Third-party effects of gay marriage

I wrote this out during class, so don't take this as a complete list. It's a start though.

Some third-party effects:

1. Churches can’t run adoption services that discriminate based on sexual orientation. This harms churches and their clients.
2. Without discrimination based on sexual orientation, more children will end up with gay couples. Studies show that children raised by homosexual couples suffer more negative outcomes: higher alcohol use, higher drug use, higher drop-out rate, higher suicide rates. This harms children.
3. Eliminating discrimination based on sexual orientation makes it harder to choose who adopts your baby. This harms those who would give their children up for adoption. Note: this and the following cause harm even if gays parents are just as good at raising children.
4. Making it harder for women to give their children up for adoption will cause more women on the margin to get an abortion or to keep the baby when the baby would be better off with another family. Either decision makes the child worse off.
5. If fewer women put their children up for adoption it will be, at least somewhat, harder for straight couples to adopt.
6. If the public gives less dignity to gay marriage than straight marriage, straight couples are harmed by the diluted dignity of their marriage.
7. Marriage will inevitably expand further if we really are requiring principled distinctions. When it does, marriage will stop carrying any dignity. This harms those that are currently married and does not benefit those who cannot marry now (e.g., gay, polygamous, etc.) This is pure deadweight loss.
8. Gay marriage will (by CA law) be taught in schools. This harms parents who must go through more efforts to teach their children their beliefs. (courts have already held that a parent cannot withdraw their student from this “non-core curriculum” instruction, like they might for sex ed. The UK is actually teaching kids about the pleasures of gay sex.)
9. Gay marriage will further marginalize those that believe that homosexuality is a sin, labeling them bigots, and possibly limiting the bible to hate speech. (Again, see UK, Canada, Netherlands.)

Even so, I think third-party effects are unnecessary. It’s impossible to measure third-party effects or even know when they exist. For example, what are the third-party effects of divorce? Or adultery? Or lying? Does the law consider them? My point is that rational backing is neither necessary nor sufficient to create a legal ban. But for the sake of this post, we’ll assume it is. (Fun question: could you make an “as applied” challenge to a clear violation of law where your particular crime didn’t cause third-party effects? Why?)

Even so, we don’t need them here to pass equal protection. Equal protection doesn’t require equal dignity. A woman can’t sue to be declared a man because men get more dignity. Nor could I be declared blonde just because they have more fun. In the end, if the rights are the same, there’s no equal protection claim. Brown v. Bd. of Educ. dealt with two different physical locations, which cannot be equal. The court never overruled the principal that separate but equal is acceptable, instead the court held that two physical locations could not, by definition, be equal. But marriage is an intangible label. Intangibles can be equal. ( 2 + 2 is exactly equal to 4 or 3 +1 or 2 squared). Because the two labels, “marriage” and “civil union” have every equal consequence, there is no legal inequality and no Equal Protection claim.

Why not just have one label? Because it isn’t on the ballot.