OPPONENTS of legalising gay marriage find it difficult to stay away from formulations that imply that legalisation would entail forcing other people to...do something or other. Here's Thomas Messner at National Review online, for instance: "Activists hope that federal courts will use this case [Perry v Schwarzenegger] to impose same-sex marriage nationwide." Impose same-sex marriage nationwide? Clearly, no two adults of the same sex will be forced to marry each other regardless of how the court rules.

This isn't just a cute word game. Mr Messner's use of the word "impose" goes to the heart of the issue. To justify California's Proposition 8 barring people from marrying loved ones of the same sex, opponents need to show that, at a bare minimum, the state has some rational basis for passing such a law, ie that somebody would be harmed by same-sex marriage. They have settled on the (baseless) argument that gay marriage harms children. Yet in a long drawn-out trial, the pro-Proposition 8 side was unable to call a single witness who could substantiate that claim. The sole witness they did call, David Blankenhorn, ended up spending much of his time conceding the benefits same-sex marriage would deliver, both for gays allowed to marry and for society as a whole; chunks of his testimony ended up in the closing arguments for the wrong side. In particular, proponents of the law have been unable to explain how legalising same-sex marriages could harm or even affect heterosexual marriages.

Opponents of same-sex marriage may feel, subjectively, that something would be imposed on them by the state's decision to recognise same-sex marriages. But what is that something, exactly? It's much easier to show how the state is concretely imposing on gays by denying recognition for same-sex marriages. In a pluralistic society, you can't claim to have been harmed when the state declines to impose your religious norms on those who don't share them. And without some such claim to justify it, Proposition 8 is looking pretty constitutionally shaky right now.

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