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Two Reactions to the Gay Marriage Discussion:

An e-mail that I got today:

Thank you . . . for inviting Maggie Gallagher to guest-blog at your website this week . . . . While it is true my first instinct would be to reflexively disagree with one such as Ms. Gallagher should she write that "water is wet," I instead find myself intrigued by her writing. Perhaps this is just a function of taking all of my arguments in favor of same-sex marriage from facially reasonable people and the arguments against from those who appear to be, at least, less sophisticated. I whole-heartedly welcome the inclusion of someone who is able to get me to question some of my own assumptions and think more deeply about an issue that is all too often dominated more by sentiment than reason.
And a post I saw yesterday on another blog (a blog subtitled "A collection of real-world libertarian, individualist and laissez-faire rants on law, economics, politics, culture and other current events by an average, everyday lawyer & investment banker and part-time pop scholar"):
Eugene Volokh is "delighted" that Maggie Gallagher is guest-blogging at his site to debate same-sex marriage.

I'm "delighted" that I de-blogrolled him well over a year ago. It saves me having to do it now.

Gallagher, a notoriously vicious anti-gay bigot, is not a constitutional law scholar (in fact she's not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage. This "debate" will really be about the "pros and cons" of anti-gay bigotry, rationalized as a legal debate on same-sex marriage.

Perhaps next Volokh will invite some of those Ohio Nazis to guest-blog to discuss the "pros and cons" of anti-Semitism and rationalize it as a debate on the heckler's veto.

Readers can no doubt infer which of these reactions strikes me as the wiser one; still, let me offer three thoughts about the second reaction:

1. A sense of proportion: If disapproval of same-sex marriage is analogous to Nazism, then I suppose we live in a nation where the majority of the voters — and apparently both major candidates for President last election — are tantamount to Nazis. And of course the parallels are striking. Nazis: Exterminated homosexuals. Opponents of same-sex marriage: Are skeptical about departing from a millennia-old tradition to extend full legal equality to homosexual relationships. Nope, I can't tell the two apart, either; sounds like a great analogy to me.

2. A sense of tactics: It would seem to me that, given that (1) most Americans oppose legal recognition of same-sex marriage, and (2) supporters of same-sex marriage presumably think that their arguments are more persuasive, the same-sex marriage supporters should welcome online debates on the subject. Silence, I would think, would tend to help the status quo. Debate would tend to help those who would change the status quo. (It's possible that Volokh Conspiracy readers are somewhat more pro-same-sex-marriage than the public at large, though the opposite is surely possible, too. But in any event, even if factor 1 isn't applicable among our readers, one would think that factor 2, as perceived by supporters of same-sex marriage, would still lead them to welcome more debate.)

This of course brings up another weakness of the Nazi analogy: It's actually possible that Nazi vs. anti-Nazi debates might help the Nazis, just because Nazis are so unpopular that maybe there's no place for them to go but up. But I would think that pro-same-sex-marriage debates (either Maggie Gallagher vs. Dale Carpenter or Maggie Gallagher vs. the commenters on her posts) would be in the interests of the pro-same-sex-marriage forces. Unless, of course, one gets more joy out of calling the other side names than one gets out of actionally winning.

3. A sense of superiority: Oh, and "Gallagher . . . not a constitutional law scholar (in fact she's not even an attorney) and has nothing jurisprudential to bring to any debate on same-sex marriage" — nice touch! Of course, debate about same-sex marriage absolutely requires a law degree, and preferably constitutional law scholarship, plus something "jurisprudential to bring." No possibility that maybe some topics actually have more to do with what's good for society, what's likely to happen if some policy is changed, and what's fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines.

Steve:
There have been times in our nation's history when an electoral majority was in favor of all sorts of bigoted propositions. The analogy between disapproval of same-sex marriage and anti-Semitism (which Prof. Volokh deftly tries to transform into a "tautology" between opposition to same-sex marriage and Nazism) is not necessarily correct, of course, but it is not necessarily incorrect just because a majority of voters may feel that way today.
10.18.2005 8:37pm
Matthew Patterson (mail):
Honestly, I've not been wild about the Gallagher guest-star turn for a couple of reasons. For one, Maggie Gallagher is everywhere on this issue. Her schtick is done. We've all heard it. For another, her credibility on this issue is compromised by the fact that she's been paid to write in support of a particular ideological position. Not just that she's been paid to write about it at all -- that would disqualify pretty much any journalist from talking about anything -- but that the money was tied to the adoption of a specific ideological position. I feel like it calls into question the sincerity and legitimacy of her future arguments on said issue.

What would be a lot more interesting to me would be to have arguments against gay marriage from the *left* and arguments in favor of the *right.* That would at least be something new.
10.18.2005 8:37pm
Quarterican (mail):
I agree with everything in this post until Point #3. I would like to point out that, so far, Ms. Gallagher's arguments seem to rely quite heavily on an interpretation of the law; she's cited a variety of cases to provide evidence for her views, and made at least one argument explicitly only about the "legal argument" in the post stamped 1:59PM. I'm not familiar with Ms. Gallagher's work, so I don't know if this focus is typical of her, or if she's tailoring her content and approach to the broad focus of this blog, but I think it's fair to hold her ability or qualification to comment in this manner up to scrutiny. I'm not saying she fails, but it's a reasonable point.
10.18.2005 8:42pm
Elliot123 (mail):
Is the legitimacy of an argument in question if it is presented by a lawyer who collects a fee?
10.18.2005 8:43pm
unhyphenatedconservative (mail):
Elliot,
Your proper question should simply be "Is the legitimacy of an argument in question if it is presented by a lawyer?" :)
10.18.2005 8:53pm
Steven:
I haven't commented on this debate because to this point I don't believe Ms. Gallagher has actually posted anything to be commented on. She has asserted several times and in several different ways that heterosexual marriage is favored by the government because, historically, it advances procreation. Fine. Point made. Now, in light of the current situation, where (1) the status of marriage carries signficant economic benefits such as eligibility for employer offered health insurance coverage and tax benefits; (2) where more children are being raised in non-traditional family settings; (3) where more and more gay and lesbian couples are establishing stable families and either having children or adopting children, the question becomes whether marriage as traditionally defined should be broadened to include non-traditional forms? And if for religious or moral reasons, one concludes that it shouldn't, then should an alternative form of union be established on which the economic benefits of marriage are bestowed? So far, the entire discussion and commentary has been largely just filling the air, waiting for something substantive to occur.
10.18.2005 8:54pm
Humble Law Student:
Maybe instead of the snobby elitism, all of you making the ad hominems (who are self-evidently so much smarter than everyone else) can indulge us with a whiff of your intellect and dispel the aroma of tradition, morality and the like that the American majority is so foolishy spell bound to...

You're not used to someone challenging your beliefs, so when the opposing side makes a half-intelligent effort you run scurrying for cover under the cloak of, "she's not qualified to debate me." For others the problem is that you are afraid to make your real arguments and their implications known. Because the second the American public sees them for what they are - they will turn their noses to your stench.

(Disclaimer - I by no means and clumping everyone into that category. Many have taken the time and effort to put forth reasoned arguments. I am speaking to the rest...)

Have a pleasant evening
10.18.2005 8:58pm
Roger Schlafly (www):
Lawyers are usually paid fees to advocate legal positions. It is a little strange to see someone complain about it on a legal blog.

Godwin's Law is confirmed again. The Nazi argument is silly.

There appear to be a lot of lawyers who really do not understand the rational basis for marriage law. The comments on this blog prove this. Yes, Mrs. Gallagher is saying what should be obvious to most non-lawyers, but the lawyers here are getting an education.
10.18.2005 9:01pm
Arvin (mail) (www):
The majority of the US might believe that the Bible is literally true. Does that mean that you should invite someone convinced of that to guest-blog for a week?

As it is your blog, you are of course entitled to do whatever you want with it. However, the Volokh Conspiracy is renowned for its crisp and clear logic (at least to me). By inviting Maggie Gallagher, it appears to me that you tacitly endorse her posts as "crisp and clear logic" especially since the rest of your blogmates are so carefully chosen.

Therefore, those (like me) who believe that the positions advocated by Gallagher and others like her, ultimately come down to irrational and unreasonable hate and fear, will wonder why you chose to give her this podium.
10.18.2005 9:07pm
Dilan Esper (mail) (www):
I don't have any problem with Professor Volokh allowing Maggie Gallagher the opportunity to post on gay marriage.

That said, I do think Ms. Gallagher should put her motives out on the table. How does she feel about employment anti-discrimination protection for gays and lesbians? About Colorado's Amendment 2, the law at issue in Romer v. Evans? About gays in the military? About gay adoptions? About sodomy laws? About the Supreme Court's having struck down sodomy laws as not having a rational basis? About civil unions? About hate crime laws that protect blacks and women but not gays?

In other words, it is possible to not be a bigot and yet to oppose same-sex marriage. But its also true that many people who disliked homosexuals to begin with and favor governmental and private efforts to discriminate against them find the popular stance of "protecting marriage" to be a nice refuge in which they can advance anti-gay arguments in the public square. And if Ms. Gallagher is in the latter category (something she has NEVER disclaimed in any of her posts here), than Professor Volokh really ought to reconsider his decision to provide her with a forum.
10.18.2005 9:15pm
Shelby (mail):
not a constitutional law scholar (in fact she's not even an attorney) and has nothing jurisprudential to bring to any debate

It does seem curious to assert that one must be qualified for a seat on the Supreme Court to argue the merits of gay marriage, but I guess that's where current events have led us.

On a more substantive note, my chief disappointment with Ms. Gallagher has been her failure to actually engage the serious counter-arguments repeatedly raised in comments responding to her posts. For example, she asserts that the purpose of marriage is to support procreation, though all the evidence is that it is to support child-rearing, not -bearing (as well as other purposes). Nor does she engage how permitting same-sex marriage will affect children who would be raised in such a marriage, versus the situation they will ind up in with such marriages banned.

Perhaps she's dealt with these points in today's posts -- I haven't had a chance to review them yet. But as of last night she appeared to be ignoring them.
10.18.2005 9:17pm
ThomasL (mail):
My wife and I are attending a party this weekend, and she asked me what I thought we should bring.

Now, of course, I know:

Something jurisprudential.
10.18.2005 9:17pm
Dustin R. Ridgeway (mail):
Once again the elites who hate relgion and religious people, can't resist sticking up their noses at normal bible believing Americans.

It makes me glad we had the privielege to read a blogger who represents the unquestionable wisdom of the American electorate.
10.18.2005 9:18pm
Simon (391563) (mail) (www):
Ah, the joys of providing forums to bigots. Reminds me of the great Clayton Cramer experiment of ought-three. How did that one turn out again?

Oh right.
10.18.2005 9:18pm
Dilan Esper (mail) (www):
Dustin, most of those elites will defend to the ends of the earth your right to read and believe in the Bible. But that doesn't give you or others of like mind the right to harness governmental power to force those who don't share your religious beliefs to conform to them.
10.18.2005 9:20pm
Veggie_Burger (mail):
I have no problem with your having debates, even lame ones with the occasional skinhead or bigot. Maybe the ebullience that your word "delighted" evoked is what proved so irksome to the complainer. "I'm delighted to have the president of Iraq, Sadaam Hussein, on the show today." An Iraqi Kurd might not understand or appreciate your delight.

One difficulty is that it takes intelligence, energy and persistence to try to defeat the arguments of narrow-minded yet basically intelligent people. It can be quite frustrating at times, especially when you are on the side of an oft-persecuted minority. I think the complainer was understandably showing quite a bit of frustration. At least that is how I would've taken his angry reaction.
10.18.2005 9:23pm
Nikki (www):

No possibility that maybe some topics actually have more to do with what's good for society, what's likely to happen if some policy is changed, and what's fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines.


Well, this is a legal blog, right? I mean, if I want pure social theory or social arguments, I can come up with that on my own. Thus far Ms. Gallagher has not impressed me.
10.18.2005 9:23pm
Jesurgislac (mail) (www):
I am in fact very appreciative of your allowing Maggie Gallagher the opportunity to blog so extensively over here on same-sex marriage.

It is my contention that the anti-marriage crowd have exactly four arguments:

1. Tautological - marriage has always been mixed-sex (and they ignore all examples that show that it hasn't been) therefore marriage should always be mixed-sex.

2. Illogical - marriage is all about procreation, therefore non-procreative couples aren't allowed to marry.

3. Mystical - marriage is all about the fusing of masculine and feminine, and same-sex couples can't do that.

4. Homophobic - Because they hypothesise possible future damage to marriage if same-sex couples are allowed to marry, they contend that it is justifiable to deprive LGB people and their children of full civil rights.

(Plus the religious argument, which I'm actually fine with so long as it stays religious - any religion should have the right to decide its own rules for who can and can't get married in religious, but not to impose those rules on civil marriage.)

