Friday, March 20, 2009
John Yoo, best known as the author of the Bush Administration’s so-called “torture memos,” see here, also has something to say about same-sex marriage. In a brief essay, Can The Government Prohibit Gay Marriage?, 50 South Texas Law Rev. 15 (2008), co-authored with Jesse Choper, the two scholars pose the following questions and answers:
Federal Power to Prohibit Gay Marriage? Maybe
An Individual Right to Gay Marriage? Probably Not
Should States Prohibit Gay Marriage? No
If you are looking for trenchant theorizing or novel ideas in this area of vigorous scholarship, this is not a satisfying article. However, it is interesting, as our colleague, David S. Cohen, over at Feminist Law Professor notes. The article was part of a Symposium, Gay Marriage in the Conservative Movement, but it argues against states prohibiting same-sex marriage as a policy matter based on the classic liberal harm principle:
Our approach to the policy issue of gay marriage adopts the harm principle, which urges against government prohibition of any private activity which does not harm any other. It may be that some believe gay marriage to be immoral or offensive, but if it causes no direct harm to others beyond the psychological, we believe a legislature should not ban it. It may well be that the harm principle would similarly urge against laws banning adultery or prostitution. That, of course, would depend on whether there are measurable and real costs to these activities (and other types of conduct deemed immoral by the state). We do not reach these other issues in this article other than to acknowledge that our approach to gay marriage might carry this implication, which we might well accept as a matter of policy choice depending on the facts. Our position here is that without persuasive evidence about the direct harms caused by gay marriage, we would not choose a policy to ban it.
Id. at 35.