Recently, I participated in a forum on same-sex marriage. The event was open to members of my law school community, but also in attendance were local citizens, media representatives, as well as audience members and participants from the local area. One question that I'd heard before came up again: “Where's the rights problem? Anyone can marry, including gays and lesbians. The same restriction – marry someone of the opposite sex – applies to everyone equally.”

The standard law professor move at this point would have been to encourage the student to probe a bit more deeply into the notion of equality, asking whether the opposite-sex-only marriage rule duly respects the rights of same-sex couples to form state-sanctioned relationships with the person of their choice. But for some reason, that wasn't the point that occurred to me immediately. Instead, I wondered aloud whether it was good policy to encourage gays and lesbians to marry people of the opposite sex, given the social costs likely to be incurred: The marriage would likely be an unhappy one, possibly ending in divorce (with its documented effect on any children born to the couple); one or both of the parties might be drawn to more emotionally or sexually fulfilling liaisons outside of the marriage; and often such extramarital affairs are conducted in secret, with potentially grave health and emotional consequences for both the unfaithful spouse and his or her uninformed partner.