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[Maggie Gallagher (guest-blogging), October 18, 2005 at 11:38pm] Trackbacks
The Marriage Debate and ReproTech:

Just a bit more, Todd:

Given how powerfully pro-technology we Americans are (yes, me too), I think it's worth pointing out out that in the vast majority of cases described as instances of "reproductive technology", what we are talking about is the technology of the turkey baster. People have known for hundreds of years how to do this. (Artificial insemination is documented in animals from the 18th century). For good or ill, the main changes that make reproductive technology prominent are social, not technological.

I'd also like to reply to some significant pushback I'm getting, in my personal letters. (And maybe Todd a certain undertone in your post). Many people don't recognize in this somewhat flat description of marriage I'm laying out, their own marriages, or their religious tradition's vision of marriage. (I'm getting chastized by certain Catholics who want to point out marriage is a one-flesh union that cannot be "reduced" to procreation)

Let me say two things. First, what I've been rather methodically laying out so far is the state's interest in marriage. People don't get married in order to satisfy the state's interest. Moreover, marriage is not an institution the law created, or can create. It pre-exists law, and has meaning only if many actors other than the law sustain it. Marriage has social power and can serve the law's purposes, only if it is embedded in a culture in which people highly value and idealize the union marriage embodies. People protect children by entering faithful, permanent "one flesh" unions, but they don't view these marriages as mere instruments for making babies. Nor do I.

Secondly, behind the flat language I'm describing as "procreation and paternity" is great erotic mystery. This is the way I put it in a recent syndicated column "How I Entered the Penguin Wars. (All of my columns are archived at www.uexpress.com, if you want the full context).

"the human experience of generativity—sexual love (or lust) joining male and female in a physical act that produces new life; gestation, birth, and the transformation of one another through acts of our bodies into something as mysterious as a mother and a father; and most marvelous of all, making a baby—this is a big, brute, fact about human existence. It's not going to go away.. .

Of course not everyone does this amazing thing. But those who don't, whether straight or gay, need not set themselves against this story, or view it through the lens of grievance culture. We can all choose to participate, if only vicariously. We are products after all of this mysterious Eros, and our shared future depends on men and women willing to give themselves to it."

But if I say anything like that here, people might say I'm emotional. . .

Dilan Esper (mail) (www):
Again Maggie, I don't think your problem is that you don't write emotionally enough about sex, but that you don't respect liberty. It's not simply that people don't recognize their own marriages in what you call the "state's interest" in marriage-- it's that they don't recognize that you, or the government acting at the behest of those who agree with you, have the right to define what interests people should have to serve in order to get married to each other. And more broadly, it's that they don't believe that government has any business creating "incentives" so that we can direct our sex acts towards a purpose that Maggie Gallagher agrees with, i.e., procreation.

Further, I would still like to know whether you believe in full civil rights for gays, short of marriage. I get the feeling that all your posts are in bad faith, concealing the actual agenda of opposing civil unions, gays in the military, laws prohibiting employment discrimination against gays, gay adoption, the overturning of sodomy statutes, etc. You certainly have not uttered one word of support for the civil rights of gays and lesbians in your posts.

In other words, show us that you are not a bigot who just wants to use the law to impose inconveniences on gays and lesbians, and show us that you have some respect for individual liberty and people's rights to define their relationships different from what you think is "optimal". That's why your argument fails at the premises right now.
10.19.2005 12:55am
Randy R. (mail):
Well, it's a nice post, Maggie. I don't mind emotional arguements -- we all have our passions! But geez, don't you think that we gay people might also have those same emotions? That we would love to have our own families? In fact we do. We just want those same benefits as you do -- and have those same benefits pass on to our children too. What could possibly be wrong with that?

Or do you hate our children and want to make them suffer as much as possible by denying their parents the right to marry? And deny the family the rights and dignities that every other family has?

Like it or not, gay people will be coupling and adopting and having children for a long time to come. The issue isn't going away any time soon. Every poll taken about gay marriage indicates that the younger the person, the more in favor of it they become. Teen and people in their early 20s favor same sex marriage by about 80%, and they are the future. Easily, within a generation, a majority of Americans will favor gay marriage -- the numbers almost always go up with time. You can hold off for a decade or two, but it's happening whether you like it or not. It's here already in Massachusetts, Canada and Spain, and it's coming in Connecticut.

So to those who oppose gay marriage -- brace yourselves.
10.19.2005 1:32am
AK (mail):
Dilian:

You believe that the government should not "have the right to define what interests people should have to serve in order to get married to each other"? That's a striking proposition, and I doubt that you really mean it.

Legal recognition of marriage brings with it benefits and protections too numerous to name here. I'll use testimonal privilege just as an example. If the state grants spouses the right not to testify against each other, should it not have some control over whom it designates a "spouse"? To put it another way, a married couple and the government have struck a bargain: the couple gets certain benefits and privileges. What do I, a member of the public that granted these protections and benefits, get in return?

If you reduce marriage to a simple contract between individuals, as some gay marriage advocates do, the point is still valid. Contracts only exist because the state is willing to enforce them, by violence if necessary. (If you don't believe me, don't pay your rent or mortgage, and insisst on squatting in your home. Eventually armed men will come to eject you). Our government enforces contracts because private ordering among individuals is generally good for society. But we have always reserved the right to forbid certain contracts as being against public policy, and to invalidate contracts if one or more of the parties were not competent (for one of several reasons) to make the contract by our standards. Those standards are entirely subjective, but they exist nonetheless. Maybe forbidding people to marry on the basis of sex is a violation of their equal protection rights. That doesn't affect the general premise that the government should have *some* say in who may form contracts in general, and marriage contracts in particular.

Secondly, calling anyone who doesn't agree with extending to gays what you define as "civil rights" a "bigot" is dirty pool. There are reasons beyond hatred to forbid homosexuals from military service. You might think the arguments are weak, but that doesn't make someone who believes them to be strong a bigot. It doesn't take a bigot to argue that employers should be free to hire whomever they want. That's like saying that supporters of the first amendment are bigoted because the first amendment protects racist jokes. There's no need to get into the others. People could support any one of those things without being bigoted against homosexuals.

Finally, Gallagher is not trying to interfere with anyone's "rights to define their relationships." If two gay men wanted to go around calling themselves "married," I don't think anyone would think they had the legal right to force them not to do so. If you want to define your relationship with another person as "Sultan and Concubine," I cannot stop you. But if you want my tax dollars to enforce a contract related to your relationship, I should have some say in that.
10.19.2005 1:50am
Proud Generation Y Slacker:
Although never yet, Randy, by the will of the people.
10.19.2005 1:52am
Randy R. (mail):
To those with doubts about MG's attitudes towards gays, let me quote from her article in the New Republic:
"Gay marriage is not some sideline issue, it is the marriage debate. The consequences of our current retreat from marriage is not a flourishing libertarian social order, but a gigantic expansion of state power and a vast increase in social disorder and human suffering."

In other words, gays are a social disorder and contribute to human suffering?

Apparently so. "It means losing American civilization. It means losing period." she wrote.

Wow! The end of civilization as we know it! I had no idea I had such power!

Okay, Maggie. Admit it -- you wish gay people just disappeared from the face of the earth. C'mon, it's okay to say it here....
10.19.2005 1:54am
Kingsley (mail):
Honestly, I think that many would argue that "sexual love (or lust) joining male and female in a physical act" is perhaps more enjoyable when it's NOT creating new life. There's nothing terribly erotic about keeping a thermometer by your bed to chart fertility cycles, or making sure it's the right time of day . . .

I would also recommend reading an excerpt from Toni Bentley's THE SURRENDER (2004) for another perspective on transformative sexual practices. (Reader discretion advised.)
10.19.2005 1:55am
AK (mail):
Randy:

I do think that gay marriage in most states in the US will happen eventually, just because that's the way these sorts of trends go. The toothpaste doesn't go back in the tube.

But citing the opinions of young people to predict general public opinion in the future is problematic. People in their 40s are generally more conservative than they were in their 20s. It's always been that way. Opinions change over time. In the last election, people under 30 voted 45% for Bush. People over 30 voted about 53% for Bush. That doesn't mean that the country will become more liberal over time; it just means that young people are generally more liberal than old people.

On the gay marriage issue, married people are more likely to be opposed than unmarried people. More people over 30 are likely to be married than those under 30. By the time that these pro-gay-marriage unmarried youngsters get old and married, their opinions might change. Hell, it happened to me. Five years ago I was more liberal (well, libertarian) than I am today. I was weakly in favor of gay marriage. I got older and married, and today I'm opposed to it.

To use an absurd example, if you polled eight-year-olds, I'm sure you'd get upwards of 90% opposition to bedtime and eating carrots. Ask them again in thirty years.
10.19.2005 2:03am
Randy R. (mail):
<>

And if you want to use my tax dollars to DENY me the ability to enter into a contract related to my relationship, I should have some say in that, too. Agreed?