So far, Maggie is running true to form: her arguments have been illogical and tautological, with a touch of mystic. I suspect that when she moves on to "damage" she'll move into direct homophobia.

Once she's finished, I plan to link to all her posts here and write a post on my journal outlining the four arguments the anti-marriage crowd use, and using Maggie's posts as examples of them. She's articulate, well-read, and courteous. I think her posts here probably do represent the very best the anti-marriage crowd can do, and I appreciate the opportunity to read their very best blogged in one place.
10.18.2005 9:29pm
Dustin R. Ridgeway (mail):

Dustin, most of those elites will defend to the ends of the earth your right to read and believe in the Bible. But that doesn't give you or others of like mind the right to harness governmental power to force those who don't share your religious beliefs to conform to them.


My apologies, I was intending it to be sarcasm. In reality I hold reactionary populism of that type in very low esteem.
10.18.2005 9:31pm
anonymous coward:
"If disapproval of same-sex marriage is analogous to Nazism..."

Actually, the analogy appears to be between anti-gay bigotry and Nazism. The author infers anti-gay bigotry on the basis of Gallagher's past writing, which he apparently does not like. This blog, he seems to believe, lets her cloak her alleged anti-gay animus as a sober debate (he supposes exclusively legal) about same-sex marriage.

This isn't exactly fully coherent or persuasive, but it's not quite as bad as construed above. I'm not sure there's much accomplished by taking someone's quickly-written, angry blog jottings seriously, but hey, it's your blog.

Also, I'm not convinced that reasoned debate changes many minds on social issues (although perhaps the very few that can be changed are the minds most worth changing).
10.18.2005 9:32pm
Elliot Reed:
Professor Volokh: You're right that comparing Gallagher, an anti-gay bigot, to Nazis is out of proportion. The correct comparison is to anti-Semites, and we do indeed live in a country where the vast majority of people are akin to anti-Semites.

When someone respectable, like a highly regarded professor of constitutional law at a very prestigious law school, offers his personal website as a forum for bigots, he provides legitimacy both to the bigots and to their point of view. People of otherwise sound judgment who are willing to lend their reputations to legitimize the forces of bigotry deserve condemnation.

As for superiority, when someone bases their arguments on specifically legal considerations on a blog run by law professors, it seems reasonable to expect a certain degree of professional competence, no?
10.18.2005 9:32pm
DaveK (mail):
I am a loyal reader of the Volokh Conspiracy. And I want to add a vote to the "this was a bad idea" column. It's making me want to stop reading, at least until she goes away.

My objection Ms. Gallagher's posts is not that she's not a lawyer, nor that I disagree with her, nor that she's somehow equivalent to a Nazi.

My objection, rather, is that the posts seem simply out of place.

I read this blog because I like to read the well-balanced commentary on law and politics that a group of legal scholars are kind enough to share. Ms. Gallagher's posts are somewhat thought-provoking and even well-reasoned, but they're neither balanced nor, to my mind, all that interesting.

They might be well-suited to a special feature on another page--perhaps as part of a debate with someone on the opposite side. By themselves, it's simply not worth my while to read one unknown guest's long discourses on one side of the gay marriage debate. That's just not what I come here for, and I feel as though they've been dominating the blog (in volume, if nothing else) since they started.
10.18.2005 9:42pm
Humble Law Student:
Dilan wrote,

"In other words, it is possible to not be a bigot and yet to oppose same-sex marriage."



Wow, color me impressed. What a concession. But why do I feel that concession as applied to an individual is as unlikely as the the hell you probably don't believe in freezing over?

Dilan continues

"But its also true that many people who disliked homosexuals to begin with and favor governmental and private efforts to discriminate against them find the popular stance of "protecting marriage" to be a nice refuge in which they can advance anti-gay arguments in the public square."


O, I really like this. Two can play this game. Why doesn't my side then just say all of you are in favor of gay marriage because all you ever want is the complete and total breakdown of marriage. After all, marriage is just a symbol and tool of oppression. As one great feminist said (not quoting), male-female sex in our society is rape and it is impossible to be otherwise because of the inherent differences in power in male-female relationships. Therefore, the utter dissolution of marriage is required to destroy that inherently unjust institution. But, of course, you all realize that the American public would never accept such arguements. Therefore, you couch your arguments in the context of "rights" and "equality" and you argue that gays just want to "be like everyone else."

Or I could go further, I could say you all just use your arguments to destroy traditional limitations to other "experimental relationships." That you seek to destroy the social norms and rules that limit such behavior. I could say that you truly desire legalizing beastality, polyamorous relationships, pedophilia etc... along the lines of Professor Singer at Princeton.

But, I'm not going to do that. I believe the vast, vast majority of you don't advocate that. So, why don't you do us the favor and stop assuming and reading in bigotry and hatred into our arguments. You'll do everyone a favor. Plus, I won't have to sound like such a jerk.

p.s. I'm sure you are a nice person, but two can play the game. And if we all do, then these conversations won't go anywhere.
10.18.2005 9:49pm
DK:
I vote against Gallagher, simply because her posts are so long! It took me quite a while to scroll down and find today's puzzle; I still haven't found the post introducing her.

Maybe when you have a celebrity guest blogger, you should ask them to space out their posts, so we get a week or two of a little celebrity spicing up the blog, instead of a word-dump I can barely scroll through to read the usual bloggers.
10.18.2005 9:49pm
Humble Law Student:
DaveK wrote,

They might be well-suited to a special feature on another page--perhaps as part of a debate with someone on the opposite side. By themselves, it's simply not worth my while to read one unknown guest's long discourses on one side of the gay marriage debate. That's just not what I come here for, and I feel as though they've been dominating the blog (in volume, if nothing else) since they started.


Yah, I agree. This format doesn't seem to helpful. Usually, back and forth debate between two people on equal terms is more beneficial. But Eugene's intent could be to allow each side to present their views as they choose to - maybe to prevent the inevitable rabbit trials that happen in a head on debate.
10.18.2005 9:55pm
tdsj:
Do people on either side ever really change their minds as a result of debates like this? Or as a result of debating and arguing and reasoning at all?

Isn't it just true, as a matter of social psychology, that beliefs are caused more than chosen (and not caused by the power of arguments)?
10.18.2005 9:55pm
Josh Jasper (mail):
I certainly wouldn't say you'd invite in a Nazi. Possibly Michelle Malkin on the pro-internment for Moslems debate though. Or one of her friends fron VDare on immigration.

You're always careful to skirt the borders of right wing intolerance, never quite wandering into full-on bigotry.
10.18.2005 9:59pm
Jamesaust (mail):
Eugene,
She was a useful guest and stirred things up a bit. Thanks.

I think anyone with an open mind following the discussion would have concluded that there are a surprising number of ways to rationalize treating others differently. I found myself convinced more than ever that if there is a clear reason to deny marriage rights to gays no one yet seems to have been able to put their finger on it.

To be fair to some criticism offered - Maggie needs to avoid citing law and legal cases and stick to just making her point from a policy position.
10.18.2005 10:02pm
Dilan Esper (mail) (www):
"O, I really like this. Two can play this game. Why doesn't my side then just say all of you are in favor of gay marriage because all you ever want is the complete and total breakdown of marriage."

You could just say that. But the difference is, only a small percentage of gay marriage advocates EVER advocated the kinds of things (all sex is rape, marriage is illegitimate) that you are attempting to ascribe to them.

In contrast, significant numbers of those who now oppose same-sex marriage supported sodomy laws, oppose gays in the military, oppose treating gays equally with blacks and women in hate crime laws, support discrimination agianst gays and lesbians in the private and public sector, oppose civil unions, supported Amendment 2 in Colorado and/or similar laws, oppose extending employment discrimination laws to gays and lesbians, and oppose gay adoption.

To compare those views-- which all have significant support, with Catherine McKinnon-style radical feminism that has never gone beyond the very fringe of academia is to refuse to take any responsibility for the significant amount of anti-gay bigotry that animates a fair number of people in the movement to oppose same-sex marriage.
10.18.2005 10:04pm
Noah Snyder (mail):
I certainly agree that one should have a proper sense of proportion on this issue. However, I think that proper sense of proportion should include the fact that by not extending marriage rights to gay couples we are doing serious material harm to a many people in this country.

The analogy is not to Naziism or to slavery, but to anti-miscegenation.

I don't think you'd invite someone onto the website to discuss the "protecting marriage from interracial couples" position, even though that at one point was controversial and had 70% approval in large swaths of the country. And thus I think that you Eugene are also missing a sense of proportion on this issue, you're not treating it as seriously as it should be treated. We're talking about real people's real lives here, and taking away their house when their spouse dies.
10.18.2005 10:05pm
Humble Law Student:
Must I really say how impressed I am with the level of tolerance from all of you "liberals" out there?

Let's keep track here of all of the cries of "blasphemy" from our modern pharisees. So far in this thread, practically every other post screams that either anyone (or most) against gay marriage is a bigot (attach your favorite adjective), similar to an "anti-Semite", or some other word or phrase connoting intolerance, lack of intelligence, or knee-jerk fear of homosexuals.

Wow, I feel so safe when liberals tell me that they will defend my right to disagree. Anyone else as uncomfortable as I am in believing in their sincerity?
10.18.2005 10:11pm
Shelby (mail):
You're always careful to skirt the borders of right wing intolerance, never quite wandering into full-on bigotry.

Such generosity of spirit! And thanks for demonstrating how that tolerance thing works.
10.18.2005 10:12pm
Guy who supports equal marriage (mail):
Of course opponents of same-sex marriage are not like Nazis. It's worse to support killing gay people than it is to support letting gay people get married. I'm surprised at you, Eugene, that you caricatured the anti-Gallagher position by presenting the most extreme strawman version of the position. But I think a better comparison is the civil rights movement, both in your appeal to majoritarianism and your appeal to a sense of proportion. It is considered gauche in conservative circles to relate the civil rights movement to the pro-gay marriage movement, but it's easy to forget that less than 40 years ago (!!) a majority of whites in the South felt that opposing segregation was (a) an affront on traditional values (b) an experiment that could lead to the downfall of civilization (c) an imposition by pinheaded Harvard elitists. Majority support did not automatically make that position meritorious, and it does not make Gallagher's position meritorious either. As for the sense of proportion, segregated schools (and certainly bans on interracial marriage) are comparable in importance to same-sex marriage. It may be hard for a straight person to understand this, but not being able to get married permanently shunts gay people as outsiders. Being married gives substantial economic and social benefits, as well as the right incentives to pursue a healthy and productive life; banning gay people from participating in this institution blocks these critical benefits from them forever. It is a critical civil rights issue, Eugene, and saying that "it's not as serious as the Holocaust" trivializes it. Nothing is as serious as the Holocaust; segregated schools were not nearly as serious as the Holocaust.

As for the superiority argument, it's easy to break out the anti-elitism card and say that all these Harvard-educated lawyer jerks are so busy staring at their diplomas that they won't address Maggie Gallagher's homespun down-to-earth wisdom. Everyone wants to feel like a populist? But actually, I think that the pro-same-sex marriage position really is superior in this case. I don't consider this an "interesting debate" - originalism versus the living constitution, or the limits of free speech or whatever, are all interesting debates, but to me this is just a matter of moral clarity. To gay men and women it is infuriating to see people handwringing about whether it is abstractly "consistent" with the anthropological goals of marriage to keep them isolated from their families on the social sidelines. There is a right and wrong on this issue; it is really the only debate in the current political sphere where I have the absolute moral certainty that one position is right. It has nothing to do with elitism either; Maggie Gallagher is plausibly an "elite" member of the chattering class, while there are plenty of gay (and straight) men and women in working-class environments who understand that this issue is a matter of right and wrong.

Why is it a matter of right and wrong? Plenty of people have articulated this point, so there's little I can add, but consider this: every single one of Maggie's arguments would apply either to (a) preventing convicts or drug addicts from getting married or (b) preventing old people from getting married. When two drug addicts get married, a union not conducive to children is being legitimized. When my grandmother remarried after my grandfather died, it to an extent sent me the message that marriage is not about procreation. We would all be appalled by limiting marriage in these cases, however, because marriage isn't just about creating incentives and reinforcing social paradigms. It's about giving people the opportunity to share their lives together, and anyone with a heart and a mind should realize that. Also, I'm unclear how gay marriage will cause straights to stop getting married or stop procreating. I mean, come on.

