Saturday, December 27, 2003

Chicago Professor Stuff

I missed this article by Professor Sunstein on the BCRA decision, and this book review by Judge Posner, which discusses gay marriage. A quote from the Posner piece on the Lawrence decision:

"All that the decision actually holds is that moral disapproval of homosexuality is not a valid basis for criminalizing homosexual conduct; and, as I have said, the government can express its disapproval of what it regards as immoral activity by withholding a subsidy even when it cannot do so by criminal punishment; and it is a form of subsidy that Gerstmann is advocating, since marriage is a source of privileges. So I conclude that Lawrence will not overcome the impasse over whether there should be a constitutional right of homosexual marriage."

Posner concludes that the states should experiment, and see what catches on. Ultimately, he feels lawmakers, not judges, should be making the calls in this area. I discussed this issue a bit here, and I still wonder whether either avenue works very well for pro-gay rights activists at this point.

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