<>

Anyway, since MG admits to an emotional argument, I'll bring one up here too. I wonder how you would feel if you feel in love with someone of the opposite sex, and then you are told you can never ever marry him or her? You can live together, you can call yourselves civil unionized, but society will never acknowledge your love as everyone else's in terms of marriage. And that if you attempt to marry,you are told that this would cause the very collapse of civilization? That you are a social disease, that you are perverted and deviant, just because you mind your own business and want to marry someone. Would you accept that? Or would you fight it with all your power?
10.19.2005 2:04am
Proud Generation Y Slacker:
Randy, I'm not married and don't plan on being married in the near future. What do I get out of giving you my tax dollars? You deserve a special luv reward?
10.19.2005 2:06am
AK (mail):
Randy, it doesn't cost me any money *not* to enforce your contract. I'm not going to prevent you from drawing up all the invalid contracts you please. I'm just not going to pay a dime to enforce them.
10.19.2005 2:13am
RBG (mail):
Dilan above, and commenters on other threads, argue in favor of same-sex marriage from a libertarian position, but I have trouble figuring out how one gets there. It would seem to me that libertarians (and I count myself among them, though I trend conservative on social issues) would be inherently suspicious of state involvement in or regulation of intimate relationships. Thus, the libertarian presumption should be that the government has no business involving itself in how people order their intimate lives, either through restricting or privileging certain forms of relationships; any governmental involvement must be supported by some legitimate and compelling state interest.

If that is the case, then Maggie's approach (if not her conclusions) seems proper: to determine whether the state has an interest in regulating certain (or all) intimate relationships, we've got to figure out whether doing so serves any legitimate purpose. If it does, then we should craft the rules to serve that purpose as narrowly as possible; if it does not, we should abolish the rules altogether.

Now, even if Maggie is correct in her description of the nature of marriage and the state's interest in defining it, the question of whether SSM should be legally recognized remains unanswered, but that description at least outlines the perimeters of a properly circumscribed intimate-relationship law. If, on the other hand, as many in prior comments have argued, Maggie is incorrect and the relationship we currently define as marriage is fundamentally about intimacy, romantic attachment, or social acceptance, then any serious libertarian should--it seems to me--be repelled by the prospect of government involvement in any form: the entire thing should simply be abolished. After all, why should individuals be required to submit to regulation by the state as to when they can form or dissolve their most intimate associations? --the state has no more interest in regulating individual romantic relationships than it does in regulating ecclesial disputes over who should become the next Archbishop of New York.

But it gets worse: if the issue is about ensuring equality in the state's recognition of intimate relationships, certainly it's absurd to draw the line at SSM. Why, after all, should binomial romantic relationships be privileged over, say, polynomial platonic relationships that may be just as emotionally intimate? And even if the SSM advocate distinguishes between these, what legitimate grounds does the state have for doing so? From a libertarian perspective, such pervasive state involvement should be a disaster: now the state finds itself involved in regulating the formation and dissolution of intimate relationships throughout society. Can anybody explain to me why a libertarian would want this result?

In short, it seems to me that a libertarian (as opposed to a conservative--in the mold of a Rauch or Sullivan) advocate of SSM (or opposite-sex marriage for that matter) either has to articulate and be willing to defend a positive conception of the purpose or marriage and link that to a legitimate reason for state involvement, or should advocate the withdrawal of the state from such involvement altogether. If not, why not?
10.19.2005 2:27am
Perseus (mail):
1) I'm waiting for someone to provide a serious philosophical defense of a "right" to marry.

2) I'd take the appeal to abstract equality a bit more seriously if it were applied across the board to every government policy. That would mean no soaking the rich with progressive taxation, no affirmative action for women and racial minorities, etc.
10.19.2005 2:48am
randal (mail):
Once again, Maggie's decided not to give us any arguments against SSM. So I'm gonna just start talking.

The historical garbage has no bearing except as an examination of how we got where we are today in terms of the public policy advantages of state marriage. Only actual, current public policy questions are relevant to the actual, current debate over marriage. Any arguments along the lines of "well, gay cavemen weren't allowed to marry, we should just keep it that way" are worth zero points.

Slippery-slope arguments are equally invalid. We're not talking about the societal benefits of polygamy or bestiality. The societal benefits of gay marriage have little to do with the societal benefits of polygamy or bestiality, as far as I can fathom. A slippery slope only exists when the arguments for a policy necessarily implicate matters beyond the scope of the policy because no significant distinction exists between the subjects of the policy and subjects beyond the policy. Two people in a relationship is very easily distinguishable from three people in a relationship, or from a person and a dog in a relationship. Gender discrimination relief as an argument for SSM doesn't apply to polygamy or beasts. In fact, none of the serious SSM arguments I've heard apply to these other situations. ("Everybody in love should be able to marry" is not a serious argument for SSM.)

So, what are some actual policy arguments for SSM? I'll tell you.

* Remove vestiges of gender discrimination.

* Allow homosexuals to form honest families. This is so obviously a good thing it blows my mind. The fact that homosexuals can already technically do this is irrelevant - this point isn't about discrimination. Homosexuals don't marry today because they wouldn't like the people they'd have to marry. With no cultural incentive to establish lasting relationships, they tend not to, leaving us with a large problematic class of promiscuous singles. Or if they do marry, they're usually doing it to perpetuate their straight front... which creates broken families founded on deceit. (You'll have to worry much less about your daughter marrying a gay once gays have a better option.) A culture that encouraged homosexuals to form stable relationships would be a fantastic improvement.

* Enable homosexuals to build more robust support networks. Even without children, marriages are strong social bonds that tie disparate families together. People with greater familial support tend to require less state support.

And that's all just from the perspective of the average heterosexual and the benefits they stand to gain by allowing SSM. Throw in the unbelievable wet dream it would be for homosexuals to finally feel like legitimate citizens in American culture, and SSM is simply a must-have.
10.19.2005 3:44am
Pro-Marriage-Pro-Equality (mail):
A social institution that integrates the sexes does not treat one sex as inferior to the other through the two-sexed criterion. It is inclusive and gender-equal. The unisexed combo is is one gender short of equality and serves to segregate rather than integrate the sexes. In terms of conjugality, it would be like the state treating a single individual as a married couple.

If society is served badly by sex integration, then, the man-woman criterion might well be ready to be discarded in favor of something that would treat the man-man, woman-woman, and man-woman arrangements as indistinguishable. The flaw in marriage must be so pronounced as to require its replacement by some superior alternative. Make the case for the flaw and the proposed replacement.

Precisely what would move the hand of the state when it comes to recognition of the unisexed arrangement?

IF there is a purpose to that recognition, can it be stated without piggybacking on the elevated status of the social institution of marriage which has long been acknowledged as the preferred home for the conjugal realtionship that integrates the sexes?

Society benefits the social institution of marriage because marriage benefits society. Howso with the unisexed arrangement? Howso with replacing the conjugal with that nonconjugal alternative arrangement?

Please do not conflate the moral argument you'd like to make, or the legalistic argument you'd like to make, with the public policy argument requested here.
10.19.2005 3:45am
Dilan Esper (mail) (www):
AK:

Here's my reply to your points:


Legal recognition of marriage brings with it benefits and protections too numerous to name here. I'll use testimonal privilege just as an example. If the state grants spouses the right not to testify against each other, should it not have some control over whom it designates a "spouse"? To put it another way, a married couple and the government have struck a bargain: the couple gets certain benefits and privileges. What do I, a member of the public that granted these protections and benefits, get in return?


Assuming arguendo that marriage is part of the social contract, and the government has the right to get "something in return" from those that it allows to marry, that "something", whatever it is, cannot be that the married couple conduct its sex life in the manner that the government wants it to. Again, if it is otherwise, the Connecticut contraception statute in Griswold was fully justified.

And indeed, the government gets many things in return from straight AND gay married couples-- promises to support each other, which keeps people off the public trough. Promises to take care of each others' children (here in California, a child conceived by a married woman is conclusively presumed to be a child of the marriage and the husband's responsibility, for instance). Promises to bear each others' debts, under some circumstances.

In other words, the government already extracts its payment. But that doesn't mean any condition is legitimate. Imagine, for instance, a system where everyone who wants to get married has to allow his new bride to have sex with the king first. Is that a legitimate condition? (Some societies actually have had that rule in the past.)

And once you concede that the "sex with the king" rule is not a legitimate condition for the government to impose, you can see where I am going. Telling people that their sexual activities must be directed towards procreation isn't any more legitimate. It is simply none of the government's business to what purpose a married couple directs its sexual activities.


