Comment on Eugene Volokh’s comment on the Federal DoMA

Eugene Volokh commented

I like the idea of giving same-sex spouses the same health benefits as opposite-sex spouses; and I support same-sex marriage as a policy matter. But it seems to me that these claims that the law lacks a “rational basis” are not sound. The principle behind the Defense of Marriage Act — and nearly all states’ recognition of opposite-sex marriage but not same-sex marriages — is that (1) heterosexual relationships are better for society than homosexual ones, and that the (2) government’s preferring same-sex marriages in a wide range of contexts will tend to reinforce that norm among the public. I’m skeptical of both these claims, but I don’t think they can be said to be irrational, or animated by a “bare desire to harm”: Many critics of same-sex marriages genuinely believe (even if in my view ultimately wrongly) that specially fostering heterosexual relationships is indeed materially better for society than treating heterosexual and homosexual relationships equally — their desire is to try to help society (even if this in the process means excluding some groups for benefits), not “bare[ly]” “to harm” people.

I had the following comment:

So, I’ve now read, or at least glanced at, every single comment to this post. And I can’t find a single person willing to try to claim that there is any actual evidence that homosexual relationships benefit society the way heterosexual ones do.

You want your “rational basis”? Fine, here it is:

The is a large pool of studies showing that heterosexual marriages benefit society. The result in better children (children who do better in school, have better criminal records, and do better in life), and in better parents (in particular, marriage matures men, and makes them less reckless, and less criminal). That is why society rewards heterosexual marriage, and that is why it should continue to do so.

To the best of my knowledge, there are no such studies showing the same for homosexual marriages / civil unions. Until such studies are produced, there is no reason to believe that homosexual marriages provide the same benefits to society as heterosexual marriages.

In short, it would be contrary to rationality to give SSMs the benefits of of heterosexual marriage, unless and until valid studies are produced to show that SSMs provide society the same benefits as to heterosexual marriages.


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