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[Maggie Gallagher (guest-blogging), October 17, 2005 at 6:03pm] Trackbacks
The Marriage Debate, Round 3 (or 4, but who's counting?):

O.K., I think we are actually making progress. Progress, I mean, towards the goal of achieving disagreement. I'm no Socrates. I have no illusions that if you accept certain opening premises (like, say, the broad and deep historical connection between marriage and procreation), down the road you are going to have to say, "Gee, Maggie, only a fool could disagree."

One of the signs of progress towards disagreement is the shift among commentators to another key question: well, o.k. Maggie, so just how exactly will SSM threaten procreation? It is an important question. And I'm going to answer it. But not yet.

I want first to continue on the foundational question: why I think procreation is the main public purpose of marriage, in the sense of being the driving force behind its unique legal status (Remember, individuals or religions may have other reasons; I'm talking about why government in our system is involved in marriage and not other intimate adult relations).

Let me offer 2 additional reasons why I believe in the primacy of procreation (not, remember, as the definition or the essence of marriage—marriage is a sexual, financial, emotional union of husband and wife) but as the main reason why marriage exists as a legal status and as a universal human idea.

1. Internal coherence. The first reason is internal evidence from the structure of marriage in our received legal tradition. Procreation provides the "coherence" for our received definition, the thing that explains its core features, in way that other reasons do not. The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough. But how does the happiness of the couple explain why two and only two people can get married? Or why two people, in order to be happy, must have sex?

By contrast, procreation (or to be more accurate, managing the procreative consequences of sexual attraction between men and women) provides an answer to all these questions: Why two? Because two and only two people make the baby. Any other arrangement involves not a full union of parents but a subdivided one. Why a sexual union and not some other loving kind? Because sex makes babies.

One of the problem SSM advocates have is coming up with an alternate reason for marriage that explains why, out of all the intimate relations adults forms, only certain kinds of interpersonal unions are eligible to be marriages. Marriage is about love they say. Legally, love defines marriage even less tightly than procreation. You can love your mistress and hate your wife, and that doesn't mean your mistress is your wife. You can love many people but only have one wife. Why? And why do you have to have sex with people you love? (Note: I'm not arguing that SSM will lead to polygamy. Personally, I think it will lead to de-institutionalization of marriage altogether, not to polygamy.Instead I'm pointing out that under their theory of why marriage exists, advocates of SSM cannot explain any of marriage's ordinary legal features).

2. Universality. Many features of our specific marriage system are not universal. Monogamy for example, is the exception in human history (although most large complex societies have this marriage system). But all of these systems (with very few and very limited exceptions) define marriage as male and female. Why? You don't find that many human universals.

BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects. That is these societies also seem to reserve marriage for those relations that are as Kingsley Davis said socially approved for sexual intercourse and baby-making.

The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don't have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage.

Sex makes babies, Society needs babies, babies need mothers and fathers.

I think there is powerful evidence that these "facts on the ground" really do explain marriage in some sense better than any alternative explanation on the table.

Next post: how these facts on the ground affects the legal arguments for SSM.

Bryan G.:
There is a difference between:

Sex makes babies, Society needs babies, babies need mothers and fathers.

and:

Sex makes babies, Society needs babies, babies need two stable parents.

That's the key point here that I (and a few other commenters from the other thread, apparently) think you're missing in your basic facts.
10.17.2005 7:17pm
Rickersam (mail):
To pick up a thread in your previous posting, I wonder how you respond to the idea that, given how our culture and technology have changed, it might make sense to reserve "marriage" only to couples with children.

After all, you have already argued that marriage has been abolished in our society (Didn't you write "The Abolition of Marriage?) Perhaps the closest we can come to re-creating marriage is to give the benefits that formerly went to all married couples only to couples with chidren. In addition, perhaps we should make divorece more difficult for such couples.

P.S. Hi Maggie. Long time since we met when you spoke at Bates.
10.17.2005 7:20pm
Justin Kee (mail):
"BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects."(sp)

Such as the Greek and Roman civilizations?

and

"The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes. The second human reality societies must face is that procreation is not optional, it is necessary. Individuals don’t have to do it but societies do. The word for the social institution that addresses these problems, in this and every known human society is marriage."

I believe the second proposition is factually incorrect. If I recall correctly from readings of various anthropological texts, the plurality of distinct human societies did not adhere to one man, one woman marriages. Couplings, perhaps, but not marriage by any stretch of the imagination. The problem of procreation is distinct from the problem of traditional man-woman marriage and different social systems have addressed this problem in a panoply of ways.

I ain't buying what you are selling, Maggie. If you wish to keep the scope of the discussion within the American legal system, then please do so. But when you expand the "primacy of the procreation" to the "universality of marriage", the anthropological evidence does not support your assertions.
10.17.2005 7:32pm
Goober (mail):
I think 1. and part of 2. are really the same point, and the other part of 2., though not spoken out loud, is a separate and distinct point.

First: Internal coherence and the traditional understanding of marriage both, I think, point to a sort of positivist definition of marriage. It is what it is, and what it is is for straights only. As a logical matter, I suppose you could make the argument that since SSM advocates can't propose a definition of marriage that explains all the unique features of marriage as currently understood, but marriage as currently understood excludes gay marriage! It's circular to argue that the definition we theorize for marriage, when we look at heterosexual marriage, doesn't apply perfectly to homosexual marriage---the whole point of the conversation is whether we should change the definition of marriage.

When SSM advocates say that marriage is about monogamous commitment, not about procreation, they're not getting at the logically necessary component of marriage, they're getting at contemporary cultural understanding of marriage. Likewise, when they disagree with Ms. Gallagher, they're not saying she's erroneous in her logic, but in her understanding of what marriage means now. Ms. Gallagher thinks marriage is fundamentally about procreation; what SSM advocates say to her is that she doesn't understand marriage correctly, that society has placed other values on the institution. And vice-versa. (Unfortunately, this means that the two sides won't come to agreement once they figure out who's made the logical error.)

Likewise the anthropological component that marriage everywhere is male-female. Certainly in societies without access to alternative reproductive techniques, the only way to get babies will be heterosexual sex. Those societies may even institutionalize the couplings that result in that sex into something they call "marriage." But contemorary American society doesn't recognize that concept of marriage as our own; it's an imperfect cognate, as it were. Rather, and to repeat the point, contemporary American society finds commitment and monogamy to be at the heart of marriage (it's why adultery is a bad thing but failure to procreate isn't, in the popular conception). So while primitive societies elsewhere may use the word "marriage" to refer to their procreative arrangements, that word does not translate to marriage as we understand it in its full sense, but rather as its alternative (and impoverished) cousin. Perhaps "marriage" in Maori should be translated to "shacking up" in American English. But to draw from the coincidental association between their reproduction and our marriage that the two are analytically identical or similar, and not to look at our own social understanding, is to blink reality.

The second point emerges in Ms. Gallagher's conclusion, winding up with "Sex makes babies, Society needs babies, babies need mothers and fathers." The paragraph above gets into marriage as a social convention for avoiding illegitimacy, to minimize the risk of children being raised in fatherless homes. It's a familiar argument: The male creature of the human species is by his nature promiscuous and would, if given the choice, wander the world forever, impregnating as many females as possible but never pausing to raise the young. Therefore, goes the argument, society has an interest in yoking the male to the female through the institution of marriage (and also the expectation of fidelity).

I can count at least two problems with this. First, this doesn't necessarily match our understanding of marriage any better than the view discussed above. Second, and more centrally, it doesn't speak at all to whether gay marriage is a good idea. Unless gays getting married discourages single men from sticking around (and it may, although I've heard no more plausible explanation for how than that straight men are afraid of the inevitable comparison to the decorating jobs in their gay neighbors' marital nest), the social interest in yoking men to their pregnant women isn't at all served by denying marriage to those homosexuals who want it.
10.17.2005 7:32pm
Clayton E. Cramer (mail) (www):

"BTW this is true even in the many small tribal societies that institutionalize and approve same-sex (male) relations in many contects."(sp)

Such as the Greek and Roman civilizations?
I wasn't aware that classical civilization had same-sex marriage.

It is true that there was a tolerance of homosexuality in classical civilization--but from all that I read, these were not equal relationships. Men of high social status used boys and young men sexually as an expression of dominance. Hence the use of words such as "sodomite" and "catamite." The receiver was definitely in an inferior status.
10.17.2005 7:37pm
Anderson (mail) (www):
Looking forward to the next post, when some actual argument begins.
10.17.2005 7:39pm
Cold Warrior:
Believe me, I am trying hard to follow Ms. Gallagher's argument step-by-step, without jumping ahead.

But I'm still unconvinced that the ordering of the procreative relationship is the undeniable core of the of the very idea of marriage. I think the argument that the ordering of property rights is the undeniable core is a better one; and it just so happens that inheritance rights are a rather important piece of the property rights puzzle [traditionally, perhaps the most important piece]. This point is obvious in more traditional societies. Take, for example, India (or pre-modern Europe for that matter): childbearing and rearing are extremely important to the formation and maintenance of the marital relationship, but so too is the care of the woman's in-laws, and indeed the husband's obligation to take over the support of the bride -- something known to Western society as the father "giving away" the bride.

That would mean that the procreative function is closely aligned with the development of marriage as an insitution, but not that it is the principal cause for the development of marriage. A subtle point, but an important one. Not one that deserves to be glossed over by reducing the multi-faceted ordering of property relationships into the single facet of childrearing.
10.17.2005 7:40pm
Justin Kee (mail):
"I wasn't aware that classical civilization had same-sex marriage."

I wasn't aware same-sex relations were equated with marriage.

"It is true that there was a tolerance of homosexuality in classical civilization--but from all that I read, these were not equal relationships."

Netiher was marriage, if that is what we are talking about. Or are we?
10.17.2005 7:41pm
Hans Bader (mail):
I'm afraid you're overstating matters in selling marriage as the "solution" to "children in fatherless homes."

Unfortunately, in many states, family law is so screwed up that getting a state-sanctioned marriage is actually more likely to lead to children in fatherless homes.

In such states, the divorce laws actually reduce the likelihood that some fathers and their children will remain part of one family unit beneath what the chance would be if the father and mother never married at all.

The primary consequence of getting legally married today in many jurisdictions 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. Sexism is rife in family court).

That broad entitlement by wives to receive alimony eliminates a disincentive for ending the relationship, since the wife can get one of the benefits of the relationship (her husband's income) without any of the costs (such as having to work out difficulties in a relationship).

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.

Two final caveats:

First, I know you can cite studies showing that unmarried couples are more likely to split up than married couples. Those studies are of no use in analyzing the consequences of state-sanctioned marriage laws, since they fail to control for relevant demographic differences between the average unmarried couple and the average married couple. Specifically, unmarried couples are poorer and less committed to each other to begin with than married couples, who deludedly think before marriage that marriage is a permanent commitment, rather than realizing that no-fault divorce is the law in almost every state, and thus are more monogamous by nature. It is that greater emotional commitment that makes married people stay together longer, not their formal legal status as married people, which actually exposes them to divorce laws, which reduce the incentive for a dissatisfied spouse to work on maintaining the relationship. The formal legal status of being married is actually a curse for many married men who want a lifelong monogamous relationship.

My final caveat is that there is one class of men and women who clearly benefit by getting married in every state: the elderly, who can take advantage of the marital exemption from the estate laws to pass property to their partners free of tax. Thus, ironically, the only men who clearly benefit from marriage laws are those who are too old to father children.

By the way, I'm married, never divorced, and have no kids.

So this isn't sour grapes. It's the unpleasant truth.

If you want to promote monogamy and child well-being, why not address the divorce laws, rather than side issues like gay marriage?
10.17.2005 7:42pm
Jamesaust (mail):
Maggie: "I’m talking about why government in our system is involved in marriage and not other intimate adult relations." Jeez Maggie, I don't know what kind of marriage you have but I wouldn't dare have 'other intimate adult relations' at all comparable to my marriage or my wife would (quite literally) kill me. Hint: perhaps THAT's what makes marriage distinct not procreation - there's only room for one, singular relationship of great intimacy? (I guess that doesn't produce the "correct" result.)

Second, (I don't have my Lexis access - I'm travelling but per memory) please read the court citations more carefully. Baker (1859) involves a marriage partner who deceived the other to induce a marriage. Yes, the subject of deception was procreation but any substantive deception would have been sufficient to invoke the standard contract remedy for detrimental reliance - annuling the marriage (contract). As such, it does noting to advance your point. The quote you cite is what the law professors call "dicta," short for obiter dicta (a/k/a, a passing remark that is not binding law).

So, to sum up, progress made: zero.
10.17.2005 7:42pm
Clayton E. Cramer (mail) (www):
I do not envy anyone who attempts to defend same-sex marriage on a secular basis. You would have an easier time defending polygamy--it at least has a long history (and some serious social problems that it creates, by producing a large pool of men who will never be able to marry). It is because this was a Christian nation that Reynolds upheld the federal polygamy ban (although the Court managed to find a sociological rationale for the law, anyway).

Same-sex marriage? Even societies that tolerated homosexuality didn't recognize same-sex marriage. Pagan classical civilization recognized marriage as a method of guaranteeing that property passed down from father to son. (Matrilinear societies, as were common in Asia and Africa, were another matter.)

Christianity recognized homosexuality as a very serious sin; I can no more believe the claims that the medieval Church recognized same-sex marriage than I could believe that they recognized marriage to animals.
10.17.2005 7:44pm
Thales (mail) (www):
I'm cross-posting this here, because I would like Ms. Gallagher to address it:

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 7:45pm
Goober (mail):
Clayton---

You'll have to explain how disapproval by the Church leads to a difficulty "defend[ing] same-sex marriage on a secular basis."
10.17.2005 7:48pm
Justin Kee (mail):
"Christianity recognized homosexuality as a very serious sin; I can no more believe the claims that the medieval Church recognized same-sex marriage than I could believe that they recognized marriage to animals."

Christianity recognized belief in heliocentricity as a very serious sin; I can no more believe the claims that the medieval Church recognized the age of the universe than I could believe that they recognized the earth was round.

Just pulling your leg, Clayton.
10.17.2005 7:49pm
Quarterican (mail):
I agree with Clayton E. Cramer...I think reference to the Greeks and Romans is a red herring (I can't speak with any knowledge about other cultures which have legitimized same-sex conduct); the psychology of our sexual definitions doesn't remotely map onto theirs. The Athenians didn't have a concept of gay or straight, they had a concept of active and passive; a citizen of Athens, if I recall (that is, a landed and free adult male) was free to engage in sexual conduct with any woman or any subordinate male, but was behaving immorally if he peformed fellatio or received anal sex. There were uncomfortable discussions about the status of free boys, who would one day become citizens; the resolution was that they could be sexually passive until they reached puberty, but they were being immoral if they enjoyed it. Appeal to antiquity teaches us that sexual frameworks are surprisingly flexible, but don't provide an example where anything we'd recognize as "homosexuality" was going on.
10.17.2005 7:51pm
Shelby (mail):
1) Am I the only one who skips the really long comments?

2) Marriage is not about procreation per se. Societies with strong, stable families do not out-reproduce those lacking them. It is about raising the progeny in a situation that is (a) conducive to developing healthy, productive adults, and (b) relatively unlikely to burden the rest of society with child-rearing duties. Both (a) and (b) are plainly in our collective, hard-nosed interest.
10.17.2005 7:52pm
Nunzio (mail):
M.G.,

These are all fine points, but American society now has a very high rate of kids born to unmarried parents (which has been increasing for the last 40 years) along with a relatively high divorce rate.

So whatever value marriage as procreation had, that train left the station awhile ago and it's not coming back, making the 1859 California case, and other such fine pronoucements, about as relevant now as the pony express.

Looking at things from where we are now, it's hard to say gay marriage will affect the illegitimacy rate or the divorce rate. Might as well let them have a crack at marriage.
10.17.2005 7:52pm
Dave Hardy (mail) (www):
George Bernard Shaw noted that marriage exists for one reason alone -- an attempt to create the optimal situation for child-rearing.
That makes sense. Otherwise, it is at best an awkward, messy legal relationship and at worst a species of human slavery. Property? One can form a partnership or LLC and dissolve it with minimal effort (and that designed to protect creditors and ensure proper division of assets). In Virginia, to dissolve a marriage (w/ children, anyway) requires a year's wait *before filing*, plus innumerable hoops after filing, testimony by a third party to the fact of separation, etc. All this in the hopes that the couple will decide to get back together. Arizona requires three months after filing, six and mandatory conciliation court if either spouse says the marriage is not irretrievably broken, plus a long line of hoops.

Absent this social objective of providing a home for kids, the institution serves no purpose. (Hmm... is same sex marriage a form of legal gay-bashing?). As Shaw suggests, if two people are in love it requires no legal system to bind them. (As he also remarked, in response to the suggestion that most marriages are comfortable: chain two galley slaves to an oar, and odds are their relationship will be comfortable, perhaps even touching. But that does not make a slave galley a place of bliss or the chains a proof of affection).
10.17.2005 7:54pm
Chukuang:
Clayton,

A side issue, but what societies in Asia are matrilinear?
10.17.2005 8:00pm
Daniel Chapman (mail):
Loving is not direclty parallel. Loving dealt with racial classifications under the Equal Protection clause, and that is quite a different situation unless you're assuming that sexual orientation is the equivalent to race. That's another debate entirely.

Also, the situation in Loving was slightly different in that the law excluded WHITES from marrying other minorities. By default this prevented blacks from marrying whites, but blacks were free to marry other minority group members. The laws were clearly about preserving white racial purity.
10.17.2005 8:00pm
flaime:
Why should it be a government purpose to promote procreation? The only interest government should have is in the care of children, ie the defenseless. Marriage fails to assure that children will be properly cared for.

So, I for one, see no legitimate arguement that marriage should continue to have any special legal status. The government should get out of the recognition of marriage all-together.
10.17.2005 8:13pm
Jesurgislac (mail) (www):
Question. Since Maggie is either not reading the comments on these threads, or is choosing not to respond to the comments she reads, is there any real point in commenting on these threads? As far as I can see, Maggie claims "progress", without ever actually dealing with the two major issues raised by many commenters:

1. That if marriage is solely about procreation, why is it that non-procreative mixed-sex couples are allowed to marry without anyone claiming they're destroying the institution of marriage?

And, secondary point to 1: If marriage is solely about a woman having babies with a man, and not at all about a couple nurturing children into adulthood, why does so much marriage legislation in fact deal with child support, and a parent's financial/social responsibility to their children, and not at all about whether the couple are interfertile?

