using steroids, that sullies or contaminates the whole thing cheapening the real achievements of other athletes. the promiscuous honor sullies that honor. that's the kind of argument people are trying to make when they say the recognition of same-sex marriage defiles traditional marriage. well, how should we evaluate it? first of all, we should challenge it on the facts. same-sex couples are not like b-grade athletes or cheating athletes or at least no more so than heterosexual couples. they want to get married for reasons similar to those of many heterosexuals. to express love and commitment or to gain religious sanctification to their union or obtain a package of civil benefits and often to have and raise children. traditional heterosexual marriage has its share of creeps.

and there are same-sex creeps as well no doubt. but the existence of creeps among the heterosexuals has never stopped the state from marrying heterosexuals nor do people talk that way. i've never heard even one person say that the state's willingness to marry britney spears or o.j. simsons demeans their own heterosexual marriage. about the character or intentions of the same-sex couple down the road they think their own marriages would be sullied by public recognition of that union.gc< if the proposal were to restrict marriage to worthy people who have passed a character test, it would at least be consistent, though, i think very few people would support such an intrusive regime. what is clear that those who make that argument don't fret about the way unworthy immoral heterosexuals sully the institution of marriage or lower its value. given that they don't worry about this, and given that they don't want to allow marriage even for gays and lesbians who

haveowrñ their good character, it's difficult to take their argument at face value. the idea that same-sex unions will sully traditional marriage, therefore, can't ultimately be understood without moving on to the terrain of disgust and contamination. the only distinction between heterosexuals and the whole class of gays and lesbians that can possibly explain the difference in people's reaction is that the sex acts of the former do not discuss the majority, however, unworthy the particular people may be. whereas, the sex acts of the latter do. the thought must be that to associate traditional marriage with the sex acts of same-sex couples is to defile or contaminate as it were the body of marriage in much the way eating food served by a dollet used to be taken by many people in india to contaminate the high caste body. nothing short of a primitive idea of stigma and taint can explain the widespread feeling

that same-sex marriage is defiling. while the marriages of immoral and sinful heterosexuals are not. if the arguer should reply that marriage between two people of the same-sex after all cannot result in the procreation of children and so must be a kind of parody or sham marriage well, then we're right back to the earlier argument, the procreation argument. and those who insist is so strongly on procreation do not, of course, feel that the marriage of two heterosexuals -- 70 years old is a sham or a parody and they don't try to get lawmakers to make such marriages illegal either. if we're looking for a historical parallel to the anxieties associated with same-sex marriage we can find it in the history of views about woman-hating. at the time of loving vs. virginia in 1967, amazingly late, 16 states both prohibited and punished marriages across racial lines. furthermore, although states

were always required to honor divorces performed in other states that had more lenient divorce residence requirements than their own, that was not the case. with interracial marriage. though, it's the only parallel to the defense of marriage act. state that has laws like that refused to recognize marriages between blacks and whites legally contracted elsewhere. and they even criminalized those marriages. the supreme court case that brought about the overturning of the case loving vs. virginia was such a case. middler jeter african-american and richard loving, white, got married in washington, d.c., in 1958. but their marriage -- notice in race, too, d.c. was in the vanguard so this is interesting. their marriage, however, was not recognized as legal in their home state of virginia. when they returned there they were arrested in the middle of the night in their own bedroom with a framed copy of their marriage certificate over their bed.

they were convicted and sentenced one year in jail and they were told they could leave to the state in lieu of serving 25 years in jail. cross-unions were had arguments both theoretical and in hindsight we can disgust was at work. indeed, it didn't hide its hand. the idea of racial purity was proudly proclaimed, for example, in the racial integrity act of 1924 in virginia. and ideas of taint and contamination was ubiquitous. if people et disgusted and contaminated the fact that the african-american had drunk from the same drinking fountain or used the same toilet or the same plates and glasses all widely held southern views and views enforced by law. and i should add that views my

own father who grew up in macon, georgia, and was a practicing lawyer in philadelphia as i was growing up retained to the very end of his life a very, of course, educated in other respects refined man. but he did believe that if an african-american had drunk from a glass you could never use that glass again. so it's remarkable the tenacity of these ideas. you know, if all that was true we can see the thought of sex and marriage between black and white would have carried a powerful freight of revulsion. the supreme court concluded that such ideas of racial stigma were the only ideas that really supported those laws, whatever else people said. they said, quote, there is no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification, end quote. and i think we should draw the same conclusion about the prohibition of same-sex marriage. irrational ideas of stigma and contamination, the kind of animus that the court recognized

