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[Maggie Gallagher (guest-blogging), October 20, 2005 at 6:15am] Trackbacks
Gay Marriage for Some, or Unisex Marriage for All?

Orin, I woke up at 4 a.m. thinking about your question, and wrote the post below.

I see you've posted again. Thanks and yes you are basically getting the argument. This may make it more clear:

Orin, thanks for your question, it's a good one: why do I think a small number of gay people marrying will affect anyone else?

The most important fault line in the marriage debate is between a. people who think SSM will help a small number of gay couples and not effect anyone else and b. people like me who think this is going to change fundamentally the nature of marriage.

Obviously I think I'm in the midst of answering comprehensively (i.e. I'm not done yet guys), but let me pause to focus on your particular question, which I'm going to translate as:

"Why does what appears obviously urgent to Maggie (and many others) appear so remote and unlikely to Orin (and Eugene Volokh and a whole bunch of other smart and thoughtful people)?"

This is one of those brick walls I started out talking about, that's preventing us from "achieving disagreement."

I've thought hard about this. Let me offer two possible insights.

a. Differing implicit theory of how law affects marriage.

The now-common view (thanks largely to the SSM debate itself) is that marriage as a legal status matters because it opens the door to a host of benefits that incentivize marriage. (Thus, folks argue, the incentives for opposite-sex couples will still be the same, how can gay marriage matter? As Evan Wolfson likes to say, they aren't running out of marriage licenses.).

I don't think its true the law incentivizes marriage through benefits (although I have to confess I wouldn't mind if it were), so I also don't think this accurately describes how the law of marriage currently matters. Most people don't get anything that feels like a check from the government when you marry. Many, probably the majority of people, take a financial hit when they marry. (Through the tax code and the welfare system, see Eugene Steurele's study in the latest issue of The Future of Children).

If you think about it from a law and econ perspective, it's amazing anyone does marry. Marriage means voluntarily subjecting yourself to state regulation, paying more taxes (or forgoing the EITC), and assuming legal and financial responsibility for another person. In return for what exactly? The right to order an autopsy?

There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don't think they are very powerful as incentives for marriage, for the simple reason that most people marry relatively young, and most of the big benefits occur after one of you is dead (a social security benefit, the right to pass your estate untaxed). Ok., there is health insurance for some people (although others upon marriage lose access to government health insurance. This latter loss may be particularly significant to young pregnant women, possibly people with HIV, too.).

So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage's unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law's core remaining support for marriage (and we've withdrawn quite a few legal supports in recent years).

I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change. Upon penalty of being officially labelled bigots by their government. And everyone knows its open season on bigots in our society.

And I think ordinary folks are right about this instinct, although explaining exactly how to my fellow intellectuals may take a great deal more time and energy. (I've got two more days. . .)

b. Equality versus liberty framings.

Is SSM about liberty or equality? Due process or equal protection?

Another way of putting this is: Is gay marriage like race or like abortion?

Although there were and are efforts to understand abortion as an equality issue (for a while there you were a bigot who hated women if you were against abortion. I'm old enough to remember quite of few of these liberalish moral crusades to redefine certain people they disagree with as evil). But really what the women (and men) who support abortion actually care about is the ability to get one. So the liberty issues was predominant: Abortion advocates were willing to make certain compromises to defuse the culture wars (conscientious objections clauses for example). Today, you can be a good citizens and oppose abortion.

But race is another matter. On race the driving narrative is equality, not liberty And the result is that on race, both law and culture work very hard not to avoid but to win the culture war. Some things we won't do (like locking people up for their beliefs). But many things we will do: stripping radio broadcasting licenses from racial bigots, threatening the tax exempt status of racist organization, refusing to accredit racist schools, insisting the "respectable people" do not associate with racists (thus the GOP establishment repudiated David Duke).

I don't suspect people will try to push the SSM equality narrative to these logical conclusions right away. (And many current supporters of SSM may not want to push it this way at all). SSM architects will let the law sit there a while, work to reduce opposition, maybe wait for some generational change, before taking the next logical step.

But the main victory will have already been won, when they go to that next step: we will have decided that people who have the conjugal vision of marriage as intrinsically the union of husband and wife have no good reason for this vision and are only expressing animus.

If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots

And you are asking me why I think that might affect marriage?

I've sat in rooms where some of the most famous architects of gay marriage have made this analogy (the Christians who oppose gay marriage are just like those poor southern folks who favored segregation. We'll be re-educating them soon, and they will cave.)

The conjugal vision of marriage itself is being stamped as discriminatory and bigoted. Well, under these circumstnaces, I'm pretty sure fewer people will hold it, speak for it, try to transmit it to the kids (over the interference of government schools, who will teach the next generation that SSM was a great civil rights victory over bigots like your parents). Perhaps, under these circumstances, very few people indeed will speak up for this conjugal view.

When "liberalish" elites decide to impose their social moralities on society, generally they've been pretty successful. (The backlash elects Republicans but typically doesn't interrupt the emergence of new socially and legally enforced moral rules).

Sometimes this has been for good, as in race, in the case of SSM, I think with reckless disregard for the consequences.

Ray:
Okay, I see. The reasoned argument against gay marriage is, "If gay marriage is legalised, next thing you know librulls will send us all to camps for re-education". Some people might say that's a bit of an exaggeration, but when you think of it, there are actually no good reasons for gay people to want to get married - there are no legal benefits to being married, only disincentives - and when you strip away the good reasons people might have, you're left with bad reasons. Clearly, gay people want to get married to break it for decent people, and if the decent people don't like it they'll have to be forced to like it.
10.20.2005 7:27am
Jesurgislac (mail) (www):
The most important fault line in the marriage debate is between a. people who think SSM will help a small number of gay couples and not effect anyone else and b. people like me who think this is going to change fundamentally the nature of marriage.

Actually, no. The most important fault line in the marriage debate is between

(a) the people who think marriage is about legally and formally declaring the person you love to be your partner for life, and that the state is involved because there are all sorts of benefits to society in two people joining as a unit - including their providing a stable and nurturing environment to bring up children;

and

(b) the people like you who think marriage is about getting a fertile male to have sex with a fertile female and conceive children that the male will know are his.
10.20.2005 8:15am
Scott Moss (mail) (www):
If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots

And you are asking me why I think that might affect marriage?


I'm still not seeing a shred of a way that allowing SSM affects male-female marriages. I'm married and had a daughter recently. I can't see any reason I'd be less likely to get married and decide to have a child if SSM had been allowed years ago. I can't see any way any male-female married couple would be influenced, in their personal decisions, by some gay folks getting married down the street.

I think it's odd that in the paragraphs where you're purporting to write about the "consequences" of SSM, about how SSM "might affect marriage, you don't actually give any consequences; you just go on about how people with your view shouldn't be considered bigots.

All you have is a play on words: the SSM movement is "impos[ing] its values on the American people" -- which means that folks who advocate for traditional marriage are having values "imposed" upon them. You're stretching the word "imposed": folks against SSM have others' SSMs "imposed" on them only in the sense that they have to exist in tyhe same state/country with SSMs. SSM, or a redefinition of marriage, isn't "imposed" upon my marriage or any other traditional marriage. ("Snookums, you know how I used to want to have kids? Well, that was before Bob and Earl down the block got married and imposed their values on us....")

Honestly, the only reasoned argument for SSM I've read since the guest-blogging began is Todd Zywicki's post. I disagree with it, but Todd is a thoughtful guy who gave real reasons other than Lothar of the Hill People's "it is different [insert professional-looking string cite]... so we must reject it."
10.20.2005 8:19am
tdsj:
"Marriage means ... paying more taxes."

That's not exactly true, is it? even before EGTRRA, there were already a lot of people who received marriage bonuses. Now there are more, and as the cuts phase in, there will be more still.