2: If marriage is, in fact, about a couple nurturing children into adulthood, and state support for marriage is justified because nurturing children is important, then how does Maggie justify not permitting lesbian couples (who can and do have children by AID) to get married, or indeed any same-sex couple who could adopt to get married?

Both these issues have been raised by commenters in other threads, but Maggie seems to want to ignore these issues completely, yet claim "progress". Is she reading these threads?
10.17.2005 8:20pm
tdsj:
I am not sure what the point of this "achieving disagreement" language is. It sounds like something L. Ron Hubbard or Kevin Trudeau would say.

Can you explain what you mean when you keep saying "society needs babies"?

Is that equivalent to "society needs procreation"?

I understand that if we all stopped procreating, human society would cease (once we all died). But it's not clear to me that it would necessarily be bad if we procreated somewhat less. And it's not clear to me that the legal system really needs to do anything to encourage procreation. And it's not at all clear to me that if we allowed gay marriage, then lots of straight people would stop procreating.

I am guessing that you are really conflating "society needs procreation" with "society needs (good) child-rearing." To me, those things seem like separate propositions. Conflating them is probably essential to the structure of your argument.

Do you see why?
10.17.2005 8:22pm
Blar (mail) (www):
Maggie,

Could you please say what you think of adoption in general, and adoption by same sex couples in particular? I think that marriage is for child-rearing more than for child-making. People can get along with baby-making very well without a complex social institution, thank you very much. It's with raising the child that the established tradition of teamwork seems to come in handy, and as far as I can tell, a pair of men or a pair of women could play those roles just about as well as a man and a woman. So, do you have something against adoption in general, or adoption by same sex couples in particular? Or do you think that serious problems are created by extending marriage to a population in which a somewhat lower proportion of couples are raising children? Please explain.
10.17.2005 8:29pm
dk35 (mail):
I think Jesurgislac has summed up the problem here. Maggie is simply ignoring the most obvious logical inconsistencies to the very foundation of her argument. I can't say I'm surprised, it's actually par for the course for religious fundamentalists. That's why they are fundamentalists, right?
10.17.2005 8:37pm
On Lawn (mail) (www):
> Brian G: There is a difference between [...]

Indeed there is. The component of two doesn't seem to have much to do with parenting. The single bio-parent seems to do just as well without re-marrying as if to remain single, statistically speaking. Also studies show that the absense of a particular controlled gender can indicate problems the child will have to deal with later.

Rickersam: I wonder how you respond to the idea that, given how our culture and technology have changed, it might make sense to reserve "marriage" only to couples with children.

You might be interested in this article that argues marriage still makes sense for childless couples. This letter also points out the problems of limiting marriage to only couples with children.

Justin Kee: the plurality of distinct human societies did not adhere to one man, one woman marriages.

Anthropologically speaking, my understanding is that a distinction should be made between a polyamorous marriage (more than two in the contract) and a polyandrous marriage (more than one marriage to a person). The former is very rare if at all while the latter was quite common. The only difference between the latter and marriage as we know it today was that today it is much more comon limit people to only one marriage. That is an issue of marriage regulation and protocol, not defintion.

As far as ss"m" evidence in the past, it wouldn't be wise to ally yourself with the institutionalized child molestation that was practiced by Greeks, Romans, Samuri, Zulu's and others. Hopefully the practice to bed understudies or aspiring warriors happened in many cultures is not what is being sought after here at all.

Also those arrangements were always temporary, and never called the same term as they used to describe a family making arrangement between both sexes.

Goober: It's circular to argue that the definition we theorize for marriage, when we look at heterosexual marriage, doesn't apply perfectly to homosexual marriage---the whole point of the conversation is whether we should change the definition of marriage.

Such is the unique capacity we find in defining things. The ability to distinguish is born from just such an analysis you describe. The ability to distinguish is critical to intelligence and reason itself. But you certainly come to the right conclusion, we are evaluating a change in definition. That is important to recognize as the admission is uncommon among ss"m" advocates that I've run across. You are right, this is only a groundwork foundation for the debate but one that is cricical to understanding it.

When SSM advocates say that marriage is about monogamous commitment, not about procreation, they're not getting at the logically necessary component of marriage, they're getting at contemporary cultural understanding of marriage.

In an incomplete sort of way though. An ice-cream cone is cold, and wet. Culturally understood that way too, but if I were to pass off an ice-cube to you with those same qualities I bet you'd know the difference in a second. Yes a complete investigation of what something has and its qualities is crucial to intelligent processes and understanding.

Tautological? Any definition could be attacked that way. But crucial and neccissary to understanding? Yes.

Cold Warrior: I think the argument that the ordering of property rights is the undeniable core is a better one;

I do not find property rights and procreation as in the dillema that requires us to choose just one. However, property rights are the aspect of trusts, corporations, etc... And we call none of those institutions a marriage.

Jamesaust: perhaps THAT's what makes marriage distinct not procreation - there's only room for one, singular relationship of great intimacy? (I guess that doesn't produce the "correct" result.)

Interesting conjecture. Of course like my above comment, I find no reason to make one single distinction though the potential of procreation is certainly important to recognize. Intimacy between a singular relationship may indeed be room for only one. People practiced multiple marriages in the past, and a trio was recently recognized in Europe (and they called themselves a marriage because they shared intamacy between all of them). So no, I don't see your conjecture as following. Now a child is produced from two people, that is true and consistent.

Thales: 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.

Few problems, you'd be hard pressed to find "tradition" as an argument that held among the populace, even pre-loving. Many states never did outlaw interracial marriages and in half the states that did, the voters already threw out the law.

The arguments you would find are more along the lines of what Andrew Sullivan pointed to a ruling that suggested that different races couldn't inter-breed. "Mulattos" were thought litterally to be like mules. Science has since proven the court and culture wrong on this issue.

On the other hand...

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.

A few problems here too, probably from the strained attempt to allign the two arguments. No test is applied to determine if someone is gay or not, and honestly there shouldn't be. However, lineage provided the deciding test whether or not a couple could get married, and that is the exact reason Loving struck down the ban.

I mention this test because your statement, "Gays as well as straights may marry straights" smacks of some sort of requirement or distinguishment must be happening on the same scale that lineage was used pre-Loving. Marriage requires equal-gender participation and that is a good thing. It integrates sexes, it has increased the fairness and representation of both sexes through all aspects of government, and it helps understand their children when can equally be either sex.

With such a system of diversity build into marriage, why should we change it? Sure one can defend it, in fact its one of the few arguments that I choose because it is so easy to do. Its a no-brainer from my perspective. Both sides should be able to provide a purpose and reason for marriage (their images of it, anyway).

Tnere is much attempt here to criticize Maggie and say her purpose isn't valid to specifically excuse the lack of purpose (or invalidity) behind ss"m". Such a failing, which can easily be feigned with ignorance and lack of understanding, does not excuse the other side of their inability to propose a purpose.

Jesurgislac: Good to see you here. Since your question has been answered over and over again, it seems pointless to try again what amounts to be a pointless game of people explaining to you in full expectation of honest discourse, while you simply deny everything you don't want to hear.

Folks interested in the answer to her questions can follow that link, and read the answers she seems to think do not exist.
10.17.2005 8:45pm
Jon Rowe (mail) (www):

"The Athenians didn't have a concept of gay or straight, they had a concept of active and passive; a citizen of Athens, if I recall (that is, a landed and free adult male) was free to engage in sexual conduct with any woman or any subordinate male, but was behaving immorally if he peformed fellatio or received anal sex...Appeal to antiquity teaches us that sexual frameworks are surprisingly flexible, but don't provide an example where anything we'd recognize as 'homosexuality' was going on."


This doesn't sound like a pro-gay argument. But surprisingly, it has been pushed by the "queer theorists" and "social constructionists."

It has a kernel of truth but is missing a relevant piece of information as well.

The reason why antiquity doesn't SEEM TO "provide an example where anything we'd recognize as 'homosexuality' was going on" is because large numbers of the populace were engaging in homosexual acts -- and these men, for the most part, went on to get married to women and sire families. Hence they weren't constitutional homosexuals, but rather heterosexuals enjoying homosexual acts for release.

However, cross-cultural study has (I think) demonstrated that constitutional homosexuals do exist universally in all human societies in consistent numbers. But the numbers are consistently small: between 2-5%. In Western Culture, presently gays have congregated into a social group which is fairly visible. Before that, that 2-5% of any given population were diffusely spread out in the populace with no social group. Thus, they could appear to be invisible and non-existent.

But the Ancient Greek philosophers, many of whom were very keen observers on human nature and were constitutional homosexuals themselves, were indeed aware of the existence of what we would understand to be homosexuals.

I don't own a copy of Plato's Symposium (which by the way is a defense of homosexual love), so let me instead quote Saul Bellow's Ravelstein where he sums up what is taught there:


"Looking for love, falling in love, you were pinning for the other half you had lost, as Aristophanes had said. Only it wasn't Aristophanes at all, but Plato in a speech attributed to Aristophanes. In the begining men and women were round like the sun and the moon, they were both male and female and had two sets of sexual organs. In some cases both the organs were male. [My emphasis] So the myth went. These were proud, self-sufficient beings. They defied the Olympian Gods who punished them by splitting them in half. This is the mutilation mankind suffered. So that generation after generation we week the missing half, longing to be whole again." Ravelstein, P. 24.


Because homosexual practices existed in such great numbers in antiquity (again by men who went on to marry women and sire children), homosexual acts committed by real homosexuals simply weren't the dominant homosexual practice back then.
10.17.2005 8:45pm
Proud Generation Y Slacker:
I want to see if I understand this correctly. Proponents of same-sex marriage believe the following:

1. Kicking a man when he's down is good. ("Marriage is already f***ed up, so the next stop is obviously to f*** it up further.")

2. Marriage policy, unlike every other kind of policy, is unjust and illogical if its goals do not perfectly match the present state of things. ("What about 70 year-olds marrying? What about gays adopting?")

3. Nobody need ever provide an explanation of why the government should be involved in handing out benefits to married people if not to encourage procreation within a healthy environment. That is, they haven't explained why their monogamy and commitment should cost me money.

4. Anyone who opposes same-sex marriage is either a religious fanatic or hates gays.

Correct?
10.17.2005 8:47pm
Cornellian (mail):
You're confusing the issue of whether something is a good idea from a policy point of view (the issue here) with whether something is prohibited or mandated by the Constitution (your point about Loving). The arguments against same sex marriage from a policy point of view might well exactly parallel the arguments made against interracial marriage whether or not the Constitution affects the legalities of one of those situations or both.

Just in passing I'll also note that the equal protection clause makes no reference to race. Specifically it says [No State may, blah blah], "nor deny to any person within its jurisdiction the equal protection of the laws." The text itself provides no indication that its impact is restricted to race.

The statute prevented whites from marrying non-whites and non-whites from marrying whites. Given the demographics in Virginia at the time, that effectively would have meant that blacks could marry only other blacks, but in any event, why does your point matter? If the statute grouped all whites into one group and all non-whites into another group and said each group could marry only within that group, what difference does that make what difference does that make versus a statute that said blacks could marry other blacks but not asians?

Loving is not direclty parallel. Loving dealt with racial classifications under the Equal Protection clause, and that is quite a different situation unless you're assuming that sexual orientation is the equivalent to race. That's another debate entirely.

Also, the situation in Loving was slightly different in that the law excluded WHITES from marrying other minorities. By default this prevented blacks from marrying whites, but blacks were free to marry other minority group members. The laws were clearly about preserving white racial purity.
10.17.2005 8:48pm
Jeff Licquia (mail) (www):
There MAY be sufficient differences between race and sexual orientation that make the above parallel faulty.

You mean like the difference where a black person and a white person can bear children together, but two men or two women can't?

Maybe that's not relevant to you, but given that Maggie is arguing for the centrality of procreation to the definition of marriage, I think you've got a serious job ahead of you to argue that it's not relevant to her.

Which kind of destroys the whole parallelism thing.
10.17.2005 8:52pm
Jacob:

My final caveat is that there is one class of men and women who clearly benefit by getting married in every state: the elderly, who can take advantage of the marital exemption from the estate laws to pass property to their partners free of tax. Thus, ironically, the only men who clearly benefit from marriage laws are those who are too old to father children.


Hans- I assume you meant to type "the uberwealthy elderly" if you're limiting the benefit to one's ability to hide from the estate tax.
10.17.2005 8:56pm
Quarterican (mail):
Mr. Rowe -

I didn't intend my post to be pro- or anti- gay, although I'd call myself pro-gay (and pro-gay marriage); I was merely trying to say that we shouldn't look at Classical Greece for an example of a culture that accepted "homosexuality" - which other posters have done, and I felt the desire to do so primarily because I'm a big nerd. I only disagree with your post inasmuch as I doubt that an Athenian who was, in your words, "constitutionally homosexual" would think of himself in a way analogous to the way a modern San Franciscan would think of himself as "gay" - I don't think the psychology of the two cultures allows it. Which means that, yes, you're free to call me something of a social constructionist. My primary intent - which I should've included in my initial post on the topic, except that I can't find the citation I have in mind right now - was to indicate that (far as I recall) it was considered a little strange (though not problematic) for a citizen to be constitutionally homo- *or* heterosexual, and the norm was to partake of either and both as whim dictated. Again, just a society arranged very differently from our own.
10.17.2005 9:00pm
von (mail) (www):
Ms. Gallagher:

You've now cited Baker twice; please cite it correctly. Here is the reasoning of the court, which voided the marriage ab anitio based on the fact that the wife was pregnant by another man; note, in particular the underlined portion, which comes immediately after the portion that you cite.

It cannot be pretended that the condition of the defendant was not a most material circumstance to the consent required for the validity of the contract. Its concealment operated as a fraud upon the plaintiff of the gravest character. His contract was with and for her; it referred to no other person, much less included a child of bastard blood. A child imposes burdens and possesses rights. It would necessarily become a charge upon the defendant, and through her upon the plaintiff. It would become presumptive heir of his estate, and entitled under our law, as against his testamentary disposition, to an interest in his property acquired after marriage, to the deprivation of any legitimate offspring. The assumption of such burdens, and the yielding of such rights, cannot be inferred in the absence of proof of actual knowledge of her condition on his part. Again, the first purpose of matrimony, by the laws of nature and society, is procreation. A woman, to be marriageable, must, at the time, be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract. A woman who has been pregnant over four months by a stranger, is not at the time in a condition to bear children to her husband, and the representation in this instance was false and fraudulent. The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other, and to its existence, with a man of honor, the purity of the wife is essential. Its absence under such circumstances as necessarily to attract attention must not only tend directly to the destruction of his happiness, but to entail humiliation and degradation upon himself and family. We can conceive no torture more terrible to a right-minded and upright man than a union with a woman whose person has been defiled by a stranger, and the living witness of whose defilement he is legally compelled to recognize as his own offspring, as the bearer of his name and the heir of his estate, and that, too, with the silent, if not expressed, contempt of the community. By no principle of law or justice can any man be held to this humiliating and *104 degrading position, except upon clear proof that he has voluntarily and deliberately subjected himself to it.


You cleave to the ancient rule that marriage is based on procreation (on a historical level, I agree with you). But that's not the operative rule in this case; in Baker, the operative rule is the next step in the chain -- the ancient corollary that "[a] woman, to be marriageable, must, at the time, be able to bear children to her husband." What is your basis for discarding the operative rule in Baker? Unfairness? Progress? And why isn't that basis equally cognizable when applied to the rule that "marriage is based on procreation"?
10.17.2005 9:10pm
Quarterican (mail):
Proud Generation Y Slacker -

Wrong on all counts, at least as far as I'm concerned.

(1) I dispute that allowing gay people to marry will f*** up marriage; I assume most people who favor gay marriage agree with me on that. What you've caught notice of is an attempt to illustrate some absurdities in the idea that gay marriage will f*** up the institution; i.e., "Look, if you're so worried about the problems of marriage, and that's why you don't want to let gay people marry, aren't there other things you should be worrying about?" We're - or, at least, I'm - not being serious.

(2) Well, in case you haven't noticed, we're having a dispute ranging across three threads as to whether the goal of legally sanctioned marriage is to promote procreation. And if so, then it happens to simultaneously extend a host of other rights/statuses to people based on the the presumption that they wish to, or are capable of, procreation. Now, a gay couple is as capable of procreation as an infertile straight one, which is to say, there are avenues through which they can become parents. If the status of marriage is intended to promote heterosexual sex for the purpose of conception, we let way too many people get married; if it's to promote a stable relationship for child rearing (or any other number of reasons), it seems to me we let too few.

(3) If the marriage of other people costs you money, and if it costs you money because it was intended to promote childbirth, you've got some cash to recoup regardless of whether gay people get married or not.

(4) In my opinion everyone whom I've ever spoken at length with on this topic who opposes gay marriage does so because (a) of religious reasons, which is closely tied to (b) they dislike gay people, or (c) their argument has a logical problem in it, or (d) they don't want the government to hand out marriage licenses.
10.17.2005 9:12pm
Jesurgislac (mail) (www):
Jeff Licquia: Maybe that's not relevant to you, but given that Maggie is arguing for the centrality of procreation to the definition of marriage

Yes: but Maggie has failed to make her case for the centrality of procreation to the definition of marriage. Since this is her fourth post on the topic and she still hasn't managed to show that procreation is central to marriage, I think that it's possible she simply can't, because it isn't?
10.17.2005 9:17pm
Proud Generation Y Slacker:
Jesurgislac:

I'm still waiting for the alternative explanation.
10.17.2005 9:19pm
Tim DeRoche (mail) (www):
Evolutionary psychologists have made an entirely different argument. (Forgive me for not remembering who came up with this theory. And forgive me, also, for this rather crude summation of ideas from evolutionary biology.)

The idea is that humans are not naturally monogamous. Typically, a very small number of males ends up fathering a huge proportion of kids in the next generation (because the average female will be most interested in mating with a male who has both very good genes and a large amount of resources...and the supply of this type of male is relatively short).

In a world of liberated mating, males will engage in all sorts of unsavory behaviors in order to compete for access to females, since many males will be at risk of not passing their genes on to a single child.

Marriage, in this line of argument, is a way of keeping the peace. By theoretically limiting one male to one female partner (regardless of that male's gene quality and/or access to resources), marriage makes it more likely that a given male will find a mate, reducing his propensity to engage in nasty forms of competition (e.g., murder) with other males.
10.17.2005 9:21pm
PaulD:
My take on SSM is a bit different. I think it is morally wrong for religious reasons, but feel civil unions should be available to homosexuals as a matter of civil rights. What is the difference? From my perspective, only one: Marriage retains the blessing of society as a moral good. Eventually (I assume) the majority will believe that SSM is a moral good, and marriage for homosexuals will be (in most places) legal.
10.17.2005 9:22pm
Jamesaust (mail):
Thank you Von for solidying my hazing memory of the case.

