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[Maggie Gallagher (guest-blogging), October 21, 2005 at 10:47am] Trackbacks
The Marriage Debate, a few last thoughts:

Well, bad time management on my part.

No time to introduce you to the joys of theories of the cognitive nature of social institutions, the relevance of the New Institutionalist Economics understanding of isomorphic institutional change, the developing legal pressures in Canada to repress opposition to its new normative understanding of marriage, or even why I think the most likely outcome of same-sex marriage is not polygamy but the end of marriage as a legal status.

Lucky you.

Thanks Eugene, for this opportunity. I know you know this, but you've constructed a pretty rare and special place here. I appreciate your generosity to me, and to those who disagree with you on this issue.

The wall is still up pretty high there. Maybe a few chinks of air and light that open up the possibility of understanding each other. But clearly not many.

A few last thoughts:

Remember how we were promised that unilateral divorce would expand liberty, and only affect people in bad marriages? Meanwhile the government reduced everyone's marriage contract to the status of a gambling debt--alone of contracts, marriage promises cannot be enforced. Unilateral divorce changed the whole culture of marriage, not just those who divorce. And the people who advocated for it were so sure that more divorce would make children better off, weren't they? Only a fool, or a religious zealot, could disagree.

Or think about legal polygamy. Seriously, how would other people's polygamy affect your marriage? Even in polygamous societies most people are monogamous after all. Why would anyone imagine that change in the law would matter? If you can imagine how, you can at least begin to see why so many of us think SSM is going to profoundly change the meaning of marriage in this society.

Or take the fact that marriage is an economic partnership. Suppose we expand the definition of marriage to include two business partners? How could that possibly hurt marriage? After all we aren't running out of marriage licenses, are we? Those who want their marriage to have something to do with sex and intimacy, would still be free to do so, no?

Ridiculous, I can hear SSM advocates say. SSM is not like that. Because in their heads the core definition of marriage is already personal intimacy and commitment, and gay people already "fit." For some people, that's the answer. For me and I think millions of American children, that is the problem.

But of course if you are advocating for SSM, you really do know that social meanings matter. You've made passionately clear that an identical institution called "civil unions" that delivered all the legal incidents of marriage just wouldn't be good enough, because it doesn't mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don't accept your moral view, to the best of your abilities. And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use government power to impose a new morality on a reluctant people.

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That's what "no difference" means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.

The internal contradictions are intense: Gender doesn't matter, except when orientation is involved, in which case gendered sexual desire matters so much we are morally obligated to restructure our most basic social institution for protecting children, so that all adults get their needs for intimacy and social affirmation met equally. Orientation, as a classification, assumes gender is a real and significant category of human existence; but apparently only for gays, and not for children.

And the people who advocate SSM do so (mostly) with very little insight into the magnitude of the change they are asking us to accept. After all you've decided SSM is a civil right, so you get to impose your morality on people in good conscience (that's what civil right means), and so you now don't have any responsibility or burden of proof in this matter: it is totally up to others to prove to you there will be any negative consequences.

I have most of human history on my side. You have your personal moral conviction that only hate explains why people object.

This is my one big message for SSM advocates: don't minimize what you are proposing. Take responsibility for it.

I'm grateful to the reader who described my view as saying that SSM will be the straw that breaks the camel's back. But that straw thing doesn't quite capture it. Because to me, SSM is a much greater change in marriage than either unilateral divorce, or polygamy. From where I stand, it is about as big a change as one can propose.

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it's your only hope, because to get across that desert you need a camel.

Now, chop off its legs and order it to carry you to safety.

That's what SSM looks like, to me.

Same-sex marriage is not a civil right, because marriage is not discriminatory. It has its own dignity and purpose, rooted in real and enduring human realities. Marriage is deeply important not just to those who personally do it, but to anyone who cares about the future of the society we share.

Every society needs some social institution that channels the swirling erotic energies of young men and women towards each other, and towards generativity both in the negative sense (avoiding unwed childbearing) and the positive sense (encouraging babies). You need some way to tell men (and women) that fathers matter. In absence of some such powerful social institution, children suffer enormously, communities and societies are burdened with all kind of costs, government gets more deeply and intrusively involved in directing the details of family life. And yes, if the social institution weakens enough, the actual future of the society itself is threatened.

Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea.

SSM advocates instead demand we reshape this institution in law to be more equally affirming of adults' diverse intimacy needs. That is some people's idea of the great moral crusade of our time. Here's mine:

Children have a right to a society that respects their deep, passionate longing for a mother and a father; one that calls on adults to make significant sacrifices to satisfy this longing.

In the middle of a crisis of fatherlessness of unprecedented proportions, proposing to conduct this kind of legal experiment on marriage is not reasonable. It is not kind; it is not compassionate and it is not remotely just.

Steve:
Did I miss the part where we established that civil unions are an utterly unacceptable compromise to SSM advocates? Because I think most of them would be quite happy with the legal incidents. If that's really the middle ground most people can agree on, then let's call it a day, and maybe in a decade or two we'll see if people are so freaked out over the nomenclature.
10.21.2005 11:54am
Dave Hardy (mail) (www):
The Romans had it right.... Polybius, I think, recounts a debate on renewing the marriage laws (which imposed an annual fine on unmarried males). One old Senator arose and, since he was known as a family type of fellow, all expected a stirring speech. Instead, he said simply, "Since, conscript fathers, it is not given to us to live in peace with spouses, or as a people, to live without them, it is appropriate for every Roman to sacrifice their personal interests to the good of the people."
10.21.2005 11:59am
Richard Bellamy (mail):
Man! Am I glad that's over.

I know I didn't HAVE to read it, but you don't HAVE to look at a train wreck either. Never have a seen so many "therefore"s that did not logically follow from the preceding text.

Can I suggest, though, that when gay marriages are legalized, instead of quaint traditions like "breaking a glass" or "jumping a broom," we could have something truly epic -- "amputating the camel."
10.21.2005 12:03pm
Atty in Chicago:
Maggie Gallaghe - I've really enjoyed your clear reasoning. Thank you. Radio talk show host Michael Medved is probably the best live pro-marriage advocate and debator I've ever heard. He even has an excellent CD called "The Top 10 Lies About Same-Sex Marriage" which directly shoots down all the points gay marriage advocates bring up.

All the commentors here who think the government should encourage gay sex and gay marriage, and you think you can defend your position, please call into the Michael Medved radio talk show program, it is a 3-hour debate every day. I listen daily so I hope to hear you.
10.21.2005 12:05pm
Simon (391563) (mail) (www):
Well, this was a productive week. I'd like to thank Maggie Gallagher for making such great strides in presenting incisive, original, creative arguments against gay marriage (or even against the misunderstandings that occur during the gay marriage debates), and also to thank Eugene for allowing her this opportunity, which, I'm sure, has increased the standing of the Conspiracy in the eyes of so many people.
10.21.2005 12:07pm
DSEK:
OK. I've read all of Ms Gallagher's posts and many of the helpful and unhelpful comments posted by readers. As a regular reader of the Conspiracy with reasonable intellectual faculties, an open mind, and a good deal of patience, I have to say

"What the h*ll was that all about????"
10.21.2005 12:08pm
Steveo987 (mail):
I think it's safe to say that MG is the worst guest-blogger ever featured on the VC. Is anyone else even close?
10.21.2005 12:11pm
Matthew Patterson (mail):
I am now seriously starting to question Ms. Gallagher's attitudes towards gay people in general. Don't want them getting married? Well, there are probably justifications; I haven't heard good ones coming out of her, but I'm sure they exist. But the relentless insistence that society need only look out for its heterosexual members, combined with bits of quasi-Catholic mysticism like the following:

...the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen...

seriously makes me question Gallagher's attitude about gay people and their role in society in general. For if one's view is that men and women are "called to join together in love" independent of anything else, what happens to the modern conception of sexual orientation? And how then is the gay person to be treated in a society that seriously uses *this* principle to guide it? (Which of course modern-day American society doesn't for a variety of reasons.) That ultimately concerns me more than any of the marriage arguments. I'm beginning to see this as the start of a greater effort to further push gay and lesbian individuals to the fringes of society, to devalue their most deeply felt affections, and to encourage the attitude that their lives and relationships are irrelevant at best, and aberrant at worse.
10.21.2005 12:12pm
Jesurgislac (mail) (www):
Well, I was going to comment one last time.