That leaves the pragmatism argument. My view on gay marriage is that I'm willing to do whatever it takes to bring it about. If debating individuals like Maggie Gallagher will bring about gay marriage, I'm for it. If it legitimates her positions (the argument used by biologists to refuse to debate creationists), I'm against it. I'm not sure the answer to that question; but I do think it's the only reason to debate Maggie Gallagher; I don't think that her views deserve any kind of actual respect.
10.18.2005 10:15pm
Dilan Esper (mail) (www):
Humble:

I can't say-- and don't say-- that most people are opposed to same-sex marriage are bigots. But it seems to bother you to even suggest that many are, despite the fact that we KNOW that many Americans support official and private discrimination agianst gays and lesbians (and supported throwing them in jail before Lawrence v. Texas).

If you can show me evidence that the vocal advocates of gay marriage actually support full civil rights for gays but simply draw the line at marriage, fine. But you know that's not the case. Claiming that my side is "intolerant" doesn't change the truth.
10.18.2005 10:16pm
Humble Law Student:
Dilan, thanks for your response, but when you said

"I can't say-- and don't say-- that most people are opposed to same-sex marriage are bigots. But it seems to bother you to even suggest that many are, despite the fact that we KNOW that many Americans support official and private discrimination agianst gays and lesbians"
it's kind of hard to think you are being on the level. You realized that maybe you are stepping too close to the line, so you take a step back. However, the tactical retreat in your language in meaningless. Correct me if I am mistaken, but you say that maybe most people opposed to gay marriage aren't bigots. However, you then define bigotry by saying that it includes anyone who supports official and/or unofficial discrimination against gays, which accordingly would imply that opposing gay marriage would be bigotry from your viewpoint. So, you really are saying that anyone opposed to gay marriage is a bigot by default. Now, maybe you do make a meaningful distinction, but it isn't apparent.

You then also say,

"If you can show me evidence that the vocal advocates of gay marriage actually support full civil rights for gays but simply draw the line at marriage, fine. But you know that's not the case."


Huh?
10.18.2005 10:27pm
Adam (mail) (www):
I don't deny that there is "a" rational basis for arguing in favor of excluding gays from marriage; I just don't think it's as rational as the case for inclusion.

What offends me about this whole discussion is that Ms. Gallagher has refused to engage anyone in the Comments section. This is a blog, not a newsletter.

And, by the way, while lawyers get paid to make arguments all the time, "journalists" aren't.
10.18.2005 10:34pm
Dilan Esper (mail) (www):
Humble:

To be clear: (1) there was no retreat in my language, because I always said "many", not "most", opponents of gay marriage were bigots, and (2) I will repeat, I don't believe that opposing gay marriage makes one a bigot. There are certainly people who think that gays should be given broad civil rights protections but simply not be allowed to marry. I don't agree with that position, but it is in no way bigoted. I also understand that there are people who see marriage in religious rather than civil terms, and therefore believe that it is a sacrament that gays are not entitled to. Again, that is not a bigoted position.

What IS bigoted is combining opposition to gay marriage with the anti-gay position on the panoply of other civil rights issues that I listed. There really wasn't a non-bigoted rationale for supporting sodomy laws that threw gays and lesbians in prison, for instance. Nor is there a non-bigoted rationale for supporting employment discrimination laws that protect people based on race, ethnicity, gender, and religion, but allow private employers to fire gay and lesbian employees. (There is a libertarian position against ALL such laws, but the position that race discrimination should be illegal while homophobic discrimination stays legal is one that can be motivated by nothing other than aniums.)

And a lot of the people who advocate against gay marriage do indeed believe in these other forms of discrimination against gays. That's where the bigotry comes in.
10.18.2005 10:36pm
Henry Schaffer (mail):
"If you can show me evidence that the vocal advocates [opponents?] of gay marriage actually support full civil rights for gays but simply draw the line at marriage, fine. But you know that's not the case."

I'm not vocal on this issue, but I do support full civil rights for gays, and I wonder why "marriage" is considered so much more important than "civil union"? I know many people who have similar opinions - some "draw the line at marriage", others are uncertain, but I don't think that any of those are bigots.

Note: the economic benefits argument convinces me that there is discrimination against gays - it appears that civil union removes the economic discrimination. I.e. it is a legal solution, but apparently not a full social solution.
10.18.2005 10:43pm
Getting Bored With the Whole Thing:
Allow me to preface my following commentary with the fact that I have found Gallagher to be decidedly unpersuasive in her arguments. I find her 'procreation' argument to be somewhat disingenuous in that the bulk of her discussion actually addresses issues of identity (child-rearing). This is especially evident given her rather contrived 'logical' posits when attempting to narrowly address the simple act of conception as it relates to a predicate position in defining marriage.

With that said, I find the pro-homosexual marriage arguments, as they have been presented by quite a number of individuals here, to be even less persuasive or informative than Gallagher's. Little 'reasoned discourse' is proffered and most assertions rely on invectives, non-sequiters, red herrings, and hypocritical appeal to 'democracy.' Thus, I am left to conclude that what the basic argument comes down to is: "I support this position and you shall catch my wrath if you don't agree."

I have seen accusations of bigotry, homophobia, Nazism, totalitarianism, and lack of qualification as regards Gallagher and anti-homosexual marriage proponents proffered as the primary, although admittedly not the sole, rationale as to why the pro-homosexual marriage position is superior.

Let's see...

Bigot is defined in Websters and Oxford Dictionaries respectively:


"A person who is fanatically devoted to one group, religion, politics, or race." - "A person who is prejudiced in their views and intolerant of the opinions of others."


On a strict, definitional basis, does not the zealousness exhibited in the various stances taken on this position, on both sides of the aisle, meet these definitions; particularly given the invective, ad hominem, and pejorative attacks of the pro-homosexual marriage crowd? Since when did a more obstreperous form of intolerance gain one the 'moral high ground' or form a 'superior, logical argument?'

Homophobia is defined by Oxford as:


"An extreme and irrational aversion to homosexuality and homosexuals."


No matter how misinformed, ill-defined, or badly argued some of the anti-homosexual marriage arguments have been, their position has been predicated on maintaining a centuries-old, traditional definition of marriage. In fact, many have stipulated that they believe homosexuals deserve and should be accorded the economic and social benefits now assigned to 'married couples.' The emphasis has not been to deny benefits, but to protect the traditional definition and institution of marriage.

Thus far, the preponderance of irrationality and extremism demonstrated in the arguments on this issue seem to be coming from the pro-homosexual marriage proponents. Websters defines 'extreme' as: "exceeding what is considered moderate, usual, or reasonable...a drastic measure." A reasonable person must recognize that re-defining a social institution, based in centuries-long tradition, is an 'extremist' position in that it posits the drastic measure of changing what many would consider to be the 'usual' experience.

'Irrational' is defined simply as "unable to reason." I would point out that the most vocal among the pro-homosexual marriage pundits have amply demonstrated the inability to reason through reliance on:

1.) vicious labeling (bigots, homophobes, Nazis, etc.);

2.) tactics of distraction (What is HER motivation? What is HER stance on other issues?); and

3.) resorting to feigned offense when confronted with a reasoned retort. As an example: Contention - "By excoriating the current definition of marriage and its proponents while demanding a re-definition, which, by default would change the institution itself, you are not demonstrating respect for the current institution." - Response - "I find such a contention to be offensive and absurd, for if these folks really disrespected the institution they wouldn't have any desire to be included in it." Well, I would suggest that they are NOT exhibiting a desire to be included in the current institution in that they are demanding a wholesale change in the definition which bounds that institution; in effect, demanding to participate in a completely different institution. Thus, offense and absurdity is found in the fact that one would disagree with the pundit's position; not in the non-sequiter and illogical proposition proffered in defense.

In short, while the arguments from Gallagher are unpersuasive, I find many of the critics of her position to be irritating, irrational, and extremist in their tactics. This does nothing to enhance the perception of veracity or reason in their position(s). It does even less in terms negating the position(s) of Gallagher, et al. And, it informs and persuades least of all.

Something to think about folks.
10.18.2005 10:48pm
Humble Law Student:
Okay, no one has stepped up (that i've noticed) to address the whole analogy of the current gay marriage movement to the civil rights movement and the bans on interracial movement.

The analogy doesn't work for one simple reason. Race is purely a social construct. Sexual preference (according to the establishment view) is innate to an individual, and consequently not socially constructed (granted it may be socially influenced, but that is society's imposition of its norms, not the realization of the individual's unimpeded desires). Therefore, the two situations are quite distinct. The laws on interracial marriage sought to establish bans that artificially limited marriage based upon a social construction. Not allowing gay marriage, explicitly or implicitly (depending on the laws), bans certain behaviors based upon a real inherent difference.

Now that we have established that the two situations are logically distinct, we can move to the next questions.

Some may still argue that bans based upon an inherent difference are even worse forms of bigoty, but that is a different argument. It is easily addressed by showing that what gays seeks is a creation of new rights. The racial discriminations of the past were based on artificial constructs. Consequently, no discrimination exists currently, because gays have the same rights, a man can marry a women and a women a man - which is exactly what the proponents of interacial marriage fought for. Marriage has never been seen as an extension for the promotion of same sex relationships only cross sex. Therefore, the bans on interracial marriage were artificial and wrong because their basis was on an artificial construction. However, with gay marriage the new broadening of the definition takes marriage to a place that is hasn't even come close to before. By defining marriage to include cross sexes you remove any objective social meaning it had before, and in effect make it mean all things to all people. As such, it becomes meaningless. By making marriage include same sex couples you strip the term of its very meaning.

Homosexual couples don't seek "marriage." They seek the forced social acceptance of their lifestyle. Otherwise, they would be perfectly fine with civil unions (that gave full rights). Concurrently, no one is keeping homosexuals from loving their partners. Taking that with the fact that homosexuals aren't happy with just civil unions shows the true effort. Its a blatant heavy handed attempt to force a lifestyle, that most Americans who could otherwise care less about, down the throats of those who are wary of changing marriage in a way to make it devoid of any meaning.

Anways, back to my main point. The analogy between the bans on interracial marriage and gay marriage are faulty, because the underlying facts are fundamentally different.
10.18.2005 10:52pm
Humble Law Student:
Exellent point Getting Bored
10.18.2005 10:56pm
Humble Law Student:
Dilan,

Fair enough. You seemed to at first define bigotry in a way that would include all who didn't agree with homosexual marriage, but from what you have said, you don't mean to include them by default. Thanks for the clarification.

However, since marriage for the purposes of this discussion is a social institution, would you please explain why based upon what principle one can deny marriage but not other "civil rights." If marriage were purely a religious exercise the point would be moot, but it isn't. Isn't it still discrimination, and therefore wouldn't all of us opposed still be bigots?
10.18.2005 11:03pm
Josh Jasper (mail):
Homosexual couples don't seek "marriage." They seek the forced social acceptance of their lifestyle. Otherwise, they would be perfectly fine with civil unions (that gave full rights).

Look, if the federal government were to ask GLBT people if they'd trade the word 'marriage' for a full exact equal country wide marriage, all except in name, and could somehow magicaly prove to us that "seperate but equal" would actualy be realy equal, a vast majority of us would take it.

But until then, civil unions provide about half the rights, and are constatnly at threat. So that's why we're using the term 'marriage' and are pushing for it on a cross-state level. If more than one state gets it, and they get cross-recognized (I'm not sure of the exact legal term), we get the freedom to move our relationships, and the rights they convey, from place to place, and don't ahve to deal with moving from, say, Maine (which has civil unions) to Utah (which hates them) and loosing all of our rights.

This is something you're either taking for granted, or expecting that people won't notice, so you get to trumpet civil unions and sound egalitarian when you're really just promoting second class status.

Given your wording, and your implication that there is an acceptable 'civil union' that can travel from state to state that us GLBT people are passing up to force something down your poor abused throat, I'll chalk this up to ignorance.

Now you know better. I await your thanks for this information that you somehow managed to miss.
10.18.2005 11:33pm
mighty iguana:
Humble law student, if you can give a argument against same sex marriage without resorting to a "gay people are bad and homosexuality is evil" argument, congratulate yourself, you are not a bigot.

Dilan is claiming that you can tell if people hold to "gay people are evil" belief which I would assume he calls bigots by looking on how they stand on other civil rights because presumable the only logical reason why anyone would be against those civil rights is that they hold to a " gay people are bad" belief. I have not quarrel with that after all, why would an employer fire a employee on the basis of homosexuality?

And I would say if a person holds to a "gay people are evil" belief, a argument on same sex marriage isn't going to go anyway unless, the person manages to give cogent arguments against it.
I personally do not care if a person who hates gay people wants to argue with me over same sex marriage, as long as the person does not use a "gay people are evil" argument Since you can't really argue intellectually with that kind of reasoning.
10.18.2005 11:42pm
Aasem (mail):
Elliot123:

"Is the legitimacy of an argument in question if it is presented by a lawyer who collects a fee?"

Yes, sort of.