in romer are powerful forces in support of that prohibition. so thought the supreme court of california in october, 2008. they wrote, gay persons also face virulent homophobia that rest more on feelings of revulsion towards gay persons and the intimate conduct of which they're associated. such visceral prejudices is reflected in the large number of hate crimes that are perpetrated against gay persons. the irrational nature of the prejudice directed at gay persons rid called, ostracized, demonized and condemned for being what they are is nearly in kind of previous groups that had been previously suspect or quasi class status and then they go on with the technical legal arguments. we have now seen the prominent arguments against same-sex marriage. they don't seem particularly impressive. we haven't seen any that supplies government with a compelling state interest and it

seems likely given romer vs. evans and it fails the test. the argument in favor of same-sex marriage is straightforward. if two people want to make a commitment of the marital sort, a right that has been held in a series of cases to be a fundamental constitutional right for all citizens, they should be permitted to do so. and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity. so thanks. [applause] >> okay. i actually have a comment and a question. the comment there's an interesting book about

leviticus. the question i have -- i'm a physician. and, in fact, the genders aren't as divided as people think. in the sense that there's a population of people who are born with ambiguous genitalia. so would this be a legal way of getting around people thinking they're approving same-sex marriage? ? in other words, marriage is between two individuals and we can't -- people don't have to define what their gender and sex is. some people can't. a small minority granted. but just like in race. isn't there a real divide between white people and black people because there's so many in between. would that be a way to politically get around this? and just say marriage is between two individuals? humans? >> well, i think intellectually it's a very good move. politically i guess it's such an exotic idea for many people that to get them to swallow that

before they get to the conclusion is going to be harder because i think they're much more ready to see same-sex couples as couples that they can identify with. couples who really are pursuing happiness than they are to think these exotic thoughts. they're scared of that. so i think where it ends up and that's where lawrence ended with the right of sexual choice as a right of individuals. you know, the road to that probably we shouldn't sprinkle it with such strange notions. >> it seems to me -- it seems to me your arguments apply just as well against laws that prohibit polygamy along there's no element of coercion. could you comment on that. >> yeah. now, this was a tough one for me because i have written only in newspapers and not in any book about polygamy. actually when i had my adult

batmitva last year. the can you have your neighbor's spouse applies to men only. because in my torah commentary because women were fine with the can you having because they could be the second wife. and, you know, the prohibition not to covet both sewed. of course, joseph smith noticed that but very few people did. so, you know, i long thought the persecution of the mormons is horrendous in our history. and that the demonization of mormon polygamy is grossly inaccurate in the sense women in polygamy in utah and women elsewhere no property lights women in the area could vote

and that's certainly not true of others. they were hip critical when they said oh, these women were living this terrible life and they were fighting tooth and nail on grounds of cruelty on all things women wanted. so i think our history of demonizing polygamy is atrocious. what would we say today if there were a religion that claimed polygamy as an essential part of religious practice? i think the right to marry is a right of individuals. it belong to all individuals and then it could be trumped by compelling state interest. that's the part i argue for. would there be a compelling state interest? well, in the case of same-sex marriage the courts have gone through the possible contenders and they found none that stands up. i think in the case of polygamy there's just one that stands up and that is the interest and sex equality. in parallel case, the case of bob jones -- u.s. versus bob

jones university. that evangelical university lost its tax -- of not giving favor of any practice of racial equality. they could say the same thing about sex inequality. now, in fact, the protection of sex equality has never been used as a compelling state interest. and, i think, they're afraid to tuesday because it has interesting parts like removing the tax status. and the president would be okay because they got out of that and they have a lay president. you know, so i think the court doesn't want to go there. but anyway i think that would be a compelling state interest. what if we have a practice of polyamorous namely contractual

relationships among plural adults where there's no systemic subordination of women. and it's sex-equal and women can contract with others. and i don't think now in the religious cases, you know, they sometimes do allow that. the case of a native american family who wanted their child not to have a social security number. they did say, you know, it's just unadministrativable. we can't run a country if somebody doesn't have a social security number. but short of that they never allowed administrative complexity to trump religious rights. so i think if a religious motivated sex equal polygamy they would probably have to win if people were being true to the precedence. but, you know, the question is what other kind of legal framework would we think about if it's not a religious thing? and then presumably we would have to have somebody taking the state to court and claiming that