But who can top DSEK's one-line summary?
10.21.2005 12:12pm
John H (mail) (www):
I can't believe Maggie insists on completely avoiding the issue of same-sex procreation technology. This development (three to five years away) totally reverse her position on SSM, because now two women would make babies, and society should connect those women to their offspring just like it should connect any other child's parents.
And can't she see that she herself is seperating marriage from procreation when she fails to cast the issue of whether or not to allow marriage as EXACTLY THE SAME as whether or not to allow procreation.
We should not be discussing any other issue except whether or not to ban attempts at conceiving children that are not the union of a man and a woman. This is clearly the most important issue, perhaps the most important issue that humanity has ever faced. We have to face that issue. Not doing it at the same time we face the marriage issue is completely irresponsible. It IS the marriage issue.
10.21.2005 12:12pm
Chairm Ohn:
If legal incidents comprise the pize, then, Reciprocal Beneficiaries is the best middle ground.

* * * *


The internal contradictions are intense: Gender doesn’t matter, except when orientation is involved, in which case gendered sexual desire matters so much we are morally obligated to restructure our most basic social institution for protecting children, so that all adults get their needs for intimacy and social affirmation met equally. Orientation, as a classification, assumes gender is a real and significant category of human existence; but apparently only for gays, and not for children.


But Maggie is correct about that.

The SSM argument devalues sex integration in the name of "gender equality", which is actually gender exclusion in each instance of the single-sexed arrangement. Hidden in plain site under the claim of unjust gender discrimination is the demand for an entitlement based on classification by sexual orienation.
10.21.2005 12:13pm
Bowser:
Maggie, you never did get past the "sex makes babies" argument, did you? I think you deserve an A in your junior high sex-ed class. Nice job.

At least you did increase my understanding of the anti-SSM side - that it's supported by illogical arguments and predict the doom of Western Civilization. I always thought that someone could be intelligently and reasonably argue against SSM. After this "dialogue", I now understand that to not be the case.
10.21.2005 12:15pm
Crane (mail):
Does the final argument really boil down to, "Marriage is for making babies, and babies need to be raised by their biological parents" or did I miss something? Again, it's hard to avoid the implication that any family where the kids were not made by the couple raising them (adoption, blended families, etc) is second-class.

Regarding divorce: does Ms. Gallagher somehow believe that the expansion of divorce laws was just crammed down the throat of an otherwise devoted and faithful populace, and that it then corrupted them? These laws were passed because a significant chunk of the population wanted the freedom to end unhappy marriages without one party having to commit a major breach of the marriage contract first. Would it be better for society to restrict divorce to cases where one person had committed adultery, beaten the other, or abandoned the family?

A side note - it used to be that women killed their husbands much more than they do now. I don't have the numbers, but there was a significant drop in the wife-on-husband murder rate soon after divorce became more accessible.
10.21.2005 12:23pm
Deontologist (mail):

After all you’ve decided SSM is a civil right, so you get to impose your morality on people in good conscience (that’s what civil right means), and so you now don’t have any responsibility or burden of proof in this matter: it is totally up to others to prove to you there will be any negative consequences.


That's not quite what civil right means, I think. If people do, in fact, have a genuine right to marry any one other person they like, then whether this has large-scale consequences, positive or negative, is largely irrelevant (time, place, and manner aside- such considerations might be capable of providing a case to temporarily suspend SSM right only if, say, there was in fact a major population crisis). Only a certain kind of utilitarian would deny this- and, I think, only that same (rather odd) sort could accept the argument against SSM that you've been presenting here. Wherever rights derive from, it is not from the common good or the interests of society, and so considerations of the common good cannot show that people do not possess a right. On the contrary, the right takes priority over the good. This is, I think, the fundamental insight of liberalism in both its egalitarian and classical forms. Insofar as the form of you're argument rests on denying this, it rests on denying one of the core values of American political society.
10.21.2005 12:23pm
Hans Bader (mail):
I'm not absolutely sure what my position is on the gay marriage issue, but this post finally offers one cautionary warning that has some validity: the fact that "progressive" marriage law "reforms" are often oversold, frequently go awry, and often harm the people they are supposedly intended to help.

The biggest "progressive" reform to marriage laws, no fault divorce was sold as a way of ending marriages that both partners wanted to end, but couldn't, under fault-based divorce laws.

Instead, no-fault divorce laws ended up paving the way for unilateral divorces by one spouse over the objection of the other. (Most divorces are not "mutual," and after getting a divorce the spouse who initiated the divorce usually ends up getting divorced yet again from her subsequent spouse, since most second marriages end in divorce. Getting rid of your current spouse doesn't get rid of your own difficulties relating to the opposite sex).

What guarantee do we have that gay marriage will not lead to similar unforeseen consequences?

And no-fault divorce does not benefit kids, either. it turns out that kids can be quite happy in an intact household with a mom and dad even when mom and dad are not romantically or sexually satisfied. They are less happy when the parents divorce, even if they remarry to other people and the subsequent marriage lasts.

No-fault divorce may be good among childless couples who don't seek alimony from each other, but it's bad for everybody else.

Does a gay businessmen really want to get married to his boyfriend when doing so will expose him to lifetime alimony payments should his boyfriend divorce him?

In most states, alimony is only paid by husbands to wives, despite the Supreme Court's decision in Orr v. Orr (1979) that alimony cannot be based on gender. (In practice, even poor husbands who put their wives through medical or law school are typically denied alimony, while even wealthy wives have a shot at getting alimony from slightly wealthier husbands).

However, California, which is home to some of the largest gay communities, is an exception. In California, unlike most states, men do get alimony (although typically less than if they were women). And in California, it is strictly forbidden to consider fault in alimony and property distribution, even if the parties agree to that in a prenuptial agreement.

So if a gay businessman marries his under-employed boyfriend, then seeks a divorce after the boyfriend turns physically abusive, he could end up paying the boyfriend a lifetime of alimony payments after divorcing him.

Is that really what successful gay men want? The misery of a lifetime of alimony payments?
10.21.2005 12:24pm
A C Britzer (mail):
"Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it’s your only hope of survival, because to get across that desert you need a camel."

But what if there's another animal that works just as well, but 5,000 years of tradition make it taboo? Does one person--or 500, say--using a mule make life more difficult for the traditional camel users? If you start with the premise that your solution is the only solution (i.e., "it's your only hope of survival"), then all arguments must lead to that solution. Where's the willingness to consider other premises?
10.21.2005 12:24pm
Bemused:
Maggie: No time to introduce you to the joys of theories of the cognitive nature of social institutions, the relevance of the New Institutionalist Economics’ understanding of isomorphic institutional change, the developing legal pressures in Canada to repress opposition to its new normative understanding of marriage, . . . .

Oooh...that sounds smart! But even if Maggie had all the time in the world to discuss these and other topics, I seriously doubt she would ever be able to give us a succinct, clear, logical synopsis of her position. She has plenty of conviction, but just doesn't seem to be able to wrap he own head around her own ideas.

Tnank God this is over.
10.21.2005 12:25pm
Public_Defender:
So, the anti-gay marriage people have "tradition" on their side? Balony. Until the last few decades, traditional marriage was limited to a man and woman of the same race, religion, ethnicity, an social class. And, as I have shown in other threads, husbands were allowed to rape their wives without legal consequence.

Anti-gay marriage people run from or embrace "tradition" as tradition conflicts with or fits their own personal prejudices.

And the argument that allowing a few gay people to marry is a worse threat to marriage than divorce is so silly that it does not deserve a response.
10.21.2005 12:29pm
Steveo987 (mail):
I'm beginning to think this whole thing was a setup job by a pro-SSM Eugene Volokh. Show how incoherent anti-SSM arguments are, etc.
10.21.2005 12:33pm
Goober (mail):
Bellamy---

Snicker. Heh heh.

On a more general note, I'm beginning to suspect that the reason we never got through to Maggie is we didn't explain to her what the word "reason" means as we were using it. Oh well, that opportunity's lost. I don't think anyone will weep for it.

