Gay Marriage: A Certain Bad Argument

In First Amendment law, the Supreme Court is willing to strike down a statute that impinges on free speech although the State offers some justification, if the Court thinks there's a much better way of achieving the stated justification. For example, if a city wants to ban handing out leaflets on a busy city street, on the ground that it wants to avoid litter (because everyone knows the vast majority of the leaflets will never get read), the Court will say no, you can't do that, because you can make a law against littering instead of a law againt leafletting, and that way you achieve the desired goal without invading the First Amendment.

So in Sunday's Times-Picayune there is a letter to the editor that complains about discrimination against gays because of hospital visitation rights:

"What I am concerned about is having the legal right to sit by my partner's bedside should he become seriously ill without some 'caring professional' having the gall to say to me, 'I'm sorry, sir, family only."

The writer's proposed remedy - forcing the government to sanction gay marriage - is like banning leafletters instead of insisting upon anti-littering laws. The simple and non-confrontational approach, if that is the genuine concern, is to ask hospitals to relax their visitation policies. The argument is more easily made, will create little or none of the lashback that gay marriage advocacy is known to create, and remedies the problem with precision - neither cutting too broadly nor too narrowly.

Of course, in the Free Speech example and this case, asserted justifications are often deceiving. I didn't invent that First Amendment hypothetical - cities have tried to ban leafletting in response to unpopular groups, such as Jehovah's Witnesses, who want to distribute their literature in residential areas. And the Court saw through the city's ploy and shot down the law. In the gay marriage context, the singularly bad reasoning of the "I don't want to be kept out of the hosptial" crowd belies the real goal - using the judiciary to force a change in social mores on a far broader scale than could ever be achieved by simply eliminating the asserted complaints. Letting more people in during hospital visiting hours solves the stated problem, but not the real problem. Hence, we get the flawed kind of complaint printed in yesterday's Times-Picayune.