they were being denied a fundamental right under the 14th amendment. i think, you know, they would have a strong argument as far as i'm concerned but i just know that it's not in the foreseeable future that courts will go there. and i was -- i was torn in this book because i wanted to persuade people on the issue of same-sex marriage and the other issues. and it's aimed at a wide public audience. and i knew if my views about polygamy were to be announced, then that might lose me, my audience. but that's what i thought going in and that's what i believe and so i say it. i think polygamy -- arguments against polygamy are very week. -- weak. incest for adults are also weak. i mean, any kind of parent-child incest is a form of child abuse. so i think that's easy. but let's say an adult brother and sister, the usual reason is health. but right now we can do genetic

counseling and people with genes can marry. i don't really think that one is very strong anymore. so that, too, is got to be called into question. but anyway that's usually used as just the bogeyman if we allow same-sex marriage we'll to have allow popygmy and incest and bestiality which is the crown one. which is a form of animal cruelty. and so -- it's to justify laws against bestiality but the other two, no. >> i wonder if you can give me your comments on a couple thoughts i had when listening to you. one, it seems like it's a imposition of two very hot button concepts: sex and marriage. and, you know, when you look at what happened in washington state where the voters

overwhelmingly approved what is really known as everything but marriage, domestic partnerships, it's amazing, you know; whereas, if it had been called marriage there might have been a different result. but substantively there really was no difference in terms of legal things. and so that's the marriage hot button. the sex hot button is, you know, when we look in the first amendment area, most americans, i think, would say and the supreme court has said it's okay for nazis to march through skoki. it's okay for the ku klux klan to do certain things. yet, we still have pornography as an exception to the first amendment because there's this sex component to it. so if you could address that. and then my second point quickly, to my evangelical friends -- i actually have some evangelical friends. who say, you know, i love you. i accept you and all that stuff

but the problem i would have if you were married it wouldn't be accepting you. it would be accepting all of these implications from a relationship. and all the things that flow from it and i believe it, you know, we see these things now with doctors and pharmacists and whatever, you know, that it's sort of an affront to their religious beliefs to have to deal with people who consider themselves and maybe are legally married when that is directly contrary to religious beliefs that sometimes the law, in fact, does make exceptions as you know the federal law makes certain exceptions where certain healthcare gives don't have to do certain things because of conscience clauses. so if you could talk about those two things, that'd be great. >> i agree entirely americans

are particularly phobic about sex and i would say drugs are the other thing. the minute those topics is raised there's this idea of unimaginable danger and contagion and so on. i tell the story about a new book that the university of chicago press has now published called "unlimited intimacy." it's a story condomless sex in sex clubs and bathhouses. it's hard to study and get information about it. so he studies the pornography of it and the fantasies that people report to him and so on. the university of chicago press -- certain powerful people anyway made terrible opposition to this because they said we will be construed as advocating risky behavior. now, of course, advocating had nothing to do with it. he was just studying it. even to study it was thought to advocate it.

what seemed to me particularly horribly hip critical which would not publish books on car racing, and risky behavior. it's the fact that it's risk connected with sex. and, of course, it would be similar with drugs. so i agree that there's that phobia. i guess i don't know whether to go off on to the tangent you appealing offer me because that issue is very complicated. i guess i think first of all nothing is banned under the current obscenity prohibition. there's almost no cases anymore. and what is the old obscenity law which is still in force is not about -- i mean, the word "pornography" is usually used by the feminists and the obscenity is about sexual explicitness and the disgusting of it.

and some of the cases the etymology of obscene from disgusting is made much of. and somehow it's thought that sex itself has something disgusting about it. so it's a very weird set of thoughts. and in my book "hiding from humanity" i do go into some of these strange things that the supreme court has said on that. what feminists proposed and never got was to reorient our thinking toward the issue toward harm. that is if there's an sexually explicit material that degraded and humiliated women and a plaintiff could show that bodily harm was used by those materials but very hard to prove but they wanted a space to establish that either as an actress in the making of it or somebody on whom copycat scenarios were enacted, then there could be an injunction not -- of course, there could be criminal charges against the abuser but there could be an injunction against

the distributor of those materials similar to a kind of dangerous product litigation that goes against the tobacco companies and the gun companies. so that was the model. the model was this is a dangerous product. if we can show that it causes harm in an individual case, that individual can take to court not just the harmer but also the purveyor of this harmful product. i think it's a very respectable attempt on the target of harm and i think it has nothing to do with sex is bad. i think it was a very different strategy and as it was a million strategy because they got to have harm before you can have any litigation. so okay. so that's the digression that you offered me. i couldn't resist. now, what was the second point that you just -- [inaudible] >> about conscience clauses and