Marriage penalties and bonuses
10.20.2005 8:23am
Anon7 (mail):
Obviously I think I'm in the midst of answering comprehensively (i.e. I'm not done yet guys)

Groan. So far it's been several long posts and you are still stuck offering the reason that SSM is bad because *you think* it will lead to the end of civilization. Of course, you have offered exactly zero evidence of this.

But race is another matter. On race the driving narrative is equality, not liberty

And according to you, a narrative of equality is somehow a *bad* thing? Or is it just bad when icky gays ask for equality?

I don't suspect people will try to push the SSM equality narrative to these logical conclusions right away...SSM architects will let the law sit there a while, work to reduce opposition, maybe wait for some generational change, before taking the next logical step.

Now the mask begins to slip further. SSM advocates in your view are a shadowy, evil, "liberalish" cabal who lurk around waiting for their oppotunity to strike when we least expect it...

...then people like me who think marriage is the union of husband and wife[,] importantly related to the idea that children need moms and dads[,] will be treated in society and at law like bigots.

You are free to think all of that and be a perfectly wonderful person. However, if you think the government should prohibit other loving couples from building the same type of relationship merely because they are gay, then you enter Orville Faubus territory.
10.20.2005 8:23am
CharleyCarp (mail):
If the shoe fits . . .
10.20.2005 8:25am
Buck Turgidson (mail):
I think I can sum up a response to the argument in one word:

HORSESHIT!

There is not one verifiable assumption and not one legitimate premise in the argument. It's all based on fear-mongering, Catholic mysticism and nonexistent traditions.

The best part is where Gallagher and Orin agree (in statement, if not in principle): Giving gays rights to marry will open floodgates for all other "non-traditional" couples to marry (Ricky Man-on-dog Santorum, anyone?). Of course, this seems to ignore the fact that a large number of marriages in existence now and historically are perfunctory and have no procreational goals in mind (not to mention all the childless couples, especially, by choice). Other marriages fall apart (but remain on the books) once the delivery of the heir is complete--note that here procreation is a personal goal, not a social one (and it makes little difference if the heir is in name only and might have been sired by someone else). There is simply no merit in "marriage is procreation" argument. The Shroud of Turin has more substance to it.

Hey, following Gallagher's arguments, we should require genetic testing of every offspring, to make sure that we've got the right parents. And god help the women who have multiple children from different parents--we might as well take them out and shoot them.
10.20.2005 8:32am
tdsj:
"When "liberalish" elites decide to impose their social moralities on society, generally they've been pretty successful. (The backlash elects Republicans but typically doesn't interrupt the emergence of new socially and legally enforced moral rules)."

gosh, those liberals are more powerful than I thought! Even when they're losing every election in the country, they're still beating us with their nefarious mind control.

Curse those handsome devils!
10.20.2005 8:48am
Dustin R. Ridgeway (mail):

If the principle behind SSM is institutionalized in law, and the law is able (as it is really pretty good at) to impose its values on the American people, then people like me who think marriage is the union of husband and wife importantly related to the idea that children need moms and dads will be treated in society and at law like bigots


.....So? If the principle behind the right of same sex couples to Marry is institutionalized, then the people who don't believe SSM should be allowed will be considered bigots? Color me unsympathetic.

I don't believe women should be permitted to vote. But my traditionalist interpretation of citizenship is considered reactionary and bigoted. It's become a hostile climate for me to pass down these views to my children (who are taught in government schools that women's suffrage was a great civil rights victory over bigots like me). Since the bigot label is increasingly laid against me (and it carries much weight) I question the worth of passing down my views to my children at all.

Don't play the violin.
10.20.2005 8:57am
Simon (391563) (mail) (www):
Marriage's unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Round and round we go. Where we stop, no one knows. Who are these more important social actors? What is the work that they must do? And how is it, exactly, that gay marriage impedes their work? (Please don't tell me that the social actors are the parents, the work they must do is "modeling a relationship that produces children," and that parents will be somehow unable to do so if the children know that if they are gay they can go ahead and get married anyway. Because if that is the sum of your argument, I despair of the time I've spent following it.)
10.20.2005 9:04am
Simon (391563) (mail) (www):
One other thing.

I really do think, btw, that this is what bothers most ordinary people: an instinct that their government, against their will, is telling them (and will re-educate their children) that everything they know about marriage (like the first ingredient is a husband and a wife, duh) is wrong and must now change.

As an empirical matter, I think this is highly contestable if not flat out wrong. What bothers most people I've talked to about this issue is not the idea that their own conception of marraige is might be too narrow or "wrong," but a combination of two powerful (as in "hard to displace") insights: 1) it hasn't been done that way before, and 2) gays are icky, and gay sex is ickier.
10.20.2005 9:08am
anonymous coward:
I think it's been successfully shown that our society's definition of marriage has undergone a big shift--though hardly history's first marriage-definition-shift--that makes SMS possible. (Although I was already familiar with the argument thanks to Dan Savage.)

What I don't think has been seen is any real argument that permitting SMS will accelerate these trends she believes are so dangerous. SMS is a product, not a cause, of a shift in the definition of marriage--a shift that, in my estimation, really is here to stay.

The liberals-hurt-my-feelings stuff is touching; I suspect Gallagher would prefer social opprobrium directed at unwed mothers and cohabiting couples and swingers. There is a very simple answer to all of this: your state is red, my state is blue.
10.20.2005 9:08am
Joel B.:
This "debate," is starting to get surreal. Maggie demonstrates pretty strong arguments against SSM, and the response is always the same, basically coming down to she's such a bigot. Either way, kind of just to add what Maggie is saying, one thing to think about how SSM will hurt marriage is this, look at the way SSM proponents have tried to redefine marriage as about a love relationship, that love is all it takes. Presumably, once this thinking has taken greater hold, one can expect that once the love fades, divorce is to be expected, and since love always waxes and wanes, we can expect to see that more often as we yet again define marriage to be more about love, and less about committment.

It's similar to how no fault divorce has had an effect on marriage. And, NFD has hardly turned out well for the institution of marriage.
10.20.2005 9:10am
tdsj:
"It's similar to how no fault divorce has had an effect on marriage. And, NFD has hardly turned out well for the institution of marriage."


so why don't you spend more time working for the repeal of NFD laws and less time fretting about same-sex marriage? isn't the former more "damaging"?
10.20.2005 9:14am
bearing (mail) (www):
Maggie, I don't have much to add to this debate, but I wanted to thank you for plugging away at it in the face of so much hostility.

This is a key insight, new to me:


Marriage's unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.



It is pretty obvious that SSM advocates want to redefine marriage: want to change it in all the ways that you are saying --- more precisely, want to force into law the change that, in their own minds (and perhaps in a lot of marriages, in reality) has already occurred.

I think the reason that we can't "achieve disagreement" is that SSM advocates can't understand why we don't want to formally acknowledge what they see as already having happened. And SSM opponents say, it hasn't already fully happened, and we want to prevent it from happening more.

Marriage is already thought to be decoupled from having children, because sex is thought to be decoupled from having children. People think contraceptives solved that "problem" some time ago, from one direction, and now IVF/surrogacy/etc. are slowly solving it from the other direction. Couples are expected to spend years without children (getting used to it!) before being "ready," and many of them never are. Meanwhile, out-of-wedlock births are common and freely chosen. So, SSM advocates say, marriage isn't about kids. There's no one-to-one correspondence.

It's decoupled from permanence, too. Divorce is easy. And couples do, sometimes, live their whole lives together without "the piece of paper."

It's decoupled from faithfulness. Adultery has always been common.

