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[Maggie Gallagher (guest-blogging), October 17, 2005 at 1:51pm] Trackbacks
The Marriage Debate:

For those who want evidence that procreation is an important public purpose for marriage, A quick sampling:

From U.S. law.

"[T]he first purpose of matrimony, by the laws of nature and society, is procreation." Baker v. Baker, 13 Cal. 87, 103 (1859). "he procreation of children under the shield and sanction of the law" is one of the "two principal ends of marriage." Sharon v. Sharon, 75 Cal. 1 (1888) (quoting Stewart on Marriage and Divorce, sec. 103. "Procreation, if not the sole, is at least an important, reason for the existence of the marriage relation." Davis v. Davis, 106 A. 644, 645 (N.J. Ch. Div. 1919). "The great end of matrimony is . . . the procreation of a progeny having a legal title to maintenance by the father." Laudo v. Laudo, 197 N.Y.S. 396, 397 (App. Div. 1919); Poe v. Gerstein, 517 F.2d 787, 796 (5th Cir. 1975) ("[P]rocreation of offspring could be considered one of the major purposes of marriage. . . ."); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. App. 1974) ("[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race."); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971), appeal dismissed for want of a substantial federal question, 409 U.S. 810 (1972) ("The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis."); Heup v. Heup, 172 N.W.2d 334, 336 (Wis. 1969) ("Having children is a primary purpose of marriage."); Zoglio v. Zoglio, 157 A.2d 627, 628 (D.C. App. 1960) ("One of the primary purposes of matrimony is procreation."); Frost v. Frost, 181 N.Y.S.2d 562, 563 (Supr. Ct. New York Co. 1958) (discussing "one of the primary purposes of marriage, to wit, the procreation of the human species."); Ramon v. Ramon, 34 N.Y.S. 2d 100, 108 (Fam. Ct. Div. Richmond Co. 1942) ("The procreation of off-spring under the natural law being the object of marriage, its permanency is the foundation of the social order."); Stegienko v. Stegienko, 295 N.W. 252, 254 (Mich. 1940) (stating that "procreation of children is one of the important ends of matrimony"); Gard v. Gard, 169 N.W. 908, 912 (Mich. 1918) ("It has been said in many of the cases cited that one of the great purposes of marriage is procreation."); Lyon v. Barney, 132 Ill. App. 45, 50 (1907) ("[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . ."); Grover v. Zook, 87 P.638, 639 (Wash. 1906) ("One of the most important functions of wedlock is the procreation of children."); Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980), aff'd 673 F.2d 1036 (9th Cir. 1982) (observing that a "state has a compelling interest in encouraging and fostering procreation of the race");

A New Jersey court waxed lyrical on this point: "Lord Penzance has observed that the procreation of children is one of the ends of marriage. I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth." Turney v. Avery, 113 A. 710, 710 (N.J. Ch. 1921)

Some evidence on the anthropological point: "Although the details of getting married -- who chooses the mates, what are the ceremonies and exchanges, how old are the parties -- vary from group to group, the principle of marriage is everywhere embodied in practice. . . . The unique trait of what is commonly called marriage is social recognition and approval . . . of a couple's engaging in sexual intercourse and bearing and rearing offspring." Kingsley Davis (ed.), Contemporary Marriage: Comparative Perspectives on a Changing Institution (New York: Russell Sage Foundation) (1985).

"Marriage is a universal social institution, albeit with myriad variations in social and cultural details. A review of the cross-cultural diversity in marital arrangements reveals certain common themes: some degree of mutual obligation between husband and wife, a right of sexual access (often but not necessarily exclusive), an expectation that the relationships will persist (although not necessarily for a lifetime), some cooperative investment in offspring, and some sort of recognition of the status of the couple's children. The marital alliance is fundamentally a reproductive alliance." Margo Wilson & Martin Daly, Marital Cooperation and Conflict, in Evolutionary Psychology, Public Policy and Personal Decisions 197, 203 (Charles Crawford & Catherine Salmon eds., Lawrence Erlbaum Assoc. 2004)

Its certainly possible, guys, to argue that marriage's public purpose has changed, or is no longer relevant, or that same-sex marriage doesn't threaten this interest.

But really not to say that I'm just making up this whole procreation and marriage thing.

Aaron C. (mail):
Why do we need government marraige to encourage procreation?
10.17.2005 2:54pm
Steve:
The ball keeps moving. Last post procreation was THE fundamental purpose of recognizing marriage. Now it is just "an" important public purpose.
10.17.2005 2:56pm
Goober (mail):
This is either inexcusably dim or willfully dishonest. Perhaps I'm missing an odd outlying comment at the other post, but from my read of the comments there no one's accusing you of imagining or "making up" the importance of procreation. I think it's a reasonable assumption that anyone here who ever had a mother and father would agree with you and the decisions quoted to that trivial point.

The point your interlocutors are making---and that you're ignoring, so far---is that marriage is not justified solely by that reference to procreation. Intimacy, commitment, the raising of children by adoptive couples in addition to the begetting of them by breeding couoples, etc., also justify the institution of marriage. And gay couples are implicated by those commitments as much as straight couples.

(There's the additional point that even if you thought only the breeding of babies justified marriage, it wouldn't be sufficient reason to say that gay couples couldn't marry either, because it wouldn't inhibit straight couples from their continued breeding.)
10.17.2005 2:59pm
Guesty Guest:
If not to encourage procreation and the formation of nuclear families to raise children, why does the government have any interest in giving tax breaks and legal benefits to married couples? Love and commitment is wonderful, but if that's all that's going on, why do I have to pay for it?
10.17.2005 2:59pm
Mschette:
You again miss the point that marriage has also always served to encourage, not just loving homes for children (and not intimacy), but monogamy. We would face serious societal costs if the norm were not one of monogamy. The institution of marriage perpetuates this norm -- and it's applicable to both homosexual and heterosexual relationships.
10.17.2005 3:02pm
Crane (mail):
So, given that procreation is an important public purpose for marriage, why is it that straight couples who cannot or will not procreate (due to their being elderly, infertile, and/or child-averse) are allowed to marry? I've never heard anyone argue that the marriage of two 80-year-olds was a threat to the institution. And gay couples certainly adopt, or contract with sperm donors/surrogate mothers.
10.17.2005 3:03pm
EstablishmentClaus (mail) (www):
To (briefly) extend Mschette's point, given that some studies indicate homosexual sex may be more likely to transmit STD's than heterosexual sex, the norm of monogamy may be MORE important in homosexual relationships.

And in this case, 'important' includes but is not restricted to 'useful in decreasing public health costs.'
10.17.2005 3:09pm
Guesty Guest:
Mschette:

The institution of marriage perpetuated this norm long before the government got involved in the marriage business. We don't bestow special government benefits on any status that is generally beneficial to society. Maybe we should have different, more confiscatory tax brackets for convicted felons? How about less taxation of non-smokers and people with BMIs below 25? Furthermore, if monogamy of any kind were the ultimate goal, why didn't societies that were far more accepting of homosexuality, like ancient Greece and Rome, allow same-sex marriage?
10.17.2005 3:10pm
Anderson (mail) (www):

Its certainly possible, guys, to argue that marriage's public purpose has changed, or is no longer relevant, or that same-sex marriage doesn't threaten this interest.
Okay, but as other commenters have noted, this doesn't get you very far. Let's concede your point. What next?
10.17.2005 3:11pm
speedwell (mail):
Nice bibliography.

When are you going to get around to the evidence you mentioned?
10.17.2005 3:11pm
Crane (mail):
Speaking of couples that use sperm donors and surrogate mothers to procreate, why should there be a legal difference between couples that require such assistance because one party is infertile and couples that require it because both parties are of the same gender? Both types are procreating, after all.
10.17.2005 3:11pm
Jamesaust (mail):
Lots of things are cited by Courts.

Evidence a Kansas Court of Appeals case in 2004 alleging that the very survival of the human species was at stake in upholding the conviction of an 18 year old who had oral sex with a 14 year old to 17 years in prison because they were the same gender when state law creates an express exception of 15 MONTHS for opposite genders.

Moreover, I note again "a" purpose is not "the" purpose. How do marriage rights for same-sex couples interfere with them or other couples raising children? You're incoherent on this critical point.
10.17.2005 3:13pm
Public_Defender:
Is the State's interest in procreation why the State traditionally authorized men to coerce their wives into having sex (called "rape" when the victim was not the offender's wife)?

This "tradition" did not end until the last few decades.
10.17.2005 3:16pm
Medis:
Having read Maggie's article, I wonder why she isn't bringing up the "social meaning" argument that was really her only explanation of how gay marriages threaten straight/procreative marriages.
10.17.2005 3:20pm
Thales (mail) (www):
A more basic question: What fundamentally differentiates historical opposition to interracial marriage from contemporary opposition to gay marriage? You can no doubt list a string of citations dating from the 18th century forward purporting to elucidate the purpose of anti-miscegenation laws, but where does this get you? As a matter of policy and reality, large numbers of women working outside the home, legal and effective contraception, and easy divorce, among many other developments have all but erased the tenets of traditional marriage. To try to hold back the tide by opposing an incremental granting of the same rights to same-sex couples is both arbitrary and mean (and yes, I do think that those who oppose legalizing gay marriage on legislative grounds are mean at best, hateful bigots at worst). Stopping gay marriage won't take us even a small step back to the mythological world many social conservatives wish that we inhabit.
10.17.2005 3:22pm
AF:
From a legal point of view, Gallagher has proven there's a rational basis for marriage to be limited to heterosexuals of child-bearing age. And therefore, under current equal protection doctrine, that a law limiting marriage to heterosexuals of child-bearing age would be constitutional. What she has NOT proven is 1) whether there's a rational basis for allowing heterosexuals above child-bearing age, but not homosexuals, to marry, and, more importantly, 2) why we shouldn't permit homosexuals to marry, even if we aren't constitutionally required to.
10.17.2005 3:27pm
Tony Kennedy:
Maggie, why do you so narrowly cite only U.S. law? As I explained in Lawrence, we need to know what the Belgians and Swedes are up to.