I would note further the sentence directly after your underlined sentenence to carry my original point about the contractual voiding: "the representation in this instance was false and fraudulent." Thus, fradulent inducement that lures another into a marriage contract will not find protection by the court.

What's FAR(!) more important is yet the next sentence: "The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other." This is what Maggie is flailing desperately to avoid - that marriage can (and often is) based upon something much more general than procreation and that homosexual couples possess this same need in precisely the same manner and extent as heterosexual couples.
10.17.2005 9:30pm
Proud Generation Y Slacker:
Quarterican:

1. This logic has always astounded me. Marriage is already weak, so trying to prevent any further weakening is not only pointless but wrong? Of course, you realize that many people who oppose government-sponsored same-sex marriage are also concerned with the existing problems with the institution? "How can you be worried about gays marrying when people can get married in 5 minutes in Vegas and get divorced in 5 minutes the next day?" Yeah, I worry about that too.

2. You seem to miss the point entirely. Policy is about generalities. Everyone seems to be acting as though we're looking for standards to apply in marriage court. Yes, a few married couples can't procreate, and many more don't intend to. However, we still consider a married man and woman the best combination to raise children (conflicting data are, of course, welcome), and most of them are capable of producing children at the time of marriage. We then give additional rewards to people who actually do have children, in the form of tax breaks and public schools. I would not object to giving those same benefits to gay couples who adopt children. The benefits of marriage, however, encourage men and women to get together into family-rearing units. See? Policy.

3. Same as #1. Since the government's already wasting some of my money, why doesn't is just take more of my money? I really wish someone would answer the question of why we have government-sponsored marriage if not to promote the rearing of children in the best possible environment.

4. In my opinion everyone I've ever spoken at length with on this topic who supports gay marriage presumes that it is impossible for anyone to disagree with them in good faith and does not believe, let alone admit, that it is possible he is wrong.
10.17.2005 9:41pm
Perseus (mail):
Quarterican is correct about the ancient Greeks. Sparta did promote homosexual relations between older and younger (male) citizens in order to make them better soldiers, but such relations were never regarded as anything like "marriage," which was restricted to opposite sex couples. What's more, the ancient Greek regimes lacked any notion of universal human equality and the absolute rights of the individual characteristic of modern regimes, which are invoked today to press the case for SSM. For the ancient Greeks, it would be preposterous to assert that individuals have a "right" to marry whomever they choose: the common good (the public) was prior to the individual good (the private), the exact opposite of modern egalitarian liberalism.
10.17.2005 9:41pm
Proud Generation Y Slacker:
But Perseus, what about the Theban Sacred Band???
10.17.2005 9:42pm
PaulD:
It is a good question to ask: What is the State's interest in denying the happiness of marriage to same-sex couples? None other than the fact that the majority of us think it is simply wrong. What interest does the State have in preventing a young beautiful woman from walking down a city street naked. She might be very pleasant for many of us to look at, but we nevertheless think the State has the right to control this behavior because we simply think it is wrong.
10.17.2005 9:43pm
Justin Kee (mail):
"As far as ss"m" evidence in the past, it wouldn't be wise to ally yourself with the institutionalized child molestation that was practiced by Greeks, Romans, Samuri, Zulu's and others. Hopefully the practice to bed understudies or aspiring warriors happened in many cultures is not what is being sought after here at all. "

On Lawn - Please re-read the Maggie's post and then re-read my post. Then, at your discretion, you may continue to incorrectly interpret, as Clayton did, historical same-sex relations as applying to marriage, child molestation, Zulu-male-warrior intiation rites or whatever it is that you wish to believe. The fact is that Maggie alluded to the universality of homosexual human behaviour in the attempt to distinguish that behaviour from procreative marriage. The linkage that Cramer and you made could be similarly drawn to inherently unequal opposite sex relationships between older men and younger women, but I do not see that issue being raised in this discussion.
10.17.2005 9:44pm
JG:
Not much to add, as I think the pro-SSMers are already holding their own, but I write to note that Loving was not only an Equal Protection case. After going through the Equal Protection analysis, the Loving Court stated, "These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."

Continuing along the logic of the due process argument, I would ask Maggie Gallagher why it is that prisoners have a constitutional right to marry, but not same-sex couples, if indeed procreation is the driving force behind the legal status of marriage. (See Turner v. Safley, 482 U.S. 78).
10.17.2005 9:50pm
Bruce Wilder (www):
If this is going to be a legal analysis, and not just a poor man's ersatz antropological one, then you are going to have to confront the difference between the legal analysis of marriage as a license from the State, and marriage as a contract between two individuals.

The Sexual Revolution of the 1960's also marked a legal transition from the license paradigm to the contract paradigm.

Under the license paradigm, marriage as an institution serves primarily the purposes of Society as a whole. Under the license paradigm, the marriage partners are legally licensed to have sexual intercourse with each other. Legally, all other sexual intercourse was illegal -- fornication, adultery, sodomy were all criminal offenses; even masturbation was prohibited in some States. The primary argument in favor of the license paradigm was that, in such form, the institution of marriage channeled and regulated the natural sexual impulses in such a way as to promote the stable raising of children.

Since the Sexual Revolution, marriage has evolved from license to contract. As a contract, with certain "provisions of the contract" specially enforceable by the State, the institution may still further Society's interests, in raising children, for example, by providing for the possibility of alimony and child-support payments. But, a contract is mostly about benefitting the parties to the contract.

Moreover, a contract is a more flexible, variable and less behaviorally specific framework than a license. It is under the contract paradigm, that the question of same sex marriage has arisen. We no longer prohibit sodomy, fornication or, outside the military, even adultery. Sex, and a State-granted license to have sexual intercourse, is no longer the key feature of marriage, as a legal institution.

If we could agree that we are discussing a "contract" and not a "license", that would be progress in the argument.
10.17.2005 9:56pm
Jesurgislac (mail) (www):
Proud Generation Y Slacker:

1. "This logic has always astounded me."

Me too. No one has ever been able to explain why when two men or two women marry, this would somehow "weaken" the institution of marriage. Yet this unexplained assertion is a cornerstone for the arguments of many opponents of same-sex marriage..

2. "I would not object to giving those same benefits to gay couples who adopt children."

Fine. Support same-sex marriage, then, and give additional benefits to same-sex couples who have children. No problem.

3. "I really wish someone would answer the question of why we have government-sponsored marriage if not to promote the rearing of children in the best possible environment."

I really wish you would explain why you think government-sponsored marriage should not be available to all couples who could have children - same-sex as well as mixed-sex. See your comment on #2. If you're actually in favor of same-sex couples who have children getting the same benefits as mixed-sex couples, why oppose same-sex marriage?

4. "In my opinion everyone I've ever spoken at length with on this topic who supports gay marriage presumes that it is impossible for anyone to disagree with them in good faith and does not believe, let alone admit, that it is possible he is wrong."

Well, it would help if those who oppose same-sex marriage weren't focussing so much on the procreation angle they tend to forget that marriage legislation concerning children tends to be overwhelmingly about nurturing children rather than conceiving them. Then it would help if those who oppose same-sex marriage didn't wander off into odd unprovable tangents about how same-sex marriage "weakens" mixed-sex marriage. Then it would help if those who want to be recognised as having a "good faith" objection to same-sex marriage actually tried to deal with the fact that all the objections to same-sex marriage have large flaws in their logic, especially the objection that ties marriage into the procreation of children rather than their nurturing.

Finally, of course, it would help if so many opponents of same-sex marriage weren't public raving homophobes.
10.17.2005 9:57pm
PaulD:
Wilder,

But if that is the case, why are homosexuals dissatisfied with civil union laws which give them all the contractual benefits of marriage?
10.17.2005 10:00pm
Jeff Licquia (mail) (www):
Yes: but Maggie has failed to make her case for the centrality of procreation to the definition of marriage.

She seems to be doing a pretty good job to me, at least from a historical perspective. Especially given the crowd she has to work with. But then again, I would be so credulous, wouldn't I?

Not to mention that the point was to make Maggie out to be some closet racist because being anti-gay-marriage is just like being a racist, because there are no relevant differences between interracial marriage and gay marriage. Except that it's her position that there are relevant differences, so it's actually logically consistent that she could both oppose gay marriage and support interracial marriage at the same time.

Note that your opinion of her arguments or the merits of that position have no relevance to this question of consistency.

I suppose it is too much to ask that we argue with Maggie's positions as stated, and not with Fred Phelps in drag, or whatever other bogeywoman we think of her as.
10.17.2005 10:00pm
Proud Generation Y Slacker:
I haven't bothered with the business of "denying happiness" to people, because I'm still waiting for an explanation of why the state's in the marriage business in the first place.

The trouble with discussing marriage policy with lawyers and law students is that they always go and dig up some case that talks about marriage being important for feeling all warm and fuzzy inside. First of all, we're talking about policy, not law. Second, why do judges know any more about marriage than everyone else?

Maggie did address this. It's great that you wuv each other and want to express your undying wuv in a public ceremony and get your state marriage license as proof of your commitment. Her question, and mine, is why the heck the state cares about your happiness in this particular circumstance? Marriage may make me happy one day. What would make me happier, and sooner, would be for the state to repay my student loans and provide me with free beer and hookers every Friday. However, we don't do this, nor do we have government-funded Ministries for the Promotion of Happiness and the Prevention of Sadness.

Society gives many financial and legal benefits to married persons. Why? Do we do all this -- and take money from the unmarried and give it to the married -- because we want people to be happy? I don't buy it. Society always has an angle, and its angle here isn't that it decided that, of all the possible events, groups, and means, people who get married should be made happier by getting government recognition, certain legal privileges, and tax benefits.
10.17.2005 10:03pm
Perseus (mail):
Proud Generation Y Slacker: That was very similar to the practice in ancient Sparta. The sacred band had nothing to do with marriage, family, and property (which were intimately connected with each other): it was intentionally separated from those concerns. The relationship between lover and beloved was quite different (and viewed as such) from husband and wife.
10.17.2005 10:05pm
Proud Generation Y Slacker:
Bruce Wilder:

I'm glad to see someone who gets it. If we want to move from a license understanding of marriage to a contract understanding of marriage, that's fine, as long as everyone realizes that's what we're doing. The questions we'd need to answer are (1) is the net positive change in individual happiness (for the sake of argument) greater than the net negative change in the quality of child raising? (2) If marriage is a contract between two persons and not between a couple and the state, why should they get special legal and financial privileges from the state?
10.17.2005 10:09pm
Quarterican (mail):
Proud Generation Y Slacker -

(1) Uhm, the point was that I do not acknowledge the truth of the notion that "gay marriage will weaken marriage." If you don't approve of my silly little rhetorical games, fine, and if you disagree with that, fine, but I *don't* actually think gay marriage hurts the institution at large in any way shape or form. Which was what I was trying to convey; sorry if that wasn't perfectly clear.

(2) If the policy is generally to get men and women into family rearing units, why don't we want to get gay couples into family rearing units? They have the capacity to be; some of them have the desire to be. You say that you're happy to give the child-directed economic benefits married couples receive to gay couples who adopt (or, presumably, have children via sperm/egg donors). Are you also happy to give gay couples the status/rights that men and women acheive by being, as Ms. Gallagher put it, "next of kin" - confidentiality, visitation rights, etc? And if so, how's that different from marriage? So why can't we just let them get married? (My personal solution is that only the church should marry people, and the gov't should offer a variety of cohabitation contracts into which people can enter, but I primarily think that because I think the discussion benefits if we decouple the semantic weight of the word "marriage" from the secular institution we're talking about.)

(3) I don't know why the government takes your money, but if it does it to promote a child rearing environment, why not a child rearing environment where gay people do the rearing? Why does it take your money for the infertile, the child-hating, and so forth. I thought you said policy worked in generalities, and if so, I want the government to take your money and generally give it to help couples of all makeups raise children. Or whatever it is we give them money to do.

(4) What are you talking about? I absolutely believe that there are people who disagree with me in good faith; the categories you named initially are people who disagree with me in good faith. I might think they have bad reasons, and I frequently think people are intellectually inconsistent, but that doesn't mean I think they're being intellectually dishonest, or couching their true bigotry in socially acceptable language. And I'm perfectly willing to admit that I might be wrong, but I know what it feels like to have someone demonstrate my wrongness, and it hasn't happened yet on this topic. Silly generalized swipes at the people who hold a viewpoint doesn't advance the debate, it just makes people defensive.
10.17.2005 10:10pm
Proud Generation Y Slacker:
Quarterican:

Sorry if I've been jumpy. More than anything else, it's the pro side's frequent smugness and presumption of bad faith of the anti side that irks me and draws me into the argument. I honestly don't have much emotional attachment to what happens in the end. I'm relieved to see there are some people here willing to discuss this as policy qua policy (groan), and not drag religious and anti-religious views and bigotry and charges of bigotry into this.
10.17.2005 10:21pm
Perseus (mail):
Why don't we want to get gay couples into family rearing units?

Presumably because same-sex parents, by definition, will lack one sex as a parent. Only if one regards men and women as near-perfect substitutes would one regard such an arrangement as most favorable to child-rearing. I do not.
10.17.2005 10:23pm
Noah Snyder (mail):
Let me propose an alternate foundation for marriage. Marriage is a joint mutual guardianship.

When you are ill, when you've lost a job, when you're dying, or when you're just out of town you need someone around to look after your interests in your absence. This gives a crucial safety net in life, which is a legitimate societal interest. For children it is the parents who have such guardianships, and for adults it is your spouse.

This seems to me to fit much more closely with the way that we actually treat marriage and think about marriage than the procreation model does.
10.17.2005 10:29pm
Quarterican (mail):
Perseus -

Okay, I think this is the third thread in which I've posted this response (well, one with similar content). What is it that you think would be lacking in a male-male or female-female couple? I'm not out of hand dismissing the idea that there are innate gender-derived personality differences, but do you believe that such differences, if they exist, dwarf the acknowledged huge personality differences among individuals of the same gender? I'm dubious about the "father+mother=good child rearing" narrative because I've never seen anything more than a very crude and (in my opinion) poor sketch of why you need a father and a mother. I understand, of course, that there's a variety of different inputs we would like a child to receive growing up, but why are they gender specific? More to the point, I don't think the idea that they are maps very well onto reality. I know of a lot of happy married couples where, as far as the kid was concerned, mommy was the strict and more fearsome disciplinarian (mine included), for example. My parents didn't "swap" traditional gender roles, but they didn't conform to them, they just...behaved like the people they were, responding to me in the way that was natural. If I compare notes with my friends, all our fathers were different and all our mothers were different, and we all pretty much ended up able to be functioning and maybe even productive members of society. What's in the "dad" package that no woman could provide? Or vice versa.
10.17.2005 10:33pm
Jamesaust (mail):
A useful question: "why are homosexuals dissatisfied with civil union laws which give them all the contractual benefits of marriage?"

I assume for the same reason that non-procreating couples would be dissatisfied with being striped of the designation of marriage despite having all the contractual benefits of marriage (to be replaced with a civil union). "No, no, granny, you and George are just DPs - domestic partners - not man and wife."

IF two groups are treated in identical ways in every particular but one is elevated by its naming and the other is stigmatized, the only rational basis for such a distinction is bigotry. The Maggie's of this world are going to have to make the argument for different nomenclature (and status) based on real differences capable of withstanding scrutiny. In Maggie's world, being heterosexual and partnered is a blessed state, being heterosexual but unpartnered is not quite yet fully flowered, being homosexual but partnered is a shadow of "real" marriage (and let's not even discuss what unpartnered homosexuals are).

Why not be something less than married? Question for other married couples out there that might indicate the sensitivity of marriage to all committed couples - if you had to choose, would you rather give up your right to the marriage you have or give up your right to vote?
10.17.2005 10:46pm
Rickersam (mail):
On Lawn,
Not sure I see how those bits contradict my basic point. I was not saying that I had a perfect solution, but rather that it's the best available, given how things have changed in the last fifty years.
10.17.2005 10:46pm
mkl:
Maggie, take a cold shower. Marriage is not all about screwing. It's about decades of child raising and, if life permits, decades more of companionship and mutual support long after the kids and sex lives are gone.
10.17.2005 10:56pm
A Country Lawyer (mail):
Maggie,

You are so clearly correct in your explanation for why marriage exists as a social institution, with social and legal benefits, that it's hard for me to understand why some of the posters here can't understand that.
10.17.2005 11:05pm
Richard Bellamy (mail):
Am I the only one concerned about the desire to "progress towards disagreement"? As I interpret that, Ms. Gallagher is attempting to turn the debate into the moral equivalent of we should raise or lower interest rates when there's slow economic growth and high inflation risks. We can argue the math and the economics and the history, and then recognize that our opponent also has good reasons, put it to a vote, and be contented when we lose.

For those of us who believe that gay marriage rights are civil rights, "progress towards disagreement" makes as little sense as debating whether or not slavery helped or hindered poor Southern whites, weigh the outcomes, and then use the empirical conclusion to decide whether or not to ban slavery. Even if all the studies show that students do better in segregated schools, I still wouldn't want to ban integration.

I don't think gay marriage would harm straight marriage, but more importantly, I don't care! Civil rights are things people are allowed to have, even if they're a net loss of value to society.

I personally have no desire to progress toward disagreement.
10.17.2005 11:12pm
BrandonX23 (mail):
Alright I can possibly see why Ms. Gallagher ties procreation so strongly to the primary cause of marriage. Being a biological couple with a child creates a binding force that extends psychologically, financially, and socially. It has been apart of our culture when nobility was forced to marry to preserve bloodlines.

The point of dissent that I have is her view that children are better off with their 'own' mother and father. The point that it takes only two to make a baby I dont believe necessarily relates that those two are capable of raising the child. My own father was a coke-addict, for that my mother left him, would I have been better off raised in that environment? And what about adopted children who never know their birth parents? Would they have been better off not having the love and care of their adopted family? I've known and continue to know many people who have their own biological parents and turn out great, and I've known many that are raised by their biological parents and turn out depressed, suicidal, and incapable of knowing what love is because they never had that environment even with their biological parents.