Marriage won't guarantee permanence, faithfulness, or children. Theoretically, all of the three are possible without it. So it already appears meaningless. Unless, of course, we ought to be trying to continue to maintain the connections. Unless marriage ought to remain "about children." Unless marriage ought to remain "about permanence." Unless marriage ought to remain "about faithfulness."

Makes sense, unless you live in a world without "ought to"s.
10.20.2005 9:19am
Katherine:
As far as the law and econ stuff: marriage is economically beneficial. For starters, it makes housing and utilities cheaper in a much, much, much more pleasant way than than two roommates with bunk beds. You also save on food, because one person can cook for the other &you end up eating out less often. Then you have health care costs. Then you have the economic security that two incomes bring in periods of joblessness. Then you have have social security survivor benefits. You also have the security that a free, devoted caretaker provides. All of this swamps the tiny "marriage penalty" which has been abolished anyway.

I'm not saying this as a jealous single, I'm saying this as someone who's married. You can get some of those advantages through cohabitation but not all--not the security.

What is NOT economically beneficial is having children. You either lose salary or have to pay for childcare. To say nothing of food, health care, clothes, education, it goes on and on. And taking more than a few months off to care for young children means not only a current, temporary pay cut, but a long term sacrifice in career goals.

All of this swamps the itty bitty per-child credit.

If you were seriously concerned about economic incentives for family decisions, and seriously worried about the disincentives for procreation and childrearing, that's where to look. The answer isn't to treat gays worse, it's to treat parents better.
10.20.2005 9:24am
gergorxyz (mail):
Maggie is exactly right.

The question "How will this affect your marriage" is an irrelevant one. The question is "How will this affect marriage as an institution, and therefore the future of mankind?"

I am amazed that this has generated so much trouble. Why prohibit gay marriage? Because IT"S NOT THE SAME THING. It is not marriage as we have, up to this point, conceived it.

If a marriage-like institution is to be created for gays, it cannot be our normal, pre-existing marriage because that is not what gays seem to want. In the October First Things) Richard John Neuhaus writes:


A leading advocate of gay marriage is William N. Eskridge, author of Gaylaw: Challenging Apartheid in the Closet: who writes that building law upon gay experience:


"involves the reconfiguration of family - de-emphasizing blood, gender, and kinship ties and emphasizing the value of interpersonal commitment. In our legal culture the linchpin of family law has been the marriage between a man and a woman who have children through procreative sex. Gay experience with "families we choose" delinks family from blood, gender and kinship. Gay families of choice are relatively ungendered, raise children that are biologically unrelated to one or both parents, and often form no more than a shadowy connection between the larger kinship groups.



That is a description of something completely different from marriage as we have known it. It is a radical refiguring, and some would say destruction, of the family (as we have known it).

Some would say this is a dangerous bit of social experimentation.

In addition, Andrew Sullivan in one of his books has indicated the need for a different kind of marriage for gays. According to Bill Bennett:


Indeed, even some who claim to be more "traditional" in their views find the strictures of family to be too much. Andrew Sullivan, in a candid admission at the end of his book Virtually Normal: An Argument About Homosexuality, writes that homosexual marriage contracts will have to entail a greater understanding of the need of "extramarital outlets." Although he has since complained that his words have been taken out of context, those words are in fact consistent with his no less candid—even proud—declaration that homosexuals are "not entirely normal," and that their "essential" and "exhilarating" otherness has to do precisely with their breaking out of the "single, moralistic, model" of heterosexual normality.


And finally, Maggie is right. People sense that gay marriage is inherently corrosive and have consistently voted against it by very, very large margins. Not because they are bigots, but because they sense that all sorts of untested, unimagined societal changes lurk in this supposed attempt to let gays live their lives with the one they love.

Last night, I saw a commercial for an upcoming show. The premise of the show was that gay marriage was now law. Young men (about age 20 or so- straight ones) were starting to get married so they could get health insurance. (one had it, one didn't.)

When marriage is reduced to that type of utilitarian tool, then something has really drastically changed.
10.20.2005 9:26am
Anon1ms (mail):
It seems to me the analogy to either race or abortion is incorrect. The more apt analogy is to a country club that doesn't want to accept Jews as members -- not that they are bigot, of course.

The problem is, the institution of marriage is not MG's, nor anyone's, private club.
10.20.2005 9:28am
gergorxyz (mail):
Here's the link to Bill Bennett's statement

And to First Things
10.20.2005 9:29am
Jesurgislac (mail) (www):
Joel B.: Maggie demonstrates pretty strong arguments against SSM, and the response is always the same, basically coming down to she's such a bigot.

Nonsense. See my comment in this very thread.

Further, see other comments in response to her earlier posts. I think people are coming to the conclusion that the only reason Maggie really has for opposing same-sex marriage is that she's bigoted against LGB people, because she has posted at considerable and rambling length without responding to any of the comments to her earlier posts asking her to clarify her assertions.

bearing: Unless marriage ought to remain "about children." Unless marriage ought to remain "about permanence." Unless marriage ought to remain "about faithfulness."

It should. The problem for me is that Maggie wants to decouple marriage from love, from lifelong committment, from nurturing children, from social stability, from all the other things I see as central to the importance of marriage - and reduce it to one point that she can honestly say same-sex couples can't do: getting a fertile male to have sex with a fertile female and conceive children that the male will know are his.

(You do realise that Maggie's claim that marriage is about fertility means that, intrinsic to Maggie's definition, marriage can't be permanent? No woman stays fertile lifelong, and men can lose their fertility.)
10.20.2005 9:30am
jrose:
Maggie,

Observing that those who claim SSM will cause marriage to lose its moorings to procreation will be labeled as bigots, is not an argument that SSM will cause marriage to lose it's moorings to procreation.
10.20.2005 9:39am
maiya (mail):
Maggie's last post makes apparent the divide between SSM opponents and supporters. Let me illustrate by a non-SSM matter.

Opponents of women's suffrage believed that expanding the definition of the voting class to include women would devalue the vote and change woman's historical place in society as the keeper of the home. Some would argue that at this prediction came true. Suffragists welcomed the change. Opponents did not.

The SSM discussion can be similarly parsed. All agree that the definition of marriage will change if SSM is recognized. But some of us believe that such change is necessary and ultimately beneficial, while others view it as a destruction of existing society. Both sides have legitimate points of view.

From my perspective, though, the latter group (i.e. the already privileged group) does not have the right to trump the former without more persuasive arguments than currently offered. One shouldn't be able to stop change simply by saying that the altering of one historical reason for marriage (procreation, from Maggie's point of view) is so negative that the benefits of a new definition should not even be explored and weighed in the balance.

Granted, Maggie has not finished her argument, so perhaps this point will be addressed later.
10.20.2005 9:43am
bearing (mail) (www):
Jesurgislac: "Maggie's claim that marriage is about fertility?" She didn't claim that; you are paraphrasing to suit your own ends.

MG is doing you, and a lot of other SSM opponents, a favor --- if you'd only pay attention.

Classically, a student of debate and rhetoric first had to learn to accurately summarize the position of the other side. Unless he could state the opponent's position clearly, to the satisfaction of the debating opponent himself, the debater was not considered fit to make his own arguments.

This approach makes sense on two levels. First, why should you score points for arguing against a position you clearly cannot understand? Second, why should an intelligent and worthy opponent want to debate you if you cannot respect him enough to enunciate his position with your own voice?

You know, next week, Dale Carpenter will be here, enunciating the pro-SSM side. I am looking forward to reading his arguments and hoping that through them I will be better able to understand --- and argue against --- the most cogent positions promoting SSM.

But to do that, I will have to hear what he is actually saying and not what I'd like to imagine he's saying.