I've been litigating in California for 20 years. I frequently advance arguments on behalf of my clients that I consider "legitimate," but I don't necessarily believe in them from the bottom of my heart. The court's agree with the arguments, the clients do well, and that's fine. However, I would not advance some of these arguments if I were representing myself, or if I were writing an essay outside of litigation. Therefore, I always view paid opinions as suspect because they're not necessarily expressing the honest views of the author.
10.18.2005 11:51pm
DWPittelli (mail) (www):
1) If there were a referendum on gay marriage, I would vote for it. I live in Massachusetts.

2) There was no referendum on gay marriage in Massachusetts, because the state's representatives, at the behest of gay groups who believed they would lose, ignored their legal duty (given the number of signatures collected for the referendum) to vote on the same.

3) The state's Supreme court found some "penumbras and emanations," to use a Griswoldian term, to impose gay marriage. Unusually, they delayed their decision, most likely to thwart its repeal by constitutional referendum.

4) I would see gay marriage, properly arrived at, as helpful to gays, their children, and probably marriage itself. But I do not see attaining it worth ignoring our laws and making things up about our constitution, especially because it is such vague legal arguments which are most subject to slippery slope problems. (Ironically, Massachusett's SJC proved Scalia right about that, as he predicted in the Texas sodomy case.)

5) Polyamorists can just as reasonably claim to be entitled to "equal protection" for their orientation as can gays as lesbians.

6) I fear that the Judiciary seeing marriage as a "right" will lead to polygamy, which I see as the road to the death of marriage, among polygamy's other faults. (For example, when 10 mob members can all marry each other, we will lose the right not to have to testify against our spouses.)

7) The reason judicial forcing of gay marriage is not the same as judicial forcing of inter-racial marriage is not because race is a less real concept than gender (although that is true). It is because the 14th Amendment's "equal protection" guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone sexual behavior, or any other behavior.
10.18.2005 11:54pm
Dustin R. Ridgeway (mail):


Therefore, the bans on interracial marriage were artificial and wrong because their basis was on an artificial construction.


So, if our concept of race and supposed racial differences was not a 'social construct' but did have basis in factual reality, then banning interracial marriage would have been game on?


Homosexual couples don't seek "marriage." They seek the forced social acceptance of their lifestyle. Otherwise, they would be perfectly fine with civil unions (that gave full rights).



Homosexual couples seek the same state recognition of their marriage unions that Heterosexual couples enjoy. Some probably seek forced social acceptance of their lifestyles, some don't, some probably don't, but that is provisional and hardly related to the point.



Taking that with the fact that homosexuals aren't happy with just civil unions shows the true effort. Its a blatant heavy handed attempt to force a lifestyle, that most Americans who could otherwise care less about, down the throats of those who are wary of changing marriage in a way to make it devoid of any meaning.


If Homosexuals aren't happy with just civil unions, you're right it does show their true effort. They're serious about the issue. If some other group of society, blacks or women for example, were given most or all the privileges of white men but still weren't considered citizens by the State, the most pernicious motive I could ascribe to them in their efforts to be recnognized as such is the desire to change the definition of a citizen from a white man who owns property to something 'devoid of any meaning' as you put it.

Not to mention the 'it will make Marriage devoid of meaning' is the least defensible argument. That granting same sex couples the same marriage recognition as different sex couples would somehow make the union of the latter less special or meaningful, is an insufficient basis to deny the right to the former.
10.19.2005 12:06am
Leeron:
No matter how misinformed, ill-defined, or badly argued some of the anti-homosexual marriage arguments have been, their position has been predicated on maintaining a centuries-old, traditional definition of marriage.

So you're comparing the anti-gay marriage position to, say, the defense of the institutions of slavery or female genital mutilation.

In fact, many have stipulated that they believe homosexuals deserve and should be accorded the economic and social benefits now assigned to 'married couples.' The emphasis has not been to deny benefits, but to protect the traditional definition and institution of marriage.

Ah - so perhaps the better comparison in your mind is to a defense of Jim Crow laws and "separate but equal". Or, as was previously indicated, anti-miscegenation laws.

Read Michigan's anti-gay marriage amendment, and tell me again that the focus isn't about denying rights to gays.

The analogy doesn't work for one simple reason. Race is purely a social construct.

Humble, are you serious? You think that people have different skin color because of a social construct? You think that pygmies are short because of socialization? When people say that race is a social construct they are pointing out that societies have very different concepts of "race" - the "one drop rule" in the U.S. meant that "one drop of non-white blood makes you non-white" - that's a social construct, and it is absurd. And most "racial" differences seem to be inconsequential - relating primarily to appearance, or ability to better survive in extreme environments. But that doesn't mean that there is not not a genetic component to race - there obviously is.

As for the notion that civil unions are equivalent to marriage, if you are a law student you must not be a very good one. It shouldn't take you more than a minute or two of research to note that civil unions are not universally available, do not carry the same rights and benefits as marriage, and can present significant complication (e.g., how do you "divorce" from a civil union) not present with marriage. But then, if you believed your arguments had merit you would attach your name to them, wouldn't you....
10.19.2005 12:08am
JB:
Humble Law Student:

Sexual orientation is also a social construct. The Romans distinguished beween sexual "givers" and "takers," as well as between homosexuals and heterosexuals. So did early-20th-century America, where "straight" men would be active partners in sex with male "fag" passive partners, avoiding all of the opprobium. I'm sure there are other examples, but those are just the ones I know.

The absence of an alliance between "giver" homosexual men (and, possibly, "giver" lesbians) and straight men, for the purpose of oppressing "taker" homosexual men and straight women (and treating people who like both sides like bisexuals are treated) shows that any given sexual distinction is a social construction and far from inevitable.
10.19.2005 12:29am
Proud Generation Y Slacker:
And yet, JB, among all that, the Romans and even the Greeks had a strict definition of marriage. Why? Why is the gate there?
10.19.2005 12:31am
JB:
Addendum: Just making clear: "giver" and "taker" are my own terms. "Straight" and "fag" are among the names that these two groups were actually called. I'm not using the last of those as an insult, but rather as an authentic term.
10.19.2005 12:31am
eratosthenes (mail) (www):
Humble Law Student's point about the social construction of race is strange, to say the least: He says, essentially, that there are no differences between races that matter in a biological sense, or at least none that would lead us to think we ought to impose different social statuses on the basis of them, a point that is pretty well born out by science.

Most traditional conservatives have come around to accepting this, but tend to deny that homosexuality is innate rather than chosen. Therefore, they reason, we should build social institutions to discourage the "bad" choice of homosexuality.

Humble says science points to the innateness of homosexuality (again, largely true, though there's a lot to back up the Kinsey scale and other measures that point to a continuum between fully innate and fully opportunistic). But then humble concludes that it's rational to impose different social statuses on gays because they are really (as opposed to merely socially) different.

But he doesn't address the implicit issue of whether these real differences *matter*, or matter enough. Just as there are some real, but inconsequential, biological differences among races, isn't it the case that the real biological differences between gays and straights don't have consequences that should matter to us when assigning social status?

Note also that Humble's reasoning, whereever it gets one with the institution of marriage, would point strongly to much more civil rights protection for gays in every other social area, due to the immutability of their orientation.
10.19.2005 12:40am
JB:
I'm arguing that sexual orientation is a social construct to rebut HLS's assertion that the analogy between the civil rights movement and the gay marriage movement is invalid. Therefore...

1) The Romans and Greeks held slaves (which is a tradition almost as old as marriage. Why condemn that and not other antiquated traditions of theirs?

On a less sweeping level...
2) Maybe (1) is wrong and gay marriage should be illegal. If so, however, that reason should be based on differences between gay marriage and civil rights besides the "social construct" point.
10.19.2005 12:42am
Getting Bored With the Whole Thing:
Leeron: Allow me to express my thanks for providing a 'real-time' exemplar in support of my argument.
10.19.2005 12:44am
Buck Turgidson (mail):
The question really is whether post factum arguments (Holocaust denial, anyone?) are a legitimate form of masking personal prejudices. Maggie Gallagher is not opposed to gay marriage--gay marriage discussions simply provide her with a forum to air her views. She is opposed to anything "gay". Eugene should recognize this--he's one of the greatest proponents of "slippery slope" awareness.

Let's be absolutely clear. Bigots do not need reasons for their beliefs or actions. But they may choose to cloak them in sophistry to appeal to those who don't recognize a duck when they see one that does not quack.

Speaking of Nazis, they had a perfectly "logical" reason for exterminating Jews--they considered it "disinfection". It appealed to the masses--wouldn't everyone want to rid his or her home of pests and vermin? The key was in the transition from "Jews" to "vermin", not in the logic of "disinfection".

But I am not comparing Maggie Gallagher to the Nazis--not at all! I don't even compare her arguments to those of the Nazis. No--it is her appeal to the democratic base that is analogous to Nazi tactics. Racism and segregation were--and still are--quite popular. Does that mean that we should institutionalize them? Nazis won parliamentary representation because of their socialist proclamations and anti-Communist appeal that voters considered more important than their darker policy proposals that most voters considered purely rhetorical. We are being asked to ignore Gallagher's bigotry simply because her arguments on a narrow issue may appeal on their logic (not that they do--much of the "logic" is based on complete fabrication). Eugene, you really blew it.
10.19.2005 12:57am
Randy R. (mail):
Humble law Student:

Great. So now we are "forcing our lifestyle down your throat." Well, aside from noting your sexual reference, let me just say that no one is forcing anything down your throat. If you want to spit on gay married couples, refuse to attend their weddings, disinvite them to your dinner parties, by all means go ahead. My getting married to a man does not mean that you have to accept it. You can stop being friends with your gay married friends - you can even stop copying our trendy haircuts and clothes. And certiainly, no one is forcing you to marry a person of the same sex. So exactly how are we forcing this down your throat?

And you don't think that language like that is evidence of bigotry, right? That we can be insulted in this manner, and it's okay, since you are really really a nice guy.

So what exactly ARE we forcing down your throat, dear boy?
10.19.2005 12:59am
Randy R. (mail):
people are saying here that the pro-gay side hasn't made any convincing arguments. I don't understand -- we have made tons of them. But let me address one crucial part.

If procreation and raising of children is essential to marriage, then why is it that no state requires it? Or the feds? The ONLY requirement for marriage is for two opposite sex people make a voluntary decision to get married. That's it. Sure, there are age requirements, maybe a blood test or two. But there is no question asking whether they intend procreate, or have the ability to do so. No one makes them promise to adopt children or even have them.

So if it's so darn essential, then why isn't it? Heck, we don't even require a couple to be in love!

So if the only current requirement is that two people decide they want to get married, then why can't that be the requirement for everyone?
10.19.2005 1:04am
Randy R. (mail):
Further, what do you do with gay people who already have children? How is preventing marriage of the parents helpful to the kids? That's one maggie never addresses. And yet it is a reality, and more and more gay people are adopting or having children by others means. I guess, well, in some people's view, we are forcing our families down your throat. And we've doing it without your knowledge lo these few decades!

I think the best solution is that the state get out of the marriage business altogether. The state could sanction only civil unions, which would be applicable to all couples, regardless of gender. The issue of marriage should be left to churches. If your church allows same sex marriage, then the gay couple can get married. If not, then no. But at least it treats all people the same, which is exactly what our government should do.
10.19.2005 1:08am
Ken Willis (mail):

If disapproval of same-sex marriage is analogous to Nazism, then I suppose we live in a nation where the majority of the voters -- and apparently both major candidates for President last election -- are tantamount to Nazis


This is the tactic of a scoundrel, casting anyone who disagrees with him as a Nazi.
10.19.2005 1:11am
Randy R. (mail):
You know, prof, I really think your latest post is rather disingenuous. First you quote from an email you received praising your decision to host MG. Then you quote something else making accusation than gay people are equating her with Nazism.

But that's simply not true. First, I've read all the posts that this discussion has generated, and I haven't seen ANY reference to Nazis. In fact, the posts have been quite civil. But that Nazi reference isn't a post, and it isn't even an email! You pulled it from some other website! Well, geez, I could pull quotes from lots of other website by self-avowed anti-gay bigots (how about www.godhatesfags.com for one) and say that this is what the anti-gay crowd is thinking.

And it's only AFTER you make this that the discussion degenerated into name calling and more emotional angst.

If you don't want this sort of thing, then don't bait people! You have only yourself to blame for the deterioration of this discussion. If WE haven't made the Nazi argument, then don't put words in our mouth. You can find anything on the web to support your case, and we can too, if that's what you want this to be. But I don't think that was your intention.
10.19.2005 1:19am
Jamesaust (mail):
"Homosexual couples don't seek "marriage." They seek the forced social acceptance of their lifestyle. Otherwise, they would be perfectly fine with civil unions (that gave full rights)."

I guess that depends on the meaning and context of "full rights."

If by "full" one means identical or same, then no, civil unions would not be fine. If the SOLE distinctions between two institutions are (a) the class of persons allowed into each and (b) the name given to that institution, then the other class, here civil unions, exists only to stigmatize its members. This is separate-but-equal - the very definition in practice.

