Friday, November 11, 2005

Gay Marriage vs. Smoking & Gambling

Edit: some people seem to think that anything less than unquestioned acceptance is a criticism. My discussion is limited to the sole question of what judges should do. Legislators can do whatever they want, as far as I'm concerned, in this arena. My goal is to get people to think about their own arguments and come up with better, more well-reasoned arguments in the end, regardless of which side they fall on (and maybe even to jump the fence).

The other day I heard the beginning of a conversation on the radio morning show on KIBZ 104.1. (Normally I plug my iPod into my car stereo, so this was rather fortuitous.) They brought up the subject of a legal challenge to Nebraska’s gay marriage ban (at least, I think it was Nebraska’s). Then they raised the interesting question:

What makes gay marriage more worthy of judicial protection than smoking and gambling when the majority has spoken?

By raising smoking they are referring to Lincoln’s ban on smoking in bars or restaurants. This subject can of course be dismissed out of hand because smoking affects people other than the one who partakes. (Although personally I am sympathetic to a bar owner’s claim of right to choose on this issue.) A different issue might be raised in a challenge to an employer’s disallowance of smoking off the job, but I won’t discuss that here.

But when you compare gay marriage to gambling, the question gets very interesting. I would like to point out that, based purely on Supreme Court precedent, any state’s gay marriage ban would be upheld, even in light of so-called “right to privacy” cases. That is, of course, unless the Supremes want to extend that right.

Gambling can normally be illegalized under what is commonly referred to as the state police power, generally defined as the power a state has to protect the health and general welfare of its people. Laws like this are upheld as long as the legislature had a rational basis for concluding that gambling is harmful to health, the economy, or yes, even morals. There is enough empirical information that gambling is harmful in order to uphold laws against it, even if the state legislature never looked at that information. Even masses of information to the contrary can’t change this result. Even if a court thinks that other data, in favor of gambling, is more convincing, they can’t substitute their own judgment for that of the legislature as long as there is information in support of its decision. Gambling laws are relatively uncontroversial, so let’s go on to the gay marriage issue.

A state could easily conclude that it wants to reserve marriage for a man and a woman on the basis that marriage is, to that state, primarily for reproductive purposes. (I believe a statute forbidding marriage between first cousins was actually struck down in a southern court because the likelihood of having birth defects isn’t significantly higher among that group. Don’t quote me on that.) And, like gambling, there is a wealth of information pointing to adverse health and psychological effects of homosexuality (or at least male homosexuality) such as throat cancer, higher incidence of STDs, depression, and “gay bowel syndrome.” Whether you want to believe that information or the contrary information, a state legislature is free to believe it and act accordingly. (Side note: many of you may be surprised that there is such a wealth of information, probably because of the strong gay rights lobby, but of course my undergrad adopts it whole-heartedly. Some academics compare homosexuality to alcoholism, and the similarities are striking as long as you believe the studies, which, as far as I can tell, are at least as fairly administered as the studies which reach the opposite conclusion.)

While it is certainly debatable, a state could certainly conclude that homosexuality is actually worse than gambling. So the only thing that gives gay marriage a better foothold in the courts is the “right to privacy.” But I pose this question: why is the right to privacy seemingly limited to sexuality and reproduction? (It has been used to strike down laws forbidding the sale of contraceptives, abortion, and anal intercourse.) The subject of sexuality isn’t mentioned in the Constitution, so why does it get special treatment by the courts? It seems to me that anything you do in your own home should get some protection from this right as long as it’s recognized. So in that sense, take the case of two women. Why do the courts protect their right to get frisky with each other while they don’t protect their right to bet $100 on the Superbowl? Or to make it even more equal, their choice to play strip poker as opposed to their choice to bet quarters on the same game of poker?


  1. A search I've just done reveals that the blogosphere is very much pro-gay marriage. I only hope that people on both sides of the issue feel free to post what they think here.

    Also, I would like to point out that the reverse of my proposition also applies, that judges shouldn't overturn laws allowing gay marriage.

  2. Where do I begin?

    1) The rational-basis test is not the proper test to apply to same-sex-marriage bans. He explains why.