Try this exercise, J: Accurately summarize Maggie's position. Can you?
10.20.2005 9:46am
Ray:
The argument that gay marriage would be a new change to an old tradition is simply wrong, because gay marriage is nothing new. "For a very long period, formal amatory unions, conjugal, elective and indissoluble, between two members of the same sex were made in Europe, publicly recognised and consecrated in churches through Christian ritual."
http://www.lrb.co.uk/v27/n11/davi02_.html
10.20.2005 9:54am
Aultimer:
Maggie -

If we can show that the marginal cases - the marriages that don't happen when SSM is legal - are exactly those that would have done the worst job of raising children would you change your position?

If not, what if we can show that SSM improves the overall quality of raising kids (by SS couples and traditional couples) - would that be enough?

_I_ don't think the "loss" of the marginal marriages are a great concern to society at large and that society is better off without them - but that's just gut feel.
10.20.2005 10:03am
Eric K.:
Here is a story from yesterday that shows a practical effect of SSM:

Gay Marriage Controversy Extends To Massachusetts Schools.

ABC World News Tonight (10/19, story 8, 2:20, Tapper) reported that in suburban Boston, "David Parker was stunned when his 5-year-old son brought back a 'diversity book bag' from kindergarten. Inside -- this book, 'Who's in a family,' about all kinds of families -- multi-racial, single-parent and, controversially, same-sex parents." Parker "asked the school to notify him any time the subject of homosexuality came up." But after "one meeting, Parker refused to leave the school without that assurance. He was arrested. And after refusing to post the $40 bail, spent the night in jail. The school board then obtained a restraining order to keep him off school property. Last month, rallies for...and against Parker. Some parents agree with the school's effort to instill sensitivity in a state where same-sex marriage is legal," but "same-sex marriage opponents" do not.
10.20.2005 10:10am
APL (mail):
I am going to run against the grain a bit here.

I think that Ms. Gallagher's position that marriage is the union of husband and wife importantly related to the idea that children need moms and dads is a reasonably arguable one. I disagree with this position, both in its apparent elevation of the sexual identity of the two-parent pair over the value of good parenting, and in its obvious designation of child-bearing to the status of the prime, and only legitimate, raison d'etre of marriage. I would be happy to debate these issues with her or anyone on the merits.

If she were to win this argument, and convince me, the unspoken conservative question would still remain as to whether, in a nation whose citizens define their relationship to the state through the concepts of liberty and equality, is the importance of the potential adverse consequences such that it is properly the state's role to abdicate its governing principles vis-a-vis its citizens to advance this objective? Is it the government's job to advance social policy at the expense of constitutionally guaranteed equality? With all due respect, this would be a fundamental change in how we govern and how we coneptualize our nation with more palpable long term deletorious consequences to our society than increasing participation in the legal recognition of marriage. Let's give some thought to these consequences.

But I hereby agree not to call her a bigot for espousing this particular position. But how about a little give and take, Ms. Gallagher? How about a frank admission that many people are opposed to gay marriage simply because they despise homosexuals, or have a strong religious feeling that homosexuality is wrong, wrong, wrong. And that these people are, to the extent that they seek to impose those beliefs on other citizens in a free society by restricting the legal rights of those other citizens, bigots by definition. I stand by my earlier post that you are a nice person who is attempting to thoughtfully address what you see as societal concerns. But you are in bed with bigots. Admit it, distance yourself from them, and provide us with the oft-requested assurances that you are not on a crusade against homosexuals (you hinted at this with your comment that if the marriage issue were about benefits, a democratic society could easily resolve the problem). If you don't wish to be called dirty, Maggie, then stop consorting with pigs. If you are unwilling to risk losing the support of those agree to what your position out of animus toward homosexuality, then you had better grow a little thicker hide. Unless, of course, your "don't call me a bigot" theme is really designed to make people feel more comfortable in supporting your positions.
10.20.2005 10:16am
Apu (mail):
I haven't seen any acknowledgement in Maggie Gallagher's writings about the costs to children of gay couples of current law -- it's not just about civil rights for gays (although that's obviously a very important component). Lots of gay couples have children now and they are less protected by the law because their parents are denied marriage. Now, Ms. Gallagher may deem the cost to them negligible, but it should be acknowledged.

(Sorry if this has been raised in a different comment.)
10.20.2005 10:21am
Jesurgislac (mail) (www):
bearing: Jesurgislac: "Maggie's claim that marriage is about fertility?" She didn't claim that; you are paraphrasing to suit your own ends.

Try this exercise, J: Accurately summarize Maggie's position. Can you?

Maggie claimed: "Because there is this one critical, literally irreplaceable social function that marriage does, and only marriage does: making babies and connecting fathers to the babies they make."

So, in her view:

1. Marriage is not marriage if two people marry who either know they are not interfertile (a man who's had a vasectomy, a woman who's had a tubal ligation or a hysterectomy or is past her climacteric, or any same-sex couple) or have no intention of engendering babies together.

2. Use of AID, or adoption, doesn't count. It's still not marriage if the couple intend to adopt or plan to have children via artificial insemination.

In short, for Maggie, marriage is about fertility. She is unwilling to argue that it's about love, or about committment, or about nurturing children, or about social stability: in her own words, the "critical and irreplacable function" of marriage is making sure a fertile woman has sex with a fertile man and makes babies.
10.20.2005 10:24am
dk35 (mail):
A couple of thoughts:

1) Firstly, as a supporter of same-sex marriage, I can only rejoice at Gallagher's post. For she actually seems to be conceding defeat. That's a nice thing. In a way, I guess I do agree with her. All we really need to do is wait a generation or so, and then this will all be behind us, and same-sex marriages will be accepted by most of society.

2) I credit Gallagher for one thing...actually being the first person to bring up the women's liberation movement to the table. For, isn't that what the whole issue of marriage redefinition really about? Of course, I don't agree with Gallagher's dismissal of the movement. What the women's liberation movement suceeded in doing, among other things, was once and for all giving men and women more or less equal status within the status relationship of marriage. In other words, while women ceased to be men's chattel in a strict sense after the change in marriage laws in the late 19th/early 20th century, there were some lingering property rights issues that were only dealt with in the last 30 years.

Again, on this I guess I agree with Gallagher and her supporters on this blog (though, of course I am happy about that they seem to be sad about). What really redefined marriage was the notion that women are equal under the law to men, and specifically that marriage is no longer about turning women into men's property/babymakers. Of course, women in a literal sense are still babymakers. The difference now is that women now have more choice regarding whether they will have babies, who the father of their baby will be, and who will help care for their babies.

3) What Gallagher has unfortunately (predictively, given her previous income sources?) done is politicize this "debate." Liberals are pushing these SSM values, Republicans are the bulwark of the noble resistance, yadda yadda. If Gallagher's goal is to try to keep mothers and fathers together when raising children, and she has conceded that the redefinition of marriage in this society has essentially already occurred, then why not focus on positive steps to incentivize these male/female relationships (both financial, as in increasing child care tax breaks, and social, such as encouraging the market to make it easier for men to play a larger role in raising children, both for the sake of their children and for the sake of women's equality). I think those kinds of policies would find broad support acccross the political question. Gallagher's scaremongering for the sake of Republican recruitment just seems so negative and, ultimately, unfruitful.
10.20.2005 10:26am
bearing (mail) (www):
I asked Jesurgislac to summarize MG's position. He came back with:


So, in her view:

1. Marriage is not marriage if two people marry who either know they are not interfertile....or have no intention of engendering babies together.

2. Use of AID, or adoption, doesn't count. It's still not marriage if the couple intend to adopt or plan to have children via artificial insemination.



J, this does not summarize MG's position. This summarizes what you think are the logical consequences of her position. This is not the same thing. Have you totally misunderstood what I asked, or (and I'm just asking) are you actually incapable of doing it?