If by "full" one means the rights necessary and proper (I don't know, say, hospital visitation, health plan, mandatory 'spousal' support, and several other things) then I would say its fine under Maggie's procreation obsession under two conditions:
1. hetrosexual couples without children have the same civil unions, and
2. homosexual couples with children have the same marriages.
[Civil unions for those without children; marriages for those with]
10.19.2005 1:50am
A Guest Who Enjoys This Site:
What Humble Law Student and others have done is a common error. They have confused the terms 'race' and 'ethnicity.' Race is a biological issue; one that has been inappropriately used to describe the differences in physical attributes amongst peoples for, properly applied, there is only ONE human race.

Ethnicity on the other hand, is a cultural construct. In fact, 'ethnicity' is simply defined as: "Categories, based on a variety of criteria, used to describe groups to which individuals belong, identify with, or belong in the eyes of the community."

Thus, when statutes are written "...based on race or ethnicity..." what is actually being said is "...based on physical characteristics or cultural association..."

However, Humble Law Student's basic premise, awkwardly written if I am actually correct in my understanding, is that the difference between civil rights legislation and homosexual-related legislation is that the former is premised in physical factors (i.e., one's physical characteristics and the culture into which one is born) over which individuals have no control and the latter is premised in behavior, or factors over which they do have control.

Definitionally and a priori this argument is, essentially, sound.

Why?

We all accept that an individual's race/ethnicity is beyond their control. It is something we are born with and is, for most intents and purposes, unchangeable.

Satsifaction of one's feelings of attraction, sexual preferences, emotional desires, and preferred companionship are issues of behavior. (Note that I deliberately do not include 'procreation' as, unlike the other listed issues, is an essential of species survival; which is conceivably the motivation behind Gallagher's reliance and identification of this aspect.) The drives may be biological, but the ways in which we seek to fulfill them are culturally informed, legally restricted, and highly adaptable (even to the point of choosing NOT to fulfill them). Why? Because, given their innateness and power within the typical human, left unfettered by social limitations/constructions (i.e., laws, morals, values, societal acceptance), these drives could, have, and will lead to natural behaviors which, in our society, we view as 'animal-like' and unacceptable; e.g., rape, incest, molestation.

In a simpler sense, humans cannot control the physical characteristics or choose the culture into which they are born. Humans can control the behaviors stemming from their biologically imperative drives and/or choose the ways in which these desires (attraction, preferences, emotions, companionship) are fulfilled. These controls and choices are informed by issues of culture and the social constructions derived therefrom.

In some societies, it is considered perfectly acceptable to fulfill one's desires by rape or by familial relations or by 'marrying' of barely pubescent teens or by multiple partners. In our society, we find none of these behaviors acceptable; yet, they are simply the fulfillment of the basic desires spawned by the biological factors we are born with. At that level, how can we differentiate between these behaviors, or ways of meeting biological imperatives, and heterosexual/homosexual/bisexual relations; which are themselves simply ways of meeting the same biological imperatives? Even if you wish to entertain a discussion in the perceived degree of behavior or the 'genome acceptability' vis a vis survival of the species, you are still differentiating between behaviors and their societal acceptance.

If then, we can declare certain efforts to fulfill these drives as 'socially unacceptable behavior' then why not others? Be forewarned, if you wish to hide behind the 'negative consequences' of rape, incest, underage marriage/pregnancy, or polygamy, then, to be intellectually consistent and honest, you MUST recognize the negative consequences inherent with homosexuality, heterosexuality, and bisexuality. As a result of these consequences or 'risks,' our society even places legal limits on heterosexual behavior (i.e., efforts to fulfill biological imperatives through sexual relations between a man and a woman): prostitution is illegal, strip shows are limited as to location, lap dances may be prohibited, sex with minors is punishable by prison and social ostricizing, ad infinitum.

Thus, if 'acceptable behavior' is defined by cultural and societal issues, a given society is allowed to define what is considered to be 'socially acceptable behavior' vis a vis its 'social institutions.' In this case, Humble Law Student is quite correct in positing the notion that, as of this moment, a significant portion of society views homosexuality vis a vis the social institution of marriage as 'unacceptable social behavior.' This is, of course, a different discussion than the consequences or 'risks' associated with homosexual behavior.

It is this very issue which creates problems in the legal reasoning used by the majority in Lawrence, et al. v. Texas; the case which has been repeatedly cited as an exemplar of how society now considers 'homosexual behavior' acceptable. The Texas anti-sodomy laws specifically forbid members of the same sex from engaging in 'certain intimate sexual conduct,' i.e., anal sex. Thus, it was not a prohibition of the behavior in general, but a prohibition of certain combinations of individuals engaging in the behavior. If it had been left there, then the majority decision, which may not have been able to be supported strictly on this aspect, in Lawrence... might be an appropriate precedent in support of homosexual marriage in that the law would be discriminating based on the same criterion, prohibition based on certain combinations of individuals.

But, Justice Kennedy, writing for the majority opinion, states:


"It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law."


Therefore, the majority opinion clearly states that their decision is predicated on "operation of criminal law." Now, comedians and sarcasm aside, marriage statutes and divorce laws are civil, not criminal, litigation. As such, and as Kennedy alludes to, there are other, societal factors, at play. In fact, Scalia, in his dissent, warns of the 'slippery slope' that the majority decision might create in homosexual-agenda proponents' attempts to take advantage of this decision as potential precedent despite an underlying assumption in the majority's decision:


"One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. 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..."


Other issues related to Lawrence... aside, it is clear that the court, in both the majority and dissent, was addressing issues of criminality, not issues of civil or social concern. (Which brings into question their reliance on "emerging awareness" within the public regarding homosexuality, but, as I said, that's another issue.) In fact, by referring to sodomy as "certain intimate sexual conduct," the Court has, prima facie, de facto defined such relations as behavior.

Therefore, we are left with the discussion of whether homosexuality is considered to be an acceptable behavior insofar as the social institution of marriage. Isn't this, after all, the basis of discussion for responses to Gallagher's posts. That folks, is something that has yet to be definitively argued or decided; and, most likely, won't be given the parameters of Gallagher's discussion. Both sides of the issue must bear in mind that unsubstantiated claims that "society has become aware" or "the public supports" is NOT proof or logical discourse. Or, as Houston Lawyer puts it: "Calling a bull a cow doesn't make it suitable for milking."
10.19.2005 3:03am
Bryan G.:
Jamesaust took the words right out of my mouth.

Saying that someone is eligible for a "civil union" but not "marriage" is saying that they are somehow *less*. There *is* power in the term "marriage" -- that's what this whole discussion is about, isn't it? Some people oppose same-sex marriage because they think that homosexual couples who get "married" (as opposed to civil unions) will destroy the traditional concept of marriage.

But to embrace that mindset one must necessarily think of homosexual couples as somehow *lesser* or *inferior* to heterosexual couples. Otherwise, why would their marriage "destroy" traditional marriage?

Offering civil unions in lieu of "marriage" is nothing short of patronizing. It's saying, sure, we'll give you the basic benefits of it but you're not good enough for real "marriage".

If one truly believes that the term "marriage" is important, how can they not understand why offering "civil unions" is anything less than an insult?
10.19.2005 3:13am
Master Shake:
Most Americans also don't believe in evolution, but that doesn't make them rational.
10.19.2005 3:50am
Shelby (mail):
one that can be motivated by nothing other than aniums

OK, it's trivial, but I love the idea of being motivated by aniums.

Humble Student:
Race is purely a social construct.

That's a good line, but it's not really so. There are biological and biochemical differences among "races," and arguably other distinctions as well. Caucasians are less susceptible to sickle-cell anemia than are black Africans; they also exhibit less explosive muscle power (vs. West Africans) or muscle endurance (vs. East Africans). The examples are legion; they map imperfectly to what is modernly termed "race" but they do still map.

Sexual preference (according to the establishment view) is innate to an individual, and consequently not socially constructed

Depends on your selection of "establishment," though I happen to agree with your preliminary conclusion. However, your premises are faulty.

would you please explain why based upon what principle one can deny marriage but not other "civil rights."

What other civil rights do you have in mind?

Though I had not read it when I wrote the rest of this, I do disagree with your ultimate conclusion.

DWPitelli:
when 10 mob members can all marry each other, we will lose the right not to have to testify against our spouses.

I suppose. Do you consider that a drawback? And how likely do you think it that Sicilians (or Sicialian-Americans) will marry their partners in crime? Would you like to buy a bridge? (Will you sign a contract to let me clean it?)

Dustin Ridgeway's argument, while inartfully phrased, is among the best I've seen in substance on this issue.

Buck Turgidson:
No--it is her appeal to the democratic base that is analogous to Nazi tactics.

No, it's her appeal to the demagogic base that's analogous to Nazi tactics.


Thus, when statutes are written "...based on race or ethnicity..." what is actually being said is "...based on physical characteristics or cultural association..."


Randy R.:
As someone who broadly agrees with you, I'd advise you to calm down -- but heck, I'd be mad as hell too, were I gay.

A Guest:
properly applied, there is only ONE human race.

Tragically, words are susceptible to multiple meanings. By that meaning of race, you are wrong. By other, arguably more scientific, criteria you are right but irrelevant.
10.19.2005 4:02am
Master Shake:
And I agree with most posters that it was a very bad idea to give this woman a an opportunity to post on this highly-respected legal blog known for its logical consistency. She honestly does not seem smart enough to warrant this forum.
10.19.2005 4:03am
A Guest Who Enjoys This Site:
Shelby: That is precisely why I pointed to the fact that 'race' was misused but meant... Then went on to differentiate based on 'physical characteristics.' Still and all, that does not mean that pointing out the proper use of the term is irrelevant.

However, I do understand your intent and, sad to say, I fear you may be correct in that others will continue to obsequiously misuse the terminology. Thereby, continuing to create misunderstanding through misrepresentation.
10.19.2005 4:24am
Humble Law Student:
Leeron,

haha. Seriously, you make me laugh. You spend time insulting my intelligence and in the process only reveal your lack thereof. You wrote,

"As for the notion that civil unions are equivalent to marriage, if you are a law student you must not be a very good one. It shouldn't take you more than a minute or two of research to note that civil unions are not universally available, do not carry the same rights and benefits as marriage, and can present significant complication (e.g., how do you "divorce" from a civil union) not present with marriage. But then, if you believed your arguments had merit you would attach your name to them, wouldn't you...."


Well, if you actually READ my post that you reference you would have seen that I wrote,

"Homosexual couples don't seek "marriage." They seek the forced social acceptance of their lifestyle. Otherwise, they would be perfectly fine with civil unions (that gave full rights)."

I assume for the sake of argument that the civil unions have "full rights." Yes, that isn't how it plays out around the US. But, I never argued that our current system of civil unions gives full rights, as other posters have likewise falsely assumed.

So just a suggestion from an obviously unqualified person to debate someone of your magnificent intellect, maybe a little less personal insult and a little more constructive argument.

As to the race claim, yes I was inaccurate in saying race. The more accurate term is ethnicity. However, even with race, the differences between the races are rather superficial. Yes, there are different colors and sizes, but fundamentally there aren't any real substantive differences. Unless, someone wants to make that argument, and by all means shoot yourself in the foot.
10.19.2005 4:31am
Humble Law Student:
Randy R.

Okay, let me take the bait. In your first post you state,

"Great. So now we are "forcing our lifestyle down your throat." Well, aside from noting your sexual reference, let me just say that no one is forcing anything down your throat. If you want to spit on gay married couples, refuse to attend their weddings, disinvite them to your dinner parties, by all means go ahead. My getting married to a man does not mean that you have to accept it. You can stop being friends with your gay married friends - you can even stop copying our trendy haircuts and clothes. And certiainly, no one is forcing you to marry a person of the same sex. So exactly how are we forcing this down your throat?"


Do I really have to take this argument down? Yah, I guess so. Stay with me here, in my following argument, I am by no means saying you or anyone else is advocating this position; I am just using it to show your faulty reasoning.

Most likely, gay marriage has no direct effect on me. However, indirect effects are an entirely different matter, but for the sake of argument let us say there aren't any. So, okay, you being able to marry a man has no real consequences for me, so based on that standard is should be allowed? Come, come now. Using that reasoning, polygamy doesn't directly affect me. Hell, if someone wanted to marry an animal or a two year baby that doesn't effect me either. If the standard you are using is the direct effects on another individual, then a pandora's box of behavior is unleased.

Just to repeat for all of you who like to misread and misuse posts, I am not saying that Randy R. would advocate any of the behaviors I mention above. My point is that arguments exist in contexts and have logical implicatations. Arguments based on "my behavior doesn't directly effect someone else therefore I should be allowed to engage in it" are at best extremely unpersuasive and likely quite dangerous.
10.19.2005 4:44am
Humble Law Student:
Randy R.

