Keith Burgess-Jackson

I’m glad to see that I’m not the only person to name a law after himself or herself.

The point is this: it is part of the meanings of the moral words that we are logically prohibited from making different moral judgements about two cases, when we cannot adduce any difference between the cases which is the ground for the difference in moral judgements. This is one way of stating the requirement of universalizability which, as we have seen, is fundamental to all moral reasoning. Since the Nazi cannot justify his different treatment of Germans and Jews without adducing some difference between their cases, he invents a difference.

(R. M. Hare, Freedom and Reason [Oxford: Clarendon Press, 1963], 216)

Daniel Henninger got an earful from conservative readers of The Wall Street Journal after his column the other day. He appears to be backtracking on his support for open borders. If the business community wants workers, it should lobby Congress to expand immigration. Lawful immigration. Those who came here illegally must be punished and then deported. Why is this so hard to grasp?

Addendum: Good news this evening for those of us who believe in law and order.

Addendum 2: Here is a behind-the-scenes look at what happened today.

Here. (Still no mention of immigration.)

To the Editor:

Re “Edwards, Clinton and Obama Describe Journeys of Faith” (news article, June 5):

How ironic that in the country founded on separation of church and state, candidates must compete with one another over their “faithy-ness.” Their stands on issues like the Iraq war, poverty, health care and global warming are what matter—and are independent of the amount of faith in a supreme being they profess.

Karen Cohen
Walnut Creek, Calif., June 5, 2007

Note from KBJ: I don’t see any irony. What I see in the letter writer, however, is hostility—to religion. What’s wrong with a presidential candidate telling voters that he or she shares their worldview? Indeed, what could be more important?

Connecticut’s civil-union law confers the same rights and responsibilities on homosexual couples as its marriage law confers on homosexual couples. But that’s not good enough, according to the progressives at The New York Times. They want acceptance! Recognition! Affirmation! None of this separate-but-equal stuff. I wonder what African Americans think of the analogy.

Addendum: Here is the relevant provision (Article XXI) of the Connecticut Constitution:

No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.

The Times is straining to bring homosexual “marriage” under this provision. The limitation of marriage to heterosexual couples has nothing to do with religion, race, color, ancestry, national origin, sex, or physical or mental disability. Every adult in the state of Connecticut has the same right, viz., marrying someone of the opposite sex.

Addendum 2: The following paragraphs by Richard Posner are pertinent:

Eskridge further argues that without the right to marry persons of the same sex, homosexuals will not enjoy full legal equality with heterosexuals. This inequality is the main reason he rejects the compromise of allowing homosexuals to enter into “domestic partnerships” that would confer on the partners all or most of the legal and financial advantages of marriage—without the word. His point about formal equality is not entirely correct. There is no legal barrier to homosexuals’ marrying persons of the opposite sex; in this respect there is already perfect formal equality between homosexuals and heterosexuals. But he is right that the practical effect of the law’s refusal to recognize homosexual marriage is to exclude many homosexuals from a fundamental social institution. He calls this refusal “the most blatant evidence that gay and lesbian citizens must sit in the back of the law bus, paying for a first-class ticket and receiving second-class service” (p. 65).

But that of course is where many heterosexuals want homosexuals to be. The principal opposition to homosexual marriage comes from people who believe that for the state to recognize such marriage would be to place a stamp of official approval on homosexuality. Eskridge discusses this objection at length, but I do not think he refutes it. He points out correctly that since rapists and child molesters, along with “transvestites, bisexuals, and other gender benders can obtain marriage licenses, usually without any fuss,” it cannot be that giving a homosexual couple a marriage license would connote official approval of homosexuality (p. 105). But there is a difference between approving a form of union and approving particular individuals who are utilizing that form. Obviously the fact that a man wearing a dress can marry a woman wearing a suit, or a rapist his victim, does not entail that the state must allow a man to marry three women at once, or his cat, or his sports car. Eskridge also argues that some same-sex marriages would be just as good in terms of love, compatibility, mutual support, and other dimensions of a mutually beneficial human relationship as many conventional marriages. I would accept this claim even without the survey evidence that Eskridge cites, but again it does not meet the objection of people who do not want the state to be seen as placing a stamp of approval on homosexuality.

Their objection is based on two beliefs, one of which I believe to be correct (though Eskridge does not), the other of which I believe (along with Eskridge) to be incorrect, though many people disagree. The first belief is that it is a disadvantage to be homosexual, regardless of whether the society is tolerant or intolerant of homosexuals. The more intolerant, the greater the disadvantage; but some disadvantage would remain even if the remaining legal disabilities were removed. The second belief, the wrong one, is that homosexuality is a choice, one that can be influenced by law and public opinion. The evidence is very strong that homosexual orientation is genetic. It can be “overcome” in the sense that most homosexuals are capable not only of refraining from homosexual activity if the perceived costs are prohibitive but also of engaging in heterosexual sex and “passing” as heterosexual; but the psychological costs of either strategy are very high. If this is right, and if we define a “homosexual” as a person who has a homosexual orientation rather than as a person of heterosexual orientation who may happen to have engaged in homosexual activity on occasion, then the number of homosexuals is essentially invariant to public policy. If so, and if the concern about same-sex marriage is that by placing its imprimatur on homosexuality the state would encourage some teenagers to adopt a homosexual orientation (something parents worry about), there is little point in immiserating homosexuals in order to maintain a posture of official disapproval of homosexual activity.

I do think (Eskridge is vague about this) that homosexual couples ought not be granted the identical rights of adoption as heterosexual couples without further study of the effects of such adoption—not on the sexual orientation of the child, which I believe to be invariant to the adoptive parents’ orientation as to other environmental factors, but on the child’s welfare in the broadest sense. Apart from this reservation, I find Eskridge’s argument for recognizing homosexual marriage quite persuasive—but only as an argument addressed to a state legislature. His arguments for recognizing a federal constitutional right to same-sex marriage, which are pressed in the last two chapters of the book, are unconvincing. They are good lawyers’ arguments—cleverly distinguishing same-sex marriage from polygamous and incestuous marriage; building bridges from the Supreme Court’s decisions striking down state laws against interracial marriage and allowing prisoners to marry (marry, but not have sex—so Bowers v. Hardwick, in allowing states to forbid homosexual sex, should not be taken as authority for not allowing homosexuals to marry!); speculating that “[a]s women made gains in politics and the marketplace, middle-class anxiety about gender and the family was displaced onto another object: the homosexual” (p. 168) (thus grounding opposition to homosexual marriage as a form of hostility to sexual equality); and, of course, balancing the benefits of homosexual marriage against the costs to important state interests and finding that the former predominate.

(Richard A. Posner, “Should There Be Homosexual Marriage? And If So, Who Should Decide?” review of The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment, by William N. Eskridge, Jr., Michigan Law Review 95 [May 1997]: 1578-87, at 1582-4 [italics in original; footnotes omitted])

Here.