And to all the readers here who think that Maggie's done a bang-up job exposing all the lies about same-sex marriage, yada yada yada, hopefully you'll get the point: Can anyone point to a single statement made by Maggie Gallagher this week such that, if you believed the factual underpinnings of that statement, would tend to lead to the conclusion that same-sex marriage ought not to be allowed? I don't mean a rebuttal to an imaginary counter-argument, I mean can anyone point to a single reason against gay marriage that was offered by Ms. Gallagher?
10.21.2005 12:37pm
Burt Likko (mail) (www):
Well, although I continue to disagree with Ms. Gallagher, I for one will thank her for expressing her views and defending them against the relentless criticism of the VC commenters. Meaningful dialogue is useful for everyone involved even if consensus is not reached.

I personally believe that if marriage is a 5,000-year-old social institution, a change in the laws will not affect the weight and social importance of that concept in our collective culture. Permitting interracial marriages did not do this; permitting itter-religious marriages did not do this; permitting sexless or childless marriages has not done this. Even if marriage as a legal institution vanishes altogether -- a result at the end of the slipperly slope that I cannot foresee the way Ms. Gallagher does -- marriage as a social and cultural institution will not go away so easily.

I also am perfectly happy to see "civil unions" instead of "marriages" made available so long as the legal incidents of a civil union are identical to that of a marriage. A rose by any other name, and all. If the social prestige attached to a civil union is lesser than that of a marriage, so be it; I would expect, however, that given time the two will be seen as the equivalencies that they truly are, and our culture will prove to be stronger and more resilient than Ms. Gallagher fears.
10.21.2005 12:41pm
Antonin:
Goober:

can anyone point to a single reason against gay marriage that was offered by Ms. Gallagher?

Well, she did offer the usual canards about how gay marriage will lead to polygamy. . .
10.21.2005 12:41pm
JW (mail):
I really like how Maggie alluded to all of the really sophisticated and scientific arguments she totally intended to make, but couldn't because she ran out of time. Yeah, and I have this really hot girlfriend who's a lingerie model, but she lives in Canada, so you wouldn't know her.
10.21.2005 12:43pm
Goober (mail):
No, she didn't! That's the amazing thing, she never offered anything like a reason (speaking in the philosophical sense) that allowing gay marriage would do anything! Her argument from polygamy was merely one of those imaginary rebuttals---if you can't distinguish between straight marriage and gay marriage, how can you distinguish between monogamy polygamy, that kind of reasoning. (Oddly, I've never met anyone, gay or straight, who can't tell the difference with polygamy. Oh well.)

This is the thing that's astounding to me, is that there was literally no point at which she said: "Here's a reason (using the philosophical sense of the word) why gay marriage will lead to something bad." I've gone through her posts I don't know how many times. There's literally not one.
10.21.2005 12:44pm
mb:
No time to introduce you to the joys of theories of the cognitive nature of social institutions, the relevance of the New Institutionalist Economics’ understanding of isomorphic institutional change, the developing legal pressures in Canada to repress opposition to its new normative understanding of marriage, or even why I think the most likely outcome of same-sex marriage is not polygamy but to the end of marriage as a legal status.

Short version: While all the arguments I've presented this week have been pretty weak, had I more time I could've presented some good ones, too...
10.21.2005 12:45pm
Ray:
Did I miss something? Did we just have four days of 'preparing the ground' and one day of 'a few last thoughts'? The whole thing just came down to "marriage is for babies and you can't have babies so you can't get married", didn't it? That took a week?
10.21.2005 12:49pm
IB Bill (mail) (www):
Well done, Maggie. Clear, well-argued and eloquently stated. Thank you for the effort, and for the Volokh Web site for hosting the discussion.
10.21.2005 12:51pm
Goober (mail):
Well, Ray, she did also give us this parting thought:


Children have a right to a society that respects their deep, passionate longing for a mother and a father; one that calls on adults to make significant sacrifices to satisfy this longing.



Delightfully creepy, no? Frankly, if we're going to be banning people's marriages, I think the ones where the kids have deep, passionate longings for their mothers and fathers should be first on the list.
10.21.2005 12:54pm
Bob Van Burkleo (mail):
Well a week of talk and not a single demonstrable negative to equal access to marriage uncovered. Pretty typical actually.

Not that ever makes a difference - the anti-marriage equality crowd have a predetermined answer they want to reach and no amount of discussion will change their minds. An analogous situation is gays in the military - even though they are present in many countries now without issue you will still hear people whining the same old whine that it will destroy the military if that ever happened in the US. Always seems to make Americans seem so delicate and unadaptive. Of course they aren't but itsn't it embarrassing to present them as if they are?

Its a fact that the 'institution of marriage' already includes same gender couples - too many exist. The real debate is about reasonable access to the civil contract, one Ms. G didn't engage most likely because she knows justifying it with US legal precedence is difficult if not impossible.

Gee maybe the next guest blogger should be a pro-marriage advocate so we can see the other side?

(Just kidding ;)
10.21.2005 12:54pm
marc (mail):
Deontologist said:

Wherever rights derive from, it is not from the common good or the interests of society, and so considerations of the common good cannot show that people do not possess a right. On the contrary, the right takes priority over the good.

How very well said. It only remains to be said that this offers us a lens to see MG and other conservatives as the Puritans of our day. Even worse, it puts her into the same moral camp as those liberals who would sacrifice individual rights to their own lofty, illogically constructed goals such as affirmative action and government civil service unions. It is a totalitarian vision at heart.

As for why her goals are illogically constructed: every step of the way there is a contradicting 'therefore' to the one she chooses.

A small example is her insistance that 'sex is for babies' Of course it is, but it is also for many other things as much zoology and many religions suggest. Once she ignores that, how can we follow her? The Talmud, while prohibiting homosexuality presents sex as a right independent of procreation. What does MG think of that? Should we overturn both strictures? Or only one? And, say, whaich one would you choose to overturn?

But a more fundamental flaw is this:

Ignored in her argument are any social roots that might contradict MG's teleological vision of the need for Marriage. To say that marriage is 'for' anything is to commit the same delicate logical blunder that presents natural selection as some sort of purposeful force. Marriage isn't 'for' anything so much as it 'arose' out of various societal pressures and needs. Of course society needs babies, but on an individual level there is a huge battle between the Male need to have as many babies as possible and the Female need to wrest as much parental investment out of her family group as possible. The history of marriage is a varying account of the by products of this war, not some grand teleological mission.

This is not to say that morality has no place, but morality without humility and even a bit of skepticism leads us back to the Puritans.

Are we as a society better off when children are raised in loving families? Of course. Is there any real evidence that SSM has any bearing on that? I don't think so.
10.21.2005 12:55pm
John H (mail) (www):
Don't be fools, do not avoid the issue of same-sex procreation technology. It is real and it isn't going away.

You are deceitful bastards, aren't you? You know you want SSP to arrive, but you refuse to list it on any of your bullet points as an equal right that same-sex couples must have access to. You just hope no one notices.

Prove that you are capable of arguing for SSP if you want SSP. Don't try to sneak it past us. Don't hide your demand. If you insist on it, put it at the tope of your list of things you demand, and let us discuss it.

If you don't insist on it, then accept Civil Unions that don't grant procreation rights.
10.21.2005 12:55pm
Anomalous Poster:
The argument that I have been reading for SSM (not SSCU) goes like this: A committed gay couple is obviously morally equivalent to a married hetero couple. Only for some strange reason, probably related to a character flaw, certain people don't see it that way. Lets legalize SSM to help educate those people.

And then that get upset at MG for perceived character flaws and accuse her of not having a argument.

Oookay.
10.21.2005 12:56pm
Bowser:
What irks me is that Maggie will go somewhere and say what a useful and constructive dialogue she just had on a respectable and (normally) intelligent website, but that some people are just so blinded that they wouldn't listen or consider her arguments.
10.21.2005 12:57pm
paa:
Worst. Blogger. Ever.

Good riddance!
10.21.2005 12:58pm
Goober (mail):
Anomalous---

You don't imagine that gay people who want to get married might not see the current law as a deprivation, rather than the loss of an educational opportunity?
10.21.2005 12:58pm
Goober (mail):
Bowser---

Oh, she's already said that. (See, e.g., her ever-illuminating metaphor about that wall with the chinks and the things. Wall, bitches!) What bugs me is that Prof. Volokh is going to say what he's already said, that the people who don't think she offered anything constructive are just knee jerk types unwilling to consider an alternative viewpoint. And then say we made comparisons to Nazis.
10.21.2005 1:01pm
Cornellian (mail):
Well one major distinction is that no-fault divorce gives everyone the option of getting divorced so obviously it's going to be more widespread than SSM, which affects only a small minority of the population. And if no-fault divorce is so bad, where's the outcry from social conservatives? Where's the campaign to amend the constitution to ban divorce?

