My response to Tushnet's discussion of the idea that if "you can't legally enforce the consequences of all your beliefs, you shouldn't legally enforce any of them" is this:
if a law is either unenforceable, or merely unenforced by convention, then that law should be removed from the books. I think this because such a law will only be used selectively, to persecute individuals who are different (as judged by community standards), vulnerable (because lacking political clout), and disliked (because non-conformist). Such was the case of the application of Texas sodomy laws to two men whose door was kicked in in error, but who were subsequently busted for private, consensual behavior.
Any law that a community agrees to put on the books is just, within the context of that community, so long as it is universally applied to all transgressors.
--Rob

I wrote about this last week. (See this)

When we analyze what is common to all heterosexual marriages from a legal standpoint it is that it is a right to choose a relative who will have say over matters of life and death for you.

I see no reason why this shouldn't be extended to gay and lesbian couples.

Legal marriage may have, in the past, protected the weaker partner. These days, in my experience and observations, it seems to protect the richer/more aggressive/stronger partner (who, in most cases, ends up with the better lawyer).

I'm not against legal marriage. But I don't think the "protection" aspect is applicable anymore.

I'm not sure it ever really protected the weaker partner. It used to be a maxim of common law that husband and wife are one and that one is the husband.

The weaker partner--come on, let's say it--women. They become more vulnerable in bearing and raising children.

Since homosexual unions cannot produce children, there is no weaker partner. Other legal arrangements can be done to cover the other benefits of marriage: inheritance, property, ownership, health care power of attorney, etc. There are lawyers who specialize in setting up such arrangements. I am not convinced that homosexual marriage is necessary.

Well, really, any relationship can have a weaker partner -- I have yet to encounter one that's perfectly equitable. Apart from the question of children, one partner may be ill, disabled, financially dependent etc. For that matter one partner may be stronger at one point and weaker at another point. But like I said, I clearly don't know enough about the law here.

Camassia:

As a conservative, let me try to answer the question. I believe that society has instituted marriage to provide for the welfare of children and also that this institution - due to divorce - is not doing its job. Raising children is one job that no society can ignore.

The current (liberal) view is that sex, pregnancy, childbirth, and child rearing are completely separate activities. We've autonomized people to the point where some men just walk away from pregnant girlfriends, after chipping in their share of the cost of an abortion. It is this separated view that makes gay marriage so rational-sounding.

Put another way, instituting gay marriage will create political roadblocks to reforming marriage law. It will not be in their interest, and so it will be considered anti-gay or unworkable. Suppose, for example, that common-law marriages were re-introduced, along with real alimony laws so women have more legal protections. Gays would certainly oppose it. Moreover, a man living with another man, i.e. two heterosexual men sharing an apartment, might very well be considered married if gay marriages are allowed.

What makes gay marriage workable under current law is precisely what makes divorce easy. If divorce were harder, then people might not jump into marriage so casually. Add alimony, property rights and possible repeal no-fault divorce and gays wouldn't want any part of marriage. Throw on common-law marriages and now just two men living together could be considered married, and have to divide their property and couldn't separate unless they could prove mental cruelty. That was the law 50 years ago, when divorces were much rarer than they are today. When I went to school, there were hardly any divorces. I don't think its a coincidence that SAT scores peaked and slid down steadily after the divorce revolution kicked in during the 60s. Self-gratification is now much more important than family and children in American society.

Once we go to gay marriages, we'll never be able to change the marriage laws. We'll have no-fault divorces forever, with all its attendant evils.

Dick Patton