Just to add, I believe that was the argument you were making. I realize that such arguments aren't meant to stand on their own, but when people go throwing around such lines in isolation from other arguments it really irritates me because the reasoning is completely irrational by itself.
10.19.2005 4:47am
Humble Law Student:
Shelby,

Thank you as well for properly criticizing my imprecise language. Ethnicity is a purely social construction. However, as I previously stated in another post, even the term race is considered by the establishment in cultural anthropology to be a social construction much more than a function of biology. There are as you mentioned a few genetic characteristics that do roughly map to our social conceptions of race, but they are problematic at best. For one, "black" is very subjective and the definition changes very widely depending upon what part of Africa you are in, let along different parts of the world.
10.19.2005 4:57am
Humble Law Student:
Randy R.

Sorry, one more thing to add. When I just referenced the argument you were making, I didn't mean to say that you agreed with me hypothetical. I mean that I took your argument for allowing gay marriage to be that if it doesn't hurt me, then it should be allowed. I wasn't saying that you would personally agree with the results of my reductio ad absurdum argument.
10.19.2005 5:01am
Humble Law Student:
Randy R.

Lol, one more thing randy. I didn't mean "forcing something down someone's throat" as a sexual reference. Granted, it could be. But that term has been used for a long time in a different context - be forced to take something that one doesn't want. That doesn't have to mean something sexual - so please don't read into it. I didn't mean it as some sexual reference and in turn as some pejorative turn of phrase.
10.19.2005 5:10am
Duncan Frissell (mail):
Not to mention the fact that I'm shocked, shocked and appalled that a "libertarian" (like your critic) would favor state licensure of marriage. During my almost 40 years in the movement, I assumed that the libertarian position on marriage was that the state licensing was wrong which implies that state licensing of SSM or OSM is equally wrong.
10.19.2005 8:24am
anonymous22:
Since this debate has come to the point where people are trying to one-up each other with the ad hominem attacks, let me just say I am really sick and tired of these preening, self-righteous, knee-jerk defenders of gay marriage. They think that their airy, abstract legalistic arguments are just so powerful and all-important that any empirical claims here must be dismissed out of hand. They think one citation of Loving v. Virginia ultimately trumps anything else anyone can say on this issue. And I'm really sick of these poisonous Nazi comparisons. But I mean seriously, every answer to Gallagher's arguments has been some absurd variation on a "you can't deny rights to groups" theme.

To anyone who may be tempted in the future to make a legalistic argument in place of a policy argument: the Supreme Court is essentially an arbitrary political body whose decisions and reasoning should be afforded absolutely no deference in a policy debate. I seriously consider citation of the rational-basis test or the Court's reasoning in Lawrence or somesuch for a policy proposition as equivalent to citing a John Cornyn speech or an RNC memorandum. Supreme Court decisions reflect no empirical research and quite often distort or ignore relevant information on an issue. The reasoning contained within Supreme Court decisions is scarcely more than political propaganda designed to justify the arbitrary imposition of whatever the Supreme Court wants.

The gay marriage defenders are really just united by their single-minded political correctness: no honest discourse about gays can occur. Everything we say about gays has to be positive in some way.

Anyways, this entire debate is futile because the wind is out of the sails of the gay marriage movement. The gay marriage issue was introduced into the political debate by "Lawrence v. Texas" and the MA Court decision in 2003, both of which were prompted by stirrings within the elite legal community, not the population at large. These decisions placed the gay marriage issue straight onto the lap of the GOP, who realized they add it to the arsenal of social issues used to hammer and divide the Democrats. In response, the gay rights lobby rose to defend gay marriage, joined by liberal elites, but as far as I can tell the main issue for gays before Lawrence was not gay marriage but gaining coverage under the Civil Rights Act. But then state after state passed anti-gay marriage referendums by huge margins and Democrats had to struggle to keep these things off the ballot in state after state (more evidence that Romer v. Evans was a restricted train ticket which has no precedential effect is that none of these referenda were overturned by federal courts). Now the issue lies dead on the road of American politics. I guess we will have to struggle under this terrible Nazi-like oppression of not having gay marriage for a while longer.
10.19.2005 8:50am
Aultimer:

EV:
No possibility that maybe some topics actually have more to do with what's good for society, what's likely to happen if some policy is changed, and what's fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines.


I think you pasted Carl Rove's argument for Harriet Miers into the wrong discussion. Seriously, the Conspirators could use a dose of this medicine in evaluating SCOTUS nominees.
10.19.2005 10:10am
Tom (www):
Oh no, not a lawyer? Off with her head! We all know that only lawyers are qualified to debate social policy and the history and meaning of marriage in the West.

Might I make the humble suggestion that since the homosexual movement is seeking to redefine marriage and fundamentally alter the understanding of that institution both legally and socially, that they, not those who support marriage, bear the burden of proof and persuasion that this change should be made.

Seen in this light, Ms. Gallagher's comments on marriage only make the point that marriage has been understood and accepted as this type of arrangement in our culture and law. Show us what overarching necessity exists to alter that understanding. What? Some indeterminate portion of the one to five percent of the population who are homosexual want to "marry?"

Hardly a compelling reason, and certainly not one that meets the high burden of proof and persuasion the homosexual movement has to meet in this case.
10.19.2005 10:12am
Victor Davis (mail) (www):
EV -- I, for one, appreciate this gesture. The issue is timely, important, and difficult. The expertise of your readership as well as the informed experience of the guests you have invited will, I think, outweigh the negative contributions and sentiments. Always also bear in mind the easy-to-forget observation that well reasoned posts do not necessarily ellicit responses within a particular thread, but are nevertheless influential. We readers take arguments, sift them, and share them with others in our own lives. The resulting improvement in argumentation and reasoning on both sides can only help the public debate.

I look forward to reading the rest of Gallagher's contributions as well as Dale Carpenter's thoughts.

I hope that you will do this sort of thing again, as issues, time, and conditions warrant. Your support of reasoned debate is valuable precisely because of the emotional negative reactions that threaten to swamp this issue. The willingness to confront controversial issues in a reasoned and informed manner is a hallmark of the Volokh Conspiracy that I greatly appreciate.
10.19.2005 10:47am
dk35 (mail):
Not much to add, but I have two quick points:

1) Anonymous22: While I have no idea what, in your view, an "honest discourse about gays" would entail, I do share your opinions that the Supremes are basically no more than an arbitrary political body, and that the short term political consequences of Lawrence and Goodridge have been a boon for the GOP/Religous Right. However, ultimately I'm still optimistic that civil rights for gay folks will prevail, as poll after poll shows that younger generations are shedding the historical baggage of their elders' social disapproval of gay relationships, and probably within the next 5 years we will see some actual civil rights advancements in large states (i.e. New York and/or California will allow gay marriage/civil unions).

2. I do believe that comments should at least nominally refer back to the original post. The most trenchant response in this string to Eugene's post is certainly Randy R.'s found here. Essentially, this is one more example of Prof. Volokh's intellectual dishonesty.
10.19.2005 10:52am
Taimyoboi:
"No possibility that maybe some topics actually have more to do with what's good for society, what's likely to happen if some policy is changed, and what's fair (whether that leads you to support same sex marriage or oppose it) than with technical constitutional law doctrines."

Heavens forbid a law professor look beyond the trees to the forest...

That Mr. Volokh and his co-conspirators are willing to entertain more than just arcane constitutional minutia (and of course their combined IQ of elevnty-bajillion) is precisely the reason that I've set the Volokh Conspiracy to my home page.
10.19.2005 11:03am
Anon for now:

It is my contention that the anti-marriage crowd have exactly four arguments:

1. Tautological - marriage has always been mixed-sex (and they ignore all examples [of failed societies] that show that it hasn't been) therefore marriage should always be mixed-sex.

2. Logical - marriage is all about procreation, therefore non-procreative couples aren't allowed to marry [or were subject to annulment].

3. Mystical - marriage is all about the fusing of masculine and feminine, and same-sex couples can't do that.

4. Homophobic - Because they hypothesise possible future damage to marriage if same-sex couples are allowed to marry, they contend that it is justifiable to deprive LGB people and their children of full civil rights [rather than allow it on a state-by-state basis so that we can compare and constrast and learn from the experiment that is federalism].

[5. Religious - Because marriage is a religious rite, it is appropriate for religious standards of one group to be imposed on others]



I used to oppose gay marriage, though I was in favor of domestic trusts and civil unions.

These days, I see three issues:

1.


the status of marriage carries signficant economic benefits such as eligibility for employer offered health insurance coverage and tax benefits;


2. A desire for respect and normalization.

3. Federalism.

I've been persuaded, by reading debates such as this one, to change my mind.

I'll have to post more.
10.19.2005 11:05am
Matt Barr (mail) (www):
I wonder if it's worthwhile to point out that there isn't a state in the union that prevents anyone from getting married because of their sexual orientation.

Not one!
10.19.2005 11:25am
dk35 (mail):
Matt Barr,

But, there are 49 states that discriminate on the basis of gender. In other words, why are men allowed to marry women, but women can't?
10.19.2005 11:30am
IB Bill (mail) (www):

1. Tautological - marriage has always been mixed-sex (and they ignore all examples [of failed societies] that show that it hasn't been) therefore marriage should always be mixed-sex.

2. Logical - marriage is all about procreation, therefore non-procreative couples aren't allowed to marry [or were subject to annulment].

3. Mystical - marriage is all about the fusing of masculine and feminine, and same-sex couples can't do that.

4. Homophobic - Because they hypothesise possible future damage to marriage if same-sex couples are allowed to marry, they contend that it is justifiable to deprive LGB people and their children of full civil rights [rather than allow it on a state-by-state basis so that we can compare and constrast and learn from the experiment that is federalism].

[5. Religious - Because marriage is a religious rite, it is appropriate for religious standards of one group to be imposed on others]


It's not a tautology to note what marriage is. It is a definition. It is not homophobic to deny equivalence in sexuality between sexual intercourse and sodomy. And it's not mystical to point out that there is no such thing as same-sex "marriage" because it violates the definition of marriage.

There is also practical objection to same-sex "marriage," and that is that the state has no interest in the monogamy of homosexuals. The state does have an interest in the monogamy of heterosexuals. But none in homosexuals.

Homosexuals are already capable of holding marriage ceremonies and considering themselves married, be faithful and such. But same-sex "marriage" proponents are seeking to impose a state interest where the state has no interest, that is, impose on everyone their own values.

Finally, there is an objection to the thinking required to accept same sex "marriage." This concerns the level of abstraction. Same-sex "marriage" proponents go to a higher-level of abstraction than those who object to it. But at that level of abstraction, what exactly can be defended?

Questioning premises is a fun exercise for the thoughtful. But underlying every premise, if you delve deeply enough, is an act of faith. We accept that a triangle has three sides. It is not discriminatory to the dodecahedrons to exclude them from the exclusive Triangle Club. Why does a triangle have three sides? 'Cuz that's what it is. I suppose we could change the definition to include dodecahedrons, but then the definition of triangle would be so abstract as to be functionally meaningless.

All concepts are inherently unstable if you go to the level of abstraction required to justify same-sex "marriage." Dismissive attitudes toward those who refuse to follow to you there isn't helpful to the discussion.
10.19.2005 11:38am
Houston Lawyer:
This tenor of this discussion tires me. On November 5, Texans will vote on a constitutional amendment defining marriage as a union between one man and one woman. The only reason we are having this vote is because of the outrageous abuse of the legal system by proponents of SSM. I and a large majority of my fellow Texans will vote "yes". Debate on this subject will be closed here for quite some time. Somehow, life will go on.
10.19.2005 11:42am
dk35 (mail):
That is true Houston Lawyer, and in the North and on the West Coast, gay marriage/civil unions will be permitted.

Hmmm...North doing one thing, South doing another...sound familiar?
10.19.2005 11:45am
JosephSlater (mail):
Humble Law Student:

On the exchange between you and Randi R. (re "forcing your lifestyle down our throat"). Randi says, in short, "gay marriage doesn't affect you or other straight folks." You reply, in short, "but surely there are lots of things that wouldn't affect me directly that society should make illegal."

Your point is true, but in a limited and out-of-context sense here. Surely you know that one of the arguments frequently trotted out against gay marriage is that it "undermines heterosexual marriage." That argument has been used in at least most of the many threads on gay marriage here in the last week.

This means, for example, that your comparison to adults marrying 2-year olds, while correct in the limited sense of "that doesn't affect me either but it should be illegal" isn't responsive to the broader debate. That's because (in part) your example involves actual harm to one of the parties in the marriage, which gay marriage does not.