Maybe Islamic sharia can help tell us how to deal with polygamy, too. What's that? They're not too fond of same-sex unions? Well, then scratch the Sudanese research, and stick with the Swedes. What? Why choose only certain countries? Umm, because, umm . . . hey, Breyer, help me out here!
10.17.2005 3:31pm
Crane (mail):
Another basic question:

What is Maggie Gallagher's position on civil unions? (Civil unions essentially being marriages with all the rights, responsibilities, and privileges thereof, but under a different name.) If gay couples are allowed to become families in the eyes of the law, even without the name of marriage, will that threaten straight families?
10.17.2005 3:31pm
HeScreams (mail):
Ms. Gallagher --

It seems like the only way to get any traction with this crowd would be to:

1) Defend your argument that a homosexuals should not be married because their relationship is non-procreative and does not further the interests of children in the face of the existence of a) homosexual couples that do raise children, b) no-fault divorce, which frequently hurts children, and c) heterosexual couples that do not pro-create.

and possibly

2) Defend claims that allowing homosexual marriages somehow damages heterosexual marriages.

These points seem to be the most repeated in the comments on all your posts so far. Making these arguments might get a few people constructively engaged, although I fear there's still going to be a fair amount of hostility from some.
10.17.2005 3:33pm
Richard Bellamy (mail):
Okay. You got the cites. But did you read the cases?

They all either say, "Procreation is important in marriage," and therefore go on to hold something we don't believe anymore, or they say, "Procreation is important in marriage," but not as important as something else.

Just the first few:

Baker v. Baker: Because procreation is important for a guy, husband can divorce wife who gave birth four months after marriage, from another man.

Davis v. Davis: Because procreation is important, marriage is annulled after three years because husband did not disclose he had tuberculosis, which a in-wedlock baby died of.

Sharon v. Sharon: Procreation is one of the two important ends of marriage. The other is sex. Therefore, the hidden marriage was real because there was sex -- even though there were no procreation.

Poe v. Gerstein: "Procreation could be considered one of the most important things," but it nonetheless is not important enough to require a wife to get her husband's consent before getting an abortion.

You get the point. Sure, procreation is important, but it never actually GETS you anywhere. Or, if it gets you somewhere, it gets you a divorce. These are NOT examples where the importance of procreation is used to PROTECT marriage.
10.17.2005 3:33pm
Rikersam (mail):
The question is not simply about marriage. The question is whether it makes sense to give any two adults who are not closely related the right to enjoy the legal benefits that today go to married couples. Laws are not used according to their intent, but rather according to their possibilities. Why is it reasonable to assume that only people who are romantically involved will sign a marriage contract? This is possible nowadays, so long as the two friends are not of the same sex, but there is a social taboo againse it which minimizes the cases in which that happens. That will probably change in the future.

Perhaps many of the legal incidents of marriage should only go to married couples with children. After all, that's the logic of it. Pension benefits, health benefits, etc go to the partner of a married person because, traditionally speaking, the partner would be a woman who did not work (and hence had no other access to health insurance or pension benefits) and who more often than not was at home with kids.
10.17.2005 3:34pm
Jamesaust (mail):
I believe AF has put a finger on it. IF marriage was an institution created for a couple upon the birth of a child and ending with that child's (or their other children's) reaching adulthood, granting various benefits of use to raising the next generation, I would say society was living up the courage of its (and her) convictions (I would disagree with the policy but that's just me).

This is not what the institution does. Either the institution needs to change (be limited) to its purpose or Maggie needs to go back to the drawing board and think up a different purpose.
10.17.2005 3:35pm
Gordon (mail):
I think the monogamy policy argument is the best for marriage in today's world, as well as yesterday's. And monogamy cuts across the hetero/homosexual divide.

As for child-rearing, I don't think this argument is defeated just because some heterosexual couples can't or choose not to have children. But conversely, is there any social science data regarding the outcomes when a same sex couple adopts, or uses other methods (the "turkey baster" cases come to mind!) as to the well-being of the child? Or is this social phenomenon still too new?
10.17.2005 3:40pm
akiva eisenberg (mail):
It is intriguing to note that none of the legal citations were more recent than 30 years ago.

Can/should society compel marriage in the case of a birth "out of wedlock?" (Actually, it used to, by legal and social means.)

Should infertility of one party be sufficient cause for the dissolution of marriage?

Should fertility testing be a prerequisite for marriage?

Should singles be allowed to adopt?

What is the social value of monogamy?

Have there been successful non-marriage or polygamous societies?

Is it possible to unequivocally point to a benefit of marriage which is unique to that institution, and not replicable by another mechanism?

Will making marriage more inclusive somehow reduce the efficacy of marriage as a propogation promoter?

What is the proportion of out-of-marriage births to the total number of births in this country?

As many commentators have noted, "tradition" is a weak instructor. Much of what passes for "tradition" was survival oriented - in non-marriage societies, one could never know who the father of a given child was. The mother was usually incapable of supporting herself and her children. By creating a religio-legal obligation of father to his probable child, the chances of surviving progeny were increased. Indeed, "bastards" were traditionally driven out of the house or otherwise abandoned.

I find it intriguing that the license of clergy to perform marriages ("consecrate marriages", no less) has never been seriously attacked as a gross breach of State-religion boundaries. I can't imagine that this will last long. Such an attack (can you pronounce "ACLU") will force an examination of the true justification for marriage in a high-tech, socially permissive society.

I feel somewhat strange making these observations, having a fundamentally religious approach to ethics and life. On the other hand, it should be productive to clearly deliniate between, and be honest about, the emotional, religious, and secular issues at play here.
10.17.2005 3:41pm
Medis:
Jamesaust,

If I may add my own gloss to the same argument: clearly the scope of marriage is overbroad on this view. Gay marriages would also make the scope of marriage overbroad on this view, but then the question remains why this particular overbreadth is somehow more problematic than all the others.

To use Maggie's terms, sure, gay marriage would represent a less-than-perfect fit between this particular purpose and the institution of marriage. But we have never demanded such a perfect fit before ... so why start now with gay people?
10.17.2005 3:43pm
My gay family:
Gordon said: "But conversely, is there any social science data regarding the outcomes when a same sex couple adopts, or uses other methods (the "turkey baster" cases come to mind!) as to the well-being of the child? Or is this social phenomenon still too new?"

These might be of interest by the APA:
http://www.apa.org/pi/parent.html
http://www.aclu.org/GetEqual/par/Tools.htm
10.17.2005 3:45pm
Goober (mail):
Mr. Bellamy makes a nice point.

I'd add that this whole conversation was started with Ms. Gallagher's hope that:


In the process, maybe some advocates of gay marriage will understand why, quite apart from any disagreement about sexual orientation, so many Americans are deeply disturbed by the idea of gay marriage.



And note that, according to many of the commenters here as well as myself, she hasn't made a very big contribution on that front. Instead, it seems she's merely defended the argument that marriage is important---but if anyone disagrees on that, it's surely not those who think the important institution of marriage should be opened to gays, as well!

So if Ms. Gallagher is still reading the comments here, I'd ask her to explain precisely what about allowing homosexuals to marry causes her and other Americans to be "disturbed."
10.17.2005 3:47pm
Medis:
Gordon,

You have to define your contrast class. When, say, a gay couple adopts a child, what is our alternative for the sake of comparison? Is it the same child being adopted by a straight couple? Or is it the same child being raised by the state?

Or when a gay couple has a child through "artificial" means, is the alternative those two people having children with other people inside straight marriages? Or is the alternative those two people having no children at all?
10.17.2005 3:50pm
AF:
Medis, we don't require a perfect fit, but when a law is harmful an unpopular social group, we require an rational explanation why -- and mere animus toward the group doesn't count. See Romer and Lawrence. So the issue isn't whether current marriage laws perfectly reflect the social purpose of encouraging procreation; it's whether there's any reason gays, but not other non-procreators (like women over 65) should be excluded from marriage.
10.17.2005 3:51pm
Hans Bader (mail):
With the advent of DNA testing, you don't need to get married to establish the parenthood of the child. Thanks to politically-correct divorce laws, state-recognized marriage actually undermines the likelihood that some fathers and their children will remain part of one family unit.

The primary consequence of getting legally married today (at least for the young -- the elderly may legitimately use marriage to ensure that assets passed untaxed to loved ones under marital exemptions to the estate tax) is to effectively redistribute property from husband to wife in the event of a future termination of the relationship. That does does nothing to promote the stability of the relationship, given that it is already the wife who is more likely to initiate a divorce anyway.

State-sanctioned marriage only benefits kids when it reinforces, rather than undercuts, the couple's relationship.

But that is only true in states that limit benefits for spouses who unilaterally end the marriage (which most states don't).

In many states, divorce law -- which applies only to those who are rash enough to get married in the first place -- actually increases, rather than decreases, the likelihood that a relationship will end, typically by giving the member of the pickier gender -- the wife -- an incentive to terminate the relationship. (In every state, two-thirds or more of divorces are sought by the wife (typically no-fault divorces), not the husband, and the proportion is even higher when the couple has children).

In most states, a wife can unilaterally seek a divorce, and then get alimony regardless of whether the husband was at fault, or even if she cheated on him. (In most states, fault theoretically cannot be considered in alimony decisions, although it plays a minor role in practice. In practice, alimony is heavily tied to gender: husbands -- even poor husbands who sacrificed earnings potential in order to perform household tasks -- almost never receive alimony except in one state (California), while wives often do, even when they are middle-class or wealthy. Even in California, poor men receive smaller alimony awards than similarly-situated women).

That broad entitlement by wives to receive alimony eliminates a disincentive for ending the relationship, since the wife can get the benefits of the relationship (her husband's income) without the costs (being married to the boring fellow).