If you reduce marriage to a simple contract between individuals, as some gay marriage advocates do, the point is still valid. Contracts only exist because the state is willing to enforce them, by violence if necessary. (If you don't believe me, don't pay your rent or mortgage, and insisst on squatting in your home. Eventually armed men will come to eject you). Our government enforces contracts because private ordering among individuals is generally good for society. But we have always reserved the right to forbid certain contracts as being against public policy, and to invalidate contracts if one or more of the parties were not competent (for one of several reasons) to make the contract by our standards. Those standards are entirely subjective, but they exist nonetheless. Maybe forbidding people to marry on the basis of sex is a violation of their equal protection rights. That doesn't affect the general premise that the government should have *some* say in who may form contracts in general, and marriage contracts in particular.


The government has lots of say in marriage contracts. Again, they can set age limits (over 18), number of person limits (2), residency requirements, restrictions on divorce (covenant marriages), and can impose the support requirements noted above. But that doesn't mean, again, that the government can use the marriage contract as an excuse to nose into the bedroom.


Secondly, calling anyone who doesn't agree with extending to gays what you define as "civil rights" a "bigot" is dirty pool. There are reasons beyond hatred to forbid homosexuals from military service. You might think the arguments are weak, but that doesn't make someone who believes them to be strong a bigot.


I agree that one or another of these positions MAY be asserted in good faith. And I understand that some unprejudiced people certainly oppose gays in the military, like Colin Powell. But my point, again, is the list. If you hold a NUMBER of these positions, at some point this becomes less about gay marriage and more about doing harm to gays.


It doesn't take a bigot to argue that employers should be free to hire whomever they want. That's like saying that supporters of the first amendment are bigoted because the first amendment protects racist jokes.


I was careful in the way I worded my point on this one. Of course you aren't a bigot if you argue employers should be free to hire whomever they want. But if you DO believe in civil rights laws, but simply want GAYS, but not other groups, to be permissible targets of employment discrimination, THAT'S what makes one a bigot. There is NO basis-- other than simply desiring to take benefits away from gays-- to say that employers should be prohibited from firing people because of their race, gender, ethnicity, or religion, but should be perfectly free to fire gays.


There's no need to get into the others. People could support any one of those things without being bigoted against homosexuals.


Any one of those things, maybe. (Though not opposing civil unions and not supporting sodomy laws. Those two are almost perfect proxies for bigotry.) But my bet is quite a few gay marriage opponents oppose gay rights ON EVERY SINGLE ONE OF THEM. At some point, the inference of prejudice is permissible. To say otherwise is akin to arguing that Strom Thurmond and Orville Faubus weren't racists because there were some (weak) intellectual arguments made in favor of segregation.


Finally, Gallagher is not trying to interfere with anyone's "rights to define their relationships." If two gay men wanted to go around calling themselves "married," I don't think anyone would think they had the legal right to force them not to do so. If you want to define your relationship with another person as "Sultan and Concubine," I cannot stop you. But if you want my tax dollars to enforce a contract related to your relationship, I should have some say in that.


Not in what people do in the bedroom, or the reasons they do that. If the government's power to enforce contracts means THAT, then essentially we have ceased to live in a free society, because everyone relies on the government for at least basic levels of police protection and that power could be leveraged to control EVERY aspect of our lives.

How presumptious you are, AK! Is ANYTHING not your business? Is there ANY private sphere where the government cannot or should not go?
10.19.2005 4:19am
Pro-Marriage:
If privacy is of such value, why invite the state to license the nonconjugal relationship as if it possessed the public significance of the conjugal relationship?
10.19.2005 4:31am
Pro-Marriage:
And why invite the state to regulate third party reproduction i.e. insemination and implantation and other surrogacy services that rely on "donations" of sperm, eggs, embryos, or wombs?
10.19.2005 4:36am
Jesurgislac (mail) (www):
First, what I've been rather methodically laying out so far is the state's interest in marriage.

...which so far, you seem to feel is restricted solely to the conception of children. You have methodically ignored any state interest in nurturing children.
10.19.2005 5:48am
Dilan Esper (mail) (www):
Pro:

You don't HAVE to have the state recognize marriages. However, there are plenty of state interests that can support marriage that do not implicate the privacy of what people do in the bedroom. I mention some of them in my post above (i.e., mutual support obligations).

The problem is that opponents of same-sex marriage who want to avoid arguments based on raw bigotry have to pitch their argument in terms of the supposed procreative purpose of marital sex. And once you get into that argument, you have the government making policy based on its judgment of the "proper" purposes for sexual activities in marriage.

Really, the proper reaction to being told that your position means that the government can prohibit anyone from marrying who can't, or doesn't intend to, conceive children is not to say "well, the government can do that and we just have to rely on the government not to". The proper reaction is "well, if that's permissible, then there's obviously something wrong with my position, because that CAN'T be right".

And yet opponents of same-sex marriage refuse to consider that the absurd policies that their arguments would justify indicates that there may be something wrong with those arguments. Why are they unwilling to consider that possibility. Could it be that their personal prejudices against gays preclude them from recognizing that their objection to gays getting married isn't logical?
10.19.2005 7:12am
Jesurgislac (mail) (www):
RBG:even if Maggie is correct in her description of the nature of marriage and the state's interest in defining it, the question of whether SSM should be legally recognized remains unanswered, but that description at least outlines the perimeters of a properly circumscribed intimate-relationship law. If, on the other hand, as many in prior comments have argued, Maggie is incorrect and the relationship we currently define as marriage is fundamentally about intimacy, romantic attachment, or social acceptance

There's an undistributed middle here.

Maggie's argument is that the primary purpose of marriage is the procreation of children. Not to nurture them and care for them and bring them up to adulthood - just their procreation. She's ignoring, then, a large part of what many of us would say is a good and valid reason for the state to support same-sex marriage: if marriage is a good thing for parents, and if "parents" are not just defined as the producers of sperm and eggs (as Maggie evidently thinks) then there is no reason to exclude same-sex parents from marriage.

(Maggie's restriction of parenthood to mean exclusively conceiving of children by the biological parents is really more than slightly bizarre, the more you think about it. She argues for an abstract "benefit to society" for marriage being exclusively for those who can produce children: but she can't advocate any concrete benefits for children being brought up by loving parents, because if she were to do that, she would have to acknowledge that same-sex couples can, and do, provide those benefits for their children. If Maggie acknowledges no benefit to society from nurturing children, what precisely does her argument rest on that marriage benefits society?)
10.19.2005 7:50am
DM Andy (mail):
I am not an expert on US law. I'm not even an American. I also have no idea how much the institution of marriage contributes to society, or how much allowing Same Sex Marriage would affect that contribution, it seems to me that can be argued in any way that supports the speaker's view. I just want to ask Maggie one thing: How would she explain to a gay couple that she thinks their relationship should not be protected by law?

My uncle is gay, he has been in a committed relationship with another man since the late 70s. In 1985 they "married", my uncle's partner took our surname (his own family had more or less disowned him when he came out so our family's name was the sensible choice), there was a party and everyone treats them as a married couple. Their marriage has been successful in the most part, if I end up in a relationship that loving, I'll consider myself a very lucky man.

Now, my uncle has developed Alzheimer's at a relatively young age, he has times now that he does not even know who family members are and is very hard work to look after. His husband is there for him, caring for him, because he loves him and because that's part of what marriage is, for the good times and the bad. I would agree with randal's comment above, in my uncle's situation, if his husband was not there for him, than my uncle's care would fall on the state to provide.

In a way, my uncle and his husband are lucky. Everyone who matters in their lives respect their marriage. Everyone in our family would allow my uncle's husband to have the final say on all matters concerning my uncle as he is now passing beyond the ability to decide things himself. I do not know if my uncle has a will, but assuming he has, then we would expect him to have left his half-share of the family home to his "husband", even if he didn't, then I would hope that the members of my family who would get his estate (his brothers and sisters) would agree to give that back to his husband.

The trouble would come if our family were not so accepting. Without a legal marriage, my family could block my uncle's husband out of all decisions affecting my uncle, without a will, my uncle's share of his family home would go to his five brothers and sisters and not to the man he has shared over 25 years with. Even with a will, if my uncle were a richer man, my uncle's husband would have to pay inheritance tax on my uncle's estate, something he would not have to do if he was allowed to legally marry. I feel that my uncle and his husband should not have to rely on the goodwill of my family for things that married couples have as of right.

Legalising Same Sex Marriage (or something legally equivalent that is not called marriage) may be good or bad for society, but it is clearly good for loving same-sex couples. I cannot understand why Maggie wants to make life more difficult for them.
10.19.2005 7:52am
DM Andy (mail):
Oh, by the way, rereading the comment, it occured to me that "even if he didn't" in the fourth paragraph is vague.

