Further Notes on Medved

Gay Marriage

1. Separate but equal before Brown meant equal at law. Equality before the law and marriage are not concepts carved in stone. What they can include will change with good reasons and broad sentiment. Those changes aren’t politics narrowly conceived. They are the progress of rights and liberties.

2. Matrimony isn’t holy though it can be. Religion offers no cognizable ground for disallowing gay marriage.

3. It’s wrong to say miscegenation was overruled because of legal principles and not because of bad distinctions. Before it was overruled it was the law. What to make of the legal principles then? Distinguishing precedes and informs the legal principles. And they are general enough—equality, due process—to expand with changes based on good arguments.

4. There is no wall between principled arguments and social policy arguments. They feed and structure each other.

5. Procreation does not exhaust the functionality and purposes of marriage. Plus gay parents have means beyond their own procreation of having children. Children with loving gay parents are well off.