That isn't true among unmarried couples, where a wife can't touch her husband's income or assets after they break up. Among unmarried couples, if the woman wants to continue to enjoy the man's living standard, she has to stay with him and put up with his annoying male quirks. That's an incentive to stay in the relationship and try to work things out.

So state-defined marriage has much less of a connection to effective child-rearing today than it once did.
10.17.2005 3:56pm
Medis:
AF,

I thought we were having a policy discussion, not a constitutional discussion. I think your constitutional analysis is basically correct after Lawrence, barring someone actually coming up with a decent argument about the unique threat posed by gay marriage (and at this late date, I don't expect one to arise). But my point was more that since I didn't see a compelling policy argument against gay marriage, we should conclude as a matter of policy that they should be allowed to marry, whether the Constitution requires that result or not.
10.17.2005 4:01pm
Dilan Esper (mail) (www):
Nobody denies that a fundamental purpose of marriage is procreation. Ms. Gallagher did not need to string together a bunch of citations to caselaw to establish that.

But the relationship between marriage and procreation proves absolutely nothing, for several reasons:

1. Gays and lesbians procreate, and are legally entitled to adopt children as well as to conceive them through artificial insemination and surrogacy. Same-sex marriage thus serves the same procreative purpose as opposite-sex marriage, i.e., to facilitate these children growing up in two parent households.

2. The fact that procreation is a primary, fundamental purpose of marriage proves too much, because society does not limit the benefits of marriage to procreative couples. Many married couples are childless, and they are given the exact same benefits that married couples with children get. Thus, even if we assume that gays and lesbians have no procreative interest in marriage, the question is whether nonprocreative same-sex couples should be entitled to the same benefits as nonprocreative opposite-sex couples. The fact that marriage's primary purpose is procreation is completely irrelevant to that question.

3. The subsidiary purposes of marriage are as important as the procreative purpose. While it is true that the primary purpose of marriage may not be to reduce the spread of STD's, that doesn't mean that reducing the spread of STD's isn't a good reason to promote marriage. Other good reasons to promote marriage include encouraging couples to stay together and plan futures together and reducing patronage of sleazy sexually oriented businesses. All of these things apply to same-sex as well as opposite-sex unions. And they are important and fully justify same-sex marriage even in the absence of procreation.

4. The purposes of marriage have changed over time. At one point, marriage was all about things like property rights and cementing ties among aristocratic families. It was probably also, to some extent, about preserving racial purity, at least among whites. Now, it's much more about love. Similarly, the fact that procreation has long been recognized as a fundamental purpose of marriage does not mean that this should be cemented in place for the rest of time. Times change, and simply pointing to historical practice doesn't really justify how we should think about marriage now.

5. Marriage is simply less central to childrearing now than it was in the past. Mothers are in the workforce in far greater numbers. Children are taken care of in daycare. Social stigmas against single motherhood have receded. Ms. Gallagher and other conservatives may decry these events, but they have happened, and things are really not going to go back to the way they were. The connection between marriage and procreation was much stronger when women were expected to take care of their children at home and needed a breadwinner (and legal arrangements to ensure that the breadwinner would continue to support his children).
10.17.2005 4:13pm
DMN:
In the process, maybe some advocates of gay marriage will understand why, quite apart from any disagreement about sexual orientation, so many Americans are deeply disturbed by the idea of gay marriage.

Following up on Goober's post, as the evidence shows thus far, there are no logical objections to gay marriage which do not stem from that element Gallagher excludes from her above point: homophobia.
10.17.2005 4:17pm
AF:
Medis, if we're having a policy discussion, it hasn't even started, as I said in my first post. Gallagher's (obvious) point that procreation is a fundamental purpose of marriage does no more than prove that there's a rational basis for limiting marriage to procreators; it doesn't prove that we should do that, let alone that we should allow heterosexual non-procreators to marry but not gays.
10.17.2005 4:21pm
cdow (mail):
Who needs marriage for pro-creation? In this day in age all you need is genetic matter in a test-tube and in vitro fertilization. Marriage is till important in terms of creating a legal and economic relationship, but I don't think it's primarily about pro-creation in this day in age.
10.17.2005 4:24pm
Cold Warrior:

"The great end of matrimony is . . . the procreation of a progeny having a legal title to maintenance by the father." Laudo v. Laudo, 197 N.Y.S. 396, 397 (App. Div. 1919)


Maggie Gallagher offers this as proof of her point: "that procreation is an important public purpose for marriage ... ."

But read the quote again: did the Court find that procreation is "an important public purpose for marriage?" Or did it find that marriage provides an important legal mechanism for assigning paternal obligations?

I'm sure you'll find that it is the latter.

And this is sloppy, sloppy, reasoning. Indeed, it is an example of what happens when you give a nonlawyer access to the legal research databases of LEXIS.

Not only is it sloppy. It doesn't even prove the point. At best it proves that numerous judges from 1850 to 1980 cited "procreation" within the same sentence as "marriage." And on precisely what historical record did (for example) a New York probate judge in 1919 decide that "procreation" was a prime reason why the people of the Fertile Crescent developed this curious institution called "marriage?" Or why the Roman Catholic church deemed marriage one of just seven sacraments?

This is not evidence.
10.17.2005 4:25pm
dk35 (mail):
Re: the procreation argument.

I'll make a deal with Gallagher. If she agrees that she has no right to marry once she is post-menopausal, I will abrogate my right to marry another man.

Will she take me up on the deal? If not, I think we safely put this argument aside, and move on to something else. It really is that simple, folks.
10.17.2005 4:30pm
Medis:
AF,

Right, we agree about that. Maggie hasn't begun to answer the most basic questions underlying her argument.

I'll just note that she does try to answer some of those questions in her article (with a "social meaning" argument). I actually don't think that argument amounts to much more than repackaging what we have already discussed (allowing gay marriage is bad because that would be overbroad ... but so what?). Still, I took her to be making some sort of policy argument, or at least to be trying to explain what underlies her policy preferences.
10.17.2005 4:37pm
Paul Gowder (mail) (www):
"Its certainly possible, guys, to argue that marriage's public purpose has changed, or is no longer relevant[.]"

Yes, it is. I believe I and others have articulated just such an argument, viz. "the earth is overpopulated, there's hordes of immigrants literally dying to get into the U.S., we simply don't need the babies." Will you answer it?
10.17.2005 4:44pm
tylerh (mail):
I am not a lawyer, so I'm not sure how to decode all those cites.

Are you arguing that my colleague with a infertile wife is not really married? What about my perfectly healthy Aunt and Uncle who *chose* to remain childless?

I had always considered both of these couples to be successfully, happily married. Neither ever has nor ever will procreate. Should they be disallowed certain marital rights because they refuse to puruse the purpose for which you seem to claim their marriage was legally constituted?
10.17.2005 4:55pm
Adam (mail) (www):
10.17.2005 4:56pm
chris (mail):
dk35,

Post-menopausal women are still fundamentally women. They happen to be over 50 (or whatever) but they ARE women. They are still able to have sex in the manner which produces children. Two men are fundamentally unable to have children as a couple. In fact, I would say they are unable to actually have sex, but can (and do) attempt the closest approximation they can achieve.

Paul Gowder,

As a practical matter, if the pro-gay marriage people are literally going to argue that we don't need babies, that babies are actually a bad, then, please, by all means keep arguing this loudly.
10.17.2005 5:03pm
jACKJOHN (mail):
activists? That doesn't -- theoretically -- weaken your position. It only weakens it politically. Don't be so cynical.

Have some principles.
10.17.2005 5:08pm
Crane (mail):
chris said,

Two men are fundamentally unable to have children as a couple. In fact, I would say they are unable to actually have sex...

Off-topic, does this mean you think Bill Clinton was telling the truth when he said he had never had sex with Monica Lewinsky? Oral sex certainly doesn't produce children.
10.17.2005 5:09pm
Adam (mail) (www):
They are still able to have sex in the manner which produces children.

Two questions:
1 -- what about men suffering from untreatable erectile dysfunction, commonly known as E.D.? Can they get married?

2 -- wait, have we now gone from marriage being a good thing because it *does* create children, or now the lesser standard of encouraging it because it encourages penis-vagina contact?
10.17.2005 5:11pm
Richard Bellamy (mail):
Also:

"The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis."

If I remember my Genesis correctly (Rachel/Leah), the institution of marriage did not stop with the union of man and womAn, and also (Sarah/Hagar) did not stop the man from having children with others or, occassionally (Sarah) loaning his wife out to a nearby potentate.

If we're looking for a conservative view of marriage, we should probably stop a few years short of Genesis.
10.17.2005 5:12pm
Crane (mail):
First the linking doesn't work, now I find my entire post in italics when I only meant to italicize the quoted bit. I'm beginning to think the formatting buttons here don't like me.

Returning to the topic, will we see a fourth post from Ms. Gallagher answering the main questions that have been raised here?
10.17.2005 5:12pm
corngrower:
This is called prenumbra (sic). If a person here wants to have the legislature grant privleges to same sex couples, lets just do it. But the law thats out there does not support the argument constitutionaly, judges do not have the authority to grant those privleges. Not a single line of the constitution allows the courts input into this discussion.

I care less, but the courts dont count in this unless one poster could quote the constitution.
10.17.2005 5:17pm
anothereugene (mail):
Post-menopausal women are still fundamentally women. They happen to be over 50 (or whatever) but they ARE women. They are still able to have sex in the manner which produces children. Two men are fundamentally unable to have children as a couple. In fact, I would say they are unable to actually have sex, but can (and do) attempt the closest approximation they can achieve.

I think that gay men can "approximate" sex more closely than post-menopausal women can "approximate" procreation. This new standard -- "ability to have sex in the manner which produces children" -- just seems nonsensical. Where's it coming from, and why is it useful?
10.17.2005 5:22pm
Cold Warrior:

Why do we need government marraige to encourage procreation?

