What I mean by formal discrimination is that laws banning interracial marriage explicitly banned interracial marriage. Those who sought to overturn these bans were seeking formal equality: not the addition of more laws to include them, but the subtraction of laws designed to exclude them. What they wanted was for race not to be mentioned in the law at all. By contrast, what proponents of same-sex marriage seek is a different kind of equality. They want the law to say that homosexuals should get to marry the kind of people they desire. Their claim might be right, but it is important to note that the law does not currently say “only heterosexuals get to marry the kind of people they desire.” The law makes no mention of heterosexuality at all, a concept that would have been foreign to the originators of current marriage law.

This is why opponents of the legal recognition of same-sex unions sometimes note that homosexual persons are already free to marry, so long as they marry someone of the opposite sex. It is understandable that this point strikes many as a bit glib, and no doubt it is sometimes meant to be. It underscores, however, the essential disanology between anti-miscegenation laws and current marriage law: proponents of same-sex marriage do not propose to extend an existing liberty to a broader class of people, but rather to change the nature of an existing legal institution to which all people, qua people, already have access.

Race and homosexuality do have an important characteristic in common. While the underlying trait that they identify (variation in skin color and ongoing sexual desire for individuals of the same sex, respectively), may have always existed, the people who have the trait were not always seen as forming a natural class. Both race and homosexuality are historical concepts that arose at a particular period in history. With respect to race, while people have probably always noted that human skin can be shaded in a wide variety of ways, it was not until the early modern period that anyone began to speak not merely of peoples constituted by ethnic, linguistic, or cultural similarities but of a much broader classification of all the world’s people into categories based on skin color. The trait itself did not suddenly become more pronounced—if anything, it is likely that in the early modern period shades of human skin around the world were growing less distinct as contact between geographically distant peoples became more common. Rather, for purely extraneous reasons, very probably economic reasons relating to the slave trade, a broadly shared understanding arose that individuals who shared the trait of dark or light skin color with others could be grouped with those others into a class. Roughly the same process occurred, though much later, with homosexuality. The idea that the human species is divided into classes of persons who permanently desire members of the same sex and persons who permanently desire members of the opposite sex is recent, and many of those responsible for creating this idea used it as a way of medicalizing or marginalizing the individuals newly singled out as “homosexuals.”

Only if this idea is already accepted could current marriage law even conceivably be called exclusionary of homosexuals specifically. It is very probable, for instance, that many individuals, whether because of their genes or some environmental factor, experience an unchosen and insurmountable sexual desire for children or animals. Some people claim to be oriented to desire objects, and others to desire multiple partners as a matter of basic fulfillment of their sexuality. Others may feel persistent and unchosen desires for specific sexual acts to the exclusion of others. It is likely that many fetishists experience their desires for a particular kind of sex as permanent and unchosen. Human sexuality is not by nature divided into two symmetrical orientations. If you examine it without reference to the particular categories we now employ, the diversity, or perversity if you wish, of human sexuality, appears limitless. Just as the skin colors of different races flow continuously into one another, there is an infinity of difference in modes of sexual desire and sexual practice. (This is not to say that normative distinctions cannot be made between different sexual practices, of course.)

More importantly, many societies do not understand certain traits of sexual desire to constitute a kind of person at all. Even if it did turn out, improbably, that all human populations were neatly divided into people who desire members of the same sex and those who desire members of the opposite sex, this fact would not alone give us a reason to view “homosexual” and “heterosexual” as natural classes of human beings. Many traits do in fact divide human beings into discrete categories, but we do not see these different categories as giving rise to categories of persons. For instance, there exists a set of individual humans with birthmarks on their left legs. Our society does not have a name for this set. They are not spoken about as having a common set of aspirations or goals, or a common set of characteristics beyond their collective spottedness. Even though ever human population is divided without overlap into two discrete categories based on the spottedness of left legs, we do not understand this fact to create two natural classes of human beings.

Societies do categorize people, of course, and frequently change how they categorize people. Just because our society recently changed its categories to reflect a somewhat arbitrarily drawn difference along a particular axis of sexual desire does not mean that it was wrong to do so. However, our current marriage law was created long before the concept of homosexuality. Its authors could not have dreamed that the institution of marriage excluded a class of people. They probably did understand that the institution did not accommodate all relationships, but proponents of same-sex marriage do not advocate for the universal recognition of all relationships, as this would of course mean the end of marriage as an institution designed to pick out a certain type of inter-personal relationship from among the enormous range of relationships that exist. No one proposes special state recognition of the momentary relationships created by business transactions, nor even more the more permanent relationships of friendship.