Remember how we were promised that unilateral divorce would expand liberty, and only affect people in bad marriages? Unilateral divorce changed the whole culture of marriage, not just those who divorce.

Legal polygamy has a lot more history and tradition behind it than giving married women legal status apart from their husbands so if one is in favor of "traditional marriage" one would be in favor of polygamy, not opposed to it, or at least more in favor of polygamy than in giving married women legal standing. Polygamy in Western society would require rethinking a vast network of legal structures from scratch. In a 3 person marriage of 1 man and 2 women would the women be married to each other? Could the man divorce one of the women but not the other? Could he divorce both, leaving behind a SSM? If one of the women gives birth, what are the rights of the other woman vis a vis that child? Can a 2/3 majority make decisions about childcare or property, or do you need all 3? Does it matter which 2 are the biological parents? How does inheritance work? That's no easy task. SSM is trivial in comparison, as we have already seen in Massachusetts and in Canada, since it has not effect on the 2 person structure that these legal regimes assume.

Or think about legal polygamy. Seriously, how would other people’s polygamy affect your marriage? Even in polygamous societies most people are monogamous after all. Why would anyone imagine that change in the law would matter? If you can imagine how, you can at least begin to see why so many of us think SSM is going to profoundly change the meaning of marriage in this society.

The "definition of marriage" (I use quotes because I'm not sure what you mean here - legal definition? normative definition? something else?) already includes such loveless, purely business partnerships, provided the two people involved are of the opposite sex. There is absolutely no legal impediment to a man and a woman who are business partners with zero attraction towards each other from getting married should they perceive some business advantage in doing so. They don't have to have children, or even have sex, or even hold themselves out to the public as doing so. They're free to have sex outside of the marital relationship and despite all that, it's just as much a marriage as any other in the eyes of the State. But two monogamous gay people? Well that's going to lead to the downfall of Western civilization, just like it destroyed the Roman Empire? Count me unconvinced, to put it mildly.

Or take the fact that marriage is an economic partnership. Suppose we expand the definition of marriage to include two business partners? How could that possibly hurt marriage? After all we aren’t running out of marriage licenses, are we? Those who want their marriage to have something to do with sex and intimacy, would still be free to do so, no?


Funny how those "deep roots in the reality" and "making the future actually happen" are a requirement imposed only on same-sex couples. Opposite sex couples some of whom, as you are fond of reminding us, can produce babies, have absolutely no obligation to "join together in love" or "make the future happen" (i.e. have babies, be able to have babies or want to have babies).

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

I've never said that all the legal incidents of marriage but a different label would be insuffiicient, but since you pose the question, let me ask you the same question. Would all the legal incidents, but the term "civil unions" instead of "marriage" be acceptable to you? If not, why not?

How is SSM "imposing a morality" on people? Is allowing divorce (fault based or not) "imposing morality" on catholics?

But of course if you are advocating for SSM, you really do know that social meanings matter. You’ve made passionately clear that an identical institution called “civil unions” that delivered all the legal incidents of marriage just wouldn’t be good enough, because it doesn’t mean the same thing. You seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view to the best of your abilities. And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use government power to impose a new morality on a reluctant people.
10.21.2005 1:01pm
Cornellian (mail):
Can I link two current threads here and say Ms. Gallagher's guest blogging here is rather like the Harriet Miers of Volokh Conspiracy nominations - she's just not up to the job.
10.21.2005 1:05pm
Medis:
Because I think it is worthwhile, I am going to quickly catalog where Maggie's argument makes little or no sense.

First, the analogy to divorce law makes little sense. Of course divorce law has ramifications for all marriages, including straight/procreative marriages. The precise problem in this case is that it isn't at all clear why gay marriages would undermine straight/procreative marriages.

The analogies to polygamy and business partners are similarly unconvincing: maybe a case can be made against polygamy on some other grounds, but obviously not on the ground that such marriages can't lead to procreation; and obviously a male and female pair of business partners can already get married, whether they procreate or not. So this hardly supports Maggie's thesis, and in general, what any of this has to do with showing that gay marriages in particular are a threat to straight/procreative marriages is left unclear.

On "social meaning", Maggie argues, "If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad." But again, the precise issue is that gay marriages don't actually have these "clear" inplications. Why is marriage "no longer related AT ALL" to generativity if we allow gay marriages? Why does it mean the government has "NO interest in whether children are connected to their own mom and dad?" We already allow all sort of non-procreative marriages, and all sorts of child-raising marriages where one of the parents is not a natural parent, and Maggie maintains that marriage is still related to generativity and still serves as one of its purposes to encourage natural parents to raise their children. The idea that gay marriages would somehow bring all this to a screeching halt is therefore not only unfounded, but contradicted by Maggie's own claims.

The same obvious flaw exists in her gender-diversity and children argument. She states, "Gender doesn’t matter, except when orientation is involved, in which case gendered sexual desire matters so much we are morally obligated to restructure our most basic social institution for protecting children, so that all adults get their needs for intimacy and social affirmation met equally. Orientation, as a classification, assumes gender is a real and significant category of human existence; but apparently only for gays, and not for children." But there is no obvious sense in which we are saying, "gender doesn't matter," as in fact Maggie points out. Rather, at most we are saying, "married couples are better than unmarried couples at raising children EVEN WHEN the couple is made up of two people of the same gender." Thus the statement is not that gender DOESN'T matter, but rather that marriage DOES matter.

Finally, her camel metaphor assumes what she claimed to be able to prove. Assuming the camel is straight/procreative marriages, she claims that gay marriage would be like chopping off the camel's legs. Again, I could see how this metaphor might apply to certain divorce policies, insofar as they have a direct effect on the "camel" (straight/procreative marriages). But she has failed to show gay marriages would have any direct effect on straight/procreative marriages (nor that any such effects would be harmful, for that matter).

So I am left where I started. My basic sense was that people like Maggie had a taboo attitude toward gay marriage: they possess a belief that gay people and/or gay sex is "unclean" and thus that gay people and/or gay sex must be kept away from marriage or else the institution of marriage will somehow be corrupted.

After what I assume were her best attempts to show there is more substance to her reasoning than mere rationalizations of this taboo attitude, I am left completely unpersuaded.

To make extended use of her desert metaphor, I think adding gay marriages to our current lineup of marriages is like adding a few non-camel pack animals to a long train of pack animals, many of which are camels, but many of which are already other pack animals. I take Maggie to be arguing that we shouldn't allow these new pack animals into the train because they might somehow harm the camels. But she hasn't shown any way in which the new pack animals might actually harm the camels. And since I suspected her all along of believing that these new pack animals were taboo and thus unclean, her inability to articulate and prove an alternative reason for believing that these new pack animals will harm the camels leaves me believing that a taboo is indeed all there is to her beliefs.
10.21.2005 1:06pm
fred (mail):
Someone up above said this:


There is absolutely no legal impediment to a man and a woman who are business partners with zero attraction towards each other from getting married should they perceive some business advantage in doing so. They don't have to have children, or even have sex, or even hold themselves out to the public as doing so. They're free to have sex outside of the marital relationship and despite all that, it's just as much a marriage as any other in the eyes of the State. But two monogamous gay people? Well that's going to lead to the downfall of Western civilization, just like it destroyed the Roman Empire? Count me unconvinced, to put it mildly.


So the fact that these loveless, bloodless marriages exist (to some tiny extent) means that all of marriage should be conformed to that view of the institution? That we should build an institution around those outlier situations that warp the very meaning of the institution?
10.21.2005 1:07pm
Markusha:
By far, far, the worst guest blogger on this site. Thank God, it's finally over. And by the way, I've listened to a couple of Michael Medved shows and he's your typical right wing radio host: whenever a caller presents coherent arguments that go against Medved's position, he abruptly cuts the caller off. So, I would not bother calling his show.
10.21.2005 1:07pm
Anomalous Poster:
Goober,

Given SSCU, not getting the term marriage is like not getting a smiley face sticker. If only all problems were so small.
10.21.2005 1:08pm
Dave Justus (mail) (www):
I think Maggie Gallagher did a far better job of logically presenting a case than most of the commenters who are arguing against her. I have never seen more straw men and distortions of an arguement.