I meant "even if he didn't write a will", of course if my uncle wrote a will he could leave his estate to whoever he wishes.
10.19.2005 8:20am
APL (mail):
At the risk of sounding banal, I would encourage everyone to keep the discourse on an intellectual level and continue avoiding personal attacks. Although I disagree with her heartily, I do believe that Ms. Gallagher is a sincere and, well, nice person. I remember her column about the difficulties she faced in espousing a position, the logical outcome of which that seems frankly cruel to many. I would like to think that if she ran into me this Saturday around 3:30, when my guy and I will have entered into the state of marriage, courtesy of the wisdom and action of the Canadian government, she would not scowl at our happy visages and mutter comments under her breath that we are harbingers of destruction to all that is good, but would kindly congratulate us and wish us well.

The legal case for marriage, really the constitutional case, is simply one of equal protection under the law. Any reasonable understanding of this doctrine, which is supported in the abstract by the vast majority of Americans, leads inexorably to the view that, when applied to the same-sex marriage debate, there is no legitimate reason for denying marriage to all gay couples while allowing marriage to all straight couples, either under strict scrutiny or the more relaxed rational basis test. I would respectfully disagree with Ms. Gallagher that the procreative purpose argument carries sufficient weight to serve as a rational basis for precisely the problem that she has noted in this latest post - it is an artificial view of the nature of marriage not actually relevant to many, perhaps most, people's views of the purpose of their own marriage and is a purpose-driven overly restrictive view of the state's interest in marriage. The reason intelligent anti-marriage people such as Ms. Gallagher decry the "activist judiciary" and seek to place the issue beyond the judiciary's grasp is because they recognize the legal validity and logical force of the equal protection argument.

The policy case for marriage must focus first on whether there exists a reason to extend marriage to same sex couples. The proper analysis begins with the issue of whether marriage is a good thing for society and for the individual couples? Almost everyone agrees that it is, on both counts, not merely for creation of children, but for the raising of children, for providing stability in personal relationships, encouraging monogamy, and in being the meaningful vehicle through which lifelong bonds of romantic love are expressed. Now, since almost everyone is willing to admit that gay couples and gay families exist, and have a legal, constitutional right to their existence, the policy question is whether we, as a nation, should improve society by extending the agreed-upon benefits of marriage to these relationships. Given only these factors, the answer is obviously yes.

But are there costs which would offset these societal gains and justify reconsideration on a policy basis? The only potential cost posited by anti-marriage proponents is the gauzy fear that by changing who is allowed to participate in marriage, the institution will suffer a long term degradation which will be harmful to society. This may prove true, but so may the opposite; no one can really say. And it seems a slender reed on which to balance the denial of the benefits of the institution to a subset of society.

For most people who oppose gay marriage, the issue is primarily a moral one, based on their religious beliefs. They feel there is a legitimate boundary between recognizing the personal freedom of fellow citizens and sanctioning what they consider to be an immoral act through governmental recognition of the legitimacy of the relationship. This really is the bottom line for most anti-marriage people, and it is a visceral, not a reasoned position, which makes it difficult to address.

Because of this, I continue to believe that the battle will be won not by legal arguments, but by personal ones. Like Ms. Gallagher, I am a nice person and a patriotic citizen. I devote much time, pro bono, to helping abused and neglected children. I am politically active. I am locally active in the arts and other civic activities. I attend church regularly, exercise my mind and body regularly, and am in a monogamous committed relationship. People who know me approve of me being able to marry. Why? Because I am not some immoral freak or an abstract homosexual. I am your neighbor, and I am a good man, and my relationship with the wonderful guy I am marrying in Canada on Saturday deserves similar respect and recognition from my own treasured nation.
10.19.2005 8:42am
Chris B (mail):
My point would be that marriage involves (is constituted by, effectively) public recognition of a distinct social status that goes beyond mere acknowledgement of the existence of a private contract. Marriage is a public, not a private, institution. Thus, it's reasonable that the state should enforce legal norms around marriage that promote general social benefits. And, to the extent it can (or at least, to the extent it can't avoid doing so) it should support and promote socially beneficial cultural norms around marriage.

Obviously, this view can support either side of the debate. But I'd suggest that the cultural side of marriage is more important that the legal side (though legal changes may drive cultural changes), and this has implications. One thing that worries me is that we tend to view the issue very strongly through a legal/political lens, making complacent assumptions about how the cultural side will develop. We believe we can effect, or perhaps implement cultural changes, instead of setting off the usual landslides. But perhaps the state is more effective at supporting existing cultural norms than at promoting new ones.

The traditional-marriage norm - the fact that so many of us (yes, us, not just red-state morons*) follow through some portion of the traditional-marriage script in our lives - constitutes traditional social capital. (Let's make that Traditional Social Capital.) Like all kinds of Traditional Social Capital, it's much more easily eroded than replenished. Restructuring marriage through blatently political and legal processes (as opposed to the incremental changes which but-it's-always-been-in-flux arguments reference) creates a kind of scandal in the minds of people who retain some traditional outlook on marriage (which I take to be most of us to some extent). That's because subjecting a traditional institution to political/legal restructuring strips it of its traditional quality - its mystique, its sense (however illusory) of immemorial antiquity, of being second nature, of givenness. This may tend to destabilize the institution.

None of this would necessarily be true, by the way ("But it's not true, you creepy reactionary!" Yes, it is!) if the political/legal recognition of gay relationships as possible marriages followed social and cultural recognition (I mean, in a way not requiring a bulldozer).

*Kidding, here.
10.19.2005 9:12am
Kent (mail):
I wonder if history will look back on Maggie's comments in the same way we now see George Wallace's anti-equality speech at the University of Alabama? http://www.archives.state.al.us/govs_list/schooldoor.html

After all, they both hide behind "history" and "tradition" and, as Wallace put it, seek "to preserve and maintain the peace and dignity of this State." Don't blame the messengers: They are mere puppets to the overwhelming "will of the people."

And neither likes being called a bigot.
10.19.2005 10:14am
Taimyoboi:
"...which so far, you seem to feel is restricted solely to the conception of children. You have methodically ignored any state interest in nurturing children."

I believe it would be rather difficult to nurture children if you aren't having them...
10.19.2005 10:35am
Chris B (mail):
Kent,

History may call Maggie a bigot. But equally, it may call you a bigot. Bigotry, after all, doesn't depend on the views a person holds, but on how those views are held. A person who comes out of a long and complex debate with an entrenched version of precisely the views with which they entered it is either improbably, fantastically correct in outlook, or a bigot. That's what bigotry means.

But if history is fair, I think it will not call Maggie a bigot.
10.19.2005 10:36am
mummifiedstalin (mail):
I don't want to go too far off topic of this particular post, but I have a question from a slightly different angle: If (as I think) the gay-marriage issue is going to take a number of generations to settle itself (if it ever will settle), what are the value of traditionalist arguments over time? A number of the de facto defenses of gay marriage which counter the "traditional" role of marriage vis a vis procreation/child raising/etc. seem to already be saying that a traditionalist argument is losing ground as an intuitive ground to be shared by all parties. So if we're given a few more generations where same sex couples become more common (even without legal grounds), where media representation includes more "My Two Dads" type stuff, and where the debate loses its acrimonious tenor, will same sex marriage ultimately become a question of cultural shift rather than having a legal/ethical/rational basis? (Of course, one could say that all of these arguments would underlie any cultural change, but I'm not sure that's necessarily the case if same sex couple simply become more common.)
10.19.2005 10:54am
AK (mail):
Dilan:

Thank you for your reply. Just a few rejoinders, because I don't have the time or energy to get into this in too much detail. My apologies for not engaging your arguments more fully:

The government has lots of say in marriage contracts. Again, they can set age limits (over 18), number of person limits (2)
Wait a second. How can you possibly argue that the state has the power to limit the number of participants in a marriage? You're resting your support for gay marriage on the proposition that the government cannot tell people what they do in their bedrooms. What if someone wants to have a threesome, foursome, or twentysome in his bedroom?

Not in what people do in the bedroom, or the reasons they do that. If the government's power to enforce contracts means THAT, then essentially we have ceased to live in a free society, because everyone relies on the government for at least basic levels of police protection and that power could be leveraged to control EVERY aspect of our lives.
The government absolutely has control over some contracts involving "bedroom" activities. Contracts for prostitution are illegal virtually everywhere in the United States. The last time I checked, we still lived in a free society.

There is no evidence for the existence of jus primae noctis. http://www.straightdope.com/classics/a5_181.html
10.19.2005 11:20am
Daniel Chapman (mail):
I'm embarassed by these comment threads. The principle behind Godwin's law really extends beyond Nazi's. Demonizing your opponent with labels like "bigot" or "homophobe" is not an argument. Not that she's done a gread job of making her case (she hasn't), but the people arguing against her have been an embarassment to this page.

I told a friend about this place last week, but now I hope he didn't visit.
10.19.2005 11:22am
AS:
Like DM Andy, I also know a gay couple in which one of the partners has been a caretaker of sorts for the other as his health has declined. The nurturing of one's partner, not just the nurturing of children, seems to me to be one of the fundamental, traditional goals of marriage that would be well-served by opening the institution to gays and lesbians. Society would clearly be well-served by such arrangements as well.