So, what is your take on the point in the proper context? Specifically: Do you think that gay marriage "undermines" heterosexual marriage? If so, how? You said in your post that "indirect effects" of gay marriage are "an entirely different matter" but you would assume for the sake of argument that there weren't any. Suppose you aren't assuming for the sake of argument: what do you think and why?

I'll put my cards on the table. As I've said in another post in another thread on this topic, I think the idea that gay marriage "threatens" or "undermines" heterosexual marriage is possibly the least persuasive argument I've ever heard in a political debate. And I say that as a happily married man who went to a gay wedding of my sister this summer and thought it actually STRENGTHENED ideals of committment and family.

Randi R.:

Re the poster that said you might have been intemperate but maybe that was because you were gay, I think your posts have been quite logical, and I think some anger in the face of homophobia (which some of the posters have exhibited) is entirely appropriate. Behind these policy debates lie questions of equitable treatment for real live human beings, and we should never forget that.
10.19.2005 11:59am
dk35 (mail):
IB Bill,

I hardly think anyone is disagreeing that the description of marriage you provide above is meant to be a "definition." The significant issues (and they are separate issues from each other) are whether that definition is a) one that our society wishes to hold onto and b) whether that definition, as it applies to civil rights, is acceptable under the Constitution.

The tautology refers to the notion that of course you will come out with the result that same-sex marriage is legally barred if you start with the definition that marriage is between a man and a woman. As I define marriage differently (in other words, not simply by the history of what marriages have been legally permitted in the past), you can't dismiss me simply by saying that your definition is somehow right and mine is wrong. Well, I suppose you can if you wannt, but that does not make for a reasoned debate.
10.19.2005 11:59am
Sisyphus:
Jesurgislac wrote:


It is my contention that the anti-marriage crowd have exactly four arguments:

1. Tautological - marriage has always been mixed-sex (and they ignore all examples that show that it hasn't been) therefore marriage should always be mixed-sex.


I think this description completely misunderstands the argument that opponents of same sex marriage are making. The argument they are making is not definitional or tautological, rather, it is an argument from tradition. They are essentially arguing in a Burkian way that we should strongly hesitate to interfere with traditions, especially well-established ones, because we have no idea what the effects of unravelling that tradition will be.

For instance, when no-fault divorce became commonplace, many saw it as a way for people to extricate themselves from unhappy marriages (which it is). Others feared for the broken homes it would directly create (which it did). But I suspect that many people did not consider that more widespread social acceptance of single parent (never married) households would emerge in large part as a result of the destigmatization of single parent (divorced) households that resulted directly from the change in divorce law. The dramatic increase in single parent households of both types has led to a number of negative effects for children in those households, such as increased levels of child poverty, less future financial success on average, increased likelihood to be a victim of or to commit a crime, etc. This is just an example of the law of unintended consequences.

While I doubt that national acceptance of same sex marriages would have a similarly powerful effect (since only a few percent of the population are directly affected), we don't know that and we can't predict that. Now, it might turn out to be good, but it might also turn out to be bad. Most likely, we will see secondary and tertiary effects of gay marriage that are both good and bad.

Ultimately, the argument from tradition is an argument of caution. We do not fully understand the wisdom of the social traditions we have evolved, so we should be cautious about making any substantial change to them. That is not by any means an unreasonable argument. Indeed, it is the primary argument upon which civilizations rest.

A note: I personally am supportive of single sex marriage, because I think that arguments in favor of nondiscrimination slightly outweigh the tradition argument I described above. But the point I am trying to make is that both sides have powerful arguments, and the pro-gay marriage side frequently fails to understand (or even fails to try to understand) the reasonable arguments that can be made against their position. I'm glad that the Conspiracy is making an effort to allow both sides to make their arguments fully.
10.19.2005 12:08pm
Matt Barr (mail) (www):
dk35: Because that's what "marrying" means? I don't think discrimination is the reason I can't matriculate at Burger King.

Lest I be dismissed as a Nazi or -- clever new one! -- supporter of slavery, I think any two adults who want to formalize a union and receive the same essential legal status (e.g. inheritance law, next of kinship, tax breaks) as married couples should have that opportunity. In my state, Ohio, that's no longer possible because backlash against gay "marriage" resulted in the passage of an idiotic constitutional amendment forbidding, inter alia, "anything that might sort of look like marriage between people of the same sex." I think that's lifted right from the text. Great PR job gay marriage advocates have going.
10.19.2005 12:11pm
IB Bill (mail) (www):
As I define marriage differently (in other words, not simply by the history of what marriages have been legally permitted in the past), you can't dismiss me simply by saying that your definition is somehow right and mine is wrong.

I'm not sure where reasoned debate goes from here, because it seems to be locked into I-define/you-define. I can easily ask the same questions of you and make the same charge of tautology.

To eliminate the concept of gender from marriage, you need to abstract those concepts not affiliated with gender and keep those that remain. How is this any less arbitrary than what you accuse your opponents of? How does that not fundamentally alter the nature of the thing then? How do you defend against further abstraction?

I suppose we could drag out substance and accident ... what is essential and what is inessential, and perhaps that would be productive. You do realize that you've abstracted certain concepts (commitment and monogamy) from marriage, yet left behind in your abstraction process the characteristics of procreation, sexual intercourse and gender? I don't see how that's any less tautological, then. And it seems to me these three things left behind would be either essential or very close to essential, and certain together would be.
10.19.2005 12:21pm
dk35 (mail):
IB Bill,

Perhaps I wasn't clear about what I meant in my discussion of definitions. What I meant is that it is irrelevant what my definition of marriage is, AND what your definition of marriage is. You can think anything you want, and I'm not going to try to convince you otherwise. I would expect the same coming from you.

The real questions are

1) What is the evolving majority standard in the social context. Here I think ultimately acceptance of gay relationships will win out. This is a sociological and historically based point of view, and you may disagree. That's fine too.

2)What must be the state's definition of marriage in line with the Constitution, and can the state discriminate when parsing out legal rights and duties within the context of marriage.
10.19.2005 12:29pm
Shawn (mail):
Henry Schaffer says:

I'm not vocal on this issue, but I do support full civil rights for gays, and I wonder why "marriage" is considered so much more important than "civil union"?

As someone that has already "come out" in past posts, please let me answer this. I add as a disclaimer that I have no right to speak for all gay and lesbian Americans and that my generalizations are taken from my impressions of the community only. Your milleage may vary.

Most same-sex couples would welcome Civil Unions in place of marriage as an imperfect but acceptable solution. Provided, that is, if they were equal to marriage. (And here I avoid the whole "separate but equal" can of worms.) If each and every right exists for one and the other, regardless of name, then the moderate majority of gay and lesbian americans would accept that and move on.

Note that in those states that have civil unions, California's domestic partnership, and Mass' marriage, the gay and lesbian citizens of those states are only granted a reduced set of rights. For the most part the reduction in rights comes from a lack of any of the Federal rights, some of which are vital. (I have a foreign citizen as my life partner and state rights are no help there, for example.)

Marriage has the benefit of being recognized in all 50 states, territories, and in the federal government. It is the only existing set of laws that grant all rights.

I know many people who have similar opinions - some "draw the line at marriage", others are uncertain, but I don't think that any of those are bigots.

My hope in seeing the announcement of Maggie's posts was that I'd finally see a reasoned, objective, factual argument against including same-sex couples in marriage. I'm starving for specifics from that side of the debate. Emotional and religious-based reasons we've seen by the ton. And these reasons appear rooted in bigotry if they aren't also accompanied by something objective.

If including same-sex couples in marriage will harm marriage, someone please list with objective evidence exactly how. If marriage has some social good that it protects, someone please explain how infertile couples and the elderly qualify but same-sex couples with children don't.

And finally, the marriage "protection" ammendments gaining ground around the country also prohibit civil unions. Apparently these two are now linked in the minds of the anti-gay or anti-SSM marriage crowd. Fighting for civil unions appears to be the same now as fighting for marriage. Even if I'm willing to accept civil unions, I no longer see them as an offered option. The anti-gay and anti-ssm forces have created an "all or nothing" scenario. That is the battlefield now. Given a choice of marriage or nothing, I choose marriage.
10.19.2005 12:40pm
JoeW:
I contend that for most Americans the same-sex marriage argument is really about linguistics, not bigotry. The words "marriage", "husband", "wife", etc., all have very specific meanings. While there may be an "ick" factor at play, it isn't, by any means, exclusive to same-sex or even polygamous marriage. Collectively, we may frown upon an eighteen year-old male marrying a fifteen year-old female, but recoil at a sixty year-old male marrying the same female (if he could--in most states it isn't legal without parental consent.)

My own proposal would be for the government to get out of the "marriage" business. People should be allowed to enter into a legal civil union, that is any two, or more, people could contractually agree to a common set of laws (for inheritence, rights to permit medical procedures, etc.) How this partnership is dissolved would also be improved. (And for those opposed to polygamy, granting plural wives legal rights would be a huge step up for them, which is, ironically, why many religious fundamentalists still wouldn't use it.)

In my world, the contract would be administered by the legal system of the government (and would be worded to prevent pre-nuptial type agreements from fundamentally changing the basic laws--in other words, one couldn't strip property or legal rights from the other.)

This would not preclude a couple from having a lavish, but separate, ceremony in a church or by their local eccentric.

Of course, this will never happen because "marriage" has become such a loaded word. But were it to happen, I think the linguistics would soon sort themselves out.
10.19.2005 12:43pm
Randy R. (mail):
There is a specific reason why many gay people object to civil unions with FULL rights as opposed to "marriage." Aside from the "separate but equal" tenor of the argument (you people should be happy -- you have all the same rights as we do, but you still aren't part of the club.), it gets down to the point of a badge of inferiority. Okay, so we have all the same rights in civil unions as marriage, but we our relationships are STILL not "as good" as heterosexual ones? That's just insulting to the many gay couples I know of who are more loving and caring than a lot of straight couples I see. And what about their children - are they do be branded as children of a lesser partnership simply because their parents are the same sex?
THAT is why so many gay people will not and cannot accept second class status.

Oh and by the way, yes we all have the right to marry. I have the right to enter into a sham marriage with a woman if I like. That's the type of society you would like to build? Sorry, but that's riduculous. If I don't have the right to marry the person I choose to marry, then the right is non-existent. The bottomline is that you straight people can marry whomever you like, even if you don't even love each other (see Britney Spears in Vegas), but I can't marry the person I love. Don't play word games with people's lives, okay?
10.19.2005 1:43pm
Gordon (mail):
Well, I just posted to Stitch chastising him, and got a nasty reply attached to my post. When I tried to respond, I found that I had already been banned.

What's the old saw about judging a man based upon the quality of his enemies?

That being said, I can't say that any of Maggie Gallagher's arguments had any influence in my own continuing evolution toward the acceptance of gay marriage.

And it still isn't a constitutional right. Let's not make the same mistake made with Roe v. Wade, which polarized the debate for a generation or more by taking it out of the realm of legislation and referenda.
10.19.2005 1:52pm
eddie (mail):
On what would appear to be a more "legally" oriented blog, I would assume that a discussion about SSM would deal with our government and not millenia of traditions.

What I find somewhat disingenuous, Professor, is that you seem to be saying that if the majority of people in this country agree about something, then any discussion of the constitutionality of the subject of that agreement is moot. There really is no "debate" because each side is arguing from separate principals: the "tradition" of marriage and government's role in supporting that tradition. [Okay straw man time] I am sure that "traditional" concepts of marriage would have sanctioned marriage between different races, tribes, religions, sides of the track, etc. The question for rational discourse should be how do those "traditions" fit into our rational Constitutional Republic. It is a bit solipsitic to merely cite the tradition itself. (And citing government's "societal protection" role as having some "rational" reason for supporting the tradition is merely making another extra-legal argument.

Yes, calling people Nazi's is a bit much. However, oppressed groups sometimes do not feel the need to be polite to those who would arguably ignore actual social contracts (e.g. the Constitution) by an appeal to tradition, which tradition is based upon a bedrock principal that the oppressed group itself is illegitimate or worse--an evil abberration.
10.19.2005 2:01pm
JoeW:
Randy R. said: "Don't play word games with people's lives, okay?"

But this is exactly what the pro same-sex lobby is doing. Regardless of how they were entered into, "Marriage" has had a consistant meaning in various languages for thousands of years. Even in the expansive "Polygamous marriage" (including both Polygany and Polyandry), it was still heterosexual.

Were I to propose that henceforth the word "homosexual" now included anyone practicing bestiality, you would rightly be offended and would protest since this would fundamentally alter a word that has had a definite meaning in various languages for millenia.