Distinguish between the first part of your task(understanding the other side) and the second (arguing against it). I repeat, if you can't summarize her position, you cannot effectively argue against it.
10.20.2005 10:31am
go vols (mail):
"People sense that gay marriage is inherently corrosive and have consistently voted against it by very, very large margins."

I don't think most SSM advocates (or even some folks neutral on the topic) would give that "reason" much weight. If Mrs. Gallagher is trying to advance non-bigoted--i.e. "reasoned"--arguments against SSM, then the "feelings" of the populace aren't going to cut it.

Forgive me, but I'm still waiting for arguments--empirical, if you will--on the corrosive effects of SSM on traditional marriage. Gallagher is like a student who, in writing a 20 page paper, has gotten to page 15 without getting to the heart of her argument. This is the point all of her skeptical readers have been waiting for. Without it, she literally has no chance of advancing her position. Where is it? She's certainly thought about these issues before, right? Is she still Googling?

I understand the Jane Galt argument regarding who should bear the burden of risk when making changes to an important social institution. I just disagree. Moreover, I see concrete, individualistic arguments why gay folks would want to get married, and nebulous, half-formed "social harm" arguments against it. Fear of change, absent any coherent reasons for fearing that change other than "I don't like change and don't want to be called a bigot," seems pretty thin gruel to me. Prejudice (more in the Burkean sense than the more negative connotation) has its place, but I don't think this alone can support the pro trad. marriage position. Attacking my reading comprehension (this means you, bearing) isn't going to cut it. Would one of the posters here like to carry some water for Gallagher?
10.20.2005 10:41am
Angus (mail) (www):
But how about a little give and take, Ms. Gallagher? How about a frank admission that many people are opposed to gay marriage simply because they despise homosexuals, or have a strong religious feeling that homosexuality is wrong, wrong, wrong.

It's obvious from Gallagher's writings elsewhere that she herself thinks homosexuality is wrong, wrong, wrong. She has referred to is as "a sexual dysfunction." She has characterized it as "same-sex attraction disorder," and championed research into methods by which "motivated homosexuals could achieve normal sexual relationships with members of the opposite sex." (Googling on her name and these phrases will produce the relevant cites.)

For Gallagher, marriage is not an exception to the general rule that gays and straights are worthy of equal consideration and respect. It is a socially acceptable piece of ground from which to defend the broader position that homosexuality is disordered and pernicious. Those who are defending her here should be aware of that.
10.20.2005 10:43am
Jesurgislac (mail) (www):
bearing: J, this does not summarize MG's position.

Really? Can you show me exactly how it differs from MG's position?

For starters, please show me where on this blog MG has written about how childless couples can adopt, or where she has said that couples who can't have children together can have them by AID. What she has said - and she has hammered it over and over again - is that marriage is about getting interfertile couples together to make babies.
10.20.2005 10:43am
Cornellian (mail):
And would you be saying this was a "practical effect of allowing inter-racial marriage" if Mr. Parker had demanded to be informed whenever the school brought up the subject of inter-racial relationships? Would trespass be more or less permissible in that situation?

Here is a story from yesterday that shows a practical effect of SSM:

Gay Marriage Controversy Extends To Massachusetts Schools.

ABC World News Tonight (10/19, story 8, 2:20, Tapper) reported that in suburban Boston, "David Parker was stunned when his 5-year-old son brought back a 'diversity book bag' from kindergarten. Inside -- this book, 'Who's in a family,' about all kinds of families -- multi-racial, single-parent and, controversially, same-sex parents." Parker "asked the school to notify him any time the subject of homosexuality came up." But after "one meeting, Parker refused to leave the school without that assurance. He was arrested. And after refusing to post the $40 bail, spent the night in jail. The school board then obtained a restraining order to keep him off school property. Last month, rallies for...and against Parker. Some parents agree with the school's effort to instill sensitivity in a state where same-sex marriage is legal," but "same-sex marriage opponents" do not.
10.20.2005 10:44am
Steve Sanders (mail):

So I believe, as someone whose thought pretty hard about law, public policy and marriage, that the most important remaining way the legal institution of marriage supports the social institution of marriage is in fact definitional.

Marriage's unique status at law helps draw clear public boundaries that distinguish between those who are married and who is not, allowing the more important actors who support the social institution to do their work.

Redrawing the definitional boundaries of marriage, is thus fiddling with the law's core remaining support for marriage (and we've withdrawn quite a few legal supports in recent years).


This, of course, makes no sense. It is circular reasoning: people don't like changing the definition of marriage because it involves changing the definition of marriage; marriage is important because it tells us who is married and who is not.

Implicit in this muddy thinking is the premise that gay people are unworthy of marriage. That's what Gallagher believes, but she thinks she will trouble her "fellow intellectuals" if she says so, so she tries to dance her way around it with non-arguments like this.

No responsible advocate on the other side of this debate claims the marriage laws themselves are bigoted, as Gallagher claims. The bigotry emerges during debates about updating those laws. It inheres in the presumption that gay people are unworthy of marriage, and in the intellectual slovenliness of the arguments of those who are desperate to try to explain why it's OK that gay people remain second-class citizens.
10.20.2005 10:45am
frankcross (mail):
bearing, I notice you aren't summarizing her position either. I'm not sure I can, because it's very imprecise. Her posts are fairly wordy, but they serve the purpose of obscuring the true root of her argument.

I think I am understanding it but it's more of an emotion, rather than an argument. This is classical fear of change. We have a comfortable situation here, let's beware making any changes. You seem the same argument, sometimes from liberals, on free trade, outsourcing, etc. Change is feared simply because it is a change. We imagine all the horrible things that might happen from change. We really don't have good evidence that they will happen and we don't consider the benefits, because we're happy exactly where we are.
10.20.2005 10:49am
CJ:
Good post Maggie. I've been enjoying reading this... nice to see some good thought-out explanations of why this perversion of marriage should not be legal.
10.20.2005 11:08am
Anon7:
It is difficult to summarize her argument, by and large because she cannot summarize it either.

Her supporters on this site say that her argument does not have anything to do with the biological act of conceiving children. OK, fine. Then we agree that physically producing children is not the reason for marriage. Tell me how that leads to excluding gay couples.

So what is then a major purpose of marriage? To encourage parents to raise a child (if they choose to have one) in a responsible fashion. OK, we all agree that it is important to raise well-adjusted kids.

Let's for a moment leave out the question of marriages without children, which she obviously does not want to address. Where her argument fails (indeed seems nonexistant) is in explaining why homosexuals who have children are supposedly incapable of properly raising those kids, and therefore need to be excluded from marriage. Please, someone, explain how she draws that conclusion from anything else she has presented.
10.20.2005 11:11am
Odysseus (mail):
I would like to thank Prof Volokh for this interesting debate. This debate has helped me think through a fasicinating issue which I had successfully avoided so far. It has also proven quite illuminating in ways that most of the posters may not fully appreciate. In keeping with the dinner party advice I think it would be useful to know some demographics of the posters. That would help evaluate the positions. Homosexual/heterosexual, unmarried/divorced/married, children/no children, married >10 years/< 10 years, etc. IRL when I am asked to problem solve I need to know the quality of the data I am evaluating. This includes knowing if an expert has succeded or failed in the task, has hands on experience, has an bias which I can factor in, has studied the problem, or is a kibbutzer.
To start I am heterosexual/married > 10 years/ stepchild(adopted)&another child/ wife had previous marriage/ now have one child who has recently married. I am interested in this issue since most of my children's friends have started to tell us that they want a marriage such as ours, ie a long lasting one, not one like their parents, ie divorced. (BTW these are all upper class kids (I'm getting old, these "kids" are 18-28) whose parents are professional &high achievers).
The demographic data would help evaluate the postitions taken. Everyone has a bias, once it is known it can be taken into account.
10.20.2005 11:12am
Taimyoboi:
APL

"But I hereby agree not to call her a bigot..."