I think that the commenters here would have been better served by actually trying to understand her arguement, than following their preconcieved notions that anyone who is against gay marriage must be a homophobe.

She did not convince me, but she did provide a clear picture of why people can be oppossed to this change.
10.21.2005 1:08pm
goldsmith (mail):
At least we know where Gallagher stands, Corneilan.
10.21.2005 1:09pm
TRL:
This has been said over and over in these comments, but it bears repeating. Despite the hype and anticipation, Gallagher's argument about harm -- which is the core of the anti-SSM position -- is nothing more than glorified handwaving. Because she cannot show what the "straw" is (indeed there is none), her argument reduces to nore more than "change is bad."

Take a closer look at this:
I’m grateful to the reader who described my view as saying that SSM will be the straw that breaks the camel’s back. But that straw thing doesn’t quite capture it. Because to me, SSM is a much greater change in marriage than either unilateral divorce, or polygamy. From where I stand, it is about as big a change as one can propose.
And here, in closing, she reveals her true colors:
In the middle of a crisis of fatherlessness of unprecedented proportions, proposing to conduct this kind of legal experiment on marriage is not reasonable. It is not kind; it is not compassionate and it is not remotely just.
The only thing uncompassionate about this "debate" is the failure to allow gay couples to stand on equal footing with their straight friends for no better reason than unsubstantiated, fear-driven speculation.
10.21.2005 1:10pm
The Editors, American Federalist Journal (mail) (www):
Steve: "Did I miss the part where we established that civil unions are an utterly unacceptable compromise to SSM advocates?"

Yes, you did. Civil unions are the law in California, yet SSM advocates are still pushing for same-sex "marriage".


Bob van Burkleo: Gay people have equal access to marriage - the union of a man and a woman - now. There is no right to redefine marriage to be something else. Opposite-sex relationships and same-sex relationships are fundamentally different. The government is under no obligation to pretend otherwise by calling them the same.
10.21.2005 1:13pm
Quixote:
The tenor of most of the reactive posts, which is mostly ad hominem (or, more accurately, ad feminem) (or, even more accurately, ad hominem et feminem) indicates that Prof. Volokh should continue to present more viewpoints like Ms. Gallagher's, so as to broaden his diversity of readership.

Cheers to Prof. Volokh for once again proving that he is the master of fairness. Please keep it up.
10.21.2005 1:14pm
Houston Lawyer:
If you redefine a word, you change its meaning. Experience has shown that when we change the rules we experience unintended consequences. Yet we are now supposed to believe that changing the most fundamental rule of marriage will have no adverse effects on society.

Also, it does little good to quote your superior morality at people when you have rejected their moral code.

For centuries, people have had to modify their behavior to comply with the laws pertaining to marriage. Now, however, we are asked to change the laws of marriage to comply with the behavior of some people. The people are not amused.
10.21.2005 1:15pm
Steve Sanders (mail):
This last post amounts to a string of almost random, ipse dixit assertions without argument. But then, others above have already pointed out what an embarrassing flop this week has been for the anti-SSM crowd.

One (well many, but I'll focus on one) key flaw runs through this post: the idea that same-sex couples living together in committed relationships is something with which the world has no experience. Obviously this isn't true, though since she has no persuasive arguments, it is in her interest to characterize SSM is some fearsome social experiment (the same tactic employed by the don't ask don't tell crowd). Hundreds of thousands already do, as documented by the 2000 census, many of them raising children. The only thing they lack are the legal protections and civil recognition. So Gallagher really has no point other than to rationalize why they should be denied these legal protections and social recognition. And most here seem to have concluded that she has not made the case.
10.21.2005 1:21pm
Goober (mail):
Anomolous---

I literally don't know how to respond. Would you care to elaborate on what you mean? Especially would you care to show me (a) how it is that more than three states have civil unions; and (b) how opponents of gay marriage aren't also pushing to end those civil unions?

Dave Justus---

Please, pay attention. Those of us who are pointing out that Maggie Gallagher didn't offer any argument against gay marriage? We are literally pointing out that she didn't offer any argument. We're not accusing her sub rosa of being a bigot (well, some of us might be); we are intending our words in their full and literal meaning.

If you think you have a good handle on what Gallagher's argument was, please, I beg of you, tell me what it was. Because none of us can see it.
10.21.2005 1:22pm
Antonin:
Goober:

Well, I think "gay marriage will lead to polygamy" could be counted as a reason to oppose gay marriage, but she hasn't even tried to justify that claim. So whether she's offered any reasons is at this point something of a semantic dispute, and if she has offered any reasons they've been laughably bad.

If I wanted to be incredibly sympathetic, I would try to construe her argument as follows:

1) The sole public-policy justification for legal marriage is to encourage procreation taking place within a context that makes it more likely that children will be raised by their natural parents [rather than by single mothers, etc.].

2) Gay marriage will detach legal marriage from this public-policy purpose.

3) If legal marriage is detached from its sole public-policy purpose, the social meaning of marriage will change so that that purpose is no longer part of the social meaning.

4) Therefore, the social meaning of marriage will no longer encourage procreation taking place within a context that raises the probability that children will be raised by their natural parents.

5) The extent to which the current social meaning of marriage increases the probability that children will be raised by their natural parents is large.

6) Therefore, gay marriage will substantially increase the incidence of children being raised by single mothers, etc.

7) Children raised by single mothers, etc. are significantly worse off than children raised by their natural parents.

8) Therefore, gay marriage will significantly harm a large number of children.

It looks to me like the principal problems with Gallagher's argument as sympathetically constructed above (much more than she deserves) are premises 1, 2, and 3. For refutations of those premises, see the past thousand or so comments on Gallagher's posts.
10.21.2005 1:22pm
Goober (mail):
Yet we are now supposed to believe that changing the most fundamental rule of marriage will have no adverse effects on society.

Just to demonstrate, this is where those of us eager to have a full debate would expect and hope to find the reason I'm talking about. Yes, we say, what adverse effect would that be? We're not speaking rhetorically; we are asking quite genuinely, what is your contention that gay marriage would do?

I don't believe that that's an unfair question. But it is certainly not one that Ms. Gallagher answered. Houston Lawyer, would you like to help us out? What adverse effects are you talking about?
10.21.2005 1:24pm
Goober (mail):
Antonin---

See, I was thinking it was more like "If gays get married, I won't be able to pretend they don't exist anymore."

On your sympathetic interpretation: That was my thinking, too, about what the real argument really is, but I still think it's funny that Gallagher herself never said as much! In a week!
10.21.2005 1:27pm
Cornellian (mail):
No, what it means is, don't pretend that it's a legitimate reason for excluding same sex couples from marrying while at the same time continuing to give a free pass to opposite sex couples with respect to that same reason. Or are you arguing that the State should prevent opposite sex couples from marrying if they don't really love each other?

There is absolutely no legal impediment to a man and a woman who are business partners with zero attraction towards each other from getting married should they perceive some business advantage in doing so.

So the fact that these loveless, bloodless marriages exist (to some tiny extent) means that all of marriage should be conformed to that view of the institution? That we should build an institution around those outlier situations that warp the very meaning of the institution?
10.21.2005 1:27pm
Atty in Chicago:
TRL:
The only thing uncompassionate about this "debate" is the failure to allow gay couples to stand on equal footing with their straight friends for no better reason than unsubstantiated, fear-driven speculation.

Um, no matter what your creative sexual preference (gay, incest, polygomy, you want to marry your dog, etc.) everyone has the same opportunity to participate in government marriage.

Creating and raising children in a married home is the ideal, thus the government encouragement, sponsorship and endorsement of the this type of relationship. The government frequently encourages desired behavior (tax deduction for charitable givings, etc.). Why should the government encourage two guys or two girls to live together and hang out, and is it as important as marriage where children are involved? Of course not.