If the sole purpose of marriage is to simply procreate then fine, I can see how SSM marriages would undermine that institution. But if the purpose of marriage extends to rearing a child in a loving, caring environment then perhaps that needs to be a seperate issue. While I can understand and sympathize that a child has the right to be raised by their own biological parents in a loving, committed environment; to me if a loving caring environment can be provided by subsitute parents (regardless of sex, unless we also arguing that a 'female' and a 'male' must raise a child) how would that create a bad situation for a child? (after all since it does take much more effort and is far more costly for a SSM couple to have children wouldnt that somewhat imply that they wouldnt have children until they were ready and capable of providing a suitable environment for healthy children?)
10.17.2005 11:18pm
Richard Bellamy (mail):
To summarize, my personal hope and dream is -- in 40 years -- Ms. Gallagher will appear just as evil and misguided as George Wallace yelling "Segregation now, segregation forever" 40 years ago.

I actually think that it's a likely outcome. Sometimes I wonder if, in the back of their minds, anti-SSM people don't kind of really know that I'm right.

I mean, of COURSE people can distinguish gay marriage from interracial marriage. But, back then people could distinguish interracial marriage from integrated schools, or from laws banning all black marriages. The argument structures are the same, with the "in order to preserve a small benefit on favored Group A, we must impose a large liability on disfavored Group B." Eventually, we all know how that story turns out.

No one is agreeing to disagree with George Wallace, and no one should here.
10.17.2005 11:20pm
Daniel Chapman (mail):
Unfortunately, you'll find disagreement whether you're looking for it or not. Sorry.

Here's the best explaination I've read yet as to why homosexual marriage would undermine marriage as an institution.

http://www.janegalt.net/blog/archives/005244.html

Homer Simpson's garage marriages also illustrated the point well. If you don't know what I'm talking about, then I feel sorry for you :)
10.17.2005 11:20pm
Greg Krehbiel (mail) (www):
Someone said "I think the argument that the ordering of property rights is the undeniable core [of marriage] is a better [argument]; and it just so happens that inheritance rights are a rather important piece of the property rights puzzle."

But why are property rights important? Typically we worry about property for the sake of our offspring. So I think your attempt to put property rights ahead of procreation fails.

Yes, marriage is about the property rights of the spouses as well as the children, but I think you understate it to say that property rights are an important piece of the puzzle. A woman is concerned about property rights because she doesn't want to be left with children and no income, and a man is concerned about property rights because he doesn't want to spend his income on somebody else's children. IOW, I'd say how property affects children is the 800 pound gorilla.
10.17.2005 11:22pm
A Guest Who Enjoys This Site:
Unfortunately, I lost interest in this blog when it became apparent that Miss, Mrs., Ms. (I still don't know which is preferred.) Gallagher posited the following:


...I think procreation is the main public purpose of marriage, in the sense of being the driving force behind its unique legal status...


If a state of 'disagreement' is her ultimate goal, then such a premise is certainly designed to facilitate that end. If recognizing the basis of our disagreement is what she means by 'progress,' then Miss/Mrs./Ms. Gallagher is not proffering anything other than a forum for venting legitimate and illegitimate soundbites related to the issue.

If she truly believes that procreation is the main public purpose for marriage, then there is really nothing to continue arguing about. In the end, recalcitrant adherence to this contention as 'the' central tenet of any anti-homosexual marriage argument is a losing proposition; legally, logically, and metaphysically.

Yes, a public good is found in channeling typical, natural, 'animal' behavior insofar as 'males genetically predisposed to spreading their seed' and 'reduction of the negative consequences' of such naturally competitive behavior. Yes, there is a legal argument to be had as regards the issue of procreation informing our 'legal tradition.' However, if this is the CORE (i.e., the irreducible component) of the argument against same-sex marriage, then the issue has already been decided by the reality that hetrosexual, social relationships are no longer a requirement for simple procreation. (By the way, can we get away from the acronym SSM? Why? Is there not a subliminal and pejorative, even if unintentional, quasi-alliteration to BDSM or S&M connected with the use of such an acronym?)

If 'procreation' is to be defined more broadly as encompassing the rearing (socialization/education) of the individual with a 'balanced' influence of male and female stimuli within a nuclear family, then there are effective socio-anthropological and cultural arguments to be made. This, in fact, seems to be where Gallagher is leading due to her statement: "Sex makes babies, Society needs babies, babies need mothers and fathers." However, this very argument contradicts her position that 'procreation' is "the main public purpose of marriage, in the sense of being the driving force behind its unique legal status."

Why?

Because the core of this argument is not that procreation is the main public purpose, but that the greater public good is found in proper child-rearing, social acculturation, and cultural assimilation through a, presumably stable and appropriate, balanced family environment; with 'balance' predicated on required male-female stimuli.

Again, there are multitudinous, effective socio-anthropological, biological, and cultural arguments to be made. Further, there is plenty of historical evidence to suggest that indulgence in what are perceived to be 'deviant' (use of this term is not pejorative, but simply definitional in its intent - e.g., diverging from normal standards) behaviors, is, in fact, a formula for societal deconstruction; which, by definition, also entails cultural redefinition.

[Note: Let me re-emphasize that, regardless of whether you believe it is a biological imperative, a lifestyle choice, or something in between, homosexuality is exhibition of 'deviant' behavior in that it is a decided divergence from what most consider to be 'normal standards' of behavior or experience. While you may stratify the data based on a variety of variables, you are still left with the following, generalizations related to normal sexual orientation as presented, with plenty of caveats, by Wikipedia: "...Most people in most societies around the world have mostly experienced heterosexual attraction and engaged in predominantly heterosexual behavior ... In general, surveys quoted by anti-gay activists tend to show figures nearer 1%, while surveys quoted by gay activists tend to show figures nearer 10%, with a mean of 4-5% figure most often cited in mainstream media reports..." (see http://en.wikipedia.org/wiki/
Demographics_of_sexual_orientation) Even if we were to accept the high of 10%, that is still not sufficient to state that homosexuality is a 'normal standard' of male behavior/experience. Finally, while the data may be skewed by factors such as under-reporting, this is the data we currently have to work from in recognition of what is considered the 'norm.']

So, in the end, Miss/Mrs./Ms. Gallagher seems intent on creating threads of disagreement based on a, deliberate or unintentional, misrepresentation of her 'core' argument. This is what has created my disinterest. What purpose does it serve to recognize the obvious, i.e., that we disagree? If the purpose was to recognize 'WHY' we disagree and 'WHAT' forms the basis of our disagreement, then misrepresenation of the arguments and the ultimate goal in the interest of creating discussion does only that - creates discussion, diatribe, and dissent. It does not lead to a true recognition of the core arguments which form the why and what of the disagreement. Such recognition being necessary for a constructive, informative, and solution oriented discourse.
10.17.2005 11:24pm
Jon Rowe (mail) (www):
-- For the ancient Greeks, it would be preposterous to assert that individuals have a "right" to marry whomever they choose: the common good (the public) was prior to the individual good (the private), the exact opposite of modern egalitarian liberalism. --

What needs to be mentioned here is that up until the Enlightenment "it would be preposterous" everyone and in all cultures to assert that individuals have any kind of liberty or equality "rights" which they take against government.

The notion of individual liberty and equality rights itself is a modern liberal (by that I mean the Enlightenment to the present, and liberal in a small l sense) notion.
10.17.2005 11:26pm
Dilan Esper (mail) (www):
Has anyone else noticed just how much social engineering is inherent in Ms. Gallagher's position? She is presuming (1) to define everyone's marriage as about procreation, when plenty of people marry for love, money, satisfying sex, status, the freedom not to work, or all sorts of other reasons; (2) that because procreation CAN occur between a monogamous opposite-sex couple, that therefore all procration SHOULD occur in that context or at least that society should promote such procreation and discourage other sorts of procreation; (3) that because she thinks marriage SHOULD be about procreation, society has every right to deny the benefits of marriage (including both its status and the legal privileges that are afforded only to married people) to people that she doesn't think will or should procreate.

Most broadly, who does she think she is? What made her the ultimate authority on marriage? Indeed, why does government have any business witholding benefits based on whether the person someone sleeps with-- or the purpose that those people have for having sex with each other-- meets with Maggie Gallagher's approval?

One of the things that is fundamentally absent from Ms. Gallagher's analysis, as well as some of her critics, is the issue of liberty. Ms. Gallagher goes on and on about the historical and fundamental purposes of the marital union and marriage's function as a social institution. Her critics point out how it constitutes a breathtaking denial of equal rights to disallow gays and lesbians from getting married.

While the equality objection is perfectly sound, however, what Ms. Gallagher really misses is how our conceptions of liberty have changed. Ms. Gallagher seems to be arguing from a perspective that the government should be able to take an active interest in who people have sex with. From there, she can argue what's best for the children, and what's best for the institution of marriage.

But in the last 40 years, thanks both the sexual revolution and the legal revolution that started with Griswold and runs at least through Lawrence v. Texas, American society has rejected Ms. Gallagher's fundamental premise that the law can make judgments about people's purposes in having sex with each other (let alone that the law should adopt HER judgments about those purposes).

Gallagher's argument reminds me of the old definition of a puritan-- someone who is grossly offended that someone else, somewhere, might be having more fun. In this case, to be a little bit crude about it, someone is out there having nasty, crude, nonprocreative sex. Indeed, lots of people are doing it. And many of them are married. And many of those married people are using contraception and have no intention of covnceiving a child. And you know what, Ms. Gallagher-- it's none of the government's business whether they are having sex to procreate or not!

To accept Ms. Gallagher's argument is to accept that Griswold was wrongly decided and Connecticut in fact had a compelling state interest in regulating whether the activities in the marital bedroom were directed towards conceiving a child. Nobody but the far right accepts this in theory anymore-- and nobody but the most extreme moralists on the far right accepts it in practice.
10.17.2005 11:26pm
vp:
Maggie,

This was a spot-on analysis. It separates the SSM argument from both religion and gay activism, and clearly lays out the logic and history of marriage as a civic institution.

The real point is that homosexuality is not a permanent condition, unless someone wants it to be. As an exgay, I can attest to the fact that feelings are not fixed or immutable. Feelings can and do change, when beliefs change. (Ever fall out of love? You did so because your beliefs about a person changed. For exgays, we get turned off to the whole concept of homosexuality, because our beliefs about others, and ourselves change.)

But, getting back to the SSM topic - one other point to consider is the economic havoc that will be caused by having same-sex "marriage" partners continue to draw down on partners' social security, after their partners die, even though the unions by a large margin do not produce a subsequent productive generation. You think we have social security problems now? Wait until SSM hits the books.
10.17.2005 11:31pm
Jim de Seve (mail) (www):
Hi Maggie,

I was wondering if you had a chance to check out my film on the subject (called Tying the Knot) since our being on nerve.com a while back.

I won't write a long post here, since I spent four years crafting the film that explains many relevant views. You can find Tying the Knot at www.1049films.com - it is also available in most Blockbuster's and on Netflix, Amazon etc.

check it out - you might learn something :)

Jim
10.17.2005 11:39pm
Ari:
Even assuming that the statement, "Society needs babies" has any real meaning, I still think that the resulting argument against same-sex marriage is backwards. Let me explain.

So far, the argument has shown that society has an interest in saying the following: "If you are going to have babies, then you should get married." However, this statement's inverse -- "If you are not going to have babies, then you should not get married" -- does not logically follow. (It's the same, elementary difference between "All women are humans," and "All humans are women.") The only thing that does follow is the contrapositive: "If you are not married, then you should not have babies." (This is clearly, unsurprisingly equivalent to the first statement.)

If anything, you've just shown the easy part: that the scope of marriage should not be narrowed. To suggest that it should also not be widened is quite different, logically unrelated -- and most likely the part of your stance that most people object to. To suggest that same-sex marriage opponents disagree with the "no narrowing" argument is a straw man -- the "no widening" argument is what the debate is really about.
10.17.2005 11:44pm
Op Ed. (mail) (www):
Stick a fork in this one, it's done. In all the pages and pages of "rebuttal" to Maggie, not one viable alternative explanation has been proposed for the state's involvement in marriage at all, let alone in ss"m". I'm willing to give the ss"m"-aholics on this list the credit that if a counter-reason existed, they'd have mentioned it by now.

So basically, the only argument for ss"m" is a parallel to the argument used by a bad mechanic: "I don't know what this part does, but I think I can replace it with this one 'cause I don't know what this one does, either."
10.17.2005 11:51pm
On Lawn (mail) (www):
> Justin: On Lawn - Please re-read the Maggie's post and then re-read my post. Then, at your discretion, you may continue to incorrectly interpret, as Clayton did, historical same-sex relations as applying to marriage, child molestation, Zulu-male-warrior intiation rites or whatever it is that you wish to believe.

You should re-read the comment then as I in no wise apply it to marriage. In fact that would be the direct opposite of my point. They most certainly apply to child molestation, though.

> Jesurgislac: Maggie has failed to make her case for the centrality of procreation to the definition of marriage.

Your ability to deny and ignore does not impose any demands on others arguments. You've tried this tactic of dishonesty many times previously, and its caught up to you.

> PaulD:

Good point. You may be interested in this article. I had the same view as you before I read it. Now I am pro-Reciprocal Benificiaries but think Civil Unions are problematic in practice.

> Jamesaust: This is what Maggie is flailing desperately to avoid - that marriage can (and often is) based upon something much more general than procreation and that homosexual couples possess this same need in precisely the same manner and extent as heterosexual couples.

Oh, a good article about that is here. It is poor reasoning to expect that many dimensions of marriage means we can neglect any of them.

> JG: Continuing along the logic of the due process argument, I would ask Maggie Gallagher why it is that prisoners have a constitutional right to marry, but not same-sex couples, if indeed procreation is the driving force behind the legal status of marriage.

Your referenced Turner provides ample reasoning...

Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.


So inmates cannot truely be considered unable to consumate a marriage. Also from Turner...

Our decision in Butler v. Wilson, 415 U.S. 953 (1974), summarily affirming Johnson v. Rockefeller, 365 F. Supp. 377 (SDNY 1973), is not to the contrary. That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime.


> Richard Bellamy: To summarize, my personal hope and dream is -- in 40 years -- Ms. Gallagher will appear just as evil and misguided as George Wallace yelling "Segregation now, segregation forever" 40 years ago.

Considering the oppression ss"m" results to on children, the handicapped and homosexuals themselves I doubt that is a likely outcome.
10.17.2005 11:52pm
Justin Kee (mail):
On Lawn -

No, your posts are too long to read.

Just kidding.
10.18.2005 12:12am
Buck Turgidson (mail):
The California Baker court in 1859 laid out the the prime reason as procreation and a second reason as the happiness of the couple. Fair enough.

Why is a legal example being cited in support of some version of cultural tradition? We are not talking about legal history here, but general history or cultural anthropology.

I am simply amazed how many bogus arguments are being made in support of artificial restrictions. Never mind that they are not dissimilar from the argument in opposition to mixed marriages--not that they are being made out of bigotry, but rather out of ignorance and lack of collective memory.

But the situation is much worse when it comes to appeal to "tradition". Note that some discussants made an appeal to the Athenian system without even so much as mentioning the Spartans and other Greek sub-cultures. In fact, the point of sexual relations as a means to life-long bonding should not be overlooked. The idea that even cultures with strong homosexual traditions all had some version of heterosexual marriage is also important. Heterosexual marriage had several important social functions. Procreation is only one of them.

Looking back to Christian marriage traditions from medieval and earlier Europe, one cannot help but notice that procreation was actually something that, at one point, became an undesirable product of heterosexual marriage. In fact, open, public marriages--rather than secret weddings in the Church--were instituted for a single purpose only, and procreation wasn't it. Public marriage was instituted to simplify the laws of inheritance--something that proponents of gay marriage today also very much desire.

The point is, that "infidelity" going on in Christian societies. Many, if not most, children, at the time, were sired by fathers who were not legal spouses. That confused the inheritence structure. To streamline the process, the Church concept of marriage was combined with more pagan traditions and a legal approval to result in a single line of succession that would eliminate the search for true parentage from considerations of inheritence.

Going back to the Spartans, in addition to simple issue of procreation, heterosexual marriage also protected the inheritence rights.

The ethical and moral prohibitions against--or, at least, approbation of--homosexuality are restricted to the Old Testament. So is the specific legal prohibition in one instance. Considering that the Old Testament outlines an attempt by one people to separate itself from the traditions of its neighbors, many of whom had no problems with homosexual relations, it should not be too surprising to witness such clauses. At issue is the difference between principled and literal interpretations. As usual, the literalists claim the absolute higher ground.
10.18.2005 12:14am
Crane (mail):
On Lawn - I may regret asking this, but how does gay marriage oppress the handicapped? I can understand arguments that it's bad for children to be raised without one parent of each gender, and I can even see how one might think that legalizing gay marriage is bad for gays, if one already believes that being gay is bad and they'd be better off in straight marriages. But why the handicapped (any more than anyone else)?
10.18.2005 12:17am
Op Ed. (mail) (www):
Buck: I am simply amazed how many bogus arguments are being made in support of artificial restrictions.

Like why I can't paint "Ambulance" on the hood of my car and speed through rush-hour traffic, or go over and start taking Buck's stuff out of his room. Such artificial restrictions!

Many, if not most, children, at the time, were sired by fathers who were not legal spouses. That confused the inheritence structure. To streamline the process, the Church concept of marriage was combined with more pagan traditions and a legal approval to result in a single line of succession that would eliminate the search for true parentage from considerations of inheritence.

Speaking of bogus arguments! So the Church got all antsy about property rights so it turned to paganism to discover marriage. Presumably just enriching itself by taking over the intestate property never occured to "the Church" or the local lord who owned the land, anyway. I'm sure, too, that there was some giant hue-and-cry the following year when wills were invented to handle inheritance since that was obviously what marriage was for. What complete idiocy! That's just got to be some deliberate parody of ss"m" revisionism and Buck simply forgot the smileys.

Buck, I'll just add you to the list of ss"m"-oholics on this list who don't have a counter purpose to Maggie's.
10.18.2005 12:42am
Perseus (mail):
I mentioned Sparta already. And what people fail to understand is that in the ancient Greek cities where homosexual relations were encouraged, such relations were designed to foster the political partnership, not the economic partnership of the family, which held a much lower status than the political partnership (contra Christianity, which tends to denigrate the political partnerhsip in favor of the family and God). So any attempt to use the ancient Greeks to support the idea of SSM are completely abusing history. It would be more appropriate to use the example of the ancient Greeks in the debate over gays in the military.
10.18.2005 12:56am
On Lawn (mail) (www):
> Crane: Homosexuality is not a handicap, yet homosexuals wish the same entitlements (as in to be directly equated with them). This is correlated argument to the sterility strawman. The article explains it much better.

