Andrew Sullivan asks an interesting question in today’s blog: “If Larry King and Elizabeth Taylor can get married ad infinitum, why can’t gays get married even once?” He has a valid point of course, in that there is no obvious moral argument that would elevate serial divorce among heterosexuals above homosexual monogamy. From most religious standards that I’m aware of, both are sinful. From the standpoint of utilitarianism, homosexual marriage, and thus theoretical monogamy, seems obviously preferable to homosexual philandering. So…why do we allow serial marriage among heterosexuals and no marriage among homosexuals? Well, marriage serves to confer public legitimacy to a union. The vast majority of the American public (the ones concentrated in the “red” areas of the familiar electoral maps) still finds homosexuality disturbing and immoral. Thus, to have the state give their blessing to a union they find morally objectionable would be something people those people naturally oppose. Most people also find divorce, especially multiple divorce and divorce involving couples with children, troubling–although not as troubling as homosexual union or as even troubling as they once found divorce. Once the institutions of heterosexual marriage and divorce-at-will are created, however, it becomes virtually impossible to preclude those people from re-marrying. That answers Sullivan’s question of why, at least partly. To the implied question–Is this distinction a good public policy? –I’d say no. While the state is inherently an instrument for enforcing the morality of its culture, it strikes me as dangerous to give it the power to decide which consenting adults can marry. While this opens a Pandora’s box of What Ifs, the least disturbing of which is polygamy, these each have to be dealt with independently. In what demonstrable way would the US be worse off by permitting homosexuals to marry? I honestly can’t think of one.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.