And the government does treat different genders differently where appropriate (women don't have to sign up for selective service, separate men/women bathrooms is fine, mothers and fathers are not the same). In marriage, gender matters when creating and raising children. I pity those who think a child is better off being raised without a mother or father, therefore, the gov't rightly encourages marriage.
10.21.2005 1:27pm
Maggie Gallagher (mail) (www):
Guys, did you notice I just said I don't believe SSM will lead to polygamy? The argument I did make is that if we had polygamy legally, it would change everyone's marriage, not just the people who do it.
10.21.2005 1:28pm
IB Bill (mail) (www):
Houston Lawyer has it right.
10.21.2005 1:30pm
Chairm Ohn (www):

"The Talmud, while prohibiting homosexuality presents sex as a right independent of procreation."
That reinforces the observation I made when favorably quoting Maggie in an earlier comment upthread.
"Of course society needs babies, but on an individual level there is a huge battle between the Male need to have as many babies as possible and the Female need to wrest as much parental investment out of her family group as possible. The history of marriage is a varying account of the by products of this war, not some grand teleological mission."
Rather than war, sex integration through conjugal union is a blessing.

"Are we as a society better off when children are raised in loving families? Of course. Is there any real evidence that SSM has any bearing on that? I don't think so."

Right, so SSM is not relevant to the social instituiton of marriage.

Since the above exemplifies the typical quality of comments made here this week, the slogging through this thread will no doubt be more tedium. However, there are some open minds reflected in substantive comments by the minority (both pro and con) so I expect the exercise will be worth it. Staring at blank walls is also tedious.

Thanks Eugene and the gang at The Volokh Conspiracy. I am looking forward to Dale Carpenter's turn at the wicket.
10.21.2005 1:31pm
Goober (mail):
Ms. Gallagher---

Thanks for missing the point again. We're being charitable---at least if you had said that gay marriage would lead to polygamy, it would give someone a reason to oppose gay marriage. What we're really saying is that you haven't explained any reason to oppose gay marriage---just reasons to be enthusiastic about babies.
10.21.2005 1:32pm
Antonin:
Maggie - fair enough. I apologize for my misreading. I retract my claim.

Did I get your argument right in my post above?
10.21.2005 1:32pm
Bowser:
The argument I did make is that if we had polygamy legally, it would change everyone's marriage, not just the people who do it.

Don't flatter yourself Maggie.


Or think about legal polygamy. Seriously, how would other people's polygamy affect your marriage? Even in polygamous societies most people are monogamous after all. Why would anyone imagine that change in the law would matter? If you can imagine how, you can at least begin to see why so many of us think SSM is going to profoundly change the meaning of marriage in this society.


One of the many, this argument is left to the reader to make. Although I suppose it's clear that this is your idea of an argument.
10.21.2005 1:34pm
Chairm Ohn (www):
Maggie Gallagher, thank you very much for the series of posts on marriage. And I hope the readership (mostly folks who read here but do not comment in the theads) appreciate the forbearance you have shown in the comment section.
10.21.2005 1:34pm
Cornellian (mail):
Slavery had most of human history on its side, until it stopped. Denying married women any legal existence apart from their husbands had most of human history on its side, until that changed. Being wrong for a long time doesn't make you right.

And most pro-SSM advocates have plenty of reason for concluding that many (not all) anti-SSM proponents are in fact motivated by pure animus against gay people. However, regardless one can disregard everyone's motives and simply ask on what rational basis gay people should be prohibited from getting married. We haven't yet heard a cogent, rational answer.

I have most of human history on my side. You have your personal moral conviction that only hate explains why people object.
10.21.2005 1:37pm
DM Andy (mail):
I feel that I've said everything I have to say at least three times during this debate. I'll leave it by quoting from Alan Duncan when he was the UK Conservative Party's Consitutional Affairs spokesman during the debate on Civil Partnerships.

"Concern is frequently expressed that civil partnerships will undermine the family. Let us consider those arguments. Today's families come in many shapes and sizes and people face many challenges. Marriages break up, parents remarry and the structure of the family changes. Many families no longer fit perfectly into the traditional two-parents-and-2.4-children framework, but are extended families in which there has been remarriage and same-sex relationships. The latter are increasingly acknowledged and accepted, even by grandparents, who 25 years ago would have found such relationships abhorrent. No one suggests that the absence of traditional arrangements within those new family units has led to the absence of bonds of loyalty, commitment and support that hold families together. Despite the difficulties of modern life, those values have shown a reassuring durability.

The fact that the bonds of relationships have endured is due in no small measure to the way in which our predecessors in the House have adapted the law to allow it to keep pace with social change. We have seen reforms of property rights, tax arrangements, divorce law and child care, which have all played their part. We have always accepted that ordered change is the best way to conserve those things that we value. The issues of child care and work-life balance are a growing item on the political agenda and are becoming increasingly important.

Measures such as those before us today are a way of protecting the family in changed times, not of damaging it. As I have said, gay couples are a fact of life. Rather than ignoring their existence, perhaps the House can now take a positive stance on their position in society.

I am sure that the issue of child care, which often causes strong feelings, will arise during the debate. It will be argued, rightly, that the best environment for bringing up a child is with two loving, married parents. However, that is not always possible, for a host of reasons, and children are now raised in many different circumstances. What is most important is that love is given to the child and that there is stability in his or her home life. If we are concerned that children should be brought up by a stable, loving couple, these measures, when seen in conjunction with gay adoption, make a positive contribution to the family, rather than detract from it.

There is much in the Bill that I believe can be seen as deriving from the values in which Conservatives believe. It promotes responsibility and removes the intrusive hand of the state from people's personal relationships."

10.21.2005 1:39pm
Cornellian (mail):
Are you about to introduce your proposals to enforce the right that these children have by prohibiting single people from having children, prohibiting divorce, prohibiting adoption and prohibiting divorced or windowed people from raising children or is this another requirement that will be imposed only on gay people but not on straight people?

Children have a right to a society that respects their deep, passionate longing for a mother and a father; one that calls on adults to make significant sacrifices to satisfy this longing.

I see, so in the middle of this "crisis of fatherlessness", a crisis due almost exclusively to straight men, your solution to this "crisis" is, not to actually do anything about these straight men who are not around to raise their children, but instead to prevent gay people from getting married? And this is going to help the "crisis of fatherlessness" how? Gay people can't get married now (outside of Mass.), so how much good did that prohibition do in preventing this "crisis of fatherlessness?"



In the middle of a crisis of fatherlessness of unprecedented proportions, proposing to conduct this kind of legal experiment on marriage is not reasonable. It is not kind; it is not compassionate and it is not remotely just.
10.21.2005 1:43pm
APL (mail):
Thank you, Ms. Gallagher for posting on this contentious issue. I look forward to the next guest blogger.

I would say that deontologist has it right. Individual righs, freedom and equality, must be elevated over the majority opinion, or even an objective conclusion, as to what is good. That is the sublime nature of the American political experiment, the heart of our national understanding and ideological values.

Of course, I do allow that to me your fears seem, well, somewhat overblown. Somewhat pessimistic. Unrealistic even. Time will tell.

But now, I am off to Lethbridge for what you might call a social experiment or a step in the downfall of western civilization, but what I call getting married to the man I love and to whom I am committing my life.

Peace and out.
10.21.2005 1:44pm
Cornellian (mail):
As a matter of fact, I do know her!

Or at least I'd like to.....

I really like how Maggie alluded to all of the really sophisticated and scientific arguments she totally intended to make, but couldn't because she ran out of time. Yeah, and I have this really hot girlfriend who's a lingerie model, but she lives in Canada, so you wouldn't know her.
10.21.2005 1:46pm
jrose:
Did Maggie propose an argument beyond what Orin summarized? Is so, can someone act as Maggie's editor (God knows, you need one Maggie) and summarize it for us?

Did Maggie provide supporting logic, reason and evidence in support of her argument as summarized by Orin? If so, ditto on the editor's comment above.
10.21.2005 1:48pm
TRL:
I pity those who think a child is better off being raised without a mother or father, therefore, the gov't rightly encourages marriage.
I would pity those people too, but for the fact that they don't exist (not in this debate, at the very least). I do pity, however, those people who think that only a male-female parental unit can ably raise a child.