> Justin: Its hard to catch up with everything ;) Smaller chuncks are better.
10.18.2005 1:01am
JG:
On Lawn: Your referenced Turner provides ample reasoning...

Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.

So inmates cannot truely be considered unable to consumate a marriage. Also from Turner...

Our decision in Butler v. Wilson, 415 U.S. 953 (1974), summarily affirming Johnson v. Rockefeller, 365 F. Supp. 377 (SDNY 1973), is not to the contrary. That case involved a prohibition on marriage only for inmates sentenced to life imprisonment; and, importantly, denial of the right was part of the punishment for crime.


Most same-sex marriages are also formed in the expectation that they will be fully consummated, as consummation of a marriage refers to sexual intercourse, not to procreation (feel free to look it up).

I would note, also, that the Missouri regulation in the Turner case had an as-applied exception for pregnancy, but was still struck down as unconstitutional -- not proof-positive, of course, but certainly compelling.
10.18.2005 1:01am
Been Waiting For This One:
I wondered how long it would take someone to cite Lawrence, et al. v Texas in this discussion. I think Scalia's and Thomas' dissent provides an answer as to why proponents of SSM may want to avoid citing this decision.


Most of the rest of today's opinion has no relevance to its actual holding...Though there is discussion of "fundamental proposition[s]," ante, at 4, and "fundamental decisions," ibid. nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion...It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is...In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct... I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion... The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review... Finally, I turn to petitioners' equal-protection challenge...[prohibition of sexual intercourse between partners of the same sex]... cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex...It must at least mean, however, that laws exhibiting " 'a ... desire to harm a politically unpopular group,' " ante, at 2, are invalid even though there may be a conceivable rational basis to support them...This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in §21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence Justice O'Connor has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad)...Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct...It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream."...Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else...What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."


In other words, using 'Lawrence' as a 'legitimizing' factor for SSM means using an overt instance of judicial legislating (activism) to circumvent societal norms. As such, it is not only subject to being overturned by a new balance on the Supreme Court, but it negates your very argument insofar as - "American society has rejected Ms. Gallagher's fundamental premise that the law can make judgments about people's purposes in having sex with each other (let alone that the law should adopt HER judgments about those purposes)."

Your argument is moot in that it was not 'American society' which rejected that law can make judgments about peoples' purposes vis a vis sexual relations, it was a convoluted, incomplete, questionable, and shaky bit of judicial, results-oriented rationalization that 'rejected' it. In a very real sense, by attempting to parrot Scalia's "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best," you point to the fact that it is an 'activist judiciary' which has supplanted its will for that of the American people.

What was that about people who live in glass houses?
10.18.2005 1:21am
Perseus (mail):
Quarterican: I've already debated this issue ad nauseam on Left2Right. Because we are talking about children, not "consenting adults," the onus should be on those who think that it's a good idea for same-sex couples to raise children to make a clear and convincing case that children reared in such an environment will not suffer for lack of one sex as a parent.
10.18.2005 1:22am
On Lawn (mail) (www):
Most same-sex marriages are also formed in the expectation that they will be fully consummated

The reason comsumation is important was outlined by Maggie. Consumation and procreation are not unrelated, they should not be considered individually. Expectation of consumation in heterosexual relationship provides the reasonable expectation of procreation, the sine qua non of marriage.
10.18.2005 1:29am
Cal Lanier (mail) (www):
Ms. Gallagher clearly isn't responding to comments, so there's not much point in my adding to one particular chorus, but what the hell:

Procreation is clearly not the government's purpose in recognizing marriage, and hasn't been for at least 20 years.

Marriage is necessary for the legal and financial protection of the partner. Two folks living together can't claim any benefits from the federal government (and not from most state governments) unless they are married. These benefits cost the state money, and the state needs some signal that the financial and legal relationship isn't a complete scam. Given that the risks of these entanglements sets a reasonably high barrier, the fraud factor is low enough to keep a traditional protection in place.

Marriage is entirely unnecessary for the legal and financial protection of the child. American laws and court decisions have been eliminating any requirement that a child's parents be married--or in fact, that the child's parent actually be a biological parent. Just as marriage benefits cost the state money, so do children without financial support. Anything that makes it easier for the state to find someone else to pay for a child is always going to win favor.

As a country, we show no interest in turning back the clock. There's no groundswell of popularity for laws that stigmative children born outside of wedlock by denying them the legal and financial protections their father could provide them. Quite the contrary, we show every sign of extending the reach of the law to assign parental responsibilities outside of marriage, particularly in the area of child support. When a lesbian is ordered to pay child support for children that aren't legally hers, it's pretty clear that the state is wholly uninterested in marriage as a prerequisite for parenthood.

So it's impossible to argue that marriage has anything at all to do with parenthood, when federal and state governments have eliminated any advantage to children born in wedlock.

I suggest Ms. Gallagher and those who agree with her spend a decade or so pushing for a return to a more stringent definition of parenthood. Once she's ensured that any child born out of wedlock has no legal standing or claim on his father, she can resume her argument about marriage and procreation. Until that point, she'll have to acknowledge that marriage is a way for one person (usually the woman) to lock in financial protections and a higher standard of living--whether or not they have kids, and stop with this nonsense about marriage being the government's way of supporting children.
10.18.2005 1:46am
Bruce Wilder (www):
PaulD: "why are homosexuals dissatisfied with civil union laws?" I don't know that "homosexuals" have a uniform opinion on any of the question pertaining to SSM, but I understand that pro-SSM activists, generally, take the position that "separate, but equal" is never equal. Some moderates and liberals have proposed that the State should offer only civil unions, and that "marriage" be distinctly left to the religious sanction of churches and religious organizations, but such proposals have gained no political traction.

vp: "The real point is that homosexuality is not a permanent condition, unless someone wants it to be." Is it? If some people want it to be a permanent condition, should those people be allowed to marry? Should people, who want to have homosexual relationships, be penalized for doing so? Should they be punished for having homosexual relations?

This thread turns on a species of argument, which questions whether the institution of marriage will be somehow "damaged" in performing its social purposes and functions, by allowing homosexual marriages to be legally recognized. How this "damage" will arise is hard to pin down, but, ultimately, such assertions are empirical questions, and the obvious imperative is, simply, try it! SSM has been legalized in some western countries and, apparently, will be, in some States. Logical imagination has not been able to identify the harm, but careful observation may discern it. We'll see.
10.18.2005 1:57am
Challenge:
Is it possible that those 1001 benefits or whatever are really just the result of the government wanting people to "partner up" and commit to eachother?

That is absurd on its face. Whatever the benefits of having a long-term partner, that is not why the state is involved in the institution of marriage.
10.18.2005 1:58am
Op Ed. (mail) (www):
Cal: Procreation is clearly not the government's purpose in recognizing marriage, and hasn't been for at least 20 years.

The parade of absurdities goes on. Exactly what did we replace procreation with 20 years ago? Since Maggie is so "clearly" wrong, no doubt Cal can tell us what the government's real purpose is in marriage... Nope, just read it again. He's got nothing.

I'll add Cal to the already very long list of ss"m"-oholics without an alternative explanation to Maggie's.
10.18.2005 2:11am
Proud Generation Y Slacker:
That was an excellent post by Jane Galt. I suggest everyone read it, even if it makes your blood boil, to understand the reservations many Americans have.

Here's a good summary, which she got from G.K. Chesterton:


In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."

This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.


Why is the fence where it is? Advocates need to answer that before we decide to move it.
10.18.2005 2:23am
Jamesaust (mail):
"On Lawn" - what's so hard to grasp here? Procreation in fact or in potential is not a requirement for marriage in any state. Nor has it been part of the general assumption since the rise of reliable contraception. Pat Buchanan I'm sure has a very nice rewarding marriage even if it is childless. Your obsession with linking various factors about marriage into some sort of web of cosmic truth misses Maggie's point, which is to emphasize procreaton as a (or "the") basis for marriage. Maggie's lost the battle. Indeed, lost it a long time ago. Before she was even born.

The only reason that people are discussing this subject (other than Maggie is paid handsomely to spend time stirring up such discussions by various agenda seekers) is that this subject didn't exist a decade or so ago. For those who see marriage as a fixed rock - the "intelligent design" viewpoint if you will ("God created marriage just as it is") - this topic really is the top of a slippery slope. No, I'm not talking Santorum's (20 points behind in the polls) "man on dog" b/s. The stakes here are truly Biblical. If those seeking a certain agenda cannot destroy an idea barely in its teens that benefits directly only a tiny percentage of the population, haven't they lost EVERYTHING? What has been so amazing about this second wave of conservativism we've seen in the Gingrich/Delay/Bush Jr. years is that despite virtually a total grip on all the levers of political power, every demographic slice consistently self-describes themselves as "more liberal" than their parents - the majority of Republicans say this, higher income brackets, blue collars, senior citizens, military personnel, etc.

In truth, homosexuals would gladly (if grudgingly) accept some lesser civil union status. (Jeez, none other than Bush Jr. says he favors this - not that you'll find any Republican PARTY support for this outside the northeast.) But for the Radicals of the right this, even more than abortion, is a must-win-or-go-home issue. Its not that the world would end (far from it). Its just that there would be no point fighting on lesser issues. Who is going to get all worked up over neo-prohibition or adultery police or prostitution after the Big Loss. Heck, this sounds just like the mullahs of Iran but at least they have "temporary marriage." I mean, how are you going to keep them down on the farm once they've seen San Francisco?
10.18.2005 2:48am
Daniel Chapman (mail):
I don't think you speak for "homosexuals," Jamesaust. Many of them do want more than "some lesser civil union status." It's not just about the legal rights afforded to married couples, it's about the social recognition that comes with the institution and the label.

By the same note, there are plenty of conservatives who agree with civil unions or at least affording the same state benefits to (committed) homosexual couples as go to married couples. They might not be vocal about it because it's not their issue to push, but that doesn't mean they're opposed to it.
10.18.2005 2:57am
Quarterican (mail):
Perseus -

I went to Left2Right and tried various searches attempting to find whatever discussion(s) you had in mind. If there was a big blowout argument on the subject, I missed it, but I noted that it came up several times. I didn't see anybody citing anything that I'd consider "evidence." I glanced at the results of a crude Google search I just did; perhaps tomorrow I'll be more rigorous, but the impression I got was "well, we're starting to be able to do studies, and gay parents don't seem to make a difference." Without referring to data, though, all I've got is intuition and anecdote. Which is, essentially, what I was hoping for from you - what's the intuition behind the thought: "A gay couple can't fulfill all the parental functions of a straight couple." I basically gave my answer already: I think the differences between individuals render the generalizations - however true or not - about differences between gender meaningless. Whatever's supposed to be in the "good parental set" basket seems no more likely to me to come from one gender or another. I can list some of the qualities I assume we're thinking about: creating a nurturing, loving, encouraging environment, providing firm discipline, possessing a certain amount of sympathy/empathy, neither smothering nor freezing your child with your affection/lack thereof, ability to answer difficult questions appropriately, ability to impart sense of right/wrong and ethical/polite behavior in society, and so forth. A lot of these fit into a narrative about gender roles that, for lots of my friends, looks like a dark take on Donna Reed, and doesn't bear a huge amount of relevance to our parents - not that these aren't important duties that our parents fulfilled, but that they somehow broke down on gender lines. The vaguely distant, emotionally chilly and unsentimental father who provided the disciplinary muscle (verbal or otherwise), taught the black and white rules of right and wrong, etc., and is only completed by the slightly overbearing, emotionally accessible mother who made pies and kissed away the tears...I'm being somewhat satirical because I really don't know what you're getting at. My parents fulfilled the duties of parents by being a pair of individuals who, I think, grew and changed in response to the pressures of being a parent, and developed the complementary qualities they did partly by virtue of being my parents...and I don't think it had to do with one being a man and the other a woman.
10.18.2005 2:58am
Quarterican (mail):
Proud Gen Y Slacker and Op Ed. -

I'm sympathetic to the point that there hasn't been a wholly convincing alternate picture presented in these threads yet. Perhaps one will emerge with further discussion, perhaps not...someone somewhere mentioned "mutual guardianship," and people were talking about property...

But Op Ed. (especially), come on. A lot of virtual ink has been spent articulating the point that we don't find Ms. Gallagher's explanation very good, either. And even - and this is what's bugging me - even if I grant her the notion that "procreation is the reason for marriage," she's yet to say why that means gays can't marry. I may be stunned by whatever she posts tomorrow, but I don't think the edifice she's building can logically rest on this foundation. If you disagree with me, take umbrage with my arguments, as Proud Gen Y Slacker did to an extent (well, not *my* arguments, which were stated in another thread, but "the general argument") but please do acknowledge that there's a debate going on here and don't snidely say "gosh, I'll have to consign you to the ss'm'-holic bin as well," as though we've got nothing to say other than "uhhh, I disagree because I want it so!"

If the purpose of marriage is procreation, a great many people are allowed to marry because we have a blind, uninformed, presumption that they might (will?) procreate. Setting aside the case of elderly marriage, we make no effort to discern whether or not the couple in question wants children or is biologically capable of doing so. The government grants marriage licenses from a position of ignorance, because "well, these people have the potential to procreate." And I say - gay people have as much potential to procreate as millions of straight people do. Sperm donors, surrogate mothers, and adoption are the child-obtaining methods of infertile straight people, and they are just as availible to homosexuals. The position of ignorance from whence marriage licenses are granted cannot, I therefore think, discriminate because of sexual orientation, because the potential to procreate is so broadly defined that it includes gay couples in its scope. If you don't think gay people should be *parents*, that moves the discussion in a different direction, of course.
10.18.2005 3:15am
Dilan Esper (mail) (www):
Been Waiting:

I didn't cite Lawrence as an example of exemplary constitutional interpretation. Rather, I cited Lawrence as the culmination of a legal repudiation of the asserted interest of the government in policing ordinary citizens' sex lives. And my point is not dependent on the case being persuasively reasoned; rather, I think it is fair to say that the line of cases from Griswold to Lawrence represents the Court's forceful repudiation of the legitimacy of these sort of asserted governmental interests.

And while you quote Justice Scalia about how Lawrence supposedly denied a democratic majority from enacting its preferences into law, the fact is that the Court was following, and not leading, in Lawrence. The public, in general, has become far less supportive of the enterprise of utilizing government power to police sexual morality, or more to the point, to determine what makes for "proper" activity in a marriage. That this transition in the law has paralelled the sexual revolution is no accident.

The truth is that nobody was ENACTING sodomy statutes anymore; but conservatives screamed about tradition when people proposed REMOVING them from the books. For the Court to step in, following public opinion, in these circumstances may be many things, but it is not anti-democratic.

The point is, these arguments against same-sex marriage made by Ms. Gallagher-- as well as Justice Scalia's rather homophobic dissent in Lawrence-- are reflective of people who are living in the past. People no longer want the government to decide what the "proper" purposes to have sex in the marital bedroom are. (By the way, FYI, Justice Thomas wanted nothing to do with Scalia's dissent in Lawrence. Thomas said the law was silly (implicitly agreeing with the majority that policing the bedroom wasn't a legitimate interest) and didn't sign onto Scalia's dissent, though he voted to uphold the statute.)

I understand the arguments that by applying substantive due process, the Lawrence Court was "legislating from the bench". Nonetheless, my point was simply that whatever the judicial legitimacy of the decision, the PREMISE of the Court's decision-- that it is not a legitimate purpose of the state to regulate private sexual behavior-- is now pretty well accepted. And the premise of GRISWOLD-- i.e., that it is not a legitimate purpose to regulate the procreative purpose of MARITAL sex-- is almost UNIVERSALLY accepted, even by people who don't agree that the Court had any business striking down the statute.

And remember, Ms. Gallagher is not simply arguing against judicial overreach. She is arguing against ANY recognition of same-sex marriage, including by a legislature or even by the voters of a state, and she is arguing on the ground that government has a legitimate interest in ensuring that people are using their marital beds to procreate. In other words, my point isn't that her arguments are inconsistent with the Court's HOLDING in Lawrence-- Lawrence made it pretty clear that its holding did not extend to same-sex marriage anyway. Rather, my point is that Lawrence is reflective of an societal attitude change, and Ms. Gallagher's arguments seem to presuppose that it never happened and that it's still considered the government's business whether or not we procreate in the marital bed.

Substantive due process and the constitutional justification for striking down sodomy laws are controversial. What is NOT controversial anymore is that there are much better things for the government to worry about than whether a couple is trying to conceive a child when they have sex. Ms. Gallagher apparently hasn't gotten the work.
10.18.2005 4:59am
Been Waiting For This One:
The problem with your position can be found in your own statement that it "represents the Court's forceful repudiation..." That's Scalia's very point in his dissent. It is NOT the Court's responsibility to anticipate changes in society. If you don't like the law or don't agree with the law, you persuade your legislature to change the law; thus making such changes the 'will of the people,' not 'the judiciary's peremptory anticipation of changes in the will of the people.'

As for the ad hominem regarding Scalia being 'homophobic...' If you actually read his dissent, he points to the fact that public opinion on the issue was changing; but, it was not the role of the Court to anticipate such change.


In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires...It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed... Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so...


As for 'Lawrence' not being applicable to homosexual marriage, Scalia warns:


"The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."


Scalia points to the implications of 'Lawrence' having the potential to act as precedent vis a vis homosexual marriage. Further, he directly addresses the issue of procreation as an argument against homosexual marriage as posted by Gallagher. Thus, we see that Scalia is pointing to the issue that the Court, in its decision, is potentially anticipating, rather than following, public opinion by creating citable precedent based on a results-premised decision which "has no relevance to its actual holding" and "proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case."

I was incredulous regarding your contention that your "point is not dependent on the case being persuasively reasoned." Initially, I wondered what your basis for legal decisions might be if they did not have to be well formulated. Then I saw your comment "that whatever the judicial legitimacy of the decision, the PREMISE of the Court's decision...is almost UNIVERSALLY accepted..." Thus, I am left to conclude that you maintain a judicial philosophy that relies upon the generation of specific results and is not dependent upon sound, legal reason.

This perception is bolstered by your finishing argument that Miss/Mrs./Ms. Gallagher is wrong in stating that marriage is about procreation (assuming HER definition of procreation is strictly limited to 'conception,' then I agree with you that she is incorrect in her stated premise) because YOUR view is that the government has no business in people's bedrooms (another axiom I'd agree with).

