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Legal Commentary

: Balkinization

Battle cry of ?family?

By Jack M. Balkin

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A common refrain among opponents of same-sex marriage is the importance of defending ?the family.? They feel that the institution of the family, as they conceive it, will be undermined if same-sex marriages are recognized. This is a peculiar kind of argument, and it traps them in a paradox that has a remarkable historical precedent.

In the Civil War, the Southerners frequently declared that they were fighting for liberty and self-government. The title of James McPherson?s history of the Civil War, Battle Cry of Freedom, capitalizes on the fact that, as McPherson writes, ?[b]oth sides . . . professed to be fighting for freedom.? Jefferson Davis declared in 1863 that the South was ?forced to take up arms to vindicate the political rights, the freedom, equality, and State sovereignty which were the heritage purchased by the blood of our revolutionary sires.? But the freedom that Davis was fighting for depended, of course, on the enslavement of others. The southern commissioners to Britain reported home that ?the public mind here is entirely opposed to the Government of the Confederate States of America on the question of slavery. . . . The sincerity and universality of this feeling embarrass the government in dealing with the question of our recognition.?

Opponents of same-sex marriage today face a similar embarrassment. They are eager to protect their distinctive conception of family. But that conception depends on marginalizing the families of others and denying them legal recognition. This inevitably produces atrocities in which dying hospital patients are kept separated from their partners and children. Yesterday?s New York Times Magazine contains yet another horror story, of moronic state officials mindlessly trying to sever ties between gay parents and children. As these stories become better known, the invocation of ?family? as a reason to beat up on gay people will seem as weird as the invocation of ?freedom? did as a defense of the Confederacy.

Full post as published by Balkinization on July 27, 2009 (boomark / email).