The necessary premise of the anti-gay-marriage syllogism for which I have seen no convincing evidence is the assumption that implementing gay marriage would lead to the deterioration of heterosexual marriages. Intuitively, the opposite seems just as likely to me. The consideration of the benefits of marriage that the gay marriage debate has prompted over the past couple of years has made me (a heterosexual woman) even more likely to want to enter into the institution. It's possible that recognizing gay marriage could help revitalize the institution; it's some of the traditionalist trappings, after all, that tend to turn people off to marriage. Allowing gays and lesbians to marry might remind everyone that marriage, in its essence, is about the substance of the vows (none of which, incidentally, promises children) and is not about a white dress, a registry, a picket fence, doing what your friends do, getting mom off your back, or otherwise going through the motions.
10.19.2005 11:22am
APL (mail):
Chris, I would respectfully disagree with your definition of bigot. A bigot is one fanatically devoted to own's own group, religion, race or politics and intolerant of those who differ. The same sex marriage supporters are not seeking to affect the lives, legal rights, or worship of those who favor limiting recognition of marriage to opposite sex couples. We are not bigots. We are perfectly willing to allow those of differing beliefs to live their lives according to those beliefs. Our anger with them is at their unwillingness to extend the same courtesy. With all due respect, being intolerant of intolerance is not the moral equivalent of being intolerant. To put it more bluntly, those who are opposed to gay marriage on religious grounds are not being persecuted simply because they are not allowed to unilaterally dictate laws, define God, demand acquiescence of everyone else's lives to their faith, and "demonize those they've placed on this month's waterslide to hell list".

Having said this, I offer no opinion on how history will judge the Maggie Gallaghers of the present.
10.19.2005 11:31am
RBG (mail):
Jesurgislac: You are correct in pointing out that I oversimplified the distinction between Maggie's position and that of her detractors. But the additional justification you add brings us no closer to solving the problem from a libertarian perspective; it merely gives us another basis for justifying state action. We are still left with the problem of creating a narrowly tailored intimate-relations law that provides support/encouragement for parents/caregivers seeking to provide a stable home for children. Permitting SSM seems both radically overinclusive (certainly more same-sex couples than oppposite-sex couples choose to remain childless) and (unjustly?) underinclusive (again, why privilege a binomial romantic relationship over polynomial platonic relationships if our concern is providing stable homes for families and the latter are capable of providing that?).

My point is essentially this: Maggie's critics (perhaps justly) attack her definition of marriage as inappropriate; but certainly (especially if they are libertarians) they have an obligation (1) to put forth a coherent account of the purposes of marriage, (2) to show how SSM is the appropriate response to those purposes, and (3) to demonstrate that limiting the expansion/redefinition to SSM does not itself constitute impermissible discrimination against other permutations of child-rearing units.
10.19.2005 11:39am
A2 Reader:
"Moreover, marriage is not an institution the law created, or can create. It pre-exists law, and has meaning only if many actors other than the law sustain it."

But see, e.g., MCL 551.1 et seq.

I don't understand how anyone can take someone seriously who makes such silly statements. The fact that the concept of marriage pre-dates Magna Charta is of little relevance to whether its benefits should be extended to same sex couples. Geez.
10.19.2005 11:41am
John Nettleton (mail):
Maggie - where/how do the non-heterosexuals gain entrance into the [e]State once you have walled off the curtilage? Seriously, it seems to me that SSM debate needs to start with an examination of proper role and place of homosexuals in a modern western democratic society. When that question is figured out, our social institutions would push the social policy in the direction that it needs to go to attain the ends that society has deemed appropriate for homosexuals. The question of "What are we to do with the homosexuals?" is the horse that pulls the SSM cart.
10.19.2005 12:37pm
BobNelson (mail):

"What are we to do with the homosexuals?"


I'm not exactly sure how Maggie would answer that one, but she sure wouldn't want us to go away. If we did, so would her career.
10.19.2005 12:51pm
Defending the Indefensible:
RBG -- You have it precisely. Strictly speaking, a libertarian cannot advocate state regulation of marriage at all, and as I've pointed out in previous threads on the subject, such interference violates the first amendment, both as to the free exercise *and* establishment clauses.

Speaking for my own part, although not a Catholic, I nonetheless believe marriage is a recognition of a man and a woman as one flesh. I don't think the term is particularly apposite to same-sex relationships, but it is not my privilege to dictate to others their spirituality and/or faith.
10.19.2005 12:59pm
Perseus (mail):
Really, the proper reaction to being told that your position means that the government can prohibit anyone from marrying who can't, or doesn't intend to, conceive children is not to say "well, the government can do that and we just have to rely on the government not to". The proper reaction is "well, if that's permissible, then there's obviously something wrong with my position, because that CAN'T be right".

It "can't" be right only if one is a Liberal or a Libertarian, which is fine if you are one, but it can indeed be quite right to those who hold different views of the purposes of government.
10.19.2005 1:00pm
Randy R. (mail):
Since Maggie won't answer the question some of us have posed about her view towards gays in general, let me post one more quote from her.

"Rick Santorum said that If the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to incest, you have the right to adultery. You have the right to anything.' Of course, he is correct."

In addition, she has written in her columns that she supports the notion that gays can become straight, "if they really want to."

Of course, that's complete nonsense. She was quote a recent report by Dr. Spitzer, who followed up his report with an article in the WSJ disavowing people who distorted his report to say anyone can change. He pointedly said that most gay men can NOT change, but that perhaps there are a few can.

But Maggie's distortion, in the context of her previous comments that she supported the Texas laws against sodomy, indicate that she basically hates gays and wants us to go away period. I have been unable to find a single quote from her where she says that gays deserve to have basic civil rights regarding housing and employment anti-discrimination laws.
10.19.2005 1:06pm
Dilan Esper (mail) (www):
With all respect to everyone who argues otherwise, I think it is crucial to know whether Maggie Gallagher is prejudiced against gays and lesbians and wants the government to disadvantage them based on her moral objections to their conduct.

The reason is because I think many of these arguments about marriage and procreation don't make that much sense and are make-weight. And if people who advocate in public against gay marriage have to admit their prejudices-- if they have them-- then bystanders in the debate will have a better idea of whether to take their arguments seriously.

I really don't think that the protestations of people who oppose even minimum civil rights of gays and lesbians that they are just trying to protect marriage's historical procreative purpose are worthy of belief. It is a precondition for this conversation that a person does not believe, ex ante, that the government has a legitimate interest in discriminating against homosexuals.

Essentially, I am trying to "out" Ms. Gallagher. If she continues to ignore the issue of civil rights (or if she flatly announces her opposition to them), I see no reason why we should believe her claims that this issue is about procreation (which it clearly isn't anyway) rather than homophobia.
10.19.2005 1:06pm
Defending the Indefensible:
Dylan, the real scandal of Maggie Gallagher is that she has taken compensation in the past from the department of health and human services to advance her position in this discussion. What that says about Maggie Gallagher is one thing (a lawyer can take compensation to represent the position of a client, after all, though such representation is not generally concealed), what it says about state interference in this very argument is another.

How is it appropriate that tax dollars are being funnelled into this forum?
10.19.2005 1:20pm
Randy R. (mail):
STrange none of the anti-SSM people have answered my question, that has been raised by others -- What do you do about gay people today with children who are for all intents and purposes families?

In other words, today, and for several decades at least, gays have created marriage de facto. Now, finally, with Massachusetts, we have marriage de jure. The question before us all is whether we should have marriage de jure for gay people throughout the US.

So far, not a single person has argued that these marriages and families de facto have caused any harm either to our Constitution or hetero marriages. If you can, please speak up! Everything so far is theortical and everyone is ignoring the practical aspects.

How does society benefit from failing to recognize these relationships, many of which have been lasting for decades? What harm will come to society to recognize those now? More to the point, how are the families in Massachusetts faring? After marriage was "shoved down their throats," as one protestor stated, how is it that polls have shown an increase for support for gay marriage? If it is so bad for society, why haven't the people of Mass seen the bad effects yet? Are they that stupid?

Discussing theory is all fun and games. but at some point all you people should get out from your computers and get to meet some gay couples. It's always easy to deny rights to people that you have never met or dislike (and yes, the palpable dislike of gays comes through strongly from a few posters. Not all, though, and to those who are civil and treat us as human beings, I thank you.) But these decisions have real world consequecnes that few of you are willing to consider.