Indeed.

Note that many of Ms. Gallagher's case citations are provide an economic or demographic argument in support of marriage, e.g.:


Lyon v. Barney, 132 Ill. App. 45, 50 (1907) ("[T]he procreating of the human species is regarded, at least theoretically, as the primary purpose of marriage . . .")


or her favorite:


I do not hesitate to say that it is the most important object of matrimony, for without it the human race itself would perish from the earth." Turney v. Avery, 113 A. 710, 710 (N.J. Ch. 1921)


I cannot begin to describe the idiocy of using such arguments to denounce, on moral grounds, gay marriage.

Indeed, this type of argument plays right into the hands of Gallagher's opponents. As one commenter noted (above), assume there is a consensus opinion that the world is, in fact, overpopulated. (There is no such consensus, but play along.) Wouldn't that support an argument in favor of gay marriage? Indeed, wouldn't that support an argument in favor of exclusively gay marriage, since heterosexual marriages tend to exacerbate (to a greater degree) the overpopulation problem?

Gallagher provides an ostensibly moral argument against gay marriage, and hopes to support it with economic arguments on the (presumed/unsupported) utility of heterosexual marriage.

What a mess.

This is not an argument.

It is a tantrum.
10.17.2005 5:31pm
TRC:
HeScreams and AF:

The strongest policy based argument against same-sex marriage comes from Stanley Kurtz, who shows that that the introduction of same-sex marriage (in Scandinavia and elsewhere) has led to fewer straights getting married and more children being reared in single-parent households. A dilution theory attempts to explain the putative transformation: The theory is that broadening the definition of marriage effectively dilutes the perceived social importance of marriage and, consequently, fewer straights want to get married. Regardless of validity of the theory behind the effect, social science research suggests that our society (and others) that contemplate introducing same-sex marriage at the national (or state) level ought to consider the consequences of doing so, and that people who want to argue that same sex-marriage is not bad (and perhaps even good) for children should offer-up contrary empirical evidence in support of their assertion.

Signed,

A Libertarian Who Is Dubious About Same-Sex Marriage

Links to Kurtz's argument can be found at:

http://www.weeklystandard.com/Content/ Public/Articles/000/000/003/660zypwj.asp

I have opined about the economic implications of same-sex marriage on the Becker-Posner Blog at:

http://www.becker-posner-blog.com/archives/ 2005/07/on_gay_marriage.html#c062148

Gotta go, I am at work right now.
10.17.2005 5:33pm
Houston Lawyer:
People keep arguing that the current law discriminates against gays. I am aware of no laws that say that gay people can't get married. We have several laws on the books that do limit who any individual can get married to. You can't marry someone of the same sex. You can't marry one of your parents or a sibling. You can't marry someone who is already married to someone else. You can't marry someone who is under the age of consent. Marriages must also be of an indefinite term. You can't get married for a year only, or go month-to-month. Do proponents of gay marriage think that these laws should be repealed as well, or just the ones that are inconvenient to you?
10.17.2005 5:35pm
WB:
So... Ms. Gallagher is just laying the groundwork, I think. I haven't seen an argument yet.


Get over yourselves and wait for the substantive posts.
10.17.2005 5:38pm
MarkW (mail):
The problem is, as others have already noted, that you are repeatedly equivocating between claiming that procreation is a purpose of marriage and that it is the purpose. The former is relatively uncontroversial, but it is not an argument against gay marriage. The latter is a very dubious claim, and barring very strong evidence of its validity, not a legitimate argment against gay marriage, leaving you still lacking one.
10.17.2005 5:40pm
chris (mail):
Adam,

Actually, the Catholic view of marriage is that people who cannot have sex from the get go cannot be married and I agree with this. They might be great friends, life partners, whatever, but they aren't married. Marriage involves sex. It always has. Married couples who used to have sex, but can no longer, are still married since they have, as part of their marriage, this history.

As for the comments regarding encouraging penis-vagina contact: step back and see how ridiculous this sounds. The current view on this thread seems to be that sex comes in all sorts of flavors, like ice-cream. Without being overly graphic, there's gay sex, oral sex, penis-vaginal sex and so on. They're all sex. But this is fundamentally nuts. It should be clear that one is the real thing and the others are playtime.

(As for Bill Clinton, I think he said something which was technically true but intended to get the listener to believe that which was not true. His statement was intended to get the listener to believe that there was no genital contact of any kind. Saying things with such an intent is still lying in my book.)
10.17.2005 5:41pm
AF:
Houston Lawyer: Care to explain whether you agree with Loving v. Virginia?
10.17.2005 5:41pm
Slippery Slope:
"How does gay marriage threaten me" You ask?
The answer I hear most often is that this is a slippery slope. Gay marriage would lead to polygamy would lead to inter-special marriage and so the argument goes.
What I find amusing is that this is the mirror image of the rationale most often used by the pro camp: that banning gay marriage is pure discrimination no different from anti-miscegenation and the sexist laws of yesteryear.
Both camps seem to be saying that gay marriage falls on a sliding scale between marriage exclusivity and inclusively. The whole debate moves the bar of "acceptability" back and forth on this scale. The same people who argue against gay marriage using the reductio ad absurdum of man marrying dog would have, in an earlier age, argued against inter-racial marriage with reductio ad absurdum of man marrying man.

The argument I refer to is not a legal one, it is a moral one. But any quest to find legal "precedent" for the definition or purpose of marriage in Judeo-Christian communities of Historical Europe or the proto-societies of the Fertile Crescent also has more to do with their morality than their law.
I believe the point of argument you are questing for is a lot more basic and far-reaching than legality of gay marriage. It's about whether law should be based on morality, or the other way around.
10.17.2005 5:45pm
Richard Bellamy (mail):


To summarize, Ms. Gallagher had found a long list of cases in which one spouse wants to have children, and the other doesn't. The court then let that couple divorce on the grounds that having kids is important.

Name another reason people get married, and I'll give you a string cite of cases that show that it is an important public purpose of marriage.

If you tell me that the primary purpose of marriage is to legitimizing pre-existing bastard offspring, I could give you string cites out the wazoo!
10.17.2005 5:45pm
Rickersam (mail):
In states where gay marriage is legal may I marry my business partner to keep from being forced to testify against him?
10.17.2005 5:46pm
SuperChimp:
Although I don't subscribe to this line of reasoning, what about this argument (once used in the argument against interacial marriages)...

Since there remains a stigma to homosexual relationships, legalizing gay marriages would harm children growing up in homosexual homes.
10.17.2005 5:47pm
Lou Wainwright (mail):
Maggie,

Echoing other posters, you haven't made an argument against homoesexual marriage yet. I agree with HeScreams above, you need to target your posts to the responses to the arguments against homosexual marrage, not just repeat the arguments themselves, if you want to get a better response.

For example:
Position: Homosexuals should not be married because their marriage is non-procreative.

Responses:
1) Man/Woman non-procreative couples have full marriage rights.
2) Gay marriages can have the same degree of genetic procreatation as a hetero couple that has one infertile partner (i.e. using donated eggs or sperm).
3) If Government encourages marriage primarily as a way of increasing the number of babies born and living with committed man/woman pairs:
a) then why doesn't it also strongly negatively incentivize divorce, single parenthood, unmarried couples procreating, or singles or couples or gays adopting?
b) and how does increasing the population of married gays reduce the number of married man/woman pairs or their fecundity?

Your responses to these points are necessary if you want to be viewed as having an effective argument against gay marriage.
10.17.2005 5:48pm
Mschette:
Well said, MarkW.
10.17.2005 5:54pm
Lou Wainwright (mail):
I just had to respond to this one. From Rickersam:

"In states where gay marriage is legal may I marry my business partner to keep from being forced to testify against him?"

Shockingly this is legal TODAY! That's right, it's perfectly alright to marry your business partner for the purpose of claiming spousal priviledge (although I might tell the Judge it was for something silly like love). I'm a little surprised Rickersam didn't know this, but then again he probably just never considered that a man might have a female business partner.
10.17.2005 5:55pm
Roach (mail) (www):
I had some longish blog entries on this subject

Here: http://www.affbrainwash.com/chrisroach/archives/013219.php

Here: http://www.affbrainwash.com/chrisroach/archives/013217.php

and here: http://www.affbrainwash.com/chrisroach/archives/013216.php
10.17.2005 5:56pm
Challenge:
Most gays never intend to get "married." Though I am sure they would like to have the option, just in case.

I think gay marriage is a shortcut to something they do desire--societal acceptance and the normalization of homosexuality. That is a wrongheaded approach, crying for a "right" you don't even want is not bound to be too persuasive when the public discovers your motives.
10.17.2005 5:56pm
Jamesaust (mail):
Rickersan -

Query: "...may I marry my business partner to keep from being forced to testify against him?"
Answer: Yes, just as you can marry your business partner to keep from being able to testify against HER (as it is, was, and ever shall be).
10.17.2005 5:59pm
Rickersam (mail):
My point is that if spousal protections go to homosexual couples it will be much easier to marry one's business partner when men may marry each other and womem may marry each other. I didn't think I needed to state the obvious. Next time I guess I'll be sure to belabor the point.
10.17.2005 6:06pm
Leeron:
I'm sure all the lawyers and law students here are now convinced. After all, as any 1L can tell you, there's nothing more persuasive than a string cite.
10.17.2005 6:06pm
paa:
Challenge: I know a lot of gay people who actually want to get married, period, for its own sake. Your argument is based on a straw man, and a factually inaccurate one at that.

It still does not demonstrate why gays should be denied marriage rights.
10.17.2005 6:07pm
Challenge:
I think that marriage is increasingly serving two purposes--friendship or companionate love and a stable economic and social unit for the rearing of children.

Now there may be some reason to subsidize companionate love, but does anyone have a doubt that the state involvement of marriage is spurred by the latter and not the former?

