Also posted at Laissez Faire Books.

A few weeks back, I wrote a somewhat intemperate attack on a National Review article, penned by Stan Kurtz, opposing gay marriage. I must confess no small measure of surprise to find this piece now cited by Kurtz himself, as a gambit in Kurtz’s ongoing debate with Andrew Sullivan. My lack of due horror at the prospect of state sanctioned polyamory is advanced by Kurtz as evidence of the sorts of sleazy characters and apocalyptic scenarios Sullivan courts when he makes Equal Protection Clause arguments in defense of same-sex marriages. I think that what I wrote then is basically right, but I do regret that I neglected to follow the rule-of-thumb that enjoins posting anything on the Internet when you’re angry. It’s satisfying to blow off a bit of steam, but if you’re actually going to be engaged in a debate (which I hadn’t expected to be, even by proxy) then it’s usually counterproductive to let your tone eclipse your content. I still think Kurtz’s arguments are bad, but under the circumstances, I feel obligated to state my objections in greater detail, and rather more civilly.

Let’s begin with Kurtz’s case against a right to gay marriage grounded in the Equal Protection Clause of the Fourteenth Amendment. (And yes, I do indeed think that gay marriage should be “nationalized,” for the same reason that “federalism” does not permit states to practice segregation or suppress unpopular religions.) Kurtz seems to offer two inconsistent reasons for doubting an Equal Protection claim can go through here. The first is that current marriage laws raise no equal protection concerns; the second is that, even if they do, the threat posed to marriage by gay couples is so great that it meets the “compelling state interest” standard required to trump the presumption in favor of equality. I take each of these in turn.

It is worth noting at the outset that a case for gay marriage grounded in Equal Protection need not assert a general “right to marry.” If the state declined to recognize marital partnerships at all, leaving such arrangements to be hashed out by private contracts, nobody’s rights would be violated, just as any number of other government benefits do not rise to the level of a “right.” The argument, rather, is that when government does confer benefits, citizens have a right that they be granted in a neutral, non-discriminatory manner. Can this be said of our current regime of straights-only marriage?

Kurtz believes that it can, for a reason I must confess that I offered mostly in jest in my original piece. He writes: “[Homosexuals] already have the same legal right to marry as everybody else–to marry, that is, members of the opposite sex.” This seems somewhat sophistical; minorities once had the right to marry anyone of the same race, but this scarcely seems like a sincere form of “equality.” After all, one can always craft a law, the effect of which is to exclude a disfavored minority, which does not explicitly specify that group. We might, for example, grant an equal right to police protection to all persons who don’t habitually wear yarmulkes, but I doubt anyone would find this a particularly substantive or meaningful form of impartiality.

Note that there are actually two kinds of equal protection claims that might be advanced here. The first is that current marriage statutes treat heterosexual couplings differently from homosexual couplings by refusing to recognize the latter. I see no good reason that sexual orientation ought not to be granted the same “protected class” status afforded race or (to a lesser degree) gender in equal protection jurisprudence, but in fact, the equal protection argument will go through even without that premise. This is because Kurtz’s way of framing the problem writes a gender distinction into the structure of the law. That is, to borrow a fundamentalist trope, Eve may marry Adam, but Steve may not, and the reason for the difference is Steve’s gender.

Kurtz must at least tacitly recognize this, because he proceeds beyond the formal equality claim to argue that gender is relevant to marriage policy in a way that race, for example, is not. To make this move, though, is to grant the prima facie validity of the equal protection claim. This is important, because it means that the state’s interest in making the distinction must be puissant enough to overcome the constitutional presumption of equal regard for citizens. It would not be sufficient to merely argue that, all things considered, the balance of policy consideration came out in favor of excluding homosexuals.

In principle, of course, it might turn out that the presumption was overridden after all, as in Goldman v. Weinberger the court’s deference to the needs of the military led them to uphold a ban in the armed forces on certain forms of religious attire. Still, when equal protection rights are implicated, it will not do merely to assert a compelling interest; it must be demonstrated.