The problem with your citation of the activism readily apparent in cases such as 'Lawrence' is found in the inevitability of such judicial activism resulting in decisions YOU do NOT happen to agree with. In the end, this is the basis of Scalia's dissent; he is disagreeing based on methodology rather than the actual result. Poorly established and unpersuasive precedent does not lend itself to effective use in future decisions; regardless of the 'activist' or 'benign' intent of the Court.

This is why legal decisions, of necessity, MUST rely on persuasive (meaning to convince by reasoning or argument, not 'justification' of a predetermined result) argument that is as objectively 'neutral' as possible. Decisions must not be premised on anticipation of eventual changes in society, for, by the very nature of change, the Court cannot possibly anticipate either the ultimate definitions of societal evolution or the ripple effects thereof.

If, as you posit, the Court was 'following rather than 'leading' public opinion, then why do we see continued controversies over sodomy laws, homosexual marriage, homosexual adoption, et al.? If a true 'societal change' has occurred to the degree that such practices are now accepted as normal, then why is there such diversity in the opinions, not only on this board, but within society in general?

To disagree with Miss/Mrs./Ms. Gallagher on the issue of procreation as the 'core' of marriage is certainly legitimate. Contending that demonstrably, through their lack of coherent or consistent reasoning, 'activist' judicial decisions support your views as those held by 'society in general' is not sound and calls into question the legitimacy of your own argument. That's the point.
10.18.2005 6:41am
Medis:
The cynic in me suggests that Maggie is delaying once again actually getting to the positive part of her article (where she argues that gay marriages would somehow undermine the "social meaning" of marriage) because:

(1) She knows we have already anticipated and criticized that argument;

and (2) that argument is going to go over like a lead-balloon with the libertarians in this crowd.

And my cynicism is increasing because I don't really see the point in four threads all getting us no farther than noting that encouraging natural procreation and child-raising between straight couples was one of the traditional purposes of marriage, and may be one of the many current purposes of marriage ... but so what?
10.18.2005 6:45am
Op Ed. (mail) (www):
Quarterican: as though we've got nothing to say other than "uhhh, I disagree because I want it so!"

Disagree? Prove me wrong!

If the purpose of marriage is procreation, a great many people are allowed to marry because we have a blind, uninformed, presumption that they might (will?) procreate.

Presumption that they might procreate? What is that? You either meant "They might procreate," or "Presumption that they will procreate." Double hedging of your statements makes them meaningless.

The government grants marriage licenses from a position of ignorance, because "well, these people have the potential to procreate."

That is not an ignorant position. For it is precisely the potential to procreate that marriage seeks to control.

And I say - gay people have as much potential to procreate as millions of straight people do.

And that is why they have exactly the same potential to marry. I will note that you have deployed the deliberate amphibology of switching from couples to individuals in order to cover the flaws in your argument. Marriage licenses are not granted to individuals, only to couples. That your argument cannot hold when confined to its proper context, couples, should have tipped you off that you are mearly yearning for a specific conclusion rather than arriving at it rationally.

Sperm donors, surrogate mothers, and adoption are the child-obtaining methods of infertile straight people, and they are just as availible to homosexuals.

Government already regulates sperm donors, surrogate mothers, and adoption. Quoth the gorilla:
Same-sex marriage proponents typically try to excuse their removal of children from the marriage equation with some variant of these two counter arguments: ...Through intervention by a third party, a member of a same-sex union can have a child.
...
The fact that there are other avenues for reproductivity is merely argument that society should take an interest in those other avenues, and in reality, it does. The fact remains that the same-sex union itself did not result in offspring and so society's interest in that union is considerably reduced.


The position of ignorance from whence marriage licenses are granted cannot, I therefore think, discriminate because of sexual orientation, because the potential to procreate is so broadly defined that it includes gay couples in its scope.

Marriage licenses are neither granted from a position of ignorance, nor do they impose a test for sexual orientation. The basic facts of human reproduction may be vague to you, but they are not, and they clearly do not include same-sex couples of whatever "orientation."

And now we will return to your opening paragraph:

I'm sympathetic to the point that there hasn't been a wholly convincing alternate picture presented in these threads yet. Perhaps one will emerge with further discussion, perhaps not...

If you, personally, do not have a purpose in mind for government involvement in your new relationship, why are you seeking it? Saying that perhaps one will emerge admits that you want a specific outcome and are trying to construct the rationale to get there post hoc. It is merely saying that you yearn for an alternative purpose to Maggie's, or in other words, "[you] disagree because [you] want it so!"
10.18.2005 7:49am
spectator:
@Jon Rowe,

if this summary of Plato's Symposium which you reference has led you to regard it as a "defense of homosexual love", perhaps it would be a good idea to read the full work some day, giving some thought to the possibility that Diotima's dialogue with Socrates about the nature of love (and, incidentally, the importance of procreation in this context) reflects Plato's own view better than the myth told by Aristophanes.
10.18.2005 7:56am
Jam (mail):
Oh boy! Lots to read in here.

My meager comment/question is simply thus, who in their right mind would use Sparta as an example for anything except in the negative? When Spartans would have babies then, if found defective (??), the baby would be thrown off a cliff. Throw Sparta off a cliff.
10.18.2005 10:30am
Gary Kelly (mail) (www):
Let's put on our stupid hat for a minute. Let's forget about the last 5000 years of man's increasing knowledge and intellect. So there you are, 18 years old, with your family and "tribal members" sitting around a fire after sharing the catches of the day. What comes natural? Or have we reached the point where we have outsmarted nature? I notice in throughout this discourse, that it appears to be above and beyond Scriptures. That being the case, where reasoning has replaced faith, the only resort is to ask those wise in this world to consider the facts and consequences of the lifestyles being discussed. Of course one must also be of virtue and honesty to accept the facts. A place to begin is where columnist Stanley Kurtz pointed out that Denmark legalized de facto homosexual marriage in 1989, with Norway following in 1993 and Sweden in 1994. Since then, he writes, same-sex marriage in Scandinavia has locked in and reinforced an existing trend toward the separation of marriage and parenthood. Sound natural? Did you ever wonder why Jefferson tied "unalienable Rights" being "entitled" if they did not violate "the Laws of Nature and of Nature's God?" Do you know what document that appears in? Hint: It wasn't written in a letter to the Baptists that has been so vehemently taking out of context its makes one wonder how intelligence, virtue, and honesty should be measured.
10.18.2005 10:35am
jrose:
As Scalia put in his Lawrence dissent:

'If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, [...] what justification could there possibly be for denying the benefits of marriage to homosexual couples [...] Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.'

I am persuaded by Gallagher that procreation is one of the motivating factors for civil marriage. But, there must be at least one other given the elderly and infertile. My theory is the state uses civil marriage as an incentive to domesticate the wild hoards, also known as single people. SSM falls within that purpose.

Gallagher can still make her case if she can show that SSM harms the procreative purpose of marriage. Whether the burden lies on her to make her case, or SSM proponents to disprove her, isn't clear. In the political arena, I argue she has the burden given that SSM falls within the purpose of marriage. In the Constitutional law arena, SSM proponents likely have the burden - but to what extent depends on how you read Romer. If Gallagher's reasoning for why SSM harms procreation also applies to the elderly and inferilte, the resulting underinclusiveness may be evidence of impermissble animus towards gays.
10.18.2005 10:58am
Unamused:
My theory is the state uses civil marriage as an incentive to domesticate the wild hoards, also known as single people. SSM falls within that purpose.

What do you mean by "domesticate the wild hoards [sic]?" I really have no idea what you mean by "domesticate" in this context, but this sounds tautological.
10.18.2005 11:29am
jrose:
What do you mean by "domesticate the wild hoards [sic]?" I really have no idea what you mean by "domesticate" in this context, but this sounds tautological.

Domesticate = to settle down with a lifemate rather than sexually/romantically playing the field.

Todd Zywicki just posted (I swear, after I posted mine) a similar notion, although he limited his comments to men (the state can posit that women need "taming" too).
10.18.2005 11:40am
Unamused:
Domesticate = to settle down with a lifemate rather than sexually/romantically playing the field.

Why does the state care what you do with your free time?
10.18.2005 11:42am
Cold Warrior:

But why are property rights important? Typically we worry about property for the sake of our offspring. So I think your attempt to put property rights ahead of procreation fails.


A better ("better" because it explains more social phenonmena) explanation is that the institution of marriage is intertwined with the traditional low status of women in Western culture, and indeed in most cultures.

The relationship between marriage and procreation is not the key relationship. Look at many "arranged marriage" cultures today; by the way, the pattern is almost identical to that found in pre-Industrial Revolution Western culture.

Girls are a burden to families. Men must be "paid off" in the form of a very substantial dowry in order to take the burden of support off the adult girl-child's father. Procreation is tied to marriage because the girl-child then needs to produce a son, given traditional patrilineal inheritance patterns.

Gallagher's pure functionalism -- marriage evolved to facilitate orderly procreation -- is really pure reductionism. In other words, the institution of marriage cannot be divorced (no pun intended) from its socio-economic context. This is why Gallagher's premise (marriage follows from the need to order procreative behavior) lacks support; any argument that follows from this premise will simply add new stories to the house of cards.
10.18.2005 11:47am
Shawn:
There's very little to add regarding Maggie's procreation argument. However, I can add some facts and impressions about what "homosexuals" think about marriage and civil unions. Consider this background information or an FYI.

Generally speaking, homosexual people vary in opinion just like heterosexual people do. But basiclaly, homosexuals just want the darn rights. Calling it "civil union" or "marriage" is less important than the rights. "Marriage" is certainly better, of course, as it implies social equality as well as legal equality. But legal is good enough at this stage in the game.

However, there is a problem with Civil Unions in that they are currently not legally the same in any place in the US (and for the sake of this I'm including the California oddball "domestic partnership" as a civil union.) States can grant to the fullest extent of their power all rights available to civil unions, as Vermont has done, and still no equality. This is because some of the more important and meatier rights come from the Federal government.

As an example, my partner is a foreign citizen with resident status. He can be deported for whatever reason. If he returns to New Zealand for more than 6 months, he loses his resident status. He can testify against me in court. If I die, my family has the ability to break my will and disinherit him. (He can never be my "next of kin".) And I've been on the losing end of a broken will already--it happens. Residents of California and Vermont must file multiple tax returns because the state recognizes joint but the Federal government does not. And on and on...

Civil Unions are currently, even in their best incarnation, not equal.

I'm not sure who said conservatives are often in favor of Civil Unions, but I'm not sure I buy that. A number of polls show a greater than 50% approval for Civil Unions. And if you stopped there, you might think conservatives must be included or you wouldn't get those kinds of numbers. Except that in most of the states passing anti-gay marriage ammendments, those ammendments also prohibit civil unions (or in California's case, domestic partnerships that work like civil unions.) Those ammendments are passing with large percentages where introduced so far. I have a standing bet with friends here in Tampa that Florida's anti-gay marriage/civil union ammendment will pass with greater than 75% of voter approval.

Since conservates are the ones proposing and passing these measures, I find it hard to believe that conservatives are generally in favor of granting any rights to same-sex families. (Except in those circumstances where they think full marriage is within reach, then they compromise.)

Apologies if this came off as a rant. The point is simply to give people a feeling for why gay and lesbian americans might not be satisfied with civil unions as they are currently implemented.
10.18.2005 11:53am
jrose:

Why does the state care what you do with your free time?


The state can rationally posit that those who have settled down are more productive citizens.

I am not arguing whether the state's rationale is good or bad. I am merely observing why I think the state provides civil marriage.
10.18.2005 11:55am
Unamused:
The state can rationally posit that those who have settled down are more productive citizens.

Now you really are being tautological. The way out would be to acknowledge what is obvious to most people: people "settle down" to do something . . .
10.18.2005 12:02pm
Word Up:
The state is rarely perfectly consistent. Just because the elderly and infertile are given the same marriage benefits as those that are young and fertile is not cause to conclude that procreation has "nothing" to do with marriage. That is insane.

Why can the state prohibit incest? Because the offspring may have birth defects, right? But the state doesn't prohibit two tay sachs carriers from having sex do they? They don't prohibit older mothers from bearing children, do they? The logic presented in this thread would lead, then, to the erroneous conclusion that the criminalization of incest has "nothing" to do with the likely birth defects that result from incestuous procreation.

Is it possible that the state would be involved in marriage if marriage was not a procreative union? Is someone really making this argument?
10.18.2005 12:03pm
Unamused:
Also, as I've said before, I'm not interested in silly legalistic arguments from 14th Amendment jurisprudence. Saying "the state can rationally posit" is not helpful -- at best, you're aiming for rationalization after the fact. That doesn't explain why we have marriage and why it's been so important.
10.18.2005 12:05pm
jrose:
The state is rarely perfectly consistent. Just because the elderly and infertile are given the same marriage benefits as those that are young and fertile is not cause to conclude that procreation has "nothing" to do with marriage. That is insane.

I didn't say procreation has nothing to do with marriage. I said there must be some additional purpose.
10.18.2005 12:14pm
Unamused:
Word Up:

Yes, they really are making that argument. However, the criminalization of incest has nothing to do with the likelihood of birth defects, which is not that high. It's taboo in our culture because it threatens the stability of the husband-wife relationship. They're the only two who are supposed to be having sex within the household. We also care about punishing sexual abuse. Consider what disgusts us more, brother-sister incest or father-daughter incest? For what it's worth, the ancient Egyptian monarchs were routinely married to their sisters, but not to their daughters.
10.18.2005 12:16pm
Clayton E. Cramer (mail) (www):

Clayton---

You'll have to explain how disapproval by the Church leads to a difficulty "defend[ing] same-sex marriage on a secular basis."
I was trying to address two different points in the same comment. My point was that opposition to same-sex marriage is universal. No culture has ever recognized it.

It is true that opposition to same-sex marriage in European civilization is primarily based on religious objections. I don't find the secular arguments against it very persuasive, nor do I see how they are likely to be very persuasive. While lawyers and law schools are overwhelmingly secular, this country isn't. Hence, the need to impose same-sex marriage by an dictatorial elite; the masses aren't going to go along with it.
10.18.2005 12:18pm
jrose:
jrose: The state can rationally posit that those who have settled down are more productive citizens.

Unamused: Now you really are being tautological. The way out would be to acknowledge what is obvious to most people: people "settle down" to do something . . .

The claim, "people who have settled down are more productive" is no tautology. It is falsifiable through an empirical experiment.

What do the elderly and infertile "settle down" to do?

Unamused: Also, as I've said before, I'm not interested in silly legalistic arguments from 14th Amendment jurisprudence. Saying "the state can rationally posit" is not helpful -- at best, you're aiming for rationalization after the fact. That doesn't explain why we have marriage and why it's been so important.

In your opinion, why does the state offer civil marriage to the elderly and infertile?
10.18.2005 12:22pm
Clayton E. Cramer (mail) (www):
Loving is a poor analogy in almost every respect.

1. Unlike same-sex marriage, which has never been recognized in any culture, the laws against interracial marriage are quite recent. Virginia and Maryland took the lead on this at the close of the 17th century because English law had no bans on it. To my knowledge, no European country had such laws throughout the Christian era. Even in the United States, interracial marriage bans were not common to every state, and many states had already repealed those bans by the time Loving was decided.

2. The Virginia law did not simply refuse to recognize interracial marriages from other states; the Lovings were threatened with prison if they didn't leave Virginia and stay out for 20 years. No one really cares whether you and your partner want to pretend to get married; we do object to the state governments recognizing your pretend marriage.
10.18.2005 12:23pm
jrose:
The Virginia law did not simply refuse to recognize interracial marriages from other states; the Lovings were threatened with prison if they didn't leave Virginia and stay out for 20 years. No one really cares whether you and your partner want to pretend to get married; we do object to the state governments recognizing your pretend marriage.

You aren't seriously suggesting that if Virginia modified their law to remove the criminal penalties, The Court would have ruled in their favor?
10.18.2005 12:30pm
Clayton E. Cramer (mail) (www):
Esper writes:

And while you quote Justice Scalia about how Lawrence supposedly denied a democratic majority from enacting its preferences into law, the fact is that the Court was following, and not leading, in Lawrence. The public, in general, has become far less supportive of the enterprise of utilizing government power to police sexual morality, or more to the point, to determine what makes for "proper" activity in a marriage. That this transition in the law has paralelled the sexual revolution is no accident.

The truth is that nobody was ENACTING sodomy statutes anymore; but conservatives screamed about tradition when people proposed REMOVING them from the books. For the Court to step in, following public opinion, in these circumstances may be many things, but it is not anti-democratic.
Wrong. One reason that Lawrence found the Texas sodomy statute problematic was that it was enacted in 1974, and applied only to homosexuals--the old statute applied to heterosexuals as well.

The fact is that while many states have repealed laws against homosexuality, a number have not--and a number of the states without those laws had them struck down by state supreme courts. I agree that in some states, the process was indeed democratic--for example, California's 1975 repeal. (I supported that effort; I then moved to the Bay Area, and realized that it was a grave mistake.)

You can't support democracy and then support the Court striking down a law based by the legislature.

Are you going to tell us next that Romer v. Evans (1996) was another great victory for democracy?
10.18.2005 12:31pm
Word Up:
Unamused,

I agree there are many reasons for the incest taboo, but poor reproductive fitness is both a rational reason for criminalization and an explanation for its universality. There are many other reasons, maybe more important ones. But if we accept this rationale, does that mean we must also outlaw procreation among tay sachs and sickle cell carriers?

I only intended to make the point that one cannot demand or expect perfect consistency in state action. Of course the regulation of marriage has to do with procreation and child rearing, even if a few elderly and infertile couples are included.
10.18.2005 12:32pm
Cold Warrior:

One reason that Lawrence found the Texas sodomy statute problematic was that it was enacted in 1974, and applied only to homosexuals--the old statute applied to heterosexuals as well.

True.

Lawrence didn't stand for what its critics said it stood for -- i.e., that the state has no power to regulate sexual contact between adults.

It stood for something simpler: the state is free to pass laws, even stupid laws, regulating interactions between consenting adults. But it has to show some baseline rationality in doing so.