It just doesn't make sense to grant "equality" to a group which is, on average, so inherently different--not inferior but different. A gay marriage is simply not the same as traditional marriage in a lot of important ways. Traditional marriages are about companionate love, but the regulation of marriage has little to do with that fact. The state has been (and remains to a lesser degree) committed to providing stable economic and social structures that raise children well. Further, a lot of the regulation of marriage was intended to preserve the union and protect women. Though women were an equal partner in marriage they usually possessed less economic clout, thus "alimony" and such. Gay marriage just doesn't fit this mold. Sometimes "discrimination" makes sense. It makes sense to treat different social arrangments differently.
10.17.2005 6:11pm
Adam (mail) (www):
SuperChimp: children will grow up in gay couples' homes regardless of whether gay marriage is legal. Allowing gay marriage ultimately reduces the stigmatization.

Chris: I wasn't aware that our laws were empowered to put in place the Catholic view of sex. What's next -- does Herb Spencer have a new book out?
10.17.2005 6:12pm
Cold Warrior:
TRC writes:


The strongest policy based argument against same-sex marriage comes from Stanley Kurtz, who shows that that the introduction of same-sex marriage (in Scandinavia and elsewhere) has led to fewer straights getting married and more children being reared in single-parent households. A dilution theory attempts to explain the putative transformation: The theory is that broadening the definition of marriage effectively dilutes the perceived social importance of marriage and, consequently, fewer straights want to get married.


And Kurtz's example (assuming he's got his facts straight) provides a perfectly reasonable public policy argument in opposition to gay marriage. It does not do what Gallagher's argument does (note that I read her debate entry in the St Thomas Law Review; this is not based on the slim outline of an argument she provided here): mix moral and functional arguments willy-nilly.

If I recall the Kurtz example correctly, it provides a perfect example of a slippery slope argument: gay marriage was incorporated into Swedish (Norwegian?) law as a kind of domestic partnership "marriage lite." This created a social/legal impetus toward creating the same kind of "marriage lite" for straight couples. The result: two kinds of marriage, Strong Marriage and Weak Marriage, each one creating a different set of rights and obligations.

It is perfectly legitimate and defensible to say that this is a bad social outcome. At the very least, it creates more law, which many of us view as a negative. (But some of us also think the proliferation of business associations -- corporations, general partnerships, limited partnerships, Subchapter S corporations, LLCs -- is also, on the whole, a negative.) So, if true, Kurtz's example provides a solid functional argument for limiting marriage to the traditional arrangements.

Of course, the same logic applies to arguments that no-fault divorce should be eliminated, since marriage followed by divorce also creates uncertainty and upsets settled expectations.

We are still waiting for a sound, principled argument from Maggie ...
10.17.2005 6:12pm
Cornellian (mail):
Yep and the old anti-miscegenation laws prohibiting people from marrying outside their race didn't discriminate against blacks either on this logic, just restricted their choice of who they could marry.

People keep arguing that the current law discriminates against gays. I am aware of no laws that say that gay people can't get married. We have several laws on the books that do limit who any individual can get married to. You can't marry someone of the same sex. You can't marry one of your parents or a sibling. You can't marry someone who is already married to someone else. You can't marry someone who is under the age of consent. Marriages must also be of an indefinite term. You can't get married for a year only, or go month-to-month. Do proponents of gay marriage think that these laws should be repealed as well, or just the ones that are inconvenient to you?
10.17.2005 6:13pm
Challenge:
"I know a lot of gay people who actually want to get married, period, for its own sake. Your argument is based on a straw man, and a factually inaccurate one at that."

Look at where gay marriage exists, participation is abysmal. Maybe American gays are crazy about the idea. Or maybe Dutch gays are not that different from American gays.

Take the big man, Sullivan. I just can't imagine excitable Andy Sullivan getting married. Sorry. Maybe he has written of his desire, but that is something I just haven't seen.
10.17.2005 6:14pm
Jamesaust (mail):
Rickersan -

No need to belabor the point in the future - we got it. It just wasn't a very good point.
10.17.2005 6:21pm
Challenge:
James,

I think it's valid. It is not that common today because marriage is thought to mean something specific and fixed, and marrying for other reasons, like health insurance, is looked down upon. As marriage expands, its meaning becomes less fixed, and it becomes a lot easier to buck the taboo of marrying a friend. Who is to tell me what marriage is and isn't!
10.17.2005 6:24pm
Bruce Hayden (mail) (www):
A poster above questioned the slippery slope. But the reality is that polygamy has a significantly greater record in this country and in our past than does homosexual marriage.

It must be remembered that there are instances of polygamy in the Bible, esp. the Old Testament (and arguably even referenced in the New). Plus, polygamous marriage with up to four wives is specifically allowed today by Islam, one of the major religions of this world, practiced by some billion or so adherents.

Yet all these major religions have traditionally frowned upon homosexual unions. I find it hard to fathom why allowing gay marriage would not open the door to the much more traditionally acceptable polygamy.
10.17.2005 6:27pm
Jamesaust (mail):
Houston Lawyer: "I am aware of no laws that say that gay people can't get married."

Haha. How facetious. What's next: "Let them eat wedding cake?"
10.17.2005 6:34pm
Rickersam (mail):
Challenge gets my point, but since no one is taking up the gauntlet that I have tried to lay down, I'll try one my pass at it. The question is not only whether gay marriage is a good or bad idea, but also whether it is possible. When any two adults who are not closely related and who are not married to some one else may enjoy the legal benefits of marriage, will that provide an incentive for many pairs of adults to get legally married and to do so for reasons that have nothing to do with procreation or companionship. After all, people needn't live together or even talk regularly to be married.

Suppose I get a good government job right out of college, and my best friend struggles to find work. Perhaps we'd get married--so that he could get health benefits. Should either of us find a life partner, we could divorce, and marry the other person. Given the comments to my previous post, I'll note that one could do that today, so long as my friend were a different sex than I. It is terribly unlikely that it would happen, however, because there is a social taboo against it. That could very well change. After all, changes in laws, often change mores, just as changing mores often lead to changes in laws.

Should large numbers of people who are not part of traditional couples (either heterosexual or homosexual for that matter) find that the legal and economic benefits of marriage are useful, and should they be married, marriage will, in effect, no longer exist. Whatever it is called, it will be something else. Various pairs of people will be married, but there will be no common purpose, and, in such a situation, it might well be asked whether marriage should exist at all.

Perhaps the only reasonable solution is for the traditional legal and economic benefits of marriage only to go to couple with children, and for divorce to be more difficult for such couples--heterosexual and homosexual. Given the changes that have taken place in mores and technology, that might be reasonable.
10.17.2005 6:36pm
John H (mail) (www):
OK, but what about the question of procreation RIGHTS for same-sex couples? It is not science fiction or biologically impossible for a lab to somehow fuse the DNA of two women or two men to create a child together, with no third party. They have done it in mice already, and think it is only three to five years away from trying in humans (see my blog for details). But it is surely unethical to attempt this in humans. It took 451 tries to get ONE mouse to survive to adulthood. And there'd be no way of knowing if some developmental defects would effect a human born this way, perhaps much later in their life, even if they seem to be fine. It is not comparable to the debate over IVF risks, as that was simply a question of handling the embryo carefully, not a question of gene expression or how it would affect the relationship of men and women or what it would be like to not have a bio dad or mom.

So, we are going to have to face the issue of should we allow a person to procreate with someone of their own sex. Most people would say no, and certainly everyone agrees that people shouldn't do it with the current technology. The questino of whether or not to allow people to procreate together is the question of marriage. No one that is not allowed to procreate together is allowed to marry (siblings, children, etc) and all couples that are allowed to procreate together are allowed to marry. We can't create marriages that do not have a right, in principle, to procreate together by any method that mgiht be invented. So if we allow SSM, we have to in principle allow SSP (Same-sex procreation), and indeed to fund research into bringing it about.
10.17.2005 6:37pm
Justin Kee (mail):
Obligatory quote:

"Nazi ideology held that homosexuality was incompatible with National Socialism because gays did not reproduce and perpetuate the master race. For the same reasons, onanism was also considered harmful to the Reich, but treated lightly."

Trying hard not to troll, but this debate is just sooooo tempting.
10.17.2005 6:44pm
Challenge:
Kee, I am not amused. When we are talking about MARRIAGE I think it appropriate to discuss abilitity/propensity to procreate.
10.17.2005 6:47pm
Cold Warrior:
Rickersam writes:


Should large numbers of people who are not part of traditional couples (either heterosexual or homosexual for that matter) find that the legal and economic benefits of marriage are useful, and should they be married, marriage will, in effect, no longer exist.


"Marriage" will cease to exist as a state-sponsored union.

Which may actually strengthen "marriage" as a religious-cultural institution.

Which is where it belongs.

In retrospect, we will see today's debate ("gay marriage: yes or no") as just one chapter in the century-long disentanglement of two related concepts:

1. Marriage as a holy union (indeed, as a sacrament in the many Christian faiths)

2. Marriage as a civil status.

The disentanglement began with the loosening of divorce rules and prohibitions on remarriage. That disentanglement is now virtually complete with respect to the traditional (Roman Catholic) churches. A civil marriage is a nullity to the Catholic Church; so too is a civil divorce following a sacramental marriage.

I think the disentanglement is a good thing. The only problem: the state apparatus continues to use the misleading term -- "marriage" -- taken from the religious context, but now meaning something quite different altogether.

This is, again, why I am perplexed by the Catholic Church's opposition to gay civil unions, known by the shorthand "marriage." A gay civil marriage is simply not a "marriage" under Catholic canon law. Neither is a heterosexual civil marriage. Indeed, the gay civil marriage is not some lesser degree of "marriage" than the heterosexual civil marriage. They are both equally invalid and meaningless. Yet the Catholic Church rails against gay marriage but does not seek to strike down the very notion of a civil marriage as insulting to the true meaning of "marriage" as a sacrament.

