Law & Society Blog

Robert Justin Lipkin in his working paper entitled The Harm of Same-Sex Marriage: Real or Imagined? argues that yes, same-sex marriage causes harm to those who deprecate it. He is quick to add that “this sense of harm cannot be the basis for law or social policy in a democracy.” But why?

Lipkin, while at first phrasing the question as one of “harm to traditional marriage,” eventually shifts to find that the relevant harm is harm to people. I agree and believe that most of us are realists or nominalists enough to recognize that concepts, whether legal or philosophical, age-old or new, are not protected by law: they have no life or being in and of themselves. The harm to people Lipkin has in mind, is harm to believers in traditional marriage:

The acceptance of same-sex marriage in the public environment harms these people because it interferes with deeply entrenched aspects of their normative environments.

The interesting thing about legal normative environments is that they are constructed over time through an interaction between the law-giving authority and the people. That is, law influences the normative convictions and the normative environment. While there are particular instances and times when popular normative convictions (not all of which derive from law, of course) clash with the law, it is equally true that the law is a powerful tool for shaping normative convictions. Americans, for example, are convinced that there can be no civil liberty without a right to a jury trial, simply because they’ve had jury trials for so long and because they believe themselves free. Europeans disagree, simply because they haven’t had jury trials (for the most part) and because they believe themselves free. It is today part even of the entrenched aspects of the normative environments of the proponents of traditional marriage that divorce is compatible with traditional marriage. Divorce was introduced as a legal concept once marriage was secularized, not as a religious (or traditional) concept, and it has over the past hundred years or so changed the view of what marriage should mean: the law has shaped the normative environment of the people. It follows that even if we accept harm as “interference with deeply entrenched aspects of normative environments” as relevant harm, we still have not answered the question whether sufficient basis for banning same-sex marriage exists: normative environments are not fixed.

But of course Lipkin does not propose confusing interference with normative environments with legally relevant harm: “[D]eliberative democracy,” Lipkin concludes, “including protection of disfavored minorities, cannot legally countenance banning same-sex marriage just because it harms the normative environment of the majority.” This is a bit unsatisfactory because it suggests that the deliberativeness of democracy or the minority status of homosexuals desiring to marry is the reason why the majority should not impose their normative environment on everyone.

The starting point for an argument form harm should be the purpose of law, which is identical to the purpose of the state. By “state” we mean the libertarian, secular, burgeois state that is a product of the enlightenment and the burgeois revolutions of the 18th and 19th centuries. The purpose of the state is to maximize liberty and safety of the citizens. The concept of harm is therefore tied to the concept of liberty. Because liberty is liberty only when it does not come with instructions on how to use it, harm (in order to be relevant) must also not entail a state-endorsed value judgment. It must be thus tangible, since anything not tangible would mean a transgression of the state into the moral sphere of the people. The classic categories of harm are therefore physical harm, loss of freedom of movement, and (more tenuously) loss of choices of action. The state may protect its citizens from such harm, but not from other harm. There can be little argument to my mind that same-sex marriage does not cause the proponents of traditional marriage physical harm, loss of freedom of movement, or a loss of choices of action. Lipkin’s paper is interesting in that he, too, apparently was not able to discover any relevant harm that same-sex marriage causes.

I note in passing that Lipkin also discusses at some length Finnis’ argument that “sexual acts are not … marital unless they have … procreative significance,” and dismisses it.

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