"...they despise homosexuals, or have a strong religious feeling that homosexuality is wrong, wrong, wrong."

Good to see that you can refrain from calling people a bigot... Well at least on an individual basis.
10.20.2005 11:14am
Jesurgislac (mail) (www):
Anon7: Her supporters on this site say that her argument does not have anything to do with the biological act of conceiving children.

While she herself keeps repeating that her argument has everything to do with the biological act of conceiving children. It's kind of weird that her supporters aren't paying attention to what she's saying, isn't it?
10.20.2005 11:14am
Joel B.:
so why don't you spend more time working for the repeal of NFD laws and less time fretting about same-sex marriage? isn't the former more "damaging"?

I think it is most likely that people who would oppose No Fault Divorce would also be the very same to oppose SSM. The correlation is probably exceedingly high. However, opponents of NFD are in a minority, they might be able to muster a majority in some heavily red states, but not generally.

Now let me say, I fret far more about the NFD laws than SSM, BUT the issue at hand is SSM, why should one who opposes NFD be forced to allow SSM just because so much of marriage has already been eroded?

After all, so many words have already explained how heterosexuals have already messed up marriage how could allowing SSM make it worse. It's a frusterating argument to deal with. It's like saying, "your car engine is not well-maintained so it has some performance issues, so you should just forget about regular maitenance cause it's already in bad shape." Just because something is impaired is not a reason to impair it even more.

It's terribly undemocratic to force a loser in one political battle, to when they would be a winner in a subsequent political battle, to say they can't fight that battle because they lost the earlier battle.
10.20.2005 11:15am
bearing (mail) (www):

bearing: J, this does not summarize MG's position.

Really? Can you show me exactly how it differs from MG's position?


Well, for starters, she never said either of those points, so they cannot be a "summary" of her position.

The rules of the game here are: you articulate her position, in your own words, but in such a manner that she herself would agree, "Yes, that is my position."

If you cannot do that, you demonstrate that you are not intellectually capable of arguing against her. Is that so hard to understand?

Orin did it a couple of posts ago, or at least he tried. You haven't. Try again.

To the one who said I should summarize her position: I'm not her opponent. Why should I make it easy for you? Let's see what you're capable of on your own.

Next week, when Dale's here, assuming I disagree with him, I'll come back and try to do what you find so hard.
10.20.2005 11:42am
Bruce Hayden (mail) (www):
Interesting. I read this entire thread and learned multiple times how Maggie was apparently a bigot, but not whether SSM was based on equality or liberty.
10.20.2005 11:47am
frankcross (mail):
Well, bearing, not only opponents need to understand arguments. I'm not really her opponent, in that I don't think gay marriage is a good idea, at this time. But I don't think she's making a good case for the position. Her position seems a little incoherent to me, unless it is characterized by only fear of change, and she's throwing around nutty historical claims (sexual disorganization doomed the Roman Empire) without support.
10.20.2005 12:09pm
go vols (mail):
"The rules of the game here are: you articulate her position, in your own words, but in such a manner that she herself would agree, "Yes, that is my position."

If you cannot do that, you demonstrate that you are not intellectually capable of arguing against her. Is that so hard to understand?"

Hilarious. I hope one of my students tries that argument sometime when they write something equally inscrutable.

The last point of this post, as I see it, is that we shouldn't change marriage because a lot of people won't like it, and they shouldn't have to not like it. Is there more to it than that? Again, bearer, feel free to set up any "rules of debate" that you feel are appropriate, but I implore you: treat me as stupid. Lay out the deeper meaning of this post.
10.20.2005 12:11pm
APL (mail):
Bruce, I would suggest that, from a constitutional standpoint, the argument for SSM is based upon equality, i.e. equal treatment under the law. Thanks to Lawrance v. Texas, the liberty question has been resolved. Gay people have the liberty to engage in interpersonal romantic and sexual relationships. The equality issue relates to how those relationships are treated under the law compared to similar relationships between opposite sex couples.

Taimyoboi, I will clarify my position in response to your post. By definition, one is not a bigot merely because they believe that homosexuality is morally wrong. This is a sincerely held religious belief with which I have no desire to interfere. But people with this belief are bigots when they intolerantly attempt to interfere legislatively or otherwise with the lives and legal rights of those with a different belief. Ms. Gallagher's arguments, at least in this forum, are based on social policy as it relates to the importance of certain attributes to the long term viability of the institution of marriage. Hence, she is not, in the context of her arguments, a bigot.

Make no mistake, I will not hesitate to call a racist a racist, or a homophobic bigot a homophobic bigot. I reluctantly used the term in my debate last year with a state Senator at my Pachyderm club, when he used the primacy of his personal religious beliefs as the basis for urging others to support an anti-marriage amendment. But I am at this forum to learn about, and debate the merits of the socio-political issues that Ms. Gallagher is raising.
10.20.2005 12:19pm
CharleyCarp (mail):
. . . but not whether SSM was based on equality or liberty.

Both.

I think along the equality track, though, myself:

1. Marriage -- a legally binding committment -- is good for society.

2. Gays exist.

3. Gays are capable of committed relationships.

4. Allowing gays to make legally binding commitments to eachother will produce most of not all of the same benefits to society that allowing hetero people to form legally binding committments.

5. No hetero marriage is 'redefined' by allowing SSM, any more than any racially non-diverse marriage was 'redefined' by allowing interracial marriage.

6. The 'harm' alleged to flow from allowing SSM is so speculative as to be nearly indistinguishable from bigotry.

To me, this adds up to the lack of a reasonable basis for excluding gay couples from obtaining a state issued marriage license.
10.20.2005 12:23pm
bearing (mail) (www):
The best you can do is: "Her argument isn't worth summarizing."

Brilliant, that. Saves time, too.
10.20.2005 12:30pm
Progressive Joe (mail) (www):
If your argument is that allowing same-sex couples to marry severs the tie between procreation and marriage and thereby changes the fundamental nature of marriage, then wouldn't allowing opposite-sex couples who have no intention (or ability) to bear or raise children also jeopardize the traditional understanding of marriage? Doesn't allowing these same sex couples to marry when they are absolutely not going to have kids do more to jeopardize the traditional understanding of marriage than allowing gay and lesbian couples who may or may not raise children to marry? Would you support a procreation requirement for straight couples to get married?
10.20.2005 12:46pm
Observer (mail):
APL - It's a little bit early to say that the liberty issue has been resolved by Lawrence. I don't think Lawrence is any more defensible as a matter of constitutional law than Roe, and is unlikely to survive for very long. This has nothing to do with the merits of sodomy or abortion (if I were a legislator or a King, I wouldn't criminalize either); it's just that the Constitution says nothing at all about either, and eventually the Court is likely to see that.
10.20.2005 12:47pm
Progressive Joe (mail) (www):
CORRECTION: If your argument is that allowing same-sex couples to marry severs the tie between procreation and marriage and thereby changes the fundamental nature of marriage, then wouldn't allowing opposite-sex couples who have no intention (or ability) to bear or raise children also jeopardize the traditional understanding of marriage? Doesn't allowing these same opposite sex couples to marry when they are absolutely not going to have kids do more to jeopardize this traditional child-rearing understanding of marriage than allowing gay and lesbian couples who may or may not raise children to marry? Would you support a procreation requirement for straight couples to get married?
10.20.2005 12:49pm
Niels Jackson (mail):
Going back to what "Jesurgilsac" said at the beginning:
The most important fault line in the marriage debate is between

(a) the people who think marriage is about legally and formally declaring the person you love to be your partner for life, and that the state is involved because there are all sorts of benefits to society in two people joining as a unit - including their providing a stable and nurturing environment to bring up children;

and

(b) the people like you who think marriage is about getting a fertile male to have sex with a fertile female and conceive children that the male will know are his.
This is an extremely tendentious way to summarize the debate.