By contrast, exclusion of a certain class of people is the whole point of laws banning interracial marriage. Anti-miscegenation laws relied extensively on the concept of race. In fact, the first clauses of the statute overturned by Loving v. Virginia were concerned primarily with establishing on a legal basis the categorization of citizens by race. Whether or not you believed in the category of race, and whether or not the category of race was meaningless or not, the statute either included or excluded you.

Current marriage law excludes no one in this way. Current law recognizes a certain kind of relationship and denies no one access to this recognition. Those who advocate changing it to recognize same-sex unions are not proposing a formal change in the law that will leave the institution unaltered even as it grants more people access to it. Rather, they seek a substantive change to the institution based on a new understanding of human sexuality. It is a mistake, and an important one, to believe that current marriage law is comparable to anti-miscegenation laws, and to advocate for the legal recognition of same-sex unions as marriages on the grounds that to do otherwise would be discriminatory. Instead, advocates should argue that same-sex unions as they do in fact exist in our society should be recognized because they are substantively worth recognizing. If our society decides not to recognize same-sex unions as a kind of marriage, however, it will not be guilty, at least with respect to its marriage laws, of discrimination.


David Schaengold is the assistant editor of Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Moreover, it is painful for the budget-conscious public servant to contemplate how many Ohioans take day trips to gamble in the neighboring states of Pennsylvania, Indiana, and Michigan, which already permit casinos to operate. That the paychecks of Cincinnati are swallowed by Rising Sun, Indiana, and find their way ultimately to state coffers in Indianapolis, is justifiably enraging, and a desire to see Ohioans squander their money closer to home explains much of the amendment’s appeal. Regrettably, such local concerns play out on a national scale, leading to a kind of gaming arms race between the states.

Despite gambling’s broad, bipartisan support from Ohio’s political class, the issue does not poll well, and has a good chance of being voted down. While ordinary voters are not always right in rejecting the widely shared judgments of politicians and the professionally informed (the two largest newspapers in the state also endorsed the issue), in this case they should do so.

I will not address how policy-makers and voters ought to weigh considerations about the addictive qualities of gambling. This is an important question, but it has been taken up recently and convincingly elsewhere. The social scientific evidence about the effects of opening casinos on crime and local employment rates, while frustratingly relevant to any discussion about gambling, is decidedly mixed. Some studies report increases in crime, others decreases, and most show increases in both local employment rates and problem gambling. The evidence is clouded further by an examination of the funding sources for these studies, which usually turn out to include a national group representing the interests of the gambling industry (”the gaming industry,” to be perfectly polite).

There are of course reasons in principle to oppose gambling authorizations independent of those metrics. The demand for gambling, like that for most services, is not fixed and unalterable. It is true that some portion of Ohioans who would gamble at Ohio casinos would be those who previously had been crossing the border to do so. When one state legalizes gambling, its neighbors have a strong fiscal incentive to follow suit, lest it lose a competitive advantage.

But some portion of Ohioans will start going to casinos for the first time, just because they’re closer and more convenient. Marginal incentives really do matter, and making something cheaper by increasing its supply is a sure way of increasing the total amount of it in society. Politicians who support legalizing gambling should put aside their understandable complaints about competitive edge and ask whether they want to see more of their constituency spending more time at casinos. It’s possible that this additional time and money spent at casinos would have been spent watching television and buying potato chips, but it’s equally possible that it would have been spent starting small businesses or going to night school.

More fundamentally, however, the proponents of legalized casinos are simply mistaken about what makes for the long-term health of a city and a broader polity like a state. States need money to perform essential public services, without which they will fail in their duties towards their citizens. But the honest way to go about collecting it is through transparent taxes, not by skimming from the haul collected by private casino owners. While the revenues collected from taxes on casinos might help restore the state to fiscal equilibrium (though in Ohio’s case, as in many others, the deficit was so enlarged by the recent recession that the additional revenue will be far from enough), fiscal stability is only one of many qualities that make for a healthy polity in the long term. Equally important is the quality of education at all levels, investment in infrastructure, the character of neighborhoods, and the provision of public services. Without these, even a state running a budget surplus is not only doing a disservice to its citizens, it may find itself having lost its competitive edge among other states. (Examples spring readily to mind: Atlanta, long one of the fastest growing big cities in the United States, has in the last few years seen its commercial property investment rating dramatically downgraded by Moody’s due to its inability to manage demand for scarce water resources or provide adequate transportation infrastructure.)

