When it comes to supporting gay marriage, moderation in the pursuit of justice is no virtue. But maybe proportionality is.

In reacting to my post on whether straight couples should divorce if gays can’t get married, many of you have referred me to Ian Ayres and Jennfire Gerarda Brown’s book, Straightforward: How to Mobilize Heterosexual Support for Gay Rights. I feel a little sheepish that I hadn’t read the book, and only dimly heard of it.

Like all of Ayres’ work and Brown’s work, it figures to be sharp, sensible, and thought-provoking, and I look forward to reading it. But I must say that one idea that readers keep coming back to, and endorsed by Ayres and Brown, seems pretty weak: stop wearing your wedding ring. Oh, and call your spouse your “partner” instead.

Ayres and Brown are looking for intermediate solutions for how straight people can handle their privilege, and that makes sense as far as it goes. But it seems to me that that the point is for a response to proportional to the harm it combats (to use a phrase much in vogue nowadays). Moderation in the pursuit of justice is no virtue, a not-so-wise man once said, although he got this one right.

Let’s see now: gays and lesbians can’t get married; they can’t get the tax benefits that straight couples get; in states outside of Massachusetts, Connecticut, and California, they can’t get a whole host of other benefits that straight couples get. Many states ban same-sex partner benefits, ban visitation privileges, ban any recognition of a committed, loving relationship. And the appropriate response to that is for me and my “partner” to take off our wedding rings? We can expect more of ourselves than that.

Ayres and Brown must have an answer to this issue. In a Balkinization post, Ayres endorsed the idea of “ambiguation”, that is, making it unclear to your audience whether or not you are gay. Again, good as far as it goes. But Ayres also understands that such moves cannot be trivial. And since marriage (and its benefits) is so important, lots of things will seem trivial. More recently, Ayres has suggested monetizing the benefits of marriage and contributing to equality causes with the money. That’s more like it. Is it enough?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.