What no one in any of these comment threads (or anywhere else) has ever been able to explain is why the state should give a damn about providing legal status to loving relationships. As Gallagher pointed out early on, there are all types of loving relationships that are very important to people's lives -- best friends, extended family, mentors at work, etc. But the State doesn't give out certificates to "best friends" or "nephews" or "cousins" or "good neighbors" or -- better yet -- to "roommates" or "housemates." Why should the State give out certificates to roommates who happen to claim, at least for the moment, that they "love" each other in a sexual way? What conceivable purpose does the State have in furthering THAT type of relationship as opposed to all the other loving relationships that exist out in the world?

Jesurgilasc claims "all sorts of benefits to society in two people joining as a unit - including their providing a stable and nurturing environment to bring up children." No, there are NOT all sorts of benefits from "two people joining as a unit," any more than there are societal benefits from two college buddies living together. Nice for them; but why should anyone else care?

As for the notion that a few gays are already bringing up children -- that's all fine and well, but it's essentially an accident that any such thing ever happens. If gay people come up with children, it's because they 1) got the children from somewhere else entirely, or 2) reproduced heterosexually with someone outside the relationship. But it's not as if any gay relationships produce children in and of themselves.

To take a concrete example. A guy sleeps with a woman, and produces a child. Both the woman and society have an interest in encouraging the guy to be a responsible adult, to be involved in his kid's life, to meet at least some financial obligations, etc. Marriage is one very good way to strengthen that bond and create such obligations.

By contrast: one gay person sleeps with another gay person. No child is ever going to result from that activity, no matter what. So right there at the first, society doesn't have any automatic interest in making sure that the other gay person lives up to his/her parental responsibilities. He/she can't become a parent through that relationship anyway.

Now imagine that one of the gay people gets artificially inseminated and has a baby, or has a child from a previous heterosexual relationship. Is it the case that SOCIETY has an interest in forcing the OTHER GAY PERSON (who had nothing to do with the birth) to be financially responsible for the next 18 years? Why that gay person and not anyone else? Indeed, why not the actual father?
10.20.2005 1:25pm
CharleyCarp (mail):
Why that gay person and not anyone else?

Because 'that gay person' has agreed to be legally bound.
10.20.2005 1:39pm
Randy R. (mail):
One point Maggie has consistently refused to address is the issue of gay parents who ALREADY have children. If she accept her arguments at face value, that she is worried about the institution of marriage, than what could be more damaging to the instutition than to have people purporting to have a family without the legal accoutrments?
Seems to me that if you want to strengthten marriage, not weaken it, you make it so that everyone who wants in can get in.

But she will never address this issue, because it would only weaken her position.
10.20.2005 1:45pm
Goober (mail):
And you are asking me why I think that might affect marriage?

Yes. We are still asking you that. Because you still haven't articulated a single reason to support your conclusion.
10.20.2005 1:47pm
Randy R. (mail):
Another thing I would like to ask Maggie:
If you think that all gays people could change into being straight if they really really tried reparative therapy, then wouldn't that solve the problem? Shouldn't you then be promosing free therapy for any gay person who applies for a marriage license?
10.20.2005 1:58pm
DM Andy (mail):
I'm going to address Maggie's point about the financial benefits of marriage and how that effects marriage rates.

She posted "There are some big financial benefits to marriage (that are legal incidents of marriage I mean), but I don't think they are very powerful as incentives for marriage..."

I think we can look at evidence from elsewhere, I'll pick on the UK as that is the tax regime that I know best. From 1994 to 2001 the tax system has moved from one that gives tax breaks for marriage to one that gives tax breaks for children. The only remaining tax benefit for marriage is no tax payable on spouse's inheritance.

UK first marriage rates have declined, out of every 1,000 single people aged 16+, 39.8 married in 1994 continuing a decline since the peak years of the 1970s, there was then a steepening of the decline, to 28.1 per 1000 in 2001. However since then the numbers seem stable and have actually risen to 29.0 per 1000 in 2004. Note that this is all prior to the introduction of same sex civil unions, which will come into force on 21st December 2005.

That would seem to be a pointer towards removal of tax incentives to be married leading towards a reduction in first marriages. Do anyone know if that process is confirmed by similar experience in other nations?
10.20.2005 2:16pm
BobNelson (mail):
A poster above asked for full disclosure.

OK. I'm gay (realized so at age five/six). Found my partner at college. That was 26 years ago. We're not married because we can't be.

At the risk of being called a meanie, I suggest folks look into Ms. Gallagher's background as well. Make of them what you will:

http://www.answers.com/topic/maggie-gallagher

http://www.sourcewatch.org/index.php?title=Maggie_Gallagher
10.20.2005 2:59pm
Jesurgislac (mail) (www):
Niels Jackson: What conceivable purpose does the State have in furthering THAT type of relationship as opposed to all the other loving relationships that exist out in the world?

So in your view, the state has no purpose to further the kind of relationship that exists when

you want the person you love to be your partner for life, and that the state is involved because there are all sorts of benefits to society in two people joining as a unit - including their providing a stable and nurturing environment to bring up children;


Jesurgilasc claims "all sorts of benefits to society in two people joining as a unit - including their providing a stable and nurturing environment to bring up children." No, there are NOT all sorts of benefits from "two people joining as a unit," any more than there are societal benefits from two college buddies living together. Nice for them; but why should anyone else care?

Well, that say rather explicitly where your priorities are, if you feel "why should anyone else care?" if a couple are providing a stable and nurturing environment to bring up children.

As for the notion that a few gays are already bringing up children -- that's all fine and well, but it's essentially an accident that any such thing ever happens.

The exact reverse, in fact. When a same-sex couple have children, the one thing you can be absolutely certain of is that those children were planned, wanted, longed for: they are no "accident".

Is it the case that SOCIETY has an interest in forcing the OTHER GAY PERSON (who had nothing to do with the birth) to be financially responsible for the next 18 years? Why that gay person and not anyone else? Indeed, why not the actual father?

So, in your view:

(a) When a child is given up for adoption, the "actual father" - the man who sired the child - is the person who ought to be financially responsible for that child for the next 18 years. Not the parents who adopt the child?

(b) When a couple have a child using AID, whether mixed-sex or same-sex, the sperm donor - the "actual father" is the person who ought to be financially responsible for that child for the next 18 years. Not the biological mother and not her partner, male OR female: the sperm donor.

In situation (a) you will find adoption law is not on your side. In situation (b) I think that would be a really final way of assuming no man would ever donate sperm for fertility treatment ever again, if it meant that he would be financially responsible from 0-18 years for the children conceived using his sperm.
10.20.2005 3:11pm
bearing (mail) (www):
Jesurgislac:

Commenter "Law Student Kate," saying she disagreed with MG, successfully summarized MG's argument in comments to another post here.

It is, as I said, not impossible. I share her dismay that most of the commenters appear unable to even comprehend MG's arguments.

And no, I don't at all mean to say "if you understood, you'd agree."
10.20.2005 3:31pm
DM Andy (mail):
Bearing, I understand Maggie's arguments, I just think that she's shown no evidence to back those assertions up.
10.20.2005 3:45pm
Maggie Gallagher (mail) (www):
On the costs to gay children. This is an important moral point. I have three responses.

1. If the issue is establishing legal parent relations second-parent adoption is more clearly targeted than SSM. Its not obvious how gay marriage will protect parent-child relations in gay couples
2. There's an issue of proportion here, there are 70 million children and maybe 24 million fatherless children. Acc to the 2000 census there are less than 200,000 households consisting of a same-sex couple with children, and the majority of these are likely gay people who produced children conventionally and later paried.