Kurtz must believe that he has already done so, since he writes: “Mr. Sanchez has little regard for the health of marriage as an institution. The already alarming divorce rate is for him, nothing but proof that polygamy or gay marriage need not be feared.” This is not an accurate characterization of my views. Kurtz set up a slippery slope argument, with gay marriage at the top of the slope, and polygamy or polyandry or group marriage at the bottom. This is an effective argument only if the latter are more obviously â??destabilizingâ? or destructive of marriage (as opposed to merely more prone to rub readers the wrong way) than gay marriage. We then have a dilemma. If polyamory is more destructive, then the “compelling interest” bar might be met, giving us at least one distinction courts could use to license gay marriage, but not further extensions of marriage. That’s a distinction above and beyond the obvious numerical one, which is also less facially problematic than a gender based distinction. Now assume, alternatively, that this is not right. Either both forms of marriage are innocuous, in which case there is a â??slippery slope,â? but only between two benign outcomes, or both are similarly harmful, in which case we may as well focus directly on the purported harms of gay marriage, rather than the slope.

I have full regard for the importance of marriage, but I deny that allowing homosexuals to participate in that institution will have the catastrophic effects Kurtz predicts. As Sullivan has argued on previous occasions, it seems that if anything is likely to undermine marriage, it is a policy that compels de facto spouses to live without the benefit of formal recognition, doubtless fueling the very sort of instability that Kurtz abhors. I cited the high rate of divorce in this country, not because I believe that it means we may as well give up on marriage, but to point out that Kurtz employs a double standard. If our primary concern is with the stability of marriages, and the strengthening of the institution as a result of the appearance of stability, then it would surely be possible — and as a constitutional matter less offensive — to find statistical predictors that enable us to grant marriage licenses only to couples, gay or straight, whose longevity seems most assured. Kurtz and other conservatives have, rather conspicuously, advocated no such thing. The reason for this is rather obvious: if we wish to encourage stable couplings, it makes little sense to force many couples seeking institutional blessing to go on living public lives together without it.

If I may be forgiven one more analogy to racial discrimination, I want to attempt to point out another odd bit of reasoning in Kurtzâ??s writings. Consider racial profiling. Nobody denies that, statistically, a proportionately greater number of crimes are committed by some ethnic groups than by others. Yet very few people are willing to openly advocate that this be a basis for subjecting members of certain groups to differential police scrutiny. This is so, first, because we believe persons should be taken as individuals, rather than as members of some statistical class, and second, because the statistical differences that do exist, insofar as they are not simply random, are in no small part a result of a history of invidious discrimination, which it would hardly be productive to continue. It is truly puzzling, then, that Kurtz doesnâ??t seem to entertain the possibility that if gay couples are less monogamous than heterosexual couples, this might at least in part be a function of the unequal treatment they have been afforded. Kurtz insists that marriage is too feeble to endure without the stateâ??s support â?? and yet it does not seem to occur to him that declaring that long-term gay pairings shall be denied that support might tend to foster disdain for monogamy among the excluded. Is this more or less plausible than the countervailing effect Kurtz posits: that heterosexual couples will feel their own unions to be less special, and therefore less worth solemnizing, if those darn gay folks are allowed to be similarly recognized?

This is, I suppose, a matter of judgment. But if it seems as unlikely to you as it does to me that people will be dissuaded from marrying, or from treating their marriages seriously, merely because other couples are not excluded, then the presumption in favor of state neutrality must be dispositive. Otherwise, it seems that the state does precisely what conservatives accuse gay marriage proponents of demanding: it becomes an agent of social engineering. Societies and cultures, after all, are not static. They change and evolve in a variety of ways, some of which, admittedly, are less attractive than others. In light of this fact, though, it seems clear that attempting to lock in one sort of norm â?? to â??stand athwart history crying stopâ? â?? in the face of changing social attitudes is no less social engineering than attempting to impose a new norm. Majorities opposed desegregation when the legal system enforced that norm; we should not be surprised that many are revolted by gay marriage when an inequitable legal structure encourages that attitude. Unless we believe that our current institutions now exist in a state of fragile perfection, such that no change of any sort might bring an improvement, we face a question. Do we believe that government is best qualified to steer culture in socially healthy directions? Do we believe it so strongly that we are willing to have equal protection trumped on the basis of a speculative, and indeed, counterintuitive harm? It is surprising to me that conservatives, of all people, would answer in the affirmative.