The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment.

AuthorPosner, Richard A.
PositionBook review

The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment

BY WILLIAM N. ESKRIDGE, JR.

NEW YORK: THE FREE PRESS, 1996

In 1992 I published a book called Sex and Reason, a primarily law-and-economics study of human sexual behavior and its regulation. I discussed homosexuality at some length (see the index references to "Homosexuality" and to "Homosexuals"), touching briefly on homosexual marriage. (1) Two years later, Yale Law School Professor William Eskridge published a book advocating a right to such marriage: The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment. In the following year I reviewed his book. (2) Seventeen years later I wrote the opinion for my court invalidating Indiana's and Wisconsin's prohibitions of same-sex marriage. (3) And on June 26 of this year the Supreme Court invalidated such prohibitions in all states. (4) The editors of this Journal asked me to "re-review" Professor Eskridge's book in light of the change in the law and in my views relating to homosexual marriage since my 1997 review.

I am going to start well before 1997.1 am going to trace the evolution of my thinking about homosexuality back to 1952, when I was thirteen years old. It was about then that I first heard about homosexuality, though I don't remember how I heard about it; I'm sure it was never mentioned by my parents. I considered it incredibly weird. In part for that reason I didn't think I'd ever actually meet a homosexual. Not that I felt hostility toward them, any more than I did toward Eskimos; they seemed alien, but not threatening, though I recall reading Jean-Paul Sartre's short story The Childhood of a Leader--a harrowing tale of homosexual seduction. Eventually I learned about homosexuals such as Marcel Proust, Oscar Wilde, Aaron Copland, Benjamin Britten, and Alan Turing who had made important contributions in a variety of fields. But I still thought I'd never meet one, and I went through college without thinking that any student or teacher I met was homosexual, though in retrospect I realize that one of my finest teachers, and several students I knew, were. As a law professor from 1968 to 1981,1 met the occasional openly homosexual professor or student, but homosexuality as a subject of study did not interest me.

My 1992 book Sex and Reason, my first academic foray into sex, originated in a case my court had heard en banc that involved nude dancing in a strip joint--the Kitty Kat Lounge--in South Bend, Indiana. The State wanted to forbid such dancing, primarily on the ground that it was likely to promote illegal activity, mainly prostitution. My court held that the dancing was protected by the First Amendment's Free Speech Clause, but the Supreme Court reversed. (5) I was struck by the ignorance of the lawyers and judges (myself included) about erotic dancing, which has a long and interesting history going back to Salome's (probably mythical) "Dance of the Seven Veils," a striptease, and indeed earlier, to the ancient Greeks' satyr plays. I thought it odd that judges should be opining on matters of sex without having any systematic knowledge of the subject. During the gestation of our court's decision I did a good deal of research into the history of nude dancing, and of nudity in art more broadly, and ended up writing a very long (for me) concurring opinion, though ultimately to no avail. (6) And the book followed.

There was little interest in homosexual marriage in 1992. No state recognized such marriage; the first to do so was Massachusetts in 2004. (7) The first foreign country to do so was the Netherlands in 2001, though Sweden and Denmark already recognized "civil unions," which gave homosexual couples most of the rights of married couples. (8) In 1992, public opinion polls revealed that only twenty-seven percent of Americans favored allowing homosexual marriage; (9) today a majority do, (10) and the percentage is likely to grow as a result of the Supreme Court's decision, the decline of religious orthodoxy, and the "normalization" of homosexuality through marriage. By the last point I mean that marriage is regarded as a badge of normalcy; "normal" people marry and married homosexuals acquire that badge.

My book was "pro-homosexual" by the standards of the time. I rejected the notion still current then (but no longer) that heterosexuals could be "recruited" to be homosexual rather than that homosexual preference is an innate characteristic. I argued in like vein that homosexuals could not be converted to heterosexuality. I argued that they should be allowed to serve in the armed forces (they weren't then, at least officially; oddly there had been no bar to their serving in the armed forces before World War II).

I was agnostic about whether homosexual marriage should be permitted. I listed some objections (of which one, now obsolete and probably silly even when I made it, was: "Should we worry that a homosexual might marry a succession of dying AIDS patients in order to entitle them to spouse's medical benefits?" (11)). I concluded that "[n]one of these points is decisive against permitting homosexual marriage. All together may not be. The benefits of such marriage may outweigh the costs." (12) But since, at the time I was writing, authorizing homosexual marriage was simply out of the question, I added that "maybe the focus should be shifted to an intermediate solution that...

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