So consider this: A friend of mine knows of a young boy who was in foster care. He was born with a facial disfigurement, and so he was always picked on, made fun of, and no one would adopt him. At the age of 5, a pair of loving gay men adopted him. they spend their entire next egg, and mortgaged the house to pay for the extensive surgeries to fix his face. He is now 15 and considers himself quite a catch for the girls (Maggie, see he didn't turn out gay!) But one of his Dad's served in Iraq, but was killed in action. He was posthumously awarded the Purple Heart. However, this man's parents always hated the fact he was gay, and so they sold his Purple Heart in a garage sale. The young boy is naturally upset, because he would have liked to have had his father's Medal.
Now they are struggling to make ends meet. Had the fathers been able to marry, the Medal would have automatically passed to the spouse, instead of the grandparents, and the surviving spouse would have military benefits. But they now have nothing.

And many of you think this is the kind of society we need. Sorry, but I think that's rather disgusting.
10.19.2005 1:26pm
Pro-Marriage:
Deal with the content of Maggie's posts, rather than trying ascribe ill-motivations to her.

Marriage is a social institution. Society acknowledges that institution and does not create it through marriage law. The government of We The People is not all-kowning and all-powerful, by design.

When both sexes are combined in a social institution, in equal numbers, it reflects procreative potential and the desire by society to elevate, prefer, and privilege the conjugal relationship that embraces the contingency for responsible procreation that flows from conjugality. The combination of two sexes is integrative and meritorious and that is a very big reason to make the social institution a vehicle of public policy. Without that reason, non-conjugal alternatives lack the importance that is accorded the preferential status of marriage.

Reciprocal Beneficiaries is appropriately inclusive of same-sex scenarios -- regardless of sexual orientation -- and would in fact be open to far more same-sex arrangements than would SSM. And that, too, would be a very good thing.

Unlike marriage, Reciprocal Beneficiaries is the enactment of a state interest in mutual caregiving with NO presumption of sexual relations. It, like marriage, is not designed exclusively for public endorsement of sexual relations -- homosexed or otherwise.
10.19.2005 1:35pm
DM Andy (mail):
Daniel Chapman, I hope you did not mean to label all SSM supporters on this thread with the title of "embarrassments", I hope that I posted a pro-SSM post rather than a anti-Maggie post.

Rather like APL (congrats on the forthcoming wedding by the way), I am sure that Maggie is a very nice person. However the position that she holds would have the side effect of financially harming and inconveniencing same sex partners (I could list the ways, but they would be UK specific and rather off topic for this blog). The only logical reason to hold that position would be if Maggie thinks that the ill effects of recognising SSM would outweigh the benefits. I would like Maggie to explain why she thinks that's the case and I don't feel that she has yet.
10.19.2005 1:35pm
Kendall:
Actually, Maggie is failing to address another issue of almost as great importance. Gay couples are adopting kids (or producing them through IV fertilization and a host mother). Others have touched on this issue but lets come at it from the kid's perspective for just a second.

You're a kid, with two parents you love, who just happen to be a gay male couple (since I don't think Maggie has mentioned "lesbian" once). Unknown to you, only one of your parents is legally your guardian. Your legal guardian is in a bad car accident. Your other father wants to pick you up from school but is unable to sign you out because he's not "related" to you in the state's eyes.

Does Maggie think this is fair? Does she think this is right? Maggie is half right as people are pointing out. The state DOES have an interest in children. In caring for them, in nurturing them, providing them with loving, supportive homes. And doing that, the state has come to the conclusion in the vast majority of states, sometimes means a gay couple. So now the issue is what would give children the greatest chance for success? the state has already voted for the gay couple in some cases, and in those cases, it might be suggested its in the state's interest to promote marriage for those couples. Not for them, but for the children Maggie is so concerned about.
10.19.2005 1:36pm
Defending the Indefensible:
Randy, I agree that the state should recognize (take notice) of marriages regardless of whether they are heterosexual. While I am opposed to the licensure and regulation of marriage by the state, such a recording function is entirely appropriate and even necessary if it wants to usefully be able to make disposition of children and property in the event a spouse dies. However, if the state declines to make such recognition, as is its privilege (it could decline to officially recognize any marriages whatsoever, for instance) then the outcome may be that married people will decline to recognize the state.
10.19.2005 1:36pm
Pro-Marriage:
To exlcude one sex is segregationist, not gender-equality. Requiring two sexes is integrative and is the basis for gender-equality. Why should an integrative, gender-equality, provision be replaced by one that declares sex integration to be unjust discrimination?
10.19.2005 1:40pm
eddie (mail):
Isn't everyone really tip-toeing around the 800 lb gorilla in the room: Religion.

SSM, like abortion, is the golden calf of the "values/cultural war" that is being "fought" in this country. All of the "legal" arguments against SSM ultimately can be reduced to an argument from tradition: Marriage has always meant X. The meta-legal institutions upon which our society is built must be protected by the government at all costs. If this somehow runs into conflict with the actual express goals of our government, then either (a) someone has read the rules wrongly or (b) we must give those time-honored institutions more deference than the individuals the government was created to protect.

To directly address the "procreative" argument, I cannot see where such an argument is restricted, i.e. how can any sex outside of a marriage be "protected" by the government (in fact, using a rational reason basis, isn't it precisely government's obligation to root out all such non-marital sex.

I think all of the legal mumbo-jumbo regarding contracts is simply that. Marriage is a contract in name only. If it were simply a matter of contract law, a lot of divorce lawyers would be out of work. Oaky, that's a pretty broad brush picture, but this discussion is not really about the contract of marriage, but all of the rights and privileges that government bestows upon those that enter into such a contract (no other contract is treated in such a way).

But ultimately, I agree with the person who stated that this is really an ironic discussion from those who on the one hand espouse judicial restraint, but in this case must go outside of the four corners of the Constitution to dredge up concepts like "tradition" and "culture" and then dress these arguments up like legal arguments. Slavery was once an "institution" sanctioned by all segments of our culture. Wars have been fought because certain individuals thought that our culture would collapse if slavery were "outlawed". I mean for god's sake, there's slavery in the Bible. Have I gone to far? Everyone is so sensistive. I do not need to call anyone a bigot for their opinions. I will not accept arguments from supposed intelligent and well-schooled individuals that pick and choose the parts of the law that they find in accordance with their own moral/religious views.
10.19.2005 1:42pm
Duncan Frissell (mail):
I have been unable to find a single quote from her where she says that gays deserve to have basic civil rights regarding housing and employment anti-discrimination laws.


All of the libertarian readers of this blog oppose such regs for anybody (if they don't they're not libertarians) so that's not much of an argument.

Anti-discrimination laws are a major human rights violation that many of us have no problem ignoring.
10.19.2005 1:45pm
Shawn (mail):
So far, what I have pulled from the various threads on this discussion:

Marriage does the following:

1) Encourages direct procreation within a stable framework. (This is Maggie's only point so far.)

2) Creates a stable environment for the nurturing and raising of children.

3) Creates a social support structure that reduces the need for the state to take direct care of individuals.

4) Creates a social preference for monogamy and the general well-being that relationshp type is associated with.


Can others please add to this list? My hope would be a general list of "social goods" that don't specifically reference any sexual orientation. Then the existing state of marriage (fertile couples, adopting couples, childless couples) could be compared against it. And likewise the expansion of marriage to include same sex couples (fertile, adopting, and childless) can be compared against it.

I do think the traditionalist argument has some weight, however, marriage as it exists today dates from the 1960s. It's younger than I am. If you peel away each change to marriage you move back in time. When you reach an impressive number of years into history, you find a tradition where women were chattel. Is it possible to make a traditionalist argument against SSM that preserves the modern role of women in a marriage, reproductive rights (birth control, marital rape), etc?
10.19.2005 1:56pm
Defending the Indefensible:
Eddie,
I don't think I've been tiptoe-ing around religion, as I have repeatedly made the point that marriage is a religious/spiritual institution. It ought not to be a state-created, licensed or regulated privilege.

Religion takes precedence over the state, and here is where things become very confused. Those who adhere to both religion and the state may find they come into conflict when the state treads on that which is superior to its authority. Therefore, they may rationalize that the state should be made to conform with religion. This cannot be done without either establishing a religion or prohibiting the free exercise thereof, or both.
10.19.2005 1:59pm
Jesurgislac (mail) (www):
Taimyoboi: I believe it would be rather difficult to nurture children if you aren't having them...

It would. And since same-sex couples are having children, and adopting children, and providing a nurturing environment for those children, don't you think it's rather odd that Maggie is methodically avoiding all discussion of the benefits to the state in supporting a nurturing environment for children? Her sole concern appears to be that the state should support the conception of children inside marriage.
10.19.2005 2:29pm
Jesurgislac (mail) (www):
Pro-Marriage: To exlcude one sex is segregationist, not gender-equality.

Right. Why should a man be forced to exclude all his own gender when he decides who to marry? Why should a woman be forced to exclude all hers? Gender equality requires that a woman shall be permitted to decide who suits her best to marry, without the state forcing segregation on her: and the same for a man.
10.19.2005 2:32pm
On Lawn (mail) (www):
Shawn,

This is something to really consider here. Marriage Movement listed six dimensions of marriage, and underlying each one is procreation.