3. I don't know how or whether gay marriage will protect children of gay couples. REmember children in remarried households do not better, on average, than children with solog moms. The direct legal incidents of marriage aren't very important for protecting children. Marriage as we now have it protects children to the extent it gets men and women who make children to raise them in reasonably harmonious single family unions. I just don't have any clear picture, from the social science evidence, how the legal structures of marriage will affect the small number of children raised in gay parent households.
10.20.2005 4:06pm
Jesurgislac (mail) (www):
Maggie: If the issue is establishing legal parent relations second-parent adoption is more clearly targeted than SSM. Its not obvious how gay marriage will protect parent-child relations in gay couples

So, in your view, an adopted child gains no benefit at all from the adoptive parents being married?

There's an issue of proportion here, there are 70 million children and maybe 24 million fatherless children. Acc to the 2000 census there are less than 200,000 households consisting of a same-sex couple with children, and the majority of these are likely gay people who produced children conventionally and later paried.

So because it's (proportionally) a small number of children affected according to the 2000 census, you feel that it's not important to give them the same benefits as any other children, including married parents?

I don't know how or whether gay marriage will protect children of gay couples. REmember children in remarried households do not better, on average, than children with solog moms. The direct legal incidents of marriage aren't very important for protecting children

So, basically, it's only important that a couple are married when the children are conceived and born? This is pretty much what I summarized as your belief and at least one of your supporters protested that you couldn't possibly mean that: you believe that providing a stable and nurturing environment for children is not among the benefits of marriage.
10.20.2005 4:56pm
JDS:

If you think about it from a law and econ perspective, it's amazing anyone does marry.


As is customary, read "intelligent" for "law and econ."

The real issue is this: why is the state so hostile to the ancient religious institution of marriage? Indeed, it seems to me that the Free Exercise clause might be a reasonable constitutional argument against the adverse tax and other financial consequences or marriage.

Why does anyone resist the foolish quest of gay coupoes to take on the punitive Married-Filing-Jointly income tax status?
10.20.2005 5:03pm
Niels Jackson (mail):
Jesursiglac -- you misunderstand the word "accident." I was using it not in the colloquial sense of "not intended," but in the more philosophical sense of "something extraneous." IOW, "accident" as the opposite of "inherent." If a gay couple procures children from somewhere, this is not because of anything that is *inherent* in gay sexual activity. Thus, society doesn't have the same overwhelming interest in making sure that gays take responsibility for their sexual activity.
10.20.2005 5:37pm
jrose:
Maggie: Marriage as we now have it protects children to the extent it gets men and women who make children to raise them in reasonably harmonious single family unions. I just don't have any clear picture, from the social science evidence, how the legal structures of marriage will affect the small number of children raised in gay parent households.

The parallel theory is that SSM protects children to the extent it gets a gay person who makes children to raise them in reasonably harmonious single family unions (the biological parent, the parent's same-sex lover, the children).
10.20.2005 6:45pm
gergorxyz (mail):
From Go Vols:


"People sense that gay marriage is inherently corrosive and have consistently voted against it by very, very large margins."

I don't think most SSM advocates (or even some folks neutral on the topic) would give that "reason" much weight. If Mrs. Gallagher is trying to advance non-bigoted--i.e. "reasoned"--arguments against SSM, then the "feelings" of the populace aren't going to cut it.



Who said these are the "feelings" of the populace? These are the rational conclusions that millions of people have come to based on several years worth of public debate and discussion, billions of discussions over the dinner table and a very concerted push for the idea by all types of media people, professors, newspapers and so on.

If you have extremely large percentages of the population coming to one conclusion, it says something. (See The Wisdom of Crowds by James Surowiecki) It's not prood positive but it is good evidence. A large percentage usually means that there are no good practical - as opposed to theoretical - arguments in favor of a proposition. You can spin little webs of theory all day. But in the end we all live in a practical world, and the population, which has reams of experience from a jillion different angles is a good check on the untethering of rationales from practice.

It really is sad that most arguments of the proponents seem to be of the "you're a bigot" variety.

That says something about their position. And that is certainly less persuasive than the fact that large majorities have concluded it is a bad idea.
10.20.2005 11:02pm
Jesurgislac (mail) (www):
Niels Jackson: you misunderstand the word "accident." I was using it not in the colloquial sense of "not intended," but in the more philosophical sense of "something extraneous." IOW, "accident" as the opposite of "inherent."

OK. Thanks for explaining.

If a gay couple procures children from somewhere, this is not because of anything that is *inherent* in gay sexual activity. Thus, society doesn't have the same overwhelming interest in making sure that gays take responsibility for their sexual activity.

So, your view is simply that couples that aren't interfertile shouldn't be allowed to marry, because any children they have will be "procured" rather than conceived between them?

Really and honestly: I'm thoroughly confused by the Maggie Gallagher anti-marriage theory. She (and her supporters) appear to be operating on the theory that restricting marriage strictly to het couples who at least look interfertile (even when they're not) is valuable because, she theorizes, it encourages people to make babies inside wedlock. Why is this valuable? Well, because we need more babies.

But nowhere in all of this is any recognition or respect for marriage as a nurturing/stable environment within which to bring up children. Conception and birth appears to be all the Gallagher theory of marriage calls for. Children who were adopted or conceived by AID don't need married parents: sterile couples don't need to be married: nothing matters, in this Gallagher view of marriage, except interfertility.
10.21.2005 7:05am
Chairm Ohn:

"So, in your view, an adopted child gains no benefit at all from the adoptive parents being married?"
Maggie did not say "no benefit at all".

But if legal structure of the child-parent relationship was the issue, then, according to Maggie, it seems obvious that second-parent adoption would be more straightforward.

I'd add that this would be so whether or not the second-parent is the same sex as the other parent.

Now, an SSMer might have a thoughtful response to the questions clearly implied in Maggies's comment:

How would enactment of SSM protect legal parent-child relations?

And

How would the legal incidents of marriage protect these particular children; and does gay marriage have the merit of being a more direct legal solution than second-parent adoption? If yes, to what degree? If no, then, how is it relevant to enactment of SSM?

A helpful response would take tentative steps toward clarifiying the disagreement.

I've commented further at Opine Editorials.
10.21.2005 8:12am
Chairm Ohn:
Correction: If no, then, what is the relevance of SSM to these children?
10.21.2005 8:18am
Jesurgislac (mail) (www):
But if legal structure of the child-parent relationship was the issue, then, according to Maggie, it seems obvious that second-parent adoption would be more straightforward.

Surely it would be far more straightforward for a same-sex couple to adopt as a couple? Which is what happens when mixed-sex married couples adopt. So, it would be a clear benefit to adopted children if any couple in a stable long-term relationship could adopt as a couple, whether married or not.

Maggie did not say "no benefit at all".

Maggie has consistently failed to indicate any benefits to children she perceives from marriage. Presumably (she's had long enough) if she could think of any benefits children gain from their parents being married, she'd blog about them here.
10.21.2005 9:35am
Chairm Ohn:
There is more to this than the critical and seemingly hurried response above would suggest.

"it would be a clear benefit to adopted children if any couple in a stable long-term relationship could adopt as a couple, whether married or not."

That is a proposal to change the protocols of adoption to directly provide for unwed adoptive parents to qualify as twosomes.

In her recent comment in this thread, Maggie explained that --


Marriage as we now have it protects children to the extent it gets men and women who make children to raise them in reasonably harmonious single family unions.
10.21.2005 10:31am
Marc Gersen (mail) (www):
I suppose someone who hadn't taken money from the Bush administration would have cited the more recent brouhaha over George W. Bush's fundraising at Bob Jones University, rather than David Duke.
10.22.2005 7:58pm