we headed toward a mix of "religious marriage" (man and woman) and "civil unions" (man and woman, same-sex) as the resolution of the current situation? Is that a plausible legal construction? I'm a molecular biologist not a lawyer.

Speaking of not being a lawyer, how will the civil union laws will be written to prohibit polygamy and incestuous relationships?

The argument against incestuous relationships is that children of such unions would be at risk for genetic diseases. But what if the couple is infertile and only plans to adopt? Or decide they will have no children?

Would there be any legal basis to prevent such a union?

As for polygamy, the objection in the USA has always been that it is oppressive to women.

However, in some Islamic countries polygamy is normative. In China, not so long ago, polygamy was common. I'm sure a few of my ancestors were polygamists? On what basis can civil union laws be written to prevent this if all parties consent?

What if Joe, Jane and John show up applying for a marriage license at Mayor Newsom's office saying: Joe and Jane want to have children but Joe is infertile but John is a mutual best friend wants to be the sperm donor. Since he will be the biological father, they want him to be recognized legally as part of the family and thus eligible for various benefits and protections?

On what legal basis would Mayor Newsom deny this loving trio?

I sense the issue is not as radioactive as abortion yet. In abortion, there are probably 20% of the population that is adamently pro-life and anti-abortion and 20% who are pro-choice and believe no restrictions should be allowed. The remaining 60% don't like abortion and think it is a terrible thing but don't want it banned and thus made more dangerous to have. The 60% aren't going to be single issue voters on this issue.

I suspect this is the case on same-sex marriage. 10% of the public thinks it is the end of the world as we know it. 10% think the other 10% are hateful bigots. 80% of the people are very uncomfortable with the notion but aren't going to take to the streets and really hope the issue would just go away.