Perhaps this is all just a cautionary tale regarding State entanglement with religion ...
10.17.2005 6:50pm
Jamesaust (mail):
Challenge --

I'm certainly not trying to tell you what marriage is or isn't. I am pointing out to you that the situation originally put forward has always been accepted with the exception of the gender of the parties. If you're accepting it (marriages of convenience) for one gender pair but not the other, than you supporting a discriminatory distinction. Now, perhaps, you believe that it is a discrimination that is justified. I think the original suggestion had an implication that same-sex marriages might (somehow) be more of convenience than love (or Maggie's procreation). Why this would be escapes me but perhaps you believe gays are less moral (hence, the "looked down on" part) than heterosexuals.

If you believe so (heck, you might even be right), then please just come out and say: "Homosexuals are morally suspect and therefore deserve different (lesser) rights." I won't agree but at least it avoids forming public policy based upon bizarre scenarios. [Wasn't there a Law &Order episode once that involved a son and a step-mother who murder the rich father/husband and then, when the police start snooping, get married so as to claim a spousal priviledge? A suspect marriage to be sure and perhaps unworthy of the "seal of approval" but only so upon an unbigoted basis. Would a lesbian daughter be more morally suspect than a conniving straight son?]
10.17.2005 6:52pm
Challenge:
One question: Are the proponents of gay marriage here really indifferent to being raised by two fathers or mothers rather than a mother and a father?

Gender diversity is probably much more important in raising children than we believe. I know I am glad not that I had two parents but that I had a mother and a father. They taught me different things, and played different roles in my upbringing.

Can anybody here really assert otherwise?
10.17.2005 6:52pm
Rickersam (mail):
On the other hand, if memory serves, in Puritan Massachusetts marriage was a civil affair only. That was part of the reaction against the Roman church. Hence I'm not sure how one can say that having marriage laws is necessarily an indication of state entanglement with religion.
10.17.2005 6:56pm
Challenge:
James, I think you misread the post you are responding to. I am saying the less fixed marriage becomes the more likely people are free to define it for themselves. Society be damned! That means gay marriage is likely to cause an increase in the sort of "covenience" marriages, that is marriage for its legal benefits, that have been discussed here.
10.17.2005 6:56pm
Aultimer:
Rickersam -

Why is it better to preclude M/M and F/F pairs from obtaining benefits available to M/F pairs than to limit availability of those benefits to parents? There's no free-riding problem if you limit the benefits of parenthood to pairs with actual kids.
10.17.2005 6:57pm
Rickersam (mail):
Aultimer. If you look closely, I believe that was my point at the end of my post.
10.17.2005 6:59pm
Challenge:
Aultimer,

That is one solution, but do we want to equally subsidize same-sex and opposite-sex couples? Should society really be indifferent to the possibilities? Males and females are different and bring different qualities, stengths, and weaknesses to the rearing of children. I contend it is better to have that diversity than not. It is therefore rational to subsizidize/regulate only opposite-sex couples.
10.17.2005 7:00pm
Houston Lawyer:
"Yep and the old anti-miscegenation laws prohibiting people from marrying outside their race didn't discriminate against blacks either on this logic, just restricted their choice of who they could marry."

Are you claiming that marriage laws were put into effect solely or even partly to discriminate against homosexuals? We all know that such an inference is preposterous. Most of us know someone who was married and then later determined that he or she was gay. The law doesn't invalidate such a marriage.

There is a distinction between discriminating based upon actions taken vs. discrimination based upon status. Did you ever hear of anyone getting married and then later determining that he was Black?
10.17.2005 7:08pm
Antinome (www):
According to the 2000 census http://www.census.gov/prod/2003pubs/censr-5.pdf there were about 165,000 two person same sex households in the United States with one or more children under the age of 18. It is probably safe to assume this means at least 300,000 kids.

If the purpose of sole or main marriage is to provide a stable environment for child rearing, why is possibility of such an environment denied to these children. It s irrational to believe that their parents will suddenly "go straight" These families exist, they are not magically going to go away. The choice is between gay families that have the right to marry and gays families that don't, not between gay couples and no gay couples. If marriage is good for kids, its good for these kids too.
10.17.2005 7:11pm
Quarterican (mail):
Challenge -

Yes, I'll assert otherwise, and I attempted to insinuate as much on the other thread, but nobody took it up (not that I'm complaining). What I said there was that I admitted I had not read any of the studies demonstrating that having a mother and father was superior than having only one of the pair, but (if for no reason other than pragmatically) I presumed they didn't have anything to say about mother+father vs. father+father or mother+mother. But I'm uncomfortable about this notion that the mother and the father each bring quantifiable, discrete, separate, necessary qualities to the job of parenting, because I'm doubtful - especially with each younger generation - how many parents actually fit into the conventional narrative about the roles of the father and the mother. I'm grateful I had the father and the mother that I did, and (unsurprisingly) I think they did an excellent job of raising me, but their respective genders didn't, I think, have much to do with it. I'm not ready to deny that there are innate personal qualities that correlate strongly with gender, but the different roles/lessons each parent had for me map at best poorly onto what we might consider paradigmatic gender roles; does the range of potentially innate gender difference really dwarf the range of unquestionable individual difference between genders? I still think I ended up with a reasonably full set of tools for living my life, and don't understand this fear that - what, exactly? I'm being honest, I'm not sure...that a child with two mothers will never know necessary fatherly discipline or that one with two fathers will never know necessary motherly nurture?...But this strays perhaps too far afield from this discussion. Hopefully Ms. Gallagher will have more posts exploring the various facets of this issue in greater depth.
10.17.2005 7:13pm
Justin Kee (mail):
(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman

by Maggie Gallagher from The Federal Marriage Amendment: Yes or No?, University of St. Thomas Law Journal, Fall 2005, Volume 2 Number 1

Is the St. Thomas School of Law even approved by the ABA?

Oh, provisionally approved.

Yikes.
10.17.2005 7:15pm
tylerh (mail):
One question: Are the proponents of gay marriage here really indifferent to being raised by two fathers or mothers rather than a mother and a father?

YES. I decode your argument to be "gay marriage is bad for children because children need diverse parents." Gays are first, foremost, and alway, people. No two people are alike. Your argument might be operational for opposing the marriage identical twins , but the differences that you see as so vital to parenting will be be just a real and beneficial in a same sex marriage as in a mixed sex marriage.

To turn this around: Would you oppose a marriage because both parents were working class Irish Catholics who grew up in the same parish? Surely the children would be better off if the state forced more diveristy between the parents...

Also, this "diversity" argument strong endosrse polygamy. Did you intend that?
10.17.2005 7:16pm
Challenge:
Tyler, not individual diversity but gender diversity. I am saying it is better to have both feminine and masculine influence in the rearing of children.

My argument doesn't support polygamy because I only contend a child needs gender diversity--not multiple mother diversity. In fact, that could be construed as an imbalance--too much feminine influence.
10.17.2005 7:21pm
Jamesaust (mail):
Challenge --
I don't believe I misunderstand which comment I responded to but perhaps I misunderstand the comment itself (which honestly isn't all that clear). The point you seem to be making is a 'slippery slope' argument. To your credit, this is a more modest slippery slope argument than is usually made (allow marriage rights for gays and soon you'll have animals marrying animals in polygamous arrangements!! *gasp*).

You (paraphrased): marriage rights for homosexuals unfixes marriage by changing the institution more than we have heretofore already changed it and will lead to less "pure" marriage purposes ('legal goodies').

Again, why this would be so escapes me. For some heterosexuals, it really is very difficult to believe that others who are different in such a fundamental way aren't really all that different, that they aren't motivated for different (sinister) reasons. I have not known this to be true about the homosexuals that I have met nor have I known gay couples to be together for reasons proportionally different than hetero couples (I've known two actually who are together for some very poor reasons but even with an admittedly small sample size that's not any worse than the pathetic straight couples I've known). Indeed, it smells more like simple bigotry, although perhaps unconscious.

What's more, I am unaware of ANY evidence that a mommy and a daddy are "best" as opposed to an alternative stable same sex couple. Nor, even if so, would this be relevant. "Best" would be a loving couple, slightly above average intelligence, well-paid, with adequate time and attention (but not so much as to be stifling), with good moral values, who love each other, and love their child even more. Could you order up about 3 billion of these marriages? We seem to be about 2.9 billion short.

Until that paradise arrives, I'm quite comfortable with the assumption that gay couples are, on average, indistinguishable from heterosexual couples (although I might concede that the men are less monogamous and the women more so than straights).
10.17.2005 7:24pm
Thales (mail) (www):
Where to start with Houston Lawyer:

The point made by me and many others (and to my knowledge unaddressed by any serious opponent of gay marriage) is that the arguments against interracial marriage are precisely parallel.

Prior to Loving v. Virginia, racists (and the courts in the South) reasoned: There is no invidious discrimination here. Blacks may marry just as whites may marry. They just can't marry each other. Moreover, interracial marriage is forbidden by tradition, and we need to protect traditional institutions.

Contemporary opponents of gay marriage reason: there is no invidious discrimination here. Gays as well as straights may marry straights. They thus have equal rights under law. Moreover, homosexual marriage is forbidden by tradition, and we need to protect traditional institutions.

There MAY be sufficient differences between race and sexual orientation that make the above parallel faulty. Given the reams of scientific evidence demonstrating that homosexuality is not (at least without extreme difficulty and discomfort) a choice, and the lack of scientific evidence (i.e. the kind not manufactured by the Weekly Standard, Focus on the Family, and the like) showing a decline in the welfare of children brought up in gay-parent households, shouldn't the onus at this point be on those who want to forbid gays from marrying other gays?
10.17.2005 7:26pm
Shawn:
Challenge:


Now there may be some reason to subsidize companionate love, but does anyone have a doubt that the state involvement of marriage is spurred by the latter and not the former?


Well, yes, actually. In fact, I believe it's a greater state interest than procreation. (Maggie's argument was procreation, not-childrearing, mind you. She dodged the idea of step-parents, divorced single parents, etc.)