    2) You're operating on the assumption that banning same-sex marriage somehow reduces homosexual activity. Given that it's only in the past decade that gay marriage has become a major plank in the gay-rights movement and given that gay life has been thriving since long before then, this is an invalid argument. There are also plenty of gay people out there who don't care about or want access to marriage at all, so discouraging gay marriage has no effect on them. Finally, as a thought experiment, would a ban on heterosexual marriage reduce heterosexual sex? Extremely unlikely.

    3) I'm not going to dignify with a response the unsupported assertion that homosexuality is comparable to alcoholism.

    4) As for "there is a wealth of information pointing to adverse health and psychological effects of homosexuality (or at least male homosexuality) such as throat cancer, higher incidence of STDs, depression, and "'gay bowel syndrome'":

    - I haven't heard anything about homosexuality causing throat cancer, nor do I even see any intuitive connection between the two.

    - A higher incidence of STD's - probably true (although still applicable to only a minority of those who have gay sex). That's why it's important to encourage safer sex among gays. Same goes for "gay bowel syndrome," I would imagine.

    - Depression and "adverse psychological effects" are usually an effect of having to deal with society's rejection of homosexuality, as well as a feeling of growing up different. Believe me - gay people who accept themselves for who they are instead of trying to fight against it are much happier.

    5) Finally, and I apologize if this comes off as condescending, but how nice it must be to have been born into the heterosexual majority, to have the luxury of being unaffected by unjustly discriminatory and prejudicial laws, to not have to make an effort to put yourself in someone else's shoes. It's easy to make an argument about something that doesn't affect you personally, but before you do, it might be helpful to make that effort to imagine what it's like to be someone you're not. Just once I'd like to hear an anti-gay-rights person make an argument based on an understanding of the full panoply of gay life as it's actually lived and experienced.

  3. First off, I am not advocating either side. I hate when people think I am doing that when I'm not.

    1. His point is well-taken, but it assumes a lot. Why do homosexuals get the benefit of heightened scrutiny when alcoholics do not? Both are probably highly related to genetics, and alcoholics have also experienced a history of discrimination. It also begs the question that gays have been subject to a history of irrational discrimination by government, which is at the very least debatable.
    2. No, I'm not. I operate on the assumption that there is a rational basis for believing that. Rational? Yes. True? Likely not.
    3. That's just the anti-gay research position, not my own.
    4. You are absolutely right to explain it all away, but the research still exists. A legislature doesn't have to interpret it the way you did.
    5. Being gay is not purely something you're born with. As with all behavioral things, it is influenced by both nature and nurture. Whether it's more one than the other is up to debate. My only point is that it seems to me that if you want to protect homosexuality, then you should also protect other activities that go on in the privacy of people's homes that do not harm unconsenting people (like children). You seem to have missed the whole point of my post.

  4. Jeff, 2. is a great argument based on what i see as logic(No, Kelly i not trying to be a lawyer, but think in a practical way) 3-5 shows bias. Not that you are right or wrong. I think a homosexual veiw is more valid by right of experence.
    The diff. between homosexuality & smoking, gambling is what makes it worthy of judicial protection I'd say.
    We know that smoking & gambling are addictions.
    what is homosexuality?
    Is it a choice? Homosexuals, mostly don't think so. It's about love, some how.
    You could compare it to alcoholism in that it's not that easy to stop enjoying sex or love.
    But, to put homosexuality in the same arena is presumptuos.
    I would say if hetros don't like laying next to homos(so to speak) Draft up a new set of marrige licenses for them. jeez

  5. Good discussion. I posted a link here

  6. I would like to second Jeff's comments about homosexuality and disease. The fallacy of these associations are illustrated by the ACLU's recent unanimous decision in the Kansas Supreme Court, where a homosexual statutory rape conviction resulted in a sentence many, many years longer than would have been applied had the partners been different genders. The law was based on the presumption that homosexual sex posed a higher risk because of disease, and therefore victims warrant greater protection from the law. The court successfully comprehended that it is, in fact, the particular sexual activity that is risky, not the partners doing it, and, in the case of HIV, the highest rate of transmission for the age group in question is from males to females.