Providing social services costs money, it is true, some of which could be provided by casino taxes, but in many cases casinos directly and negatively affect communities in ways that additional revenue cannot counteract. Particularly disastrous in the case of the Ohio ballot issue is the placement of the casinos in the hearts of the state’s four largest cities. Three of those cities, at least, have recently been showing signs that their long period of decline is over. Young professionals are moving back into the city in droves, and families are hesitantly beginning to follow. Inner cities have seen investments in historic preservation and new development. Casinos will militate against these trends. No doubt they will attract visitors from the suburbs and surrounding regions, but they will hammer home the idea, only just beginning to fade, that central cities are places you might commute to, or visit on a field trip, but never the kind of place you’d like to live and raise a family in.

The urbanist thinker and former mayor of Bogotá Enrique Peñalosa has said that children are a kind of indicator species for communities, just as certain vulnerable species can serve as indicators of an ecosystem’s health. If you can walk around a community and see children flourishing, your community is flourishing. It is not difficult to see why families with children might decide not to move downtown after all if they will be living a few blocks away from a casino, and that decision, made by a multitude of families, will rule out a future where American cities are once again safe, beautiful, and exciting.

Casinos and the associated tax revenue they bring in may look irresistible to politicians in an era when tax increases are politically unfeasible but Americans demand strong public services, but in the long term they are a bad investment. One-shot fiscal maneuvers rarely improve a state’s permanent health. What is needed instead is sustained attention to creating places, urban, suburban and rural, that will attract businesses and people. Casinos will certainly not do that.


David Schaengold is the assistant editor of Public Discourse. Previously, he researched urban policy at the Center for Neighborhood Technology in Chicago, IL.

Copyright 2009 the Witherspoon Institute. All rights reserved.

It might seem as if nothing could be less important to social conservatives than transportation. The Department of Health and Human Services crafts policies that affect abortion, the Department of Justice and the Federal Communications Commission play crucial roles in determining how prevalent obscenity is in our society, but the Department of Transportation just funds highways, airports, and railroads, or so the usual thinking goes. But decisions about these projects and how to fund them have dramatic and far-reaching consequences for how Americans go about their lives on a day-to-day basis. Transportation decisions have the power to shape how we form communities, families, religious congregations, and even how we start small businesses. Bad transportation decisions can destroy communities, and good transportation decisions can help create them.

Sadly, American conservatives have come to be associated with support for transportation decisions that promote dependence on automobiles, while American liberals are more likely to be associated with public transportation, city life, and pro-pedestrian policies. This association can be traced to the ’70s, when cities became associated with social dysfunction and suburbs remained bastions of ‘normalcy.’ This dynamic was fueled by headlines mocking ill-conceived transit projects that conservatives loved to point out as examples of wasteful government spending. Of course, just because there is a historic explanation for why Democrats are “pro-transit” and Republicans are “pro-car” does not mean that these associations make any sense. Support for government-subsidized highway projects and contempt for efficient mass transit does not follow from any of the core principles of social conservatism.

A common misperception is that the current American state of auto-dependency is a result of the free market doing its work. In fact, a variety of government interventions ensure that the transportation “market” is skewed towards car-ownership. These policy biases are too numerous to list exhaustively, but a few merit special recognition:

-If a state is interested in building a new highway, the only major regulatory obstacle is completing an Environmental Impact Statement (EIS). After this, the federal government will typically pay for a large portion of the project, and leave the details of its planning and construction to the state’s Department of Transportation. If a state or municipality is interested in a transit project like a subway, a streetcar, or a bus system, however, not only must it complete an EIS, it must also clear a barrage of regulatory hurdles, including a cost-effectiveness analysis, a land-use impact analysis, and a comparison with other transit systems. None of these requirements is necessarily bad in itself (though many of these regulations were designed only to make it harder to build transit systems), but highways aren’t subject to any of them. Naturally, states therefore find it easier to channel transportation dollars into highways.

-As a 2003 report by the Brookings Institution points out, “federal funding for highway projects is more secure and generous than for transit projects; making highway projects easier to finance.” The Department of Transportation will typically match 80% to 90% of state funds directed towards highway repair or construction. Those same funds directed towards transit usually receive less than a 60% federal match, and carry further burdensome requirements for local funding that highway projects do not need to meet.

-Zoning requirements in most municipalities mandate that shops and houses must be separated. It is widely illegal to build the old small-town main street with the mix of shops, houses, and apartments that many find charming (so charming that some of these towns have been turned into tourist attractions). Furthermore, in most states it is mandatory for new schools to be built next to hundreds of acres playing fields, and thus far away from residential neighborhoods (see this report and this paper for a fuller discussion of policies that affect travel to school). These and similar regulations ensure that there are no shops or schools—that is, major household destinations—within walking distance of the average American’s home, which in turn requires the average American to own and use a car, not merely to commute to work but to perform basic tasks like picking up a gallon of milk or sending the kids off to school in the morning.