The state has an interest in reducing the number of individuals it must care for directly. It's expensive. Families, and here I mean extended families, are the primary provider of this stability. They represent a pooling of resources. Marriage ties family groups together. Even in cases where an individual family unit bears no children, their resources are added to the extended family. Perhaps it is something simple like free babysitting, or something serious like a free place to live after a disaster. (Katrina, anyone?) One might argue that childless couples have more disposable income and thus an extended family with a small number of these couples has a higher likelihood of comming through disaster intact.

A gay marriage is simply not the same as traditional marriage in a lot of important ways.

Okay, could you list some of the ways please? While not discounting moral arguments, could you start with those that don't rely on them?

The state has been (and remains to a lesser degree) committed to providing stable economic and social structures that raise children well.

I believe that is an excellent goal for the state. As the state allows (and in some cases requires) infertile couples to marry, and doesn't allow gay couples with children to marry, how does one square this state interest with current law?

Further, a lot of the regulation of marriage was intended to preserve the union and protect women. Though women were an equal partner in marriage they usually possessed less economic clout, thus "alimony" and such. Gay marriage just doesn't fit this mold.

Assuming maintaining a stable union is a state interest, gay and lesbian unions certainly would apply. There is no need for marriage to protect women any longer as they can acquire careers and credit (mostly) like any male. Divorce and the concept of community property protects spouses these days.

Sometimes "discrimination" makes sense. It makes sense to treat different social arrangments differently.

Perhaps. If marriage today was exactly like the marriage of the 1800s that Maggie cites, I'd agree. Which man in such a marriage would become chattel? But we're dealing with today's marriage, which is an entirely different thing. Nothing about today's marriage excludes same-gender couples from participating fully.

It would be interesting to hear your thoughts on what sort of arrangement of rights and responsibilities would make sense for gay and lesbian couples. Currently, the trend is to make any marriage or marriage-like arrangment a violation of the state constitution.
10.17.2005 7:28pm
Shawn:
John H:
No one that is not allowed to procreate together is allowed to marry (siblings, children, etc) and all couples that are allowed to procreate together are allowed to marry.

Please note that in 4 states, first cousin may marry but only if they can prove at least one of them is infertile.

This disproves your assertion.
10.17.2005 7:37pm
John H (mail) (www):
Shawn, those states in fact give infertle (and I think the have to also be OLD) cousins the right to procreate, but only under the assumption that they will not be able to use it. I've tried to find out if states still allow those cousin marriages in this age of IVF drugs. Really, no one can be proven to be infertile these days, as modern medicine might make any person fertile again. Those laws are an ill-conceived compromise typical of legislatures that are trying to make everyone happy, but even in their misconception, they really they underscore the marriage and procreation link.
10.17.2005 7:57pm
Challenge:
"Again, why this would be so escapes me. For some heterosexuals, it really is very difficult to believe that others who are different in such a fundamental way aren't really all that different, that they aren't motivated for different (sinister) reasons."

I apologize for not being clearer, if that is the problem. The proposition before us is: Will extending marriage to include gay marriage cause more marriages between friends, thus diluting the concept of marriage and burderning government and private parties (employers) in supporting marriages which are not really marriages.. You response to his argument is that this can happen today. One can marry a friend, aslong as that friend is the opposite sex. This is true. What we are addressing, however, is that gay marriage makes this more likely. There are several reasons.

1) Extending marriage to include gay marriage makes the concept more malleable, subject to revision. If gays can get married, why can't I marry my buddy? I need health insurance, I need a tax break, etc.

2) While people can now marry friends of the opposite sex to gain marriage benefits (health insurance, tax break, whatever), they are limited to those friends who are the opposite sex. Let us say that you have 20 friends, but only 5 are of the opposite sex. All 5 of them turn you down on your proposition. Enter gay marriage, you can now proposition every friend, all 20, and you get two acceptances.
10.17.2005 7:57pm
John H (mail) (www):
And at any rate, Shawn, we are going to have address the issue of same-sex procreation rights. Do you not see how they might be related to the question of marriage rights? We are talking about either granting or banning a right to same-sex couples, and only same-sex couples, and a right that all opposite sex marriages take for granted.
10.17.2005 8:02pm
William Spieler (mail) (www):
Everyone's talking about how kids keep on having sex (and getting pregnant). Do we really need the state to tell us to get pregnant on one hand, and not on the other?
10.17.2005 8:25pm
tdsj:
Someone has a Lexis password. Someone searches on "marriage /s procreation." Someone produces a list of about 20 American court cases stating that marriage is about procreation.

Many of them are very obscure (Richmond County Family Court?). Many are early 20th century.

From that, I am supposed to conclude that procreation is, always has been, and always should be the primary purpose of marriage.

I am not convinced.
10.17.2005 8:29pm
Challenge:
Shawn,

I agree there may be reasons to subsidize or regulate companionate marriage. There are benefits to being in a stable relationship, and you cite many of those.

I disagree, however, that the sensible approach is to adopt all the benefits and regulations of traditional marriage, which evolved to its current state while the rearing of children and the protection of unequal gender spouses were the principal concerns.

I also agree that marriage has changed a lot and continues to do so. It is more about companionate love than it used to be, and it is more common for heterosexual couples to choose not to have children. This has, to some extent, decoupled marriage from procreation. At the same time, gay adoption and artificial insemination have allowed gays to have and raise children. Gay couples have the potential, then, to be more like heterosexuals (and vice versa). This potential, however, has not manifested itself in the elimination of those differences. Those differences, far from being trivial, are part and parcel to being gay and heterosexual, even if they have been eroded with technlogical and social change. Gay and heterosexual marriage remain different enough to justify the difference in treatment.
10.17.2005 8:29pm
Challenge:
"From that, I am supposed to conclude that procreation is, always has been, and always should be the primary purpose of marriage."

I don't think you are "supposed" to conclude that. I think all one should conclude is that state involvement in ,and regulation of, marriage is principally driven by its interest in procreation and child rearing. Is that not obvious?
10.17.2005 8:31pm
John H (mail) (www):
tdjs, can you name any marriage that has been prohibited from procreating? Like they say, "you can marry, but you can't have sex?" There are lots of couples that are prohibited from procreating. Siblings , etc... Even those sterile cousin marriages in some states, they are allowed to procreate, but it was just assumed that they couldn't.
10.17.2005 8:41pm
tdsj:
"I think all one should conclude is that state involvement in ,and regulation of, marriage is principally driven by its interest in procreation and child rearing. Is that not obvious?"

do you mean "is" or "should be"?

The state is involved in regulating marriage in a variety of ways that don't seem reducible to procreation (or child-rearing).

When the law changed its view of divorce in the mid-20th century, was that principally driven by its interest in procreation?

Is contract law regarding ante-nuptial agreements driven principally by the state's interest in procreation?

Tax laws and Social Security regulations and health care laws and joint tenancy laws and trust and estate laws and a whole variety of other things are all areas where the state is involved in marriage. Do you really thing the states regulation in these areas, and the contours of those laws, are driven principally by the state's interest in procreation?

If your answer is yes, then I think you've gotten a little too reductionist for me.

The state has a whole variety of interests in these areas.
10.17.2005 8:47pm
tdsj:
"can you name any marriage that has been prohibited from procreating? "

I'm not sure what you're after. Can you name any marriage that has been required to procreate?
10.17.2005 8:49pm
Challenge:
"The state has a whole variety of interests in these areas."

Yes, and the all relate to procreation, child rearing, or the protection of unequal gender spouses. None of which are particularly applicable to gay couples.
10.17.2005 8:51pm
Jamesaust (mail):
Hmmm....Challenge, I believe you are confusing statistical probability with range (a variation on quantity). The argument you have made is that the greater quantity of marriage partners available the greater likelihood of marriages created for material benefits. How does the range of potential partners influence someone to marry a casual acquaintance over someone they love? The world is much more mobile today than in the past, communication with those far away couldn't be easier. As a result, we find people marry others from their immediate childhood home less frequently than they did say a century ago (many times less than a thousand years ago). How has this increased range led to less "real" marriages?

Go ahead and marry your buddy. (I did; she and I are quite happy together.) Why would anyone care? What I would care about is if you wanted to divorce your buddy, leaving the rest of us some burden that you are supposed to be carrying. Perhaps divorce is the proper object of your concern? Please keep in mind that recognizing marriage rights for same-sex couples doesn't mean that you muddy the distinction between marriage and non-marriage (insistence on civil unions and not marriage is what does that). There's nothing discriminatory about reserving ALL of the benefits of marriage to marriage alone (although I remember Kansas getting into some equal protection problems maybe two decades ago when they tried to tax income from single persons at a higher rate), just in reserving marriage to only some classes of people. You do know that you can oppose Britney Spears-like marriages without reference to gender, don't you? Again, the probability of the (let's just say it, shall we?) "fake" marriages you're concerned about does not change unless something about the underlying participants makes them more likely to succumb to other motivations. Besides, saying that we must deny marriage to all (well, all of "them") because someone might abuse it is like saying everyone accused of a crime must be punished lest a guilty man go free.
10.17.2005 9:19pm
tdsj:
"Yes, and they all relate to procreation, child rearing, or the protection of unequal gender spouses."

Again, I think that's overly reductionist.

Think of spousal immunity and the marital privilege in evidence law. Neither really has anything to do with procreation, child rearing, or the protection of unequal gender spouse.

Think of ante-nuptials. They used to be disfavored by courts. Mid-century, everyone switched and started favoring them and enforcing them (largely) under the regular principles of contract law.

That change didn't protect unequal spouses -- indeed, it did quite the opposite. But it furthered a bunch of other important interests related to marriage -- freedom of contract, judicial economy, efficient property transfer, and the like.
10.17.2005 9:43pm
tdsj:
"None of which are particularly applicable to gay couples."