    That there is a higher incidence of STD's among gay men than in the general population is due to higher rates of risky behavior, but that correlation does not at all indicate that risky behavior results from being gay.

  7. Andy: all good points, but I'm going to call you on one of them.
    "in the case of HIV, the highest rate of transmission for the age group in question is from males to females"
    That is true for the highest rate of actual transmission. The fact remains, however, than anal intercourse is more likely to transmit HIV because of the thinner lining of the anal wall (one cell thick, I believe) than of the vaginal lining. The vagina was built for that kind of punishment. The anus was not.
    Of course, counter-points can be raised, for example, that many homosexual men don't participate in anal sex.

  8. Another tidbit on the level of scrutiny which should be applied: my notes on the most famous footnote in all of constitutional law, footnote 4 from United States v. Carolene Products:
    Stricter scrutiny applies for state legislation that:
    1. Facially fall within a specific provision of the Bill of Rights
    2. Restrict the political processes:
    a. Voting
    b. Campaigning
    c. Organizing political parties
    d. Protest
    3. Aimed at “discrete and insular” minorities
    a. Religious
    b. Ethnic
    c. Racial

  9. Kelly,

    Sorry for posting this here, but I thought you might check this faster than your email...

    There's an opening in Trial Ad.

    Go talk to Vicki in the office...Hurry...

    Great post by the way...Will try to think of something intelligent to say later..

    Knee Jerk response...Being homosexual is a status equal to that of race whereas smoking and gambling or alcoholism are "choices" we make when acting on a predisposition as opposed to an identity per se.

    More later.

  10. Not everyone thinks homosexuality is a status equal to race. You could argue with them all day long about it. But, it cannot be disputed that it is not the same as drug or gambling.
    Homosexuality is definately not an addiction in that sense. If you want to define it, you must start with a foundation that can be agreed upon as sound in some way. try a philisophical approach.
    can it be done, Kelly?

  11. Thanks moise.


    Can you define it?


    Can you do so in a way in which everyone will agree?


    There can be an excellent case made for looking at it in the same way as any of the following:

    1. Religion
    2. Race
    3. Sex
    4. Disability
    5. Drug addiction
    6. Obesity
    7. Liking football
    8. Pedophilia
    9. Being good at math
    10. Nearsightedness

    I think you've overstated a bit by saying it "definitely" can't be looked at the same way as addiction. Even if we knew all of the facts (which we don't) it would still be up to interpretation to an extent.

    And even when you define it the same way as another category, there are still going to be subtle distinctions on which to base arguments for treating it differently.

    That concludes my involvement until I regain high-speed Internet access on Monday.

    Discuss away!

  12. arrgh! an addiction, maybe, but, not like drugs or gambling. How's that?

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  14. This one is funny...i liked it.
    My Blog, My Life.

  15. This comment has been removed by a blog administrator.

  16. Hmm...

    Well I don't think an equivalence between gambling and homosexuality can be drawn. As has been said, one is a past time, the other is a serious life choice. I suppose we could restrict ourselves to gay marriage itself, but then gay marriage essentially gives one certain rights over another person, while gambling gives you the right to piss away your money.

    I understand you do not wish to argue with the actual evidence behind rulings, but considering that law making surely needs to be supported by solid facts, these studies need to be substantiated and not easily explained away to allow them to act as solid evidence for law making.

  17. That's just it, though.
    "law making surely needs to be supported by solid facts"
    The statement is correct. But the facts that say homosexuality is harmful are at least as solid as the majority of research showing that smoking is harmful. Legislatures are the ones who draw conclusions about big policy decisions, not courts.

    Also, drawing a distinction between gambling and homosexuality by saying one is a pastime and the other is a serious lifestyle choice begs the question. Why is a sexual preference a whole "lifestyle"? And why does it deserve greater protection than a mere pastime? Can't homosexual activity be seen as a sexual pastime? And couldn't gambling be a way of life? (It certainly is for the best poker players.)