But we find many anomolies that are tough to really nail down. There are correlations between marriage and life expectancy, economic status, general health, and child upbringing that for now we say we have a pretty good idea but really can't nail down how or why it happens. The six dimensions probably play a large part. But underlying their significance is the protection of children and their rights to heritage, care, and fostership. In short, responsible procreation.

We can only detect that there really is something important here. When we look at responsible procreation we see a principle that honestly in a humanitarian sense we are barely understanding in the past century ... diversity. Ever since Darwing noted the environmental streangth of diversity we've been more appreciative of it. We are more appreciative of diversity of culture, skin color, etc... And at the core, underlying the system evolution has proven over many many millenia we have the requirement of integration of sexes. The more complex the species, the *more* the requirement for gender integration is.

Some more for you. MommyBrain points out that mothers recieve more benefits from children then fathers do. Fathers have more of an impact on childrens IQ than mothers do. Mothers are physiologically more linked to a child, yet children when born are more often recognized as resembling the father than the mother building a more visual attachment.

There are differences, these differences come together (poetically) with each generation and integrate. With every integration we find a strange act occurs which is different than racial or cultural integration, the children start out just as diverse (genderwise) as the parents started out. It is indeed a path of integration that is unique for everyone to find.

These children have then a gender identity. Not a gender role, though roles are often associated with identities. I really mean identity. "Male" is on my birth certificate, license, etc... Just when children are being raised we see that the governance of the family consists of equal gender representation. This is crucial, its key to the identity of the children as they develop.

Children without fathers are fascinated with super-heros without fathers, or sports stars. Without mothers they imagine princesses, queens, and angels to fill the role. Men can be angels (Gabriel?) and women can be sports stars (Mia Hamm) yet a child growing up wants to see their identity stretched into adulthood in a powerfully gendered way. Because they associate powerfully with their gender identity growning up, with an aversion to associating with the opposite gender.
10.19.2005 2:36pm
Shawn (mail):
OnLawn, based on your references, I've quoted the relevant "dimensions" here:

Marriage is a legal contract.
Marriage is a financial partnership.
Marriage is a sacred promise.
Marriage is a sexual union.
Marriage is a personal bond.
Marriage is a family-making bond.


This is a great list. Thank you for refering it. However, it differs from the list I started in specific way--this list is about what marriage does for the couple and not for society in general. The reason this distinction is important to me is that Maggie's focus is on what society gets out of marriage. I attempted to frame a list from that perspective.

Each of the dimensions you list, of course, describe my own relationship. Hopefully no one is insulted that I see my life partner and I in there. (Minus, of course, the contract, which is what I seek.)
10.19.2005 2:49pm
Dilan Esper (mail) (www):
Duncan wrote:

"All of the libertarian readers of this blog oppose such regs for anybody (if they don't they're not libertarians) so that's not much of an argument."

Of course the position that ALL such laws are inappropriate is not bigoted. But that's not what I was referring to. I have been careful to refer to people who believe that there's nothing wrong with such laws with respect to race or gender, but there is something wrong with extending the same laws to sexual orientation. There is no justification for that position other than homophobia.
10.19.2005 3:19pm
Pro-marriage:
The single-sex arrangement excludes one sex. The conjugal relationship is two-sexed. Each instance of the former is segregationist and each instance of the the latter is integrative. Replacing the conjugal relationship with the non-conjugal relationship sidelines the significance of sex integration. Thus it is SSM is not gender-neutral, it is gender exclusive. It does not belong within the bounds of the social institution of marriage. But it is proposed as a new thing that would replace that institution with something that raises sex segregation as a new ideal -- under the pretense of equal treatment.
10.19.2005 3:49pm
Jon Rowe (mail) (www):

Thus it is SSM is not gender-neutral, it is gender exclusive. It does not belong within the bounds of the social institution of marriage. But it is proposed as a new thing that would replace that institution with something that raises sex segregation as a new ideal -- under the pretense of equal treatment.


The key word here is "replace." How is same-sex marriage going to "replace" the institution of opposite sex marriage?...I'll answer: It isn't. Only if opposite sex marriage were declared illegal and became the only recognized union of two people would SSM "replace" OSM.

This relates to the ruse that SSM opponents try to pull when they say they need to "protect" marriage from SSM. If marriage were a zero sum game -- if there only were a limited # of marriage licenses and gays could take them to the exclusions of heterosexual marriage -- then you might need to protect OSM from SSM. Otherwise, it's just a bunch of nonsense.
10.19.2005 4:51pm
William R (mail):
For a differentlibertarian take on this issue, blogger Jane Galt has some interesting points as does Jennifer Roback Morse "Marriage and the Limits of Contract"
10.19.2005 5:08pm
On Lawn (mail) (www):
> Jon: How is same-sex marriage going to "replace" the institution of opposite sex marriage?...I'll answer: It isn't.

You'll do so by speaking over Pro-Marriage's already provided answer. Which to me is not very intellectually honest, unless you can speak directly to his/her answer.

Only if opposite sex marriage were declared illegal and became the only recognized union of two people would SSM "replace" OSM.

Here you are working on a different dimension of replacement entirely. No one doubts your fundamentalist approach to what a replacement is, however that does not speak against Pro-marriage's position which is only slightly more nuanced.

To me, ss"m" replaces marriage in two ways...

1) For the individual's participating in and for the children who may wind up in thier care.

2) For the purpose of the state, which desperately needs to decipher the purpose of marriage in order to apppropriately address it in policy, law and judgement.

The first is evident, a marriage is either gender segregationist, or gender integrationist. Either or, one replaces the other.

The second speaks to the importance of Maggie, Andrew, and Tom's opening salvo -- that marriage is/isn't entrenched in the purpose of responsible procreation. This is also either or, the state cannot do both. The ss"m" argument as I have seen it is that pandering to the romance takes care of the children. The marriage argument is that pandering to the children takes care of the romance.

These have very large ramifications on policy, law and judgement. SS"m" can be seen, in its pandering to the romance, like no-fault divorce and other policies that actually have weakened marriage over time. I find that the logical extension of pandering to sexual habits to be that not after long people wonder just why the government is encroaching on Hallmark's business model.
10.19.2005 5:08pm
Dilan Esper (mail) (www):
On Lawn:

I am going to say something to you I said to someone else in another thread. It is same sex marriage (or SSM), not ss"m". By putting the "m" in "scare quotes", you are not making an argument. You are not giving a persuasive reason for why same sex marriage isn't a good idea. You are just being snarky-- and insulting to those gays who are legally married and whose relationships are deep and legitimate.

I am going to say this plain as day: ANYONE WHO PUTS THE WORD "MARRIAGE" IN QUOTE MARKS WHEN DESCRIBING SAME SEX MARRIAGE IS DELIBERATELY INSULTING MARRIED GAYS AND LESBIANS. Stop doing it. It just reflects badly on you, and it doesn't persuade anyone.
10.19.2005 5:21pm
On Lawn (mail) (www):

Dillan,

Many people are offended when points are raised and facts etc.. are mentioned that don't put them in as favorable light as they wish to be portrayed. I was in the court room once when the defendant had to be restrained because of an outburst along the lines of, "you can't say that about me!"

To say ss"m" to reflect my feelings on it will of course offend people who dissagree and do not possess tolerance to allow people to express their own opinions. You say it your way, I say it mine. It isn't calling people Nazi's, or uneducated, or anything insulting at all. It is simply noting that there is dissagreement as to whether or not the term to call it is marriage.
10.19.2005 5:30pm
JoeW:
One of the arguments made about this issue is that that married couples receive benefits too numerous to mention in a short argument. Shouldn't we be asking why this is so beyond the same sex marriage argument? Is there really a compelling reason for the government to have so much involvement in people's relationships? Is there any real evidence that many or even most of these benefits actually benefit society at large? Couldn't a very strong argument be made that we would all be better off if the government minimized the rights and benefits it grants married couples to only the bare essentials?
10.19.2005 5:58pm
Jesurgislac (mail) (www):
You'll do so by speaking over Pro-Marriage's already provided answer. Which to me is not very intellectually honest, unless you can speak directly to his/her answer.

It's not very intellectually honest to claim that "Pro"-Marriage made any answer at all to Jon Rowe's point: that same-sex marriage does not replace mixed-sex marriage, and isn't intended to.
10.19.2005 6:20pm
On Lawn (mail) (www):
Jesurgislac,

Its sad how so often debate with you distills to the existencial "yes it is, no it isn't" dialogue. What was said is clear to understand and evident. Your opinion for what it is worth, is noted.
10.19.2005 6:27pm
BobNelson (mail):
Civil unions might be referred to as SS"M". Domestic partherships, as well, as neither are truly marriage. Even two men or two women living together for decades without the benefit of legal recognition of their relationship might be referred to as SS"M". But since what is being discussed here is the legal acceptance of same-sex marriage, why should there be quotation marks around it?
10.19.2005 6:58pm
Dilan Esper (mail) (www):
On Lawn:

So as long as you don't call people "Nazis", you can insult gays' and lesbians' relationships by refusing to use the word that the legal system has duly affixed to them?

