Same-Sex Marriage | Jorde Symposium

April 23, 2009

This past Monday, Stanford Law School hosted the 10th Brennan Center Jorde Symposium, a lecture series generously funded by Brennan Center trustee Thomas Jorde, a Brennan clerk and emeritus professor at Boalt Hall Law School. This year's topic was "Same-sex Marriage: the Politics of Stigma." A whopping $75 million was spent by both sides of Proposition 8, California's ballot initiative to overturn a state court decision legalizing same-sex marriage: one might be tempted to think that there was little left to say. You would be mistaken.

Jorde Symposium lecturer Professor Martha Nussbaum of the University of Chicago discussed the arguments against same sex marriage and concluded that they are based simply on widespread aversion to homosexual practices: upon close examination, other arguments are unsound. Prof. Nussbaum explored the origins of marriage and debunked the myth of its "golden age," noting that serial marriage, polyamory and other kinds of marital unhappiness were common as far back as the Republic of Rome. A letter written in 50 BC by Cicero describing a hellish weekend with his unhappily married brother and sister-in-law (which Prof. Nussbaum translated herself from the original text) struck a familiar note to many in the audience, a moment of levity before a discussion about the gravity and dangers of discriminatory laws based on ugly aversions.

A unique feature of the Jorde Symposium is that noted scholars comment on the lecture: Professor Pamela Karlan sang the introduction to her commentary: "You say ee-ther, I say aye-ther, let's call the whole thing off..." (she had written a haiku about the Supreme Court to begin one of her classes earlier in the day). Could the state just withdraw from the business of legal marriage, neatly ending the controversy? After noting that Ira and George Gershwin were brothers, not a married couple, she skillfully discussed a line of equal protection clause cases from the era of desegregation where state efforts to withdraw, rather than comply, were deemed unconstitutional. "We cannot move into a jurisprudence of spite," she concluded.

Professor David Novak of the University of Toronto argued the other side of this issue, noting that the institution of marriage is pre-political, and there is rational validity for its traditional restrictions. Traditional marriage is the best means to protect the natural rights of children: the vast majority of people entering into marriage do so with traditional views, and thus marriage in the ancient form should be maintained in order to meet the expectations of this group.

Professor Michael Warner of Yale University argued that both sides of the current debate mistakenly seek justification for their positions by looking to the past or glorifying marriage as an expression of dignity and worth (the "expressive theory" of marriage). He argued that the state's monopoly on marriage as a legal institution is relatively modern, and that the bundle of rights that now accompany legal marriage is even more modern. People on both sides would find more common ground by focusing on unbundling the rights and obligations that have been recently attached to legal marriage and asking the state to pluralize the sanctifications offered to adults to protect and characterize their loving and other relationships.

The lecture and three commentaries will be published in an upcoming issue of the California Law Review. The next Brennan Center Jorde Symposium will be held at Boalt Hall Law School in the fall of 2009, Professor Rick Pildes of New York University School of Law is the lecturer.