And Ms. Gallagher, for you to stop in here and respond merely to the comparatively trivial point about polygamy, thereby ignoring the more important, high-level critiques, only gives more support to the point that you are advocating an empty position on SSM harm.
10.21.2005 1:48pm
Cornellian (mail):
Care to offer any specifics? I haven't noticed any such pressure. People in Canada are still free to float whatever opinions they like on the issue, subject to the right of everyone else to offer constructive (or not so constructive) criticism of those opinions. Canada has a constitution with a freedom of expression guarantee as well, though it's not quite so vigorous as our First Amendment.

the developing legal pressures in Canada to repress opposition to its new normative understanding of marriage
10.21.2005 1:49pm
Steveo987 (mail):
MG-
Rather than trying to win converts in this crowd, you should go back to your base with a much more coherent argument:
1. Homosexuality is immoral.
2. The government should not facilitate/reward immoral behavior.

While many/most of us here disagree with both of these, the same is not true of anti-SSM people.
10.21.2005 1:50pm
Medis:
DM Andy,

That is an excellent example of a general category of argument: that marriage is far more likely to be good for gay couples and the children raised in such marriages than gay marriages are likely to be bad for straight marriages and the children raised in straight marriages.

So I get back to the same position: Maggie apparently sees gay people and/or gay sex as taboo, so it doesn't matter how much gay couples and their children would benefit from marriage, because gay people are bound to corrupt and destroy straight marriages once their uncleanliness comes into contact with the institution of marriage.
10.21.2005 1:50pm
Goober (mail):

Did Maggie propose an argument beyond what Orin summarized? Is so, can someone act as Maggie's editor (God knows, you need one Maggie) and summarize it for us?


Maggie didn't even propose the argument that Orin synthesized for her. He came up with that on his own (possibly with some help from the commenters). That's what makes this so frustrating; we keep pointing out that she hasn't said anything, but her only response is to insist that we haven't seen what's she said.
10.21.2005 1:51pm
guest:
I skimmed the comments, so forgive me if somebody's already addressed this. People seem to be laboring under the misconception that "civil unions" will suffice to provide the same legal benefits as marriage. This may be so at the state level in certain states. However, the federal government bestows certain benefits only on "married" couples, not on "civilly unionized" couples. If federal and state laws are changed such that participants in "civil unions" are entitled to the same legal benefits as married couples, than "civil unions" become a viable alternative. Currently, however, civil unions do not bestow the same rights as marriage, and as such, they do not represent a solution to the gay marriage debate.
10.21.2005 1:55pm
guest:
I agree with the poster who suggested this whole debacle was a set-up job by Prof. Volokh.
10.21.2005 1:57pm
jrose:
Maggie: If two men are married, then marriage as a public act is clearly no longer related at all to generativity.

Why are married men mutually exclusive with generativity being one of the purposes of marriage as a public act? Why doesn't the second marriage of my father (a widower) at age 74 to a post-menopausal woman have the same impact on generativity as two men marrying?
10.21.2005 2:01pm
Cornellian (mail):
I don't think people are overlooking the federalism aspect. Everyone (well almost everyone) around here I presume to be well aware of the fact that SSM in Mass. is only for state law purposes, and not for purposes of federal law. Maybe that's a reason why the Feds should be backing out of the marriage business, but I don't want to go off on another of my federalism tangents here.

I skimmed the comments, so forgive me if somebody's already addressed this. People seem to be laboring under the misconception that "civil unions" will suffice to provide the same legal benefits as marriage. This may be so at the state level in certain states. However, the federal government bestows certain benefits only on "married" couples, not on "civilly unionized" couples. If federal and state laws are changed such that participants in "civil unions" are entitled to the same legal benefits as married couples, than "civil unions" become a viable alternative. Currently, however, civil unions do not bestow the same rights as marriage, and as such, they do not represent a solution to the gay marriage debate.
10.21.2005 2:01pm
The Editors, American Federalist Journal (mail) (www):
Goober: "What we're really saying is that you haven't explained any reason to oppose gay marriage..."

The burden is on those of you who want to make a radical change to a fundamental societal institution to demonstrate that it will not do harm. You haven't explained any reason to change the definition of marriage.

Gallagher has offered many reasons for her position. Those who keep saying she's not making any arguments are being disingenuous. Arguments you don't like are still arguments.
10.21.2005 2:06pm
A Guest:
Maggie:
How much did HHS pay you for your blog entries? Were you being paid by the word? Because I guess that would help explain why you would write so much while saying so little...
10.21.2005 2:06pm
Master Shake:
I still find it hard to believe, given that there was going to be a week-long guest blogger advocating the anti-SSM argument on the VC, that this woman was the choice. She just can't write (either logically or grammatically), can't make an argument, and can't (or is unwilling to) respond to highly logical counterarguments. She rambles on, she writes too many posts, she's the guest who won't go away. She reminds me of the old joke about fish and company both stinking after three days.

There must be hundreds or thousands of other people who could have taken on this role who actually have the brainpower and aptitude to do so on a site like the VC. As someone pointed out earlier, she truly is the Harriet Meiers of VC guest bloggers.
10.21.2005 2:08pm
JW (mail):
I actually find it comforting that she is the best that the anti-SSM crowd can find.
10.21.2005 2:09pm
On Lawn (mail) (www):

Alas, after the dust settles we still have the ignore it, pretend it isn't there, and in a weird "prophecy fulfilled" kind of way wind up proving its premise all over again.

Through careful application of blinders, they keep their opinions safe and remain "unpersuaded". Marriage Equality Now! is their cry, but it is not equality that they seek. Boil it down and we simply have a legal amphibology at work, a homogenization at the governments expense. And children's rights, welfare for the handicapped, constitutional seperation of powers, and even science be damned, full speed ahead.

Its no wonder that an increasingly growing number of americans, though they are more tolerant towards homosexuality each year, they are less tolerant of the redefinition of marriage in the image of ss"m". Because the cry for equality is fatuous (as the link above explains), the concerns for children are valid, the fraudulent application of disability is indicting.
10.21.2005 2:10pm
jrose:
The Editors, American Federalist Journal: Gallagher has offered many reasons for her position. Those who keep saying she's not making any arguments are being disingenuous. Arguments you don't like are still arguments.

Other than what was summarized by Orin, please summarize her arguments.
10.21.2005 2:10pm
Bob Flynn (mail):
Ms. Gallagher,

Excellent, civilized arguments you have provided this past week or so. I appreciate your work.

For some reason, in this modern society, it takes guts to merely reaffirm old truths; to wit, male-female monogamous marriage is the best vehicle to: (1) raise kids and (2) civilize an immense/diverse group of people.

I have no animus towards gays. I'm not against gay marriage per se, I'm just for traditional marriage and I don't believe the tinkerers out there have any idea what the consquences of such radical, and abrupt changes to our traditions will reap.
10.21.2005 2:10pm
The Editors, American Federalist Journal (mail) (www):
Master Shake,
Then why couldn't you even begin to muster any counter argument? Try again, with an argument, not ad hominem.
10.21.2005 2:12pm
M. Simon (mail) (www):
I can see polygamy leading to gay marriage.

Suppose this one female has a hankering for this other female who is married. The only way the husband will allow consumation is if the hankering female marries the husband.

Say, where can I get one of those?

Saudi Arabia?

Fuhhgedaboutit.
10.21.2005 2:12pm
Cold Warrior:
A commenter said:

There is absolutely no legal impediment to a man and a woman who are business partners with zero attraction towards each other from getting married should they perceive some business advantage in doing so. They don't have to have children, or even have sex, or even hold themselves out to the public as doing so. They're free to have sex outside of the marital relationship and despite all that, it's just as much a marriage as any other in the eyes of the State.

And that's the whole problem with Maggie's argument: it doesn't go far enough.

Many conservatives of the "religious right" variety advocate a return to "covenant marriage." And Maggie's argument against SSM would be coherent and defensible as part of such a program. But it isn't. And it makes sense to ask, "why not?"

1. Most importantly, there just isn't much public support for the reinstitution of "covenant" marriages -- marriages in which divorce would require the old-fashioned showings of abuse, abandonment, adultery, etc. Indeed, it seems people are pretty happy with the current situation: marriage is ostensibly till death us do part, but in reality is until we grow tired of each other.