We often hear complaints that transit systems do not earn profits. This is true (with a few exceptions), but this does not mean that transit systems are a waste of money. When was the last time you heard someone complain about how a local road never manages to turn a profit? If we held roads and transit projects to similar standards of profitability, we would build very few roads indeed. Transportation infrastructure is a public good, and few dispute that the government should play an active role in providing it. In spite of the problems with thinking about transit as if it were business, however, transit- and pedestrian-oriented transportation projects would actually benefit if transportation decisions were guided entirely by market forces, because the pro-automobile biases in current policies at the local, state, and federal levels, would be eliminated.

Pro-highway, anti-transit, anti-pedestrian policies work against the core beliefs of American conservatives in another and even more important way: they create social environments that are hostile to real community. Once again, the ways in which automobile-oriented development prevents communities from forming are too numerous to list exhaustively. They range from the very obvious to the very subtle.

Consider how small businesses are affected by Americans’ dependency on cars. Since businesses are obliged by zoning restrictions to locate far away from residential areas, most Americans drive to every store they visit. This means that store visits are often discrete trips that must be undertaken consciously and planned out ahead of time. As a consequence, shoppers will want to visit stores that carry the most diverse inventory—Wal-Mart, Costco, et al.—and avoid shops that specialize in one particular kind of good—the local paint store or flower shop, for instance. Moreover, since small shops cannot afford to spend large sums on advertising, they can’t buy the enormous signs and billboards that direct shoppers to large retail outlets, nor gin up hype for their products with coordinated television spots. Perhaps if their potential customers could walk by their storefronts they would have a chance to notice window-displays and similar kinds of small, careful advertising. At 60 miles an hour with the AC cranked up, the attention of their potential customers is focused elsewhere.

As the market diminishes for these specialized stores, so too does opportunity for small-scale entrepreneurship. If opening a small business were a viable option in more markets, more Americans would be interested in starting them. The current situation, where only very large stores can compete in most retail environments, makes starting a business impossible for the vast majority of Americans.

Perhaps more importantly, the employees of big-box stores rarely conceive of their jobs as passions or callings. You’re much likely to find yourself in a conversation about the relative merits and demerits of non-volatile-organic paint at Morris Maple’s Hardware down the street than at Home Depot. The local shopkeeper with a comprehensive knowledge of and interest in her wares is flourishing in a way that the clerks at big box stores, merely putting in time for a paycheck, are not.

Small, local businesses can also reinforce the quotidian trust that is a precondition of community. When I find myself without proper change at a book-store near where I live, the owner tells me to give it to him next time. We do not know each other’s names, but we recognize each other and trust each other enough not to quibble about quarters here and there. Needless to say, the cashiers at Borders would be fired for similar behavior. This quotidian trust is also reinforced in small ways that the physical environment can promote or discourage. In neighborhoods where it is easy to walk, residents see their neighbors often, and are given ample opportunity for spontaneous or chance encounters. Community is built out of many weak inter-personal links, and seeing your neighbors informally, episodically, but frequently reinforces these links.

Car-dependency also requires the nuclear family to become a primary transportation resource. Parents must shuttle their children to school, soccer practice, and even their friends’ houses until the children can shuttle themselves (at peril to their lives) in late adolescence. Not only does this overburden families themselves, it prevents the participation of community members in sharing the burdens of child-rearing. Conservatives sometimes mock Hillary Clinton’s infamous aphorism that “it takes a village to raise a child,” but surely this is in fact what conservatives actually believe. Otherwise, why would conservatives care about a culture that promotes irresponsibility and license? Social conservatives, at least, recognize that children flourish best not merely as members of a household but as participants in a culture, and that families themselves have more purposes than logistical support.

Dense, walkable settlements are not just a pleasant lifestyle choice. They are a precondition of the strong, inter-connected communities that social conservatives desire. It is not difficult to envision how these communities can make our lives comprehensively better. Americans are not obliged by any law of nature or rule of the market to live in mediocre, anti-social places. With changes in public policy, over time we can begin again to create neighborhoods that promote real community.

David Schaengold is a research associate at the Witherspoon Institute in Princeton, NJ and assistant editor of Public Discourse. Previously, he researched transportation policy at the Center for Neighborhood Technology in Chicago, IL.

Copyright 2009 the Witherspoon Institute. All rights reserved.