Read the transcript of the argument in Lawrence. The unfortunate Texas Deputy AG got twisted into a knot trying to defend oral sodomy between a man and a woman as somehow being in the state's interest in regulating procreative activity.
10.18.2005 1:14pm
Ally (mail) (www):
I am first to admit, I shy away from this argument. Honestly, I don't think there is one. If you leave religious beliefs out, there is really no argument against gay marriage. Here's why: marriage is no longer about creating a family and having a stable home for children. Marriage is about love. Think about it. If marriage were truly about forming a long-lasting, permanent union between a man and woman in order to ensure a stable home for children, there would be a lot more thought going into who we married, the ceremony, and the divorce laws would be a bit more stringent. As it is now, we are celebrating love, not the establishment of a family. We decide who we marry based on our "love" for someone (butterflies in the stomach and good sex now qualify for love status), plan ridiculously huge and expensive celebrations where little thought is given to the solemnity of the committment, and in the back of our mind is the truth that....well, if this doesn't work, I'm not stuck here for life. Be honest - when was the last time that you sat through a wedding, and thought....I hope it lasts. We don't want to think it, but it is impossible not to. Divorce is part of our society, a part of our customs. Once we leave the giggling stage of newlywed bliss, and the reality hits, revealing that this human being who we thought was just like ourselves, is really not just like ourselves, but rather a unique individual unto themselves....suddenly, "love" takes a backseat.

So to view marriage as a solid basis for procreation - on one hand that is true. But to say that the reason for marriage is procreation....societal norms to not hold with that. We don't view marriage that way anymore. "I love this person, I want to be with the person for the rest of my life." We no longer base the reasons for marriage on procreation and stable families - we base it on emotions and feelings. We don't stop and think - when we have children, the romance is over, the sex is on hold, finances are not perfect, and crisis occurs, how is this person going to stand by me? How am I going to stand by this person?

My point - I daresay I'm digressing a bit - is that you can no longer define marriage by a supposed legal definition that no longer reflects our customs, and think that people are going to stand by and let it go. Not when it holds monetary benefits and significant status to change the law.

And as for the morality of gays marrying - I really don't care. I cannot sit here and moralize about a "holy union" of which heterosexuals have made a mockery. On the religious front, gay marriage will never find comfort. So if I were gay, I would want my own tradition, unsullied by others, with which to explore permanent unions recognized by law. Why try to fix an already ruined toy?
10.18.2005 1:27pm
Quarterican (mail):
Op Ed. -

Disagree? Prove me wrong!
If you, personally, do not have a purpose in mind for government involvement in your new relationship, why are you seeking it? Saying that perhaps one will emerge admits that you want a specific outcome and are trying to construct the rationale to get there post hoc. It is merely saying that you yearn for an alternative purpose to Maggie's, or in other words, "[you] disagree because [you] want it so!"


First off, have you missed the fact that I'm personally - explicitly - trying to confine myself to pointing out what I believe are flaws in Ms. Gallagher's reasoning, and not trying to forward my own positive views. This is because these discussions are far-reaching and confusing enough in their tangents without me spouting my take on "what I'd like society to look like" and elaborating upon it. Suffice to say it would look very different, and the government wouldn't be involved in anything that we'd recognize as marriage to begin with. Since that's not going to happen any time soon, I'm content to argue in favor of gay marriage and argue against Ms. Gallagher without coming up with some third solution because I think her reasons are bad. Arguing against a notion without producing your own competitive one has a noble history proudly practiced by myriad second and third rate philosophers, and right now I'm content to shoot for that.

The government grants marriage licenses from a position of ignorance, because "well, these people have the potential to procreate."

That is not an ignorant position. For it is precisely the potential to procreate that marriage seeks to control.

I don't mean ignorant pejoratively, and how is it not an ignorant position? I simply mean that the government doesn't know the truth in my mind and my body, so they hand me a license encouraging me to procreate without any ability to know whether I want to or am capable of doing so. There's an informational asymmmetry which is heavily weighted towards me and away from the government. They hand out marriage licenses on a presumption of procreation which essentially amounts to: "One penis, no more no less? One vagina, no more no less? Good to go." If the government were interested in being more precise about whom it wanted to encourage to marry/procreate, it could, but instead the government maintains an intentionally blind stance as to these issues - it intrudes enough to determine that, say, close relatives shouldn't marry, but not enough to say: "Hey, wait a minute, you can't have kids! Never mind!" This leads me to believe that the government is satisfied encouraging people to procreate not only through sexual intercourse but through whatever means is available. The standard for what constitutes procreation as the government desires to encourage it is lower than it could be, because it encompasses the potential to adopt or use modern technologies to aid in reproduction. And by those standards:

gay people have as much potential to procreate as millions of straight people do.

And that is why they have exactly the same potential to marry. I will note that you have deployed the deliberate amphibology of switching from couples to individuals in order to cover the flaws in your argument. Marriage licenses are not granted to individuals, only to couples. That your argument cannot hold when confined to its proper context, couples, should have tipped you off that you are mearly yearning for a specific conclusion rather than arriving at it rationally.

Excuse me: "Gay couples have as much potential to procreate as millions of straight couples do."

Government already regulates sperm donors, surrogate mothers, and adoption.

And?...how does that address my argument? This quote doesn't move us anywhere:

The fact that there are other avenues for reproductivity is merely argument that society should take an interest in those other avenues, and in reality, it does. The fact remains that the same-sex union itself did not result in offspring and so society's interest in that union is considerably reduced.

Why isn't society's interest in different-sex unions that didn't result in offspring considerably reduced? If the government has the effect of encouraging people to enter into a relationship wherein they use a surrogate mother to have a child, why does the gender of the hopeful parents matter? What differentiates the gay couple from the straight couple? To say: "Well, they could've had a baby by natural means if she weren't barren" is meaningless: she is barren!

Marriage licenses are neither granted from a position of ignorance, nor do they impose a test for sexual orientation. The basic facts of human reproduction may be vague to you, but they are not, and they clearly do not include same-sex couples of whatever "orientation."

They do impose a test for the gender-makeup of the hopefully happy couple. The "basic" facts of human reproduction are clear to me, and they don't include sperm donors or surrogate mothers or even in vitro fertilization w/out recourse to a third individual. Penis-in-vagina just isn't the standard we're working with; if it is, the government is handing out way too many marriage licenses to begin with.
10.18.2005 1:38pm
On Lawn (mail) (www):
> Jamesaust: "On Lawn" - what's so hard to grasp here? Procreation in fact or in potential is not a requirement for marriage in any state.

As far as being a concept, its not hard to understand what you are asserting. My reading comprehension skills are adequate in deciphering the text of what you write, I assure you. The difficulty in the statement is not in its simplicity, however, but in its accuracy. The statement flies in the face of the rulings mentioned (and as pointed out the rulings you alluded to). Please research "sine qua non of marriage".

Pat Buchanan I'm sure has a very nice rewarding marriage even if it is childless.

To which no one doubts, but this smacks of the sterility strawman. To diffuse this contension on only need point out that no one is using marriage to enforce procreation. The Sterility Strawman has already been adequately debunked in this and other threads (search this page to find it).

which is to emphasize procreaton as a (or "the") basis for marriage.

Again the Sterility Strawman. Here's what I'll ask you to grasp, perhaps it is too nuanced, perhaps it is too sophisticated? No insult intended, just an honest plea to seriously comprehend what is being said...

Procreation is a responsibility. In it there is produced a child who has rights on substinance from parents as well as rights to heritage, as well as other rights that marriage is produced to respect. You say marriage is about procreation which is wrong, it is about responsibility in procreation. Its about turning the hearts of parents to honoring the rights of children who are naturally citizens to the government. Does government really have any other interest in marriage? Is romantic regulation in interest of goverment? You'll have to argue that point. As it stands marriage's monitoring of responsibility to children who are a potential of any intimate heterosexual action, is important. This was in no wise supplanted with conception technology.

In truth, homosexuals would gladly (if grudgingly) accept some lesser civil union status.

From what I've seen of the matter is in direct contradiction to that statement.

> Quarterican: I'm sympathetic to the point that there hasn't been a wholly convincing alternate picture presented in these threads yet. [...] A lot of virtual ink has been spent articulating the point that we don't find Ms. Gallagher's explanation very good, either.

Le Provocateur, the person who can always find a reason to not accept something. Sometimes any little reason will do. I ask you to also read my response in above in this post as it pertains to your complaints. There is no doubt that responsibility in creating children needs to be taken seriously by government. I'll add for your sake that the family, because of its creation of children, is a body of governance -- even a political body. And as such protocols and regulations exist in every government directing how to interact with family self-governance (which is not absolute but is most certainly present).

Indeed many ss"m" advocates (Andrew Sullivan, Julian Rauch, etc...) feel that because a child raising institution deserves such governmental consideration that alone the cases of same-sex households raising children is sufficient to demand ss"m" to be in existence. Further as Velleman (who wants to support ss"m" but for reasons explained in that link he cannot) points out wherever ss"m" is enacted, because they are "married" that seems to give sway to the believe that we should provide a very unjust way of giving these ss"m" children. To say that procreation is not about marriage and marriage is not about procreation flies in the face of these promenant ss"m" advocats and countries who are tried to directly tie ss"m" to procreation.

I've personally dealt with their concerns, on numerous occasions.

> Medis: The cynic in me suggests that Maggie is delaying once again actually getting to the positive part of her article (where she argues that gay marriages would somehow undermine the "social meaning" of marriage) because:

I bet I can give it to you in a nutshell... Because as you can already read from the above, marriage is no longer about protecting children's rights in being procreated, it is about focusing on satisfying the adults sexual habits. It turns from monitoring parental responsibility to absolving them of it in favor of romantic regulation. And no one wants the government in romantic regulation. Hence the logical conclusion of the arguments for ss"m" is to completely do away with marriage altogether.

> Cold Warrior: A better ("better" because it explains more social phenonmena) explanation is that the institution of marriage is intertwined with the traditional low status of women in Western culture, and indeed in most cultures.

The marriage timeline doesn't bear out that hypothesis. I submit that anywhere that diversity in representation is required that fairness and equity increase. Probably the most dramatic example, Womans sufferage came to be in large part because of the political influence women were able to weild through their marriages.

I believe that James Madison hits on this very topic (in general not specifically about marriage) in Federalist #51.

> Ally: Here's why: marriage is no longer about creating a family and having a stable home for children. Marriage is about love.

Marriage is as marriage does. There are many who already have lost the drive to use marriage as a monitor for reproductive responsibility, for whatever reason. But then what will take its place? I'm open to suggestions, as I stated in the other thread. Unfortunately I don't see another institution offered, except perchance even more draconian governmental regulation? Sounds like the second coming of Claudius to me.

No, it seems to me that the argument you make is that marriage is already something less, a shadow of its former self. Its all lost and gone, so with such a low expectation of marriage, why not do ss"m"? Such is the con-artists trick to convince people to give up their valuables, it is not valuable social discourse.
10.18.2005 3:05pm
Dilan Esper (mail) (www):
Been Waiting:

Just 2 points:

1. Stop citing Scalia. He is a homophobe. In oral argument in Lawrence, he said that the state had a legitimate interest in throwing gays in jail because they might try to "recruit" others into the homosexual lifestyle. He is guilty of exactly what he accuses his opponents of-- reading his own (anti-gay, religious conservative) prejudices into the law.

Further, he explicitly endorses "moral condemnation of homosexuality" as a legitimate state interest for throwing gays into prison. In other words, he thinks that if the majority of the public are bigots, that's interest enough to put people in jail for making love to each other. I don't see how one could be MORE homophobic than that.

2. I don't think Lawrence is a correct interpretation of the Due Process clause, which has nothing to say about the issue of private sexual conduct. The "premise" I am talking about is the policy argument that animates Lawernce. Lawrence may be bad constitutional law, but Lawrence AND Griswold (which you refuse to address, even though Scalia rejects Griswold too) is also an accurate reflection of the public's rejection of the assertion that the state has an interest in regulating the purpose of intimate conduct in the bedroom. Lawrence and Griswold followed public opinion; they did not lead it.
10.18.2005 3:25pm
Dilan Esper (mail) (www):
Clayton:

Romer v. Evans is actually a fascinating process issue that is beyond the scope of this discussion. But essentially, the question in Romer was also the question in Washington v. Seattle School District and Reitman v. Mulkey, i.e., whether state voters can preempt the power of local voters to grant their citizens civil rights. It is analogous to a federalism question on the federal level, i.e., whether states can grant more extensive rights than the federal government grants.

As in all federalism issues, some would argue that it is more "democratic" to settle the question statewide, while others might argue that it is more "democratic" to allow for local control. But I don't think that the result in Romer is necessarily "anti-democratic".

One other thing, Clayton. In stating you made a mistake to support the repeal of sodomy laws, you seem to be ignoring the actual effect of those laws. A lot of Californians were stained with "sex offender" convictions on their criminal records based on nothing more than the fact that they preferred to sleep with men rather than women. No matter how distasteful you may have found the lifestyle in the Bay area, the criminal justice system made victims of way too many people and it was inappropriate to use such a blunt instrument and to ruin so many lives just to convey some symbolic "message" about sexual morality.
10.18.2005 3:33pm
Quarterican (mail):
On Lawn -

Ms. Gallagher is presenting an argument. Arguments have a logical structure. I'm trying to engage her argument on its own terms, and I - for whatever reason - chose a particular point in her argument which seems important to me. I'm not arguing that procreation isn't the reason for marriage. I've abstained from giving my opinion on that subject or not. Your reference to your comments on the "Sterility Strawman" are much more on point in addressing me than your second paragraph (of the two addressed to me). As I understand it, your "rebuttal" of the "Sterility Strawman" relies on the assumption that it is in the government's interest to promote a situation where a given child has two parents of different sexes and not two parents of the same sex. Is that the case? And if so, I ask for the umpteenth time (not of you): why?
10.18.2005 3:44pm
On Lawn (mail) (www):
Quarterican: I understand it, your "rebuttal" of the "Sterility Strawman" relies on the assumption that it is in the government's interest to promote a situation where a given child has two parents of different sexes and not two parents of the same sex. Is that the case? And if so, I ask for the umpteenth time (not of you): why?

Because, Marriage isn't about Gays. It's about Marriage, Sex, and Responsible Fatherhood. Dafydd Ab Hugh expands on that point even more. Integration of the sexes creates diversity, expands civility, and fosters humanitarian concerns in ways that cannot be replicated with the same force in a same-sex union.
10.18.2005 3:58pm
Quarterican (mail):
On Lawn -

Gosh, I thought marriage was about marriage, sex, faithfulness, and - if children showed up - responsible parenting. I presume you're on board with responsible mothering... But seriously, I think the argument in the first link (to your own site) is better than Dafydd ab Hugh's, because I don't put a great deal of stock in the idea that men need women to "civilize" them, or that women need men to teach them to be "aggressive". I'm more sympathetic to the argument that leads explicitly towards parenting and relies on the notion that each gender has different things to teach. But, as Mr. ab Hugh pointed out, differences within groups are always greater than differences between groups. It's my opinion that in this circumstance, that gap is enormous. In my experience and the experience of most of my friends, our parents don't map well at all onto the traditional picture of what a mother and father are supposed to provide as far as child-rearing, but we all got the total package anyway. I think my mother and father were the parents they were not because they were a woman and a man but because of the individuals they were before they had me, who were then shaped by the pressures of caring for a child, so that they grew into and took the necessary responsibilities in the way they were best able. I think a same sex couple has exactly the same capacity.
10.18.2005 4:23pm
Been Waiting For This One:
Esper -

Why should I stop citing what many, at all points on the spectrum, consider to be one of the best 'minds' on the Supreme Court? Ad hominem and labeling attacks against an individual do not negate the highly relevant logic and legal reasoning of his argument. If we were to follow YOUR rationale, we would have to ignore the vast majority of Supreme Court Justices in that they were homophobes, racists, misogynsts, or 'pick your label' depending on your paradigmatic or political proclivities.

Again, it would appear that YOUR criteria lies in Court decisions reflecting what you perceive to be contemporary, public opinion. In fact, the Courts were established to protect individuals from the vagaries of the swings in public opinion. In that context, you cannot argue that Lawrence is 'incorrect' but then contend that it's alright that they got it wrong because you and whatever percentage of the population agree with the Court's majority intent. That's not only logically a problem, it is indicative of a misperception of how the judiciary is supposed to work.

So, let's see, your judicial philosophy would read as follows: We will ignore all Supreme Court Justices with philosophies that we personally disagree with or that can be pejoratively labeled, no matter how accurately or inaccurately, meanwhile supporting all Supreme Court decisions, no matter how incorrect, unpersuasive, and convoluted provided we agree with their outcome.

Isn't that the very philosophy espoused by 'activist judges' on BOTH ends of the political spectrum? Doesn't such a philosophy lead us to chaos rather than consistency in the law?

As for Griswold, I specifically limited myself to 'Lawrence' in my initial comments. You seem determined to ignore ANY legitimate discussion of 'Lawrence' and may not even be aware of its actual content to the degree that you even state:

"Lawrence made it pretty clear that its holding did not extend to same-sex marriage anyway..." - Something that I have shown not to be true vis a vis Scalia's dissent.

Further, Cramer and Cold Warrior have demonstrated that one of your underlying premises for supporting the 'outcome' of 'Lawrence' is faulty through lack of awareness as regards what the decision, specifically holds and the relevance to the laws that actually exist.

What you appear to desire is divert the discussion away from the specifics of 'Lawrence' and to discussions of Romer or Griswold. In this way, you get to tout agenda rather than discuss legitimate legal reasoning. Since that appears to be your goal and seems to have virtually nothing to do with the original post starting this thread - other than a general disagreement with Miss/Mrs./Ms. Gallagher, I leave you to your prosyletizing.
10.18.2005 4:26pm
Been Waiting For This One:
Esper -

Having quickly glanced at your post again, there is one, last thought. When you point to Thomas, you need to relate the entirety of his dissent rather than a piece of it, presented out of context; thereby misrepresenting Thomas' intent to demonstrate support for your overall position.

Here's what he said:


Justice Thomas, dissenting.

I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.



In short, what Thomas was saying was that while he considered the Texas laws to be silly, he agreed with Scalia in that the role of the judiciary is NOT to twist the law through inappropriate legal reasoning to achieve a desired end. Which, in case you missed it when reading summaries of the case through agenda-ridden glasses, was Scalia's point.
10.18.2005 4:34pm
jrose:
Of course Thomas agreed with Scalia. He did afterall join the Scalia's dissent. Thomas' separate dissent was a pot-shot at Griswold. I only wish he had been honest about his beliefs in his confirmation hearings.
10.18.2005 4:53pm
On Lawn (mail) (www):
Quarterician:

Gosh, I thought marriage was about marriage, sex, faithfulness, and - if children showed up - responsible parenting.

In full discosure, of course it is. But the individual's reasons for getting marriage are different than the states reasons for recognizing it. I may tend to switch scope between the two without adequate explanation, so I offer my appologies.