2. Given the unpopularity of "turning back the clock" and trying to undo the damage these other changes (such as no-fault divorce) have wrought on the institution, Maggie and friends have chosen to draw a line in the sand against same-sex marriage. In and of itself, that might be defensible: just because the larger battle is lost doesn't mean we have to be a participant in the next logical step in the redefinition of marriage. But step back a moment, and you'll see Maggie's critics are correct: SSM is, at most, a rather trivial change in the "definition of marriage" in modern society. It does not even come close to no-fault divorce in terms of impact. It is, as others have noted, just an ordinary consequence of a culture (in common parlance and as a legal culture) in which people of the opposite gender with absolutely no sexual attraction to each other or no long-term commitment to each other are free to marry, and that marriage is recognized by the State as perfectly valid.

So that's my problem with Maggie's argument: it is conservative enough to be palatable to the masses, but not conservative enough to really make a change.

And, by the way, the claptrap about "not having time" to talk about the New Institutionalist Economics, etc." is exactly that. Prof Volokh and the other conspirators gave you all the server space in the world to make a sound argument grounded in theory. Maggie gave us the editorial page spiel she's been refining for several years. This is a common interest legal and public affairs blog, but with an uncommonly educated readership. Social and legal theory at a very high level of abstraction are discussed here everyday. And Maggie did that readership a disservice. If Prof Volokh had set out to find a strawman to show the intellectual vapidity of foes of SSM, he scarcely could have done better than this ...
10.21.2005 2:13pm
The Editors, American Federalist Journal (mail) (www):
jrose,

It's not my job to help you understand her arguments.
10.21.2005 2:15pm
TRL:
I have no animus towards gays. I'm not against gay marriage per se, I'm just for traditional marriage and I don't believe the tinkerers out there have any idea what the consquences of such radical, and abrupt changes to our traditions will reap.
Then tell us, Bob, what will the consequences reap?
10.21.2005 2:15pm
The Editors, American Federalist Journal (mail) (www):
Actually, polygamy would be a much less radical change than SSM. The difference between men and women is much greater than the difference between the number two and the number three.
10.21.2005 2:18pm
M. Simon (mail) (www):
Guts to reaffirm old truths? I'll show you guts:

Phlogiston, phrenology, epicycles, flat earth, the vapors, the humors, the sex life of a Spartan warrior.
10.21.2005 2:18pm
Goober (mail):
Editors---

The burden is on those of you who want to make a radical change to a fundamental societal institution to demonstrate that it will not do harm. You haven't explained any reason to change the definition of marriage.

I'm merely going to point out this is a rather novel rule of debate. Must those who want to teach intelligent design in schools "demonstrate that it will not do harm"? Must those who wish to overturn Roe v. Wade show that it is harmless? Creative, but unjustified.

And if you believe that Ms. Gallagher has made an argument why marriage should be restricted to heterosexual couples, please, show us where. I know it's hard for you to believe that we're saying this in good faith, but we quite sincerely do not believe she's given us any reason to agree with her. I mean this literally, not rhetorically.

(Just to be clear: By "reason" I mean a statement that, if accepted as valid or true, would counsel in favor of Ms. Gallagher's conclusion. It needn't be a dispositive reason, but we are still looking for any argument against allowing gays to marry.)
10.21.2005 2:19pm
Bowser:
The Editors:

She hasn't made an argument, and this week was supposed to be about presenting the case against SSM. The burden, therefore, is on your side this week. With the next guest blogger, the burden is on the other side. Possibly a valid criticism for then, but not now.
10.21.2005 2:20pm
M. Simon (mail) (www):
I left out the Divine Right of Kings.
10.21.2005 2:20pm
Noah Snyder (mail):
All of you saying that Ms. Gallagher is the worst VC guest blogger ever are just proving that you haven't been reading it long enough to remember Clayton Cramer.

Although I think civil unions aren't a perfect idea because a) having an equivalent word will weaken the specialness of marriage b) as one of my (straight) friends put it "I don't want to get civil unioned one day, I want to get married!" and c) it'd require a federal civil union statute as well, while marriage can be done just by states. Nonetheless I'd be more than happy to take a situation where only the name was different if it made people happy.

I still can't understand why Ms. Gallagher thinks that married couples raising adopted children cuts the relationship between marriage and procreation *only if the couple is gay, not if they are straight.* This continues to be totally baffling.
10.21.2005 2:20pm
Michael McCulley (mail):
I have to disagree that legalized gay marriage constitutes the "imposition" of certain values on society. Maggie seems to be confused about what it means for the government to "license" something. A license is official permission to do an act that is otherwise prohibited. By requiring licenses for marriage, and then denying those licenses to same-sex couples, the government imposes conservative values upon homosexuals. Homosexuals simply wish to be free of this imposition.

Of course, an alternative to giving same-sex couples marriage licenses is simply to abolish marriage licensing altogether. How did the State ever get into that business?
10.21.2005 2:21pm
Master Shake:
Editor -

Go back and read. It's not my job to make you understand the counterarguments.
10.21.2005 2:22pm
xray (mail):
The Editors, American Federalist Journal: You don't have to explain anything. Just state one of MG's arguments.
10.21.2005 2:24pm
M. Simon (mail) (www):
Editor,

What if it was polygamy for the furtherance of a same sex liason? i.e. a sham marriage?
10.21.2005 2:25pm
Bob Van Burkleo (mail):
The Editors, American Federalist Journal
Bob van Burkleo: Gay people have equal access to marriage - the union of a man and a woman - now. There is no right to redefine marriage to be something else. Opposite-sex relationships and same-sex relationships are fundamentally different. The government is under no obligation to pretend otherwise by calling them the same.

You honestly think that's a reasonable assertion? Can a gay person marry someone they would, as the NIS put it 'build a life with'? No. Further, gay people are marrying across this nation and around the world - the word is not being 'redefined' it already includes same gender couples. And if you have some empirical evidence that there is a qualitative difference between these relationships please speak up. According to all the studies I've seen they both want the same things, they both do the same things, heck they even bicker about the same things! And the humor of referring to 'the government' as if it was a person. The government is a mental construct that's fundamental purposes is to support the citizens and protect their rights. So yes 'the government' does have an obligation to make sure that ALL citizens are able to exercise their fundamental right to marry some one they really would want to 'build a life with'. Any government that doesn't has stopped being 'for the people' and should be discarded.

Oh and it is Bob Van Burkleo
10.21.2005 2:25pm
Alixtii O'Krul V (mail) (www):
Crane:

Again, it's hard to avoid the implication that any family where the kids were not made by the couple raising them (adoption, blended families, etc) is second-class.

If you replace "second-class" with "less than ideal" than I don't see how she could deny this, nor (perhaps more relevantly) why she'd want to do so. If one accepts her (distorted) vision that societies should want to encourage procreation (for heaven's sakes, why?), that this imposition of the morality of the (asserted) majority on all of us is legitimate, and that marriage is the instrument through which they do this (whuzzah?), then the rest follows.

Maggie Gallagher:

The internal contradictions are intense: Gender doesn't matter, except when orientation is involved, in which case gendered sexual desire matters so much we are morally obligated to restructure our most basic social institution for protecting children, so that all adults get their needs for intimacy and social affirmation met equally. Orientation, as a classification, assumes gender is a real and significant category of human existence; but apparently only for gays, and not for children.

A strawman if I ever saw one. As long as the falsely reified construct of gender is used to discriminate, then both gender and sexual orientation are necessary as classifications. Heightened scrutiny is necessary to fight back against this irrational discrimination. In a perfect world gender wouldn't matter, but we live far from that perfect world.


And the people who advocate SSM do so (mostly) with very little insight into the magnitude of the change they are asking us to accept.

That's because the change is only of such magnitude who propose the moralistic, deeply sexist conception of what marriage is/should be that Maggie proposes. If we assume her morally abhorrent sexist premises as to what marriage is and why the state supports it, then the rest of her argument is relatively coherent and logically follows. It's still not strong enough to stand up against a rights-based argument for SSM, but she would have at least presented a compelling reason why it would be in society's interest to ban SSM if it wants to adopt a pro-natal policy (a fact she seems to take for granted). But her argument is built upon a sexist conception of the universe, and should be rejected for that reason alone.
10.21.2005 2:26pm
jACKJOHN (mail):
I'm beginning to see this as the start of a greater effort to further push gay and