Law professors engage in ‘civil discourse’ about same-sex marriage
By Nicole Safker (JD 12)
As election season approaches, the debate over same-sex marriage remains a hot topic.
Supporters from both sides gathered in the Chesterfield Smith Memorial Classroom on Oct. 3 for “A Conversation on Same-Sex Marriage,” an event billed as a “civil discourse about same-sex marriage” focusing on “secular arguments for and against the legalization of same-sex marriage,” according to the event’s sponsors, the UF Federalist Society and the UF Law chapter of OUTLaw gay-straight alliance.
UF Law Professor Rachel Rebouché presented the arguments for the legalization of same-sex marriage, while Marquette University adjunct professor Richard Esenberg, who also serves as the longtime director of the Wisconsin Institute for Law and Liberty, presented arguments against legalization.
The discourse was nuanced and academic, focusing on secular arguments that often take a backseat to arguments centered in religious morality and the meaning of the institution of marriage.
Professor Esenberg called for restraint in changing the institution of marriage, because there are certain “costs to recognizing same-sex marriage,” including the possible effects legalization may have on children. He also underscored the belief that children get certain benefits from being raised in a household with their biological mother and father and that children have an “innate desire” to be raised in such a household.
In addition, Esenberg challenged the idea that gender is not important to the institution of marriage. “The notion that gender does not matter when it comes to marriage and intimate relationships is unlikely to be true,” he said.
Rebouché summarized her understanding of Esenberg’s argument, saying she did not necessarily disagree that “law as commissioned to expand marriage to same-sex couples has cultural reverberations that change societal understanding of what marriage is and what it does.”
However, Rebouché said, that argument is based on certain “assertions that must be true for opponents’ arguments to stand,” including religious and gender-based stereotypes.
“What really seems to set apart same-sex marriage for its opponents is based on the differences of same-sex households and opposite-sex households,” Rebouche said.
Rebouché continued by describing the vision of marriage as “promoting a communitarian vision of public good,” and argued that including same-sex couples in that vision would not be counter to the societal benefits furthered by marriage.
“I am very aware of the communitarian argument for same-sex marriage,” Esenberg said in response. He described concerns about allowing same-sex couples to marry based on the benefits of marriage to society, citing “unintended consequences” that may occur and again calling for restraint.
“We ought to proceed carefully because we don’t know what effect rapid changes in social institutions will have,” Esenberg said.
Esenberg cited the “no-fault divorce” movement as an example of such a change with unintended consequences. Those consequences included a higher number of divorces, lower incentives to keep families together and a disparate impact on poor people, he said.
Finally, Esenberg addressed the issue of stigmatization of same-sex relationships. He said that opponents of same-sex marriage “don’t intend to stigmatize anyone,” but that “men and women experience sexuality very differently,” and that these varied experiences of sexuality play a role in the stability of heterosexual married relationships.
This event was the second of its kind co-sponsored by OUTLaw and the Federalist Society. Last year, UF Law Professor Danaya Wright and Austin Nimocks, senior legal counsel for the Alliance Defense Fund, debated the Defense of Marriage Act, the federal law banning legal recognition of same-sex marriage.
Last year, as part of diversity month, University of Florida LGBT Affairs created a “Making it Better” video, which is a compilation of UF faculty, support staff, and students and can be viewed here.