My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue. One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you. Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14th Amendment does require same sex marriage. Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.
Mike focused on one small part of my post addressing the issue whether sexual orientation is like race. Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14th Amendment. This is a potentially independent reason for not requiring gay marriage. I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction. (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.) Continue Reading →