The best piece in yesterday’s Wall Street Journal was a brief letter to the editor by Professor Hadley Arkes on gay marriage. Responding to a Journal opinion piece (“Live and let live”) by University of Chicago Law School Professor Richard Epstein proposing that conservatives adopt a libertarian position on gay marriage, Arkes wrote:
My good friend Richard Epstein tries only at the end of his piece on same-sex marriage to balance the equities: After making his case for “Live and Let Live” (editorial page, July 13) among the conservatives, he recognizes that the left has offered no support for his libertarian understanding of “freedom of association.” When it comes to the freedom of employers and its workers, the freedom of the Boy Scouts or of private clubs to preserve the terms of their own association, the left has been quite “statist,” as he says, in overriding those claims of freedom.
In that passage he grasps precisely why the installation of same-sex marriage will produce anything but the regimen of “live and let live.” Once same-sex marriage is established as a “right,” even a “constitutional right,” all words and measures against it will be stamped — as they are being stamped already — as wrongful. From what we’ve already seen, there is no hesitation about demanding that churches in opposition to homosexual marriage should be deprived of their tax exemptions; that the Boy Scouts be barred from public parks; that private employers and private renters should no longer be respected in their reluctance to extend a moral acceptance of same-sex couples.
Prof. Epstein recognizes, as well as anyone else, the dynamic by which a “right” installed in the public laws makes its way into the private realm. Why he should treat the matter so breezily here is a bit out of the groove in a commentator usually so sober in his reading of the legal landscape.
Prof. Epstein is quite right in insisting that this issue must be dealt with as a question of principle. But his own rejoinders against the conservatives would have to face the same, demanding tests. If marriage requires merely adults who are intimate and loving, then it is not enough for him to say that incest may still be barred because of “high dangers from inbreeding.” Surely that formula could not disqualify the father and grown daughter who are intimate — and sterile. And in the regime of same-sex marriage, it would not cover the father and son who wish to marry. To say that these alliances are rare is not to explain the ground or principle on which it would be disallowed once the law accepts the principle of same-sex marriage. The notion of same-sex marriage was itself once so rare that few people regarded it as a serious issue in the law.