my problem is not -- >> it's accepting -- >> not just the marriage but it's all the rights that flow from it. >> oh, yeah, yeah. well, you know, i mean, we all -- we're used to the fact that we have to work out ways in which people cannot -- can somehow not be burdened with respect to their religious beliefs in the exercise of their functions. and we already have ways of getting around, let's say, pharmacists filling prescriptions for the abortion pill. i think so long as there's provision for somebody who wants to get that legal service, then it should be okay for a given individual to refuse to perform a service that goes against their conscience. i'm not sure what it would be in the case of same-sex marriage because, of course, no one is suggesting that the clergy should be forced to perform same-sex marriages. they can marry whoever they please and they always have and they always will.

my daughter married a non-jew and the rabbi said i won't marry you and the catholic priest won't marry somebody who has been divorced so it would be like that. that the clergy would do what they want to do. you mentioned doctors, i'm not sure what the doctors would want to refuse to do. insemination well, you know, if there was -- usually it's a single individual coming for the insemination -- [inaudible] >> people say, you know, i do not want a same-sex couple in my hotel -- >> right. okay. well, that's a nondiscrimination issue. okay. most cities have nondiscrimination laws. and it's covered by that. and now in the litigation surrounding romer v. evans, one of the things that was raised was should people have exemptions for religion? now, what they ended up saying

was denver actually -- denver and aspen did that anyway for small land lords not for hotels and i think a distinction of a personal dwelling and a public accommodation is probably the right one to use here.b3ñ and if it's a hotel you can't do it and -- but if it's a personal thing well, an exemption for religious purposes is okay. what ended up being quite amusing in romer was that the witnesses for the catholic expert witnesses used a form of argument coming from new natural law -- according to which masturbation is the vice and they were arguing that landlords should be able to refuse to rent of people whom they believed they might masturbate in the apartment. [laughter] >> this is not exactly an argument that the rental market be so pleased with. so anyway, yeah.

and by the way, i don't entirely agree with you that civil unions are unproblematic. in illinois we've been fighting for many years to get them. and catholic church opposes tooth and nail. and we haven't it got. the vast majority not only of citizens but of catholics support it. but it's the fact that certain legislators do not want to risk the ire of cardinal george and other leading -- why should they have that aggravation. why should they bother with it they just bottle it up in committee. it's a second class status in the south we had a thing called transracial union and we said you can have that, you just can't have marriage and you could see what would be wrong with that. >> thank you very much for coming and speaking to us. it's been a great pleasure to listen to you. and i want to thank you for writing this book. it reminds me of a book from about 10 years ago which was a

popular book by michael warner, "the trouble with normal." >> great book. >> and he's, you know, coming out of year theory. and i'd like you to go into the issue of -- that you said you at the end of the book about the public/private question because his whole issue in that book -- maybe not his whole issue but a big part of that book is that marriage really is about putting a veil over sex. that americans just can't deal with it. and we're ashamed of it. and he had a big problem with the whole push towards same-sex marriage. as a gay man because he felt that it was essentially just seeking approval and hiding and going into hiding. and using marriage in the same way that straight people use marriage. and when it doesn't really reflect all the possibilities of what we could be, what we could

be experiencing, and that it doesn't really line up with people's desires -- i'm glad to hear what you said about polygamy because it seems that where things are going in the law and where you see things going in the law contradict a lot of his concerns from ten years ago. i'd like to hear what you think about the whole issue of marriage. >> actually one thing is michael and i have an exchange coming out in the california law review next year so you'll be able to see that. i think michael's book was great and i admire him greatly and we're kind of on the same thing about a lot of things. i guess,, i believe, like michael if we were to start de novo it would be to start way back which which privileges do we want to bundle together? we have this big bundle called marriage where we wrap up decisions about burial spousal exemption when giving testimony immigration benefits so it's all in one package.

and michael nicely points to france where brother and sister who share a household could get certain tax benefits. i think we should if we were starting all over again, that's what we should do. and short of that we should perhaps just get the state to bow out of the marriage business and give just the civil package. the trouble is that's not -- we're never back starting over again. and we won't ever be. and right now if the state were to back out, there would be the following problem. it would be like closing the store because the gays and lesbians are about to go in the store. this happened in the south. they closed all the swimming pools in order to prevent the integration of swimming pools. and some districts closed public schools in order to prevent immigration and if the state suddenly said no more marriages it would be like that. it would be kind of a spite-laden thing.