41 See supra Part I.B.2. [Back]
42 See supra Part I.C.1. [Back]
43 See supra Part I.B.2. [Back]
44 Marc D. Stern, Same-Sex Marriage and the Churches, in SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS 1, 11-14 (Douglas Laycock et al. eds., 2008). This collection of essays includes the views of scholars on both sides of the same-sex marriage question, who conclude that conflicts with religious liberty are inevitable where marriage is extended to same-sex couples. [Back]
45 Maggie Gallagher, Banned in Boston: The Coming Conflict Between Same-Sex Marriage and Religious Liberty, THE WKLY. STANDARD, May 5, 2006, at 20, available at http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp. [Back]
46 Harper v. Poway Unified Sch. Dist., 345 F. Supp. 2d 1096, 1122 (S.D. Cal. 2004). [Back]
47 See, e.g., Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008). [Back]
48 Monica Hesse, Opposing Gay Unions With Sanity & a Smile, WASH. POST., Aug. 28, 2009, at C01. [Back]
49 Andrew Alexander, 'Sanity & a Smile' and an Outpouring of Rage, WASH. POST, Sept. 6, 2009, at A17. [Back]
50 Frank Rich, Op-Ed., The Bigots' Last Hurrah, N.Y. TIMES, Apr. 19, 2009 (Week in Review), at 10. [Back]
51 See, e.g., HUMAN RIGHTS CAMPAIGN, http://www.hrc.org (last visited Nov. 8, 2010) (self-identifying the organization as a 501(c)(4) advocacy group "working for lesbian, gay, bisexual, and transgender equal rights"); Annie Stockwell, Stop the Hate: Vote No on 8, ADVOCATE.COM (Aug. 20, 2008), http://www.advocate.com/Arts_and_Entertainment/People/Stop_the_Hate (framing opposition to California's Proposition Eight, which provides that "only marriage between a man and a woman is valid or recognized in California," as a struggle against hate). [Back]
53 See supra Parts I.B.1-3. [Back]
54 See supra Part I.B.1. [Back]
55 Whether bodily union is truly marital depends on other factors - for example, whether it is undertaken freely to express permanent and exclusive commitment. So bodily union is necessary but not sufficient for marital union. [Back]
56 Professor Andrew Koppelman has argued that "[a] sterile person's genitals are no more suitable for generation than an unloaded gun is suitable for shooting. If someone points a gun at me and pulls the trigger, he exhibits the behavior which, as behavior, is suitable for shooting, but it still matters a lot whether the gun is loaded and whether he knows it." ANDREW KOPPELMAN, THE GAY RIGHTS QUESTION IN CONTEMPORARY AMERICAN LAW 87-88 (2002).
Professor Koppelman's objection is mistaken and misses an important point. Natural organs and organic processes are unlike man-made objects and artificial processes, which retain their dynamism toward certain goals only so long as we use them for those goals - which in turn presupposes that we think them capable of actually realizing those goals. That is, the function of man-made objects and processes is imposed on them by the human beings who use them. Thus, a piece of metal becomes a knife - an artifact whose function is to cut - only when we intend to use it for cutting. When it is no longer capable of cutting and we no longer intend to use it for cutting, it is no longer really a knife.
The same does not hold for the union between a man and a woman's human bodies, however, because natural organs are what they are (and thus have their natural dynamism toward certain functions) independently of what we intend to use them for and even of whether the function they serve can be brought to completion. Thus, in our example, a stomach remains a stomach - an organ whose natural function is to play a certain role in digestion - regardless of whether we intend it to be used that way and even of whether digestion will be successfully completed. Something analogous is true of sexual organs with respect to reproduction. [Back]
57 See supra Part I.B.1. [Back]
58 On the conjugal view, spouses pledge to form a union that is comprehensive and thus bodily, and thus procreative by nature. They do not and cannot pledge to form a union that results in procreation. [Back]
60 See supra Part I.B.2. [Back]
61 See supra Part I.B.3. [Back]
62 See supra Part I.B.2. [Back]
64 See infra Part I.E.1. [Back]
65 See supra Parts I.B.1-2 [Back]
66 See supra Part I.A.1. [Back]
67 Note that only sound arguments based on true principles can be inherently decisive. [Back]
68 See Maggie Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. ST. THOMAS L.J. 33, 51-52 (2004). [Back]
69 See supra Part I.B.2. [Back]
70 See, e.g., David Boaz, Privatize Marriage: A Simple Soution to the Gay-Marriage Debate, SLATE (Apr. 25, 1997), http://slate.com/id/2440/. [Back]
71 This is because, if the State failed to recognize the institution of marriage altogether, social costs would be imposed, in large part on children, due to the breakdown of traditional family structures which lend stability. [Back]
72 See supra Part I.B.2. [Back]
73 Isabel V. Sawhill, Families at Risk, in SETTING NATIONAL PRIORITIES: THE 2000 ELECTION AND BEYOND 97, 108 (Henry J. Aaron & Robert D. Reischauer eds., 1999); see also THE WITHERSPOON INSTITUTE, supra note 21, at 15. [Back]
74 DAVID POPENOE, DISTURBING THE NEST: FAMILY CHANGE AND DECLINE IN MODERN SOCIETIES, at xiv-xv (1988); ALAN WOLFE, WHOSE KEEPER? SOCIAL SCIENCE AND MORAL OBLIGATION 132-42 (1989). [Back]
75 See supra Part I.B.2. [Back]
76 See supra Part I.B.1. [Back]
77 See supra Part I.B.1. [Back]
78 See supra Part I.B.2. [Back]
79 See supra Part I.B.3. [Back]
80 Beyond Same-Sex Marriage: A New Strategic Vision For All Our Families & Relationships, BEYONDMARRIAGE.ORG (July 26, 2006), http://beyondmarriage.org/full_statement.html. [Back]
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Part IV: Endnotes: 81-120
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