You set a really low bar for yourself. As I said, all putting scare quotes around the word "marriage" does is signal to everyone that you hate homosexuals who have tied the knot and refuse to allow them the basic level of dignity of calling their relations by the word that they are legally entitled to employ.

I don't see why anyone should presume that anything else you type is motivated by anything other than the same animus towards gays and lesbians.
10.19.2005 7:01pm
BobNelson (mail):
Regarding Maggie's attitude toward gay people. I think one need look no further than her book title. "The Case for Marriage: Why Married People are Happier, Healthier and Better-Off Financially."

She does not want us to be happier. She does not want us be healthier. She does not want us to be better-off financially.

Need I point out that the title somehow omits any reference to procreation. Odd, no?
10.19.2005 7:08pm
On Lawn (mail) (www):
> Dilan: I don't see why anyone should presume that anything else you type is motivated by anything other than the same animus towards gays and lesbians.

Not animus, but healthy scepticism. In fact of the reasons to read animus in my use of ss"m", some may be substantial but many are petty.

> BobNelson: But since what is being discussed here is the legal acceptance of same-sex marriage, why should there be quotation marks around it?

Curious you should put it that way. It seems obvious that it is exactly for that reason. Because we have one side alleging they are a marriage that the government should recognise in change to what has been sine qua non.

Marriage has always meant a mating relationship, which is designated by dictionaries in many languages, cultures, and nations laws as between a husband and wife, man and woman. The reasons for this are legion and explained dutifully and cheerfully along the lines of procreative potential and other benefits of gender integration.

Its not right because its traditional, its traditional because it is right.
10.19.2005 7:11pm
On Lawn (mail) (www):
She does not want us to be happier. She does not want us be healthier. She does not want us to be better-off financially.

The title poses to answer the question of "why" such is the case. Depending on the answer we see if it is because there is something substantial to gender integration or if all this evidence is the product of a piece of paper and government dole. One may read the book to find out, but I suppose my opinion on the matter is rather obvious.
10.19.2005 7:13pm
BobNelson (mail):
Mr. Lawn,

Thousands of your fellow citizens in the state of Massachusetts are married, not "married", MARRIED. Even more in Canada and other countries.

Certainly for those cases, quotation marks are not warranted.
10.19.2005 8:18pm
Jon Rowe (mail) (www):
-- The first is evident, a marriage is either gender segregationist, or gender integrationist. Either or, one replaces the other. --

This is just an arguendo assumption of yours, the "tautology" which many have pointed out. I could just as easily assert, "marriage can have both mixed genders, or same genders, one and the other." See Mass.

It seems that your "table" v. "bench" argument -- your tautological definition of what marriage is -- leads easily to a compromise. Fine, two men or two women isn't marriage, it's "garriage"; it's a domestic partnership; it's a civil union. Don't call it marriage but give such unions the exact same rights and no less than civil marriage, for equality's sake.
10.19.2005 8:20pm
Jesurgislac (mail) (www):
On Lawn: What was said is clear to understand and evident.

Was it?

Jon Rowe asked: The key word here is "replace." How is same-sex marriage going to "replace" the institution of opposite sex marriage?...I'll answer: It isn't. Only if opposite sex marriage were declared illegal and became the only recognized union of two people would SSM "replace" OSM.

You asserted that this post of "Pro"-Marriage was an answer to Jon Rowe's question:

Thus it is SSM is not gender-neutral, it is gender exclusive. It does not belong within the bounds of the social institution of marriage. But it is proposed as a new thing that would replace that institution with something that raises sex segregation as a new ideal -- under the pretense of equal treatment.

So, "Pro"-Marriage asserts that permitting same-sex marriage somehow "replaces" mixed-sex marriage.

Jon Rowe points out in response that same-sex marriage can't be said to "replace" mixed-sex marriage unless mixed-sex marriage is made illegal.

Then you claim that "Pro"-Marriage's comment is somehow an answer to Jon's point. Which it isn't. As I point out to you. And then you respond: Its sad how so often debate with you distills to the existencial "yes it is, no it isn't" dialogue.

Well, yes. So often, debate with you distills to your making obviously fallacious statements, me pointing out the fallacies, and you complaining about me. It would, on the whole, be better if you did not make the obviously fallacious claims in the first place.
10.19.2005 9:21pm
On Lawn (mail) (www):
> BobNelson: Thousands of your fellow citizens in the state of Massachusetts are married, not "married", MARRIED. Even more in Canada and other countries.

And vast majority of others don't recognize those marriages at all, thus it is "married". I'm only looking at it objectively, and so should you.

>> The first is evident, a marriage is either gender segregationist, or gender integrationist. Either or, one replaces the other.

> Jon Rowe: This is just an arguendo assumption of yours, the "tautology" which many have pointed out. I could just as easily assert, "marriage can have both mixed genders, or same genders, one and the other." See Mass.

I'll repeat with emphasis...

To me, ss"m" replaces marriage in two ways...

1) For the individual's participating in and for the children who may wind up in thier care. [...] a marriage is either gender segregationist, or gender integrationist. Either or, one replaces the other.


your tautological definition of what marriage is

Or table, tree, etc. -- definitions are tautological. To complain about that is to mire yourself in triviality.

____________

Folks, this is just to reply to criticisms, misconceptions and such. It should not be taken as a whole comment. The whole comment remains above.
10.19.2005 10:51pm
Pro-Marriage:
How is same-sex marriage going to "replace" the institution of opposite sex marriage?...I'll answer: It isn't. Only if opposite sex marriage were declared illegal and became the only recognized union of two people would SSM "replace" OSM.

There is no such thing as same sex marriage nor opposite sex marriage. There is marriage which is a social institution that elevates the conjugal relationship. Conjugality is the mating of man and woman; it integrates the sexes. As such marriage does not segregate the sexes as would each and every instance of a man-man or woman-woman arrangement.

Marriage would be replaced by the thing nicknamed "same sex marriage", although SSM itself is not marriage. It is an alternative to marriage that raises so-called gender neutrality above conjugality. That substitution is not actually gender-neutral since it pretends that gender is irrelevant to mating. Neither two men nor two women can mate together. They might simulate mating, they might engage in foreplay of sorts, they might even enjoy non-conjugal pleasures together. But they are incapable of mating and incapable for forming a conjugal relationship and are thus outside of the social institution of marriage.

The substitute that is espoused by some may be worthy of elevation above that of marriage, however, it would not be on the basis of gender equality nor gender neutrality.

If one sex is excluded from the preferential relationship, that precludes equality of the sexes. Not all such inequality is wrong, sometimes it is unavoidable, but it is not the basis for the special place of marital status in society. Sex integration cannot be put on the sidelines without replacing it with sex segregation.

SSM is also not gender netural. Both sexes would need to be included to make it possible for a relationship to be gender netural. That does not happen when two men or two women combine.

It is not necessary to make marriage illegal to give state endorsement to that sort of sex segregation and inequality. The replacement has been argued in court opinions such as Baehr and Goodridge. In each of these the court acknowledged that marriage is the union of man and woman and THEN favored an alternative union that would be taylored to fit the single sexed arrangement. The result is a substitution, not an extension.

What is extended is state endorsement and, supposedly, societal approval of homosexuality under the pretense of sex classification. It is dishonest to argue for gender-neutrality, gender-equality, and against unjust gender discrimination by promoting an alternative that is gender-biased, gender-segregationist, and is designed to address irrelevant classification based on sexual orientation.

The marriage laws do not bar homosexual men and women from attaining marital status. All men and all women may mate and marry. But all same-sex combinations are non-conjugal by their form and are thus outside of the bounds of the social institution.
10.20.2005 6:05am
Jesurgislac (mail) (www):
Pro-Marriage: Thanks - it's now clearer what you meant. (I have to say, it honestly wasn't before.)

If you believe that marriage isn't marriage unless it's a man and a woman marrying, then, yes, when it becomes clear to you that legislation and society accept marriage as meaning two people marrying, who can be of the same gender or of different genders, then what-you-believe-marriage-is has been replaced by something-else.

This is what I refer to as the tautological argument against same-sex marriage: "Marriage has always been mixed-sex and so it should always be mixed-sex."
10.20.2005 8:50am
Pro-Marriage:
Actually marriage has always been a conjugal union. The alternative now promoted as "extending" marriage is actually entirely dependant on a deviation from conjugality. It is clearly a replacement of what the state recognizes as marriage.

What is being replaced is the thing that the state recognizes, not just what I happen to believe marriage to be.

That was even conceded in the court opinions that have favored the the legally radical claim of choice superseding conjugality in determining marital eligiblity.
10.20.2005 6:41pm