And I'm not sure that's true either.

Lots of the financial and property laws related to marriage are based on a simple recognition that well-functioning human relationships often involve specialization of labor. In marriages, that means one partner works while another stays home (and raises kids).

The law recognizes that when the working partner dies or runs off with a younger, cuter mate, the non-working partner shouldn't be left high and dry.

That rationale would apply just as much to same-sex couples as mixed-sex couples, wouldn't it?
10.17.2005 9:54pm
John H (mail) (www):
I'm not sure what you're after. Can you name any marriage that has been required to procreate?

No marriage is required to procreate, because marriage is for life, and no one knows if a particular marriage will procreate or not. Infertility is not a traditional grounds for divorce.

What I am after is demonstrating that all marriages have a right to procreate, they cannot be told that they may not attempt to procreate. No marriage has ever been told that their gametes are incompatible and though they may marry, they may not combine their gametes into a child of the marriage. That's because marriage is in itself a public approval and permission, yea, a license, to combine gametes. There are some couples that are not allowed to procreate, and so they are not allowed to marry, because denying marriage is the way that states deny the licence to procreate to certain relationships. This is what Virginia tried to do to the Lovings, but their basic civil right to procreate with the person of their choice was being denied by denying them marriage (and not on a "supportable basis"). If they had been siblings, Virginia would have been right to arrest them for sleeping together, and for denying them marriage.

I think same-sex couples should not be given the right to attempt to combine their gametes, by any method, no matter how "safe" is is claimed to be. I think all people should be created through the union of a male's gamete (a sperm) and a female's gamete (an egg). This prohibition on their procreatino puts them in the same catagory as siblings. They can each marry, but they cannot marry each other.
10.17.2005 9:57pm
tdsj:
"That's because marriage is in itself a public approval and permission, yea, a license, to combine gametes."

I wasn't aware that I needed public approval or a license to procreate.

(And did you really just use "yea" in an argument?)
10.17.2005 10:05pm
tdsj:
"This is what Virginia tried to do to the Lovings, but their basic civil right to procreate with the person of their choice was being denied by denying them marriage (and not on a "supportable basis")."

Note that the word "procreate" did not appear in Loving v. Virginia. Nor did the words "child" or "children" or "kid" or "love puppy" or "gamete" or "inseminate."

Ie, your rationale for the decision in Loving is somewhat different than that actually offered by the Court.
10.17.2005 10:09pm
John H (mail) (www):
These days people don't ask for permission, and no one seems to care, but try having sex with your sister and see if you get arrested or not. And "yea" just felt right...

The key phrase "basic civil right" refers to procreation. It is a citation from Skinner v Oklahoma. The Lovings were arrested for having sex, because unmarried people were not allowed to have sex, and the state didn't recognize them as being married.
10.17.2005 10:21pm
Adam (www):
Is there any evidence in American states which have allowed for gay civil unions that heteros have taken advantage of the legal climate? I don't believe so, and that's because people *do* take marriage seriously as a permanent institution and not merely as a way to obtain certian government benefits.

If anyone's ruining marriage, it's the heteros. Britney Spears, anyone?
10.17.2005 11:02pm
tdsj:
"These days people don't ask for permission, and no one seems to care, but try having sex with your sister and see if you get arrested or not."

I'm not how that's responsive to what I said. Incest (variously defined) is against the law, but procreation outside of marriage is not (as far as I know).

Defining marriage as a "license to procreate" doesn't really make any sense. Perhaps you'd like marriage to be treated as a license to procreate... but that's not really what it means right now.

(By the way -- I'm guessing that most people who sleep with their sisters do not, in fact, get arrested.)

"The Lovings were arrested for having sex, because unmarried people were not allowed to have sex, and the state didn't recognize them as being married."

I might have missed something, but I don't think they were arrested for having sex. They were arrested for going out of state, getting married, and then returning to the state and cohabitating.

Presumably they were also having sex... but that wasn't an element of the crime defined in 20-58, the statute under which they were convicted.

In short, the conviction at issue in the case was an antimiscegination statute, not an anti-extra-marital sex statute.
10.17.2005 11:09pm
Medis:
As usual, the arguments against gay marriage clearly prove too much.

One major category of arguments state that gay marriages, by "redefining" marriage in a way that makes it have broader application, will somehow lead to "redefining" marriage in all sorts of other ways that we may not like. But this same argument could be used for any broader verus narrower issue: allowing marriage to include the elderly, the sterile, couples of different races, couples of different religions, and so forth, are all "broader" definitions of marriage, but we don't think that somehow we should always choose the "narrower" definition of marriage for fear that we will suddenly become Scandinavian. In short, the obvious problem is that this argument against a broader definition of marriage is completely disconnected from the specific issue of GAY marriage, and that is what needs to be proved (what is so dangerous about GAY marriage, as opposed to all these other sorts of marriages?). And the attempt to say gay marriage is particularly dangerous because the couple cannot procreate naturally is an obvious nonstarter, because marriage is already overbroad with respect to that purpose.

The second category of arguments center on why gay marriages may not be ideal for raising children. Again, we could ask why we are applying this argument to gay people when we don't apply it to other couples. Where is the great movement to keep poor people from marrying because statistically, the children of poor people are less well off? And why don't the diversity of gender arguments apply to other forms of diversity as well?

In short, no one has yet offered a reason why the nominal problems of gay marriage (that such marriages would be overbroad with respect to the purported purpose of encouraging natural procreation, and that gay parents might not be ideal) distinguish gay marriages from all sorts of other marriages we currently allow.

Which leads me to believe these are just rationalizations, and there is something about gayness itself which bothers people, but they are not willing or able to articulate it.
10.18.2005 6:31am
Aultimer:
It's clear MG is going to slowly reiterate the very thin logic of her paper here. Yawn.

It's as simple as:
1. M/F couples make the best parents, so the gov't gives them benefits
2. Enough M/F couples make babies that we don't mind overincluding the non-procreative M/F couples in the benefits
And -
3A. Not enough M/M or F/F couples make both good parents and babies to include them in the benefits.
and/or
3B. The social gain in giving M/M and F/F couple parents benefits is outweighed by the social harm of overincluding non-procreative M/M and F/F couples.

Right? Challenge and a couple others seem to agree with the paper, so maybe they'll be so kind as to pose something both logical and convincing based on MG's framework, as it's lacking in both areas.
10.18.2005 10:05am
Shawn:
Challenge:

A apprecitate you taking the time to read my replies. I would also appreciate you taking a few moments and sketching those two simple lists I asked for? Not that I'm demanding, but it would be so much easier to wrap my mind around your argument if you would leave the generalities for a moment and get specific.

You said:
A gay marriage is simply not the same as traditional marriage in a lot of important ways.

Could you list them? It would be a great starting point for good discussion. Not to mention that I've never really had anyone who's claimed this go into the details.

You als said:
Sometimes "discrimination" makes sense. It makes sense to treat different social arrangments differently.

To which I requested some things you might consider appropriate for a same-sex union if it's not "marriage".


Or more simply: How homosexual couples different and from that, what sorts of things do you believe these couples would benefit from?
10.18.2005 10:23am
Proud Generation Y Slacker:
Megan McArdle warned us about the eggheads who make such idiotic statements as, "well, there's no conclusive empirical evidence that children are better off raised by a mother and a father than by two guys, so of course the logical conclusion is to consider them equal." These are the kinds of idiots you don't want touching your social institutions with a ten-foot pole.
10.18.2005 10:46am
John H (mail) (www):
tjds, let's leave aside marriage for a second and concentrate on the looming issue: Should same-sex couples have the same right as both sex couples to have children that are their offspring, or should attempting that be recognized as unsafe and unethical and unwise, and prohibited? Should a man only have a right to procreate with a woman?
10.18.2005 1:15pm
tdsj:
"These are the kinds of idiots you don't want touching your social institutions with a ten-foot pole."

the APA's recent meta-study conclusion:

As this summary will show, the results of existing research comparing gay and lesbian parents to heterosexual parents and children of gay or lesbian parents to children of heterosexual parents are quite uniform: common sterotypes are not supported by the data.

http://www.apa.org/pi/parent.html
10.18.2005 1:21pm
tdsj:
"Should same-sex couples have the same right as both sex couples to have children that are their offspring, or should attempting that be recognized as unsafe and unethical and unwise, and prohibited? Should a man only have a right to procreate with a woman?"


Is that issue really "looming"? I honestly don't know enough about the science to know.

I also don't know enough about the science of it to know whether it's really unsafe or unwise.

Can I imagine that science might eventually find a safe and wise way to combine the genetic information of two men or two women? Yes. Can I also imagine that research trying to reach that result might be terribly dangerous? Yes.

I just don't know, and I'm not willing to prejudge the issue.

But I don't think you need to settle that question in order to settle (or debate) the question of same-sex marriage.
10.18.2005 1:27pm
John H (mail) (www):
Yes, it is looming. See my blog.

And yes, we should discuss this issue now, because this is a very important right of marriage. If we are giving equal marriage rights today, we should understand what we are giving. If you are trying to keep this issue out of the limelight, I think that is underhanded and downright deceitful.

You should state your position on this issue, either demand the right to procreate right now, or accept civil unions which granted all the rights of marriage except procreation rights.
10.18.2005 2:53pm
Rainlillie (www):
For me the gay marriage issue is a civil rights issue. If gays pay their taxes and abide by the law, why can't they have the same rights as everyone else when it comes to their pursuit of happiness? If my two male neighbors decided to marry how would that affect my life...It wouldn't unless I was in love with one of them.


American people shouldn't fear gay marriage they should fear an Incompetent, corrupt Administration that actually has the power to make decision that will affect their lives. If you're against gay marriage..Don't marry a gay person, if you're against abortion..Don't have an abortion.
10.21.2005 11:03am
John H (mail) (www):
And if you find stupid posts stupid, don't reply to them. DOh!
10.21.2005 9:13pm