About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Monday, April 06, 2009

Iowa court upholds gay marriage

I'm looking forward to analysing the court's judgment , though I might take a few days getting to it.

My views on this issue are not as clear-cut as most of my friends'.

In the current circumstances, I do support the right of gay people to get married. But there are some complications from my viewpoint: in the long term, I think that the state should be getting out of the marriage business altogether; I don't even think that the long-term survival of the institution of marriage is something that deserves our support; I have some doubts about the kinds of constitutional arguments that have been prevailing in state jurisdictions, and I think there's a chance that they'll fail if a case like this is ever tested in the US Supreme Court (can anyone tell me whether state Supreme Court cases on issues involving state constitutions in the US are appellable to the US Supreme Court; equivalent cases in Australia could go all the way to the High Court, but perhaps I'm wrong in automatically assuming that the same applies in America?); I understand why one or two gay rights advocates are not in favour of making gay marriage a big issue in the US, on strategic expediency grounds; and the issue has a somewhat different meaning in the Australian context, where legal rights for gay couples are pretty much the same as those for straight (unmarried) couples, which are, in turn, increasingly the same as those for married couples (i.e., marriage is losing its legal meaning here, which doesn't seem to be happening in the US).

All those are reasons why I am a bit detached. All the same, I salute this outcome as another important victory for gay rights in the US and particularly for committed gay couples in Iowa. The court's reasoning will have a persuasive impact in other US jurisdictions, and it looks as if the judgment has some especially pleasing observations about church/state separation and about gays as a protected group in American equal protection jurisprudence. Like I say, I look forward to finding some time to analyse it.


Coathangrrr said...

These sorts of things can't be reasonably challenged in federal court here in the U.S. Marriage is solely a state issue, although there will be cases about recognizing these marriages in other states.

Russell Blackford said...

Damn! I still haven't got around to doing anything more substantial with this.

Lorenzo said...

There are two related issues. (1) The law protecting the lives that same-sex couples build together. It is possible to do much (though not all) of that contractually, but the reality is legal recognition greatly lowers transaction costs in dealing with the legal implications of building lives together. I am sceptical that the state getting out of the marriage business altogether would be an improvement.

(1) Equal protection of the law. Partly a "symbolic" issue and partly an acceptance of being members of a common moral and political community. Which is, of course, precisely what many religious believers object to.

I discuss the utopian cruelty (in the sense of a war against human nature) of the opposition to homosexuality here.