And for the record, many of us who are otherwise not at all bothered by homosexuality or genuinely equal civil unions ARE offended when sham unions are called "marriages". (I am equally annoyed and offended by religous fundamentalists who *force* women to "marry" and dare use the word. Now I am willing to allow a man who marries multiple women of their own free will to call their relationship a "polygamous marriage", but recognize that even this usage genuinely offends a large percentage of the populace.)
10.19.2005 2:09pm
John R. Mayne (mail):
My basic problem with Gallagher is that her arguments are slow-moving; conspirators normally post considered, concise opinions.

I agree with El Jefe de Conspiracion that reasoned alternative views are good. I just haven't found this particular single-note instrument compelling.

--JRM
10.19.2005 2:10pm
Jesurgislac (mail) (www):
Sisyphus: They are essentially arguing in a Burkian way that we should strongly hesitate to interfere with traditions, especially well-established ones, because we have no idea what the effects of unravelling that tradition will be.

No, that would be the homophobic argument, rather than the tautological argument.

The homophobic argument is that granting equal civil rights to LGB people to marry who they choose is not worth it, because there might be bad results for straight people.

That directly sets out as a principle that LGB people are inferior to straight people: when it's a choice between an obvious good for LGB people and avoiding a hypothetical unknown bad for straight people, homophobes place the privilege of straight people to avoid even hypothetical and unknown bad results over the right of LGB people not to be discriminated against.
10.19.2005 2:39pm
Observer (mail):
Sisyphus - This whole experiment of letting Gallagher guest blog is a success even if you are the only advocate of homosexual marriage who now understands what the objections to it are. Most of the homosexual marriage advocates here seem to have no interest in understanding why anyone might think that preserving the traditional form of marriage is a good idea and indeed no interest in anything except engaging in ad hominem attacks on Gallagher and other supporters of traditional families.

I have suggested on other threads that it would make sense in these circumstances to give federalism a chance. Let Vermont experiment to its heart's content with whatever form of non-traditional marriage or family it wishes. The other states can watch for one or two generations and see how it turns out. If there are no adverse consequences to children, to families, to society, other states might follow. I would think that after the disasterous social experiments of the last 50 years, we might have learned a little caution.
10.19.2005 3:14pm
Observer (mail):
Jesurgislac - What you still fail, apparently, to understand is that this argument has nothing at all to do with individual rights. Marriage is a social institution created for social purposes. If it served solely private purposes (individual happiness and fulfilment, etc.) there would be no reason to confer social and legal benefits on marriage. So the question, the only question, is whether homosexual marriage is consistent with the social purposes of marriage.

Hope this clarifies things for you.
10.19.2005 3:19pm
jrose:
Were I to propose that henceforth the word "homosexual" now included anyone practicing bestiality, you would rightly be offended and would protest since this would fundamentally alter a word that has had a definite meaning in various languages for millenia.

No one should be offended simply because a word changed meaning. But of course offense will be taken because homosexuals would be equated with anyone who practices bestiality. If the definition of marriage changes, homosexual relationships would be equated with heterosexual relationships. I've got no problem with that, do you?
10.19.2005 3:21pm
JoeW:
jrose wrote: If the definition of marriage changes, homosexual relationships would be equated with heterosexual relationships. I've got no problem with that, do you?

This is a false argument. You have now expanded the definition of marriage to include relationships. I'm sure you meant that if marriage now included same-sex marriages, then they would be equated.

But they wouldn't be linguistically for a long time. Changing common usage of words does happen, but it is a fickle process that can rarely, if ever, be artificially manipulated. Even if the word "marriage" were hijacked, so to speak, to include the union of two or more persons; I'd wager that a new word would be invented to differentiate heterosexual marriages and same-sex marriages. It's a losing linguistic battle.
10.19.2005 3:58pm
jrose:
JoeW: I'm sure you meant that if marriage now included same-sex marriages, then they would be equated.

If by "they" you mean heterosexual and homosexual unions, then yep. I have no problem with that, do you?
10.19.2005 4:10pm
JoeW:
To clarify even more; it is obvious to me that this argument is primarily about the word "marriage" and secondarily about the concept of legal unions between any two (or I suppose more) people. Since the state has taken over the marriage business, the word has become part of the legal framework.

This is why advocate separating the two. Make it so all couples who wish to "tie the knot" have civil unions and let the word marriage morph to whatever it will be, or not as the case may be. (Many countries already have civil and religious marriages; this is simply taking this idea to the next step.)
10.19.2005 4:13pm
JoeW:
jrose said: If by "they" you mean heterosexual and homosexual unions, then yep. I have no problem with that, do you?

Yes, I thought I've been pretty clear on this point. I want to preserve the word "marriage" to fundamentally mean what it has meant for millenia: a union between a man and women recognized by society as a whole.
10.19.2005 4:17pm
Easy Tiger (mail):
Are skeptical about departing from a millennia-old tradition to extend full legal equality to homosexual relationships.

This kind of breathless advocacy indicates an absence of good arguments. Seriously, in the last millenia how many states even had an articulated legal policy regarding marriage? How many states actually enacted or utilized a concept of "law" other than what a superior had to say on the matter? Please explain the Albigensian communities marital law in the 14th century? How about the Hoehzollern tax code? That kind of hyperbole just proves that the speaker assumes too much.
10.19.2005 4:22pm
jrose:
JoeW: Make it so all couples who wish to "tie the knot" have civil unions and let the word marriage morph to whatever it will be, or not as the case may be.

If you mean the word marriage would no longer be used by the state in any manner, that's a good idea. What does Maggie think about it?
10.19.2005 4:38pm
Jesurgislac (mail) (www):
JoeW: I want to preserve the word "marriage" to fundamentally mean what it has meant for millenia: a union between a man and women recognized by society as a whole.

Well, good: so do I. (With the caveat that the word 'marriage' is actually only seven centuries old, not "millennia".) As you are doubtless aware, none of the pro-marriage people on this blog want to take away the meaning of "a union between a man and a woman recognized by society as a whole" from marriage. So, no problem there, then.

You are aware (I trust) that when marriage means "a union between two men recognized by society as a whole" or "a union between two women recognized by society as a whole" this does not remove the meaning you want to preserve: it adds to it.
10.19.2005 4:45pm
JoeW:
Jesurgislac: You are aware (I trust) that when marriage means "a union between two men recognized by society as a whole" or "a union between two women recognized by society as a whole" this does not remove the meaning you want to preserve: it adds to it.

No, it changes it in a very fundamental way. I'd say it would make it mean, "a legal relationship." But we already have a ready phrase for that; "civil union." Why not simply extend that concept to include all couples instead of trying to artificially apply a new meaning to a word.

(I hasten to add that language changes by the whims of society--no, I'm not at all a prescriptivist--so it may very well be that the word marriage is already well on it's way to mean "a legal relationship" and I'm tilting against windmills. However, I would still rather society make that change official rather than the courts.)

(BTW, early I qualified that the word marriage has held a consistant meaning in other languages and the English word was derived from this usage, which is why I use the word millenia. Note also that I use the phrase "fundamental meaning." So, for example, I find the argument equating marriage and procreation just as linguistically absurd.)
10.19.2005 5:02pm
Randy R. (mail):
The evidence: The Netherlands and Belgium have allowed gay marriage since 2001. No ill effects on society yet. People are still getting married, both gay and straight. People are still having children, gay and straight.

In the 60s, interracial marriage was banned in many states, including all the southern ones. The Supreme Court reversed the bans, and many commentators predicted social choas. In fact, right after the Supreme Court's ruling, a full 80% of American opposed interracial marriage. Today few do.

So -- of all the choas and rising divorce rates and such in the past few decades, I have yet to see anyone arguing that allowing interracial marriage is the cause of any of it. Also, all those arugments against interracial marriage have proven false. And many of them are the exact same argument people make against gay marriage.

Now, I'm just totally sure that each and every one of you who oppose gay marriage certainly would never have opposed interracial marriage back in the 60s. I'm sure each one of you would have been part of that small majority that supported it. But you have a quandry -- having seen those argument fail to bear fruit over the past decades, you should be more cautious about raising them again. If the arguments were wrong then, isn't there a good possibility they are wrong today?
10.19.2005 5:03pm
On Lawn (mail) (www):
The Netherlands and Belgium have allowed gay marriage since 2001. No ill effects on society yet.

Some read the evidence and come to a different conclusion, probably depends on the very subjective term of how one looks for or distinguishes what is "ill effects on society". Andrew Sullivan looked at the evidence and came to the same conclusion as you, but as Stanley Kurtz started to debate his findings Andrew was left to find a loophole for an exit. Andrew said essentially, "its a bad example to begin with" which is ironic since it was his example to begin with.

In the 60s, interracial marriage was banned in many states, including all the southern ones. The Supreme Court reversed the bans, and many commentators predicted social choas.

Perhaps what they should have predicted was complete inneffectiveness. Before the Supreme Court stepped in, interracial bans were already removed legislatively in more than half the states that had such bans. In a comparison between say Oregon and Mississippi, the former being a legislative turn around and the latter imposed by the courts, we find that where the SCOTUS came in with the heavy hand things didn't really change much at all.

In the infamous Jasper Texas, I remember attending the wedding of some dear friends of mine. The husband was african-american, and a state trouper. The wife was from California (IIRC) and white. Sad enough to say, he got threatening phone calls at work in the police office, and her father lost his job. All as fallout from people who's public discourse had been taken from them by the SCOTUS.
10.19.2005 6:23pm
Sisyphus:
Jesurgislac wrote:


No, that would be the homophobic argument, rather than the tautological argument.

The homophobic argument is that granting equal civil rights to LGB people to marry who they choose is not worth it, because there might be bad results for straight people.


Jesurgilisac, you continue to misunderstand both my argument and the similar argument made by others on this thread (and by Gallagher implicitly). My concerns have nothing to do with whether there is some alleged negative effect on heterosexual people (I think there are some potential positive effects on heterosexuals that are predictable, too) vs. a presumably positive effect for homosexual people. Such sexual identity-based concerns are largely irrelevant to me, and in any case they are totally irrelevant to the argument from tradition I am attempting to explain.

The concern regarding a change to an established tradition is that we may, as a society, experience significant and unpredictable effects, both good and bad, as a result of that change. Those effects will presumably effect everyone, regardless of their sexual orientation. Those effects could be as varied as a reduction in ice cream sales, an increase in violent crime, or a decrease in the number of people who watch sitcoms. Society is too complex to know what the effect of any large change will be, as all mathematically chaotic systems are, without experimental verification (likely using a multivariate regression model for social sciene of this type).

Observer makes an excellent point that this is a good time for federalism. One of the great advantages of federalism is that it allows us to at least somewhat limit the range of the effects of a policy change, so that we can test for unexpected secondary and tertiary effects.

I urge the supporters of SSM on this thread to get politically active and get their legislatures to pass such legislation. If you do so in my state, I'll support you (though it will require an initiative here). That's the solution to this issue for everyone - once a few states have allowed SSM, then other states can see whether or not they approve of the effects evident in the experimenting states, and the rest will then adopt similar laws if they prove beneficial. That's the way the Founders intended it to be.
10.19.2005 6:31pm
PhilaMark (mail):
I find odd the presumption contained in some of these posts that if an individual isn't whole-heartedly in favor of full rights to gays then that individual must be a spiteful homophobe. On some basic level the law is simply society's way to encourage behavior considered beneficial to society and discourage behavior that is not considered beneficial. The law has a variety of tools available to it to encourage or discourage behavior, ranging from tax benefits to the criminal code, precisely because in the vast majority of cases behavior seldom fits into the "unambiguously good" or "unambiguously bad" ends of the spectrum. What's wrong with a social policly that acknowleges the inherent ambiguity of this issue, in a fashion similar to how society deals with those who smoke? Yes, I'm sidestepping the issue of whether sexual orientation is inherent, but as A Guest pointed out, this is really a debate about behavior, not any underlying biological drive.
10.19.2005 9:23pm
Dilan Esper (mail) (www):
Phila:

As I said, there are principled reasons to oppose a few specific civil rights, such as gays in the military. But if one opposes gays on most or all of the various rights issues, that means by definition that the person thinks that the awesome power of the government is quite properly used to punish homosexuals because they aren't heterosexuals. And there's no way that's anything other than homophobic bigotry.
10.20.2005 12:35am
Eisenstern (mail):
The labored, nonsensical, pretextual nature of the arguments Gallagher offers in support of her anti-SSM position very strongly suggest that bigotry is her motive.
10.20.2005 2:10am
On Lawn (mail) (www):
Eisenstern,

That you seem to think meta-commentary, and not substantive discussion is your best tack is indeed telling. Instead of showing us where arguments are, "abored, nonsensical, pretextual" its better to just throw out names and hope people are ignorant enough to take your word for it ;)

Dilan,

Its a shame that so many noble causes around the world cannot find a one-word invective to whip people into considering everything along a narrow and trivial dimension as "homophobia" does for pampering a sexual habit.
10.21.2005 2:38pm