The Harm of Same-Sex Marriage: Real or Imagined?

Widener law prof Robert Lipkin has posted his new paper, "The Harm of Same-Sex Marriage: Real or Imagined?"  Here's the abstract:

The controversy over same-sex marriage centers on whether same-sex marriage harms traditional marriage. Some conservatives insist that it will and therefore argue that it should be legally prohibited. By contrast, some liberals are mystified over the contention that same-sex marriage can possibly harm anyone's traditional marriage. This article shows that conservatives and liberals are both right and that they are both wrong. Indeed, it is possible to fashion a rapprochement between reasonable conservatives and reasonable liberals. Conservatives are right that, in an important sense of harm, the legal recognition of same-sex marriage will indeed harm traditional marriage. Liberals are right that despite such harm, marriage should be extended to same-sex couples nonetheless. Implicit in this controversy is which types of harm can be recognized in a democratic society as being reasons for and against laws. A corollary question is who owns and is entitled to participate in American democratic institutions. Some types of harm and some types of exclusion represent a compelling state interest which can and should be legally prohibited. However, harm or exclusion that results merely from clashing normative environments generally must be permitted in a democratic society. While perhaps satisfying extremists on neither side, this rapprochement can contribute to a cease fire in one of the heated battle in the so-called culture wars.

(HT: Solum)

Rob