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Marriage and Same-Sex Unions: A Debate Edited by Lynn D. Wardle, Mark Strasser,William C. Duncan, and David Orgon Coolidge (Praeger, 396 pages, $45) The gay marriage issue has been simmering in political and legal forums for more than a decade. Gay marriage advocates have won legal rulings in three states, only to see two of those decisions thwarted by state constitutional amendments and to end with a hybrid “civil union” law in the third (Vermont). At the same time, opponents have won passage of laws aimed at prohibiting recognition of same-sex unions at the federal level and in 37 states. The battle entered a new phase in June when the U.S. Supreme Court ruled state anti-sodomy laws unconstitutional. The Court specifically avoided any direct reference to gay marriage, but the ruling in Lawrence v. Texas heartened proponents by affirming homosexuals’ privacy rights to intimate relations and denouncing laws aimed at “degrading” homosexuals. Throughout this period, gay marriage proponents have dominated the academic debate. The reasons are easy to understand. Gay rights advocates naturally had the strongest interest in laying out their case in scholarly journals. And, in some sense, they had the harder side of the debate because they must overcome an entrenched tradition in law, religion, and culture of viewing marriage solely as a union between one man and one woman. Opponents of gay marriage began making their case in scholarly journals in the mid-1990s, but the imbalance remains in the proponents’ favor. And the Supreme Court’s decision in Lawrence demonstrates that scholarship can make a difference. In the majority opinion, Justice Anthony Kennedy relied heavily on a brief by legal historians debunking the Court’s previous assumption that anti-sodomy laws had a long and well-established place in U.S. legal history. In that light, anyone with a stake or an interest in the gay marriage issue can welcome the publication of Marriage and Same-Sex Unions: A Debate. In one volume, some two dozen contributors comprehensively rehearse the range of issues over gay marriage: historical, moral, jurisprudential, and political. The four editors � one proponent (Mark Strasser) and three opponents � have arranged the articles with an eye to scrupulous balance. Each of 11 chapters opens with an essay by a proponent of gay marriage, followed by a reply from an opponent; an opponent then presents a full-length essay on the same subject, followed by a reply from a proponent. The various writings are academic, but for the most part not dense or arcane. And, for an issue where emotions run high on both sides, it is refreshing to see disputants treating each other with respect � complimenting one another for hard work and sincere views even while in complete disagreement on the points at issue. Scoring the debate, a neutral referee � if one could be found � might report that both sides fall short of a decisive victory. The opponents’ policy arguments against recognizing same-sex unions fall apart whenever they are forced to go beyond their basic axioms: a traditional view of marriage and an unbending disapproval of homosexuality. Proponents, however, must do more than demonstrate the weaknesses and inconsistencies of the opponents’ case. As long as their best hope lies with the courts, they bear a heavy burden of fashioning a constitutional argument strong enough to prove their case as a matter of law, not just as policy. Their case is strong, but whether strong enough remains to be seen. Tradition alone cannot justify the ban on same-sex marriages. Laws against interracial marriage also had a firm place in U.S. history, but the Supreme Court unanimously ruled them unconstitutional in 1967. Disapproval of homosexual conduct formerly provided stronger support: witness the Court’s 1986 decision, Bowers v. Hardwick, upholding anti-sodomy laws. By overruling Bowers, however, the Court has now certainly weakened that argument. On that basis, opponents of same-sex marriage must look for more specific arguments. They focus foremost on children. Only a heterosexual marriage has the inherent potential for procreation, they say. And they claim that it is bad for kids to be raised in a household with two moms or two dads rather than a mother and a father. Those arguments simply collapse. Heterosexuals are allowed to marry whether or not they intend to have children � indeed even if they cannot bear children. Regardless, gay men and lesbians are making babies one way or another and are allowed to adopt children in all states but one (Florida). As for harm to children, social science studies simply do not support the view that gay parenting adversely affects children. Opponents also insist that recognizing same-sex unions would “undermine” heterosexual marriages. Yale law professor William Eskridge aptly calls this the “queerest” of arguments. “It is not clear,” he writes, “how admitting enthusiastic new converts to marriage will undermine the institution for everyone.” Proponents of gay marriage use the weaknesses of the opponents’ policy arguments as the keys to their constitutional case for requiring recognition of same-sex unions. They contend that limiting marriage to heterosexuals constitutes discrimination against homosexuals in the exercise of what the Supreme Court has labeled a fundamental right. On that basis, the laws must withstand constitutional review � and they cannot, either under the “strict scrutiny” standard or the more deferential “rational basis” test. Despite the considerable force of these arguments, opponents are correct in pointing out that they do not necessarily follow from Supreme Court decisions to date. Homosexuality has not been declared to be a “suspect” classification akin to race or sex, and marriage has not been held to be a fundamental right on a par with voting or access to courts. And the Court’s current majority has been loath to recognize new constitutional rights except by reference to history and tradition. Still, every constitutional right has at one point been “found” for the first time. Gay marriage proponents profess confidence at the ultimate outcome of this debate. Opponents likewise predict victory for their side, but many of them appear resigned to some judicial setbacks � for example, in the overdue decision from the Supreme Judicial Court of Massachusetts in a gay marriage case brought by six gay and lesbian couples. In the end, however, the opponents have an internal contradiction. They extol the importance and benefits of marriage for individuals and society at large, yet insist on limiting it to heterosexuals. If gay men and lesbians are here to stay � and they are � the government’s refusal to admit them to this valuable institution cannot be justified except on grounds of an animus that is constitutionally suspect and ultimately at odds with American values. Kenneth Jost is associate editor of The CQ Researcher and editor of The Supreme Court A to Z (CQ Press).

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