Regarding The Amendment.
He does make an interesting point:
One of the reasons that it is hard is that we often think that recognizing the moral equality of, or even "tolerating" a class of people means assuming that they are the "same." This was the mistake of early feminism.
Whether homosexual relationships are the same as heterosexual ones is an empirical question, not a moral proposition. Homosexual relationships can be significantly different from heterosexual ones and yet have the same moral standing, just as men and women can differ in fundamental ways and have the same moral worth.
But what's missing here is the rest of the answer: that is, that some "moral standings" are, frankly, immoral. Heterosexual relationships include one-night stands, 3- to 6- (or longer) month "relationships," and long-term sack arrangements, all without the benefit of marriage.
The fact that society tolerates these arrangements simply does not change the 'moral' aspect; it only means that society has decided to be 'tolerant.' This, as Esenberg alludes to later in the essay, can produce problems.
He references Gallagher: Maggie Gallagher says that if you change the public meaning of a social institution, you inevitably change the institution itself. One need look no further than Roe to see this. Now we have people who are creating all sorts of interesting speculations on the topic of "forced pregnancy" based on the fiction "defined" by Roe. It is a Positivist quicksand pit.
But the 30th anniversary of the ruling has passed, and South Dakota has decided to stick a thumb in the Supreme Court's eye. 250,000 people showed up in D.C. to protest the ruling, again. Pro-Life groups are active all over the country, and pro-life candidates generally win in otherwise competitive political districts (all other things being relatively equal). There's a reason for this: it's called the natural law. It is the instinctive understanding that something about the Positive Law is radically wrong.
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