But seriously, I think the argument in the first link (to your own site) is better than Dafydd ab Hugh's

Thank you. At the moment I'm not a direct contributor to Opine while I am working on a wiki for that site. But yes, Opine is very lucky to have Christian.

I think my mother and father were the parents they were not because they were a woman and a man but because of the individuals they were before they had me

And I think that has quite a bit of value to consider. Taken from another angle we see contradiction in ss"m" advocacy. We see that gender is argued a small gap easily traversed in taking on parental roles (both biological and pscychological), yet at the same time is insermountable romantically. Honestly, I think this smacks of swallowing camels and straining at gnats.

I can say a vast majority of what I've learned about (and how to interact with) members of the opposite sex came from marriage. Probably just as yourself. Both my current marriage and the marriage of my parents.

There are certainly cases where children are raised without a gender represented in the household governance. There is definately a gap that the remaining parent usually seeks to find strong male or female role models to help provide that representation.

To explain that gap, we often see "death", or divorce or other very negatively seen tragedies that caused the dearth in representation. I'll juxtaposition those excuses with the ss"m" excuse as said by Rosie O'Donnell, "because I'm a Mommie who wants to be with another Mommie". That is attempted to be seen as a positive thing, but in the end points to the same insurmountable romantic role that I find to be tragic.

How ironic that in Goodridge we find a reference to a Supreme Court case where a child was restored to his mother. The child was placed with the father because she had interracially married. The child was at risk, the lower court found, because if racial prejudice still alive in the area. However, the supreme court found it could not give effect to personal bias and prejudice. In fact that exact quote is in the Goodridge decision. Yet in a very real way it gave effect to the gender prejudice of people like Rosie O'Donnel, in a most hipocritical way.

I hope you see what I'm saying here. I'm not saying homosexuality should be outlawed as gender segregationism, but it is in fact gender segregationist. And just as we don't say "California can represent Nevada just as well, so lets bring in more Legislatures from CA and remove them from NV" in fairness in representational government, I see that same-sex marriage fails with the same culpability.
10.18.2005 4:55pm
Quarterican (mail):
On Lawn -

You left out the part of that sentence in quoting me which I thought most important. Forgive a personal anecdote which I hope will make my point clearer: I don't think either of my parents, before my birth, would have thought of themselves - or been considered by others - particularly strict or the sort of person who would naturally impose discipline in the way our longstanding cultural assumptions posit the father/husband as the law of the house. But a certain sort of discipline is necessary for the raising of a child, I think, and my parents provided it not through the person of my father but through my mother. Why? - perhaps because my mother was around a lot more than my father was, perhaps because my mother was a naturally less forgiving person than my father was, perhaps because her standards for me were loftier to begin with than my father's. The result, though, was that I'm pretty sure these classic words were never uttered in my house: "Just wait until your father gets home." If I did something wrong, it was my mother who did the punishing. And it worked out just fine, as far as I'm concerned. That's one small example, and that's my point: I have great faith in the flexibility of people. I'm not blind to the argument that children require a variety of inputs as children, but I don't see why the primary two inputs need to be a man and a woman. A child should be exposed to his or her family, not just the nuclear but the extended family, and to his/her neighbors, and the community at large. The primacy of the nuclear family, I'm sure you know, is a recent historical development, and not necessarily a positive one. After all, On Lawn, it takes a village to raise a child.
10.18.2005 5:37pm
On Lawn (mail) (www):
The result, though, was that I'm pretty sure these classic words were never uttered in my house: "Just wait until your father gets home."

I make a solid distinction in that I've not mentioned gender roles as much as gender representation.

Your story is not uncommon. Even today I am the one that does the laundry and cleans the Kitchen after dinner. I'm not looking for effects of gender integration in the driving of people through traditional ruts. I don't think such a view can withstand historic scrutiny.

But I'm different, and my wife is different because of our marriage. My children are different because of the different perspectives our genders provide.

In studies we find that households that lack either gender in parental governance that certain significant qualities in the children come to light. This is important in understanding that gender representation plays a more important role in a child's upbringing than even the number of people devoted to raising the child.

In short I'm not arguing tradition and culture, I'm arguing identity and all the positive cultural ramifications of fostering diversity.

After all, On Lawn, it takes a village to raise a child.

Again this is not a dillema. A family raises a child and helps orient them to gain the most from their schooling from the village as possible. The child benefits best from both, not either.

I hope I'm not being too brief, this particular comment is rushed for time.
10.18.2005 5:58pm
Quarterican (mail):
On Lawn -

Do these studies refer to children who didn't have parental input from both men and women because there was only one parent, or because there were two parents of the same gender? And what is it that you think you bring to the table which is immutably tied to your masculinity and that your wife brings to the table which is immutably tied to her femininity?
10.18.2005 6:23pm
On Lawn (mail) (www):
Do these studies refer to children who didn't have parental input from both men and women because there was only one parent, or because there were two parents of the same gender?

Both single and multiple parent homes were represented, the only control was the lack of each gender.

And what is it that you think you bring to the table which is immutably tied to your masculinity and that your wife brings to the table which is immutably tied to her femininity?

I'll definately think about that and give your question the time it deserves. The problem is that there is much that culturally defines masculinity that is hard to distinguish from what is innate masculinity. Having a predominant vantage point and sampling of my and my parents marriage, it is easy to include things that really are not innate to masculinity but I think so from my small experience.

Complicating the matter further there are no doubt people to be used as exceptions to any rule, because for some reason or another lack certain development. Perhaps I do too. There are things that come to mind directly, but I will give it some deep thought and get the best answer I can to you ASAP. Perhaps I'll have my wife contribute also to gain from her perspective.
10.18.2005 6:49pm
Challenge:
"But essentially, the question in Romer was also the question in Washington v. Seattle School District and Reitman v. Mulkey, i.e., whether state voters can preempt the power of local voters to grant their citizens civil rights."

If you take this argument seriously, then are your panties in a bunch over polygamy being forever banned in Utah (that was a condition of their statehood)? I know, anal sex between two males enjoys a sacred place in our Constitution, and the right to practice one's religion does not. Sodomy statutes were very stupid, and I would have proudly voted to repeal them. But who are you kidding when you posit that homosexual sodomy is elevated higher than the free exercise of religion? Unless, of course, you are prepared to go when few dare, are you willing to concede your arguments--gasp--apply to polygamists too?
10.18.2005 10:26pm
Dilan Esper (mail) (www):
Challenge:

Why are you so obsessed with anal sex? Seriously, when you mention it so often in your posts, it looks like you have issues that go far beyond gay marriage.

More to the point, you answered your own question on Utah. The US government conditioned its statehood on a prohibition of polygamy. But even if that hadn't happened, the issue still would not be the same as in Reitman, Washington v. Seattle School District, and Romer v. Evans. In those three cases, the states enacted statewide laws that prohibited local governments from enacting anti-discrimination laws. The equivalent would be if the Utah state government prohibited Salt Lake City from enacting laws prohibiting discrimination against Mormons. And we now have three US Supreme Court cases saying that a state can't do that. It isn't based on any constitutional right to have any particular type of sex, but based on a political theory that this is the sort of decision that a state can't take away from the voters of a local community. Maybe it's wrong and maybe it's right, but it really is NOT a gay rights issue; it just happened that Romer involved a statute directed at gay rights rather than race discrimination laws.
10.18.2005 10:48pm
Dilan Esper (mail) (www):
Been waiting:

Outside of conservative circles where he is seen as a hero, Scalia is basically viewed as an unprincipled joke who thinks he is much smarter than he actually is by most constitutional scholars. (For examples of Scalia's lack of principle, see Gonzales v. Reich; Seminole Tribe of Florida; Bush v. Gore; etc.) And he is definitely a bigot on the issue of gay rights. I really wouldn't associate with him if I were you.

As for Thomas, you are still wrong. Thomas, by saying he would vote against the law and that it is silly, is saying he doesn't think the government has any legitimate interest in regulating homosexual sex acts. That's his entire point. Where he agrees with Scalia is in saying that nothing in the Constitution requires that the Texas legislature have any legitimate interest. But Scalia, in contrast, thinks that dislike of gays and lesbians— what he calls moral disapproval of homosexual acts— is sufficient to sustain the statute. Thomas clearly doesn't believe that interest is legitimate; otherwise he wouldn't call the law "silly". Notice SCALIA didn't think the law was silly.

As for your other points:

1. You can't avoid Griswold whether you want to or not. Griswold specifically held that the government has no interest in regulating whether the marital bed is used for procreation or not. This started the whole legal ball rolling (though society was already rolling at that point) and you can't endorse Gallagher's arguments without saying Griswold was wrong, because she is arguing exactly the sort of state interest that the Court rejected in Griswold.

2. In legal terms, Scalia's dissent is an irrelevant document. A dissent or a non-necessary concurrence can NEVER be used to interpret the holding of a majority. Thus, Scalia may SAY that the Court legitimated gay marriage, but the majority SPECIFICALLY disclaimed that. In other words, Scalia is talking out of his behind. (Which is not uncommon.)
10.18.2005 10:57pm
Op Ed. (mail) (www):
Quaternian: "what I'd like society to look like"...Suffice to say it would look very different, and the government wouldn't be involved in anything that we'd recognize as marriage to begin with.

So you don't see the purpose behind marriage. I said this a looooong time ago.
So basically, the only argument for ss"m" is a parallel to the argument used by a bad mechanic: "I don't know what this part does, but I think I can replace it with this one 'cause I don't know what this one does, either."


I'll just add you to the already long list of ss"m"-oholics who don't have a counter purpose to provide for marriage, let alone same-sex "marriage."
10.19.2005 12:24am
Quarterican (mail):
Look, Op Ed., I thought I made it very clear that what I thought was valuable in this discussion was engaging Ms. Gallagher's arguments on her terms as best as I - or, frankly, all of us - could. That's entirely possible whatever my personal beliefs or prejudices are. I'm interested in what people have to say about the arguments I put forward, not the arguments people think I'd like to make. The substantive points I've tried to raise - whether I've done so successfully or not - have nothing to do with what I personally think is best, nor need they. I don't buy Ms. Gallagher's theory of what the purpose of marriage is, no, but I've been arguing with her as if I did because that's what I find interesting in this debate. I think the purpose of marriage as a civil institution has its history as a property system, a historical arrangement which has been whittled away over the last few hundred years. I don't agree with Ms. Gallagher's position that the purpose of procreation is marriage. But that's not the argument I've been making. I've been saying that if the purpose of marriage is procreation, I don't think Ms. Gallagher can continue to say the things that she wants to. I've been mmaking my argument as though I agreed that procreation was the purpose of marriage. I understand that you disagree with the points I've made. That may be a fruitful debate. But I've been leaving my "personal best case scenario" out of it, and I don't appreciate your condescending attempt to dismiss me for what you believe is in my heart any more than you'd appreciate it if I concluded every response to you by saying "I'll just add you to the already long list of homophobic bigots who hide behind thinly veiled legalistic arguments because they're ashamed of their bigotry."

My personal best case scenario, for the record, is that nobody gets married outside of church, a scenario I believe I share with a number of people in this discussion who disapprove of same-sex marriage. Does this mean my contingent support of same-sex marriage stems from a desire to see marriage destroyed? Not at all, because I don't think it will do any such thing. Could I go into it more deeply? Sure. I won't because it's not relevant: I don't think it has a chance of happening in my lifetime, and it's not the discussion we're having here. I'm capable of seeing a variety of purposes behind marriage. Some of them I think are legitimate, some not. Why are you so invested in finding scraps of evidence which allow you to speciously dismiss me and the other people arguing positions similar to the one I've taken, rather than engaging us in debate? I just went through every thread on this topic searching for your name. I believe this and one other are the only threads you commented in. I found one post that I thought even attempted more content than "Until you satisfy my unnecessary requirements, I'm going to be snide and waste bandwith telling you about it." It was a response to me, on this thread, and it was of reasonable length. I also responded at some length. And you grab an explicit aside that I state is irrelevant to what I'm saying and use it to snark at me? You raised arguments, and I addressed them. If you think I didn't do a good job, tell me why. If you don't have an answer to my response, then why address me at all?
10.19.2005 12:58am
Challenge:
"Why are you so obsessed with anal sex? Seriously, when you mention it so often in your posts, it looks like you have issues that go far beyond gay marriage."

I'm sorry. We WERE talking about Lawrence, right? That is the case that legalized homosexual sodomy. Sorry if that was crude to mention that fact.

Does it gross you out? Are you some kind of bigot?

A state cannot pass a law that discriminates against religions because of the free exercise clause (and establishment). If there were a clause of sexual free exercise, then Romer would be on solid ground. But there isn't! You still have not addressed the question, though. I'll let your response speak for itself.
10.19.2005 5:14am
On Lawn (mail) (www):
Quarterician,

I looked into it and gave it some thought. I also looked through my previous posts, as well as the article written by Christian and Dafydd. I find that they pretty much already explain what is brought to the table by each gender.

Gender is a part of our identity, its on my birth certificate and drivers license. Its public and its something people identify with especially little children. I'm not arguing things need to be this way, that gender identity needs to be stuffed with additional roles to play or characteristics because that honestly leads to gender chauvanism and I'm against gender chauvanism (much of my reason for not seeing a same-sex couple as married).

But its something we can't escape either. I grew up with at doll, my son has dolls to play with and my daughter has guns and building blocks (in fact the playroom does not have a his/her section). For 30+ years of seeking a unisexed ideal it simply doesn't materialize -- especially in children.

Now note that the governance of children is most directly overseen by a man and a woman, aside from tragedy those parents share the biology of the child. Who is better able to show proper governance, nurturing and support? With equal gender representation children learn much about another gender even through stages of avoidance and hormonal crushes. A child sees direct representation of their own gender to learn that (as in my case) what TV tells me is a man's role is not neccissarily a real man's role. In fact my father gave me that lesson quite a bit, from 007 to sports stars, my father provided the absolute best role-model for being what I've identified as a real man. Someone much less a slave to machismo, more a solid rock of support, and definately someone who serves and supports others in achieving great things. My Mom taught me that lesson also, but it was how I identified with my father through mutual gender identity that really re-enforced the lesson. Later when a female perspective became more important to me, my mother's same lesson came into a new light. Gender roles, in short, brought a lesson home at different times and in different ways and with diversity that helped me more fully understand.

I think the pursuit of what men have that women don't has sway in very biological terms, but not so much in phsychological terms. Here's how. When growing up, my father was in a unique position to guide me through the haranging of puberty because he went through it also, directly, because of gender physiology. My mother was able to help my sisters through what is agreeably a much more complex and intricate set of changes. Women have a more cyclic life, my wife looks at the moon more often than I do because her menstruation cycle mirrors the moon phases. Women are more tied to babies than men (which is the main point of Christian's piece (btw, his piece today is excellent, I highly recommend it)). They essentially have a room to watch to make sure its vacant until the proper responsible time. I don't.

Physiologically (which I touched on earlier in relation to what we indentify with along gender lines) the point of seeking something the other has is probably moot. Consider race and music. No one can say (looking at skin color) that whites make better music or even understand music better than blacks. Each culture has produced a very rich musical experience, yet are they not different? Musical anthropoligists can trace musical influences of cultures (here I use black and white, but I could just as easily used asian, Islamic, or other demarkations). The difference is not in what it can or can't accomplish, the difference is stylistic. And that is true for my wife and myself, and honestly in discipline and nurturing children they appreciate it. So while there is a benefit here, it is probably the least important to make.

P.S. I know Op-Ed, he runs the website I pointed you to. Trust me when I say you need to adjust your sarcasm filters ;) If you need assistance in seeing the parody (or sarcasm), the thread that started yesterday by Prof Volkoh seems to put it in much better terms (yet look at how people in that thread treat the good professor for saying so!)
10.19.2005 3:20pm
Quarterican (mail):
On Lawn -

(If you read this) I've spent several hours off and on thinking about how to respond to your post, which I greatly appreciate. I respect your point of view, and I think I've reached the point where my innate perspective and yours are just inherently different, so we ought to shake hands and move on. I'm not denying the truth of your experiences, but it seems to me that experience could - and often is - quite different for others. I'm skeptical of how many parents are as exemplary models as your (and, I think, my) father and mother were. (After all, if we need wives to "socialize" all those men whose mothers didn't do it, there mustn't be a particularly impressive success rate there to begin with...) And it's quite possible that my experience was colored by the fact that my childhood involved an extended family much closer than I've found is the norm in this country - at least in my generation. Maybe in a more isolated "and baby makes 3" family situation, what you say has more weight...but I think that's a suboptimal arrangement, and if our government's going to be incentivizing social arrangements (and I'm no libertarian), I think it'd be nice to undo the walling off of the nuclear family to an extent. No clue how that'd be feasible, though. In any case, I appreciate your arguments and your investment in this issue.

P.S. Yeah, I've got something of a temper. If Mr. Volokh didn't mind swearing round these parts, my reply would've been much shorter. And if at the time I thought Op Ed. was being sarcastic I probably wouldn't have reacted the way I did. I'm considerably less peeved now than I was last night, of course, but I still think I'd find his reply equally irritating (at this point) regardless of whether he was being sincere or not. But who cares, really? Just a couple of pseudonyms passing in the night...
10.20.2005 12:40am
The Countess (mail) (www):
Maggie: The argument I am making is this: every society needs to come up with some solution to the fact that the default position for male-female sexual attraction (that is unregulated by law or society) is many children in fatherless homes.

Define "fatherless home". Children of divorce are not "fatherless". Their fathers are not dead. The only true child of a "fatherless" home is that of a widow. You're real concern isn't same sex marriage or divorce - it's children who are supposedly being raised without the presence of a father. Yes. mothers file most of the divorces these days, but their children are not doomed. What "fatherless homes" has to do with same sex marriage is beyond me. How do same sex marriages threaten "fatherless homes"? Only if lesbians who were previously married to straight men and bore children get married? Only if lesbians use IVF or if gay men acquire the services of a donor who will bear a child for them? It seems to me that divorce is more of an issue regarding these so-called "fatherless homes" than same sex marriage. I know plenty of women in my line of work who are divorced whose children are doing fine, even though they are no longer married to their children's fathers. It seems that same sex marriage is more of a straw man to you. Your real issue is these so-called "fatherless" children. Why is hetero marriage seen as the only way to properly raise children? Children of divorce aren't doomed, contrary to family ideologue assertions. Three quarters of them do just fine.
10.21.2005 2:30am
On Lawn (mail) (www):
Countess:

Define "fatherless home". Children of divorce are not "fatherless".

Most assuredly a home is not a child. A home without a father is different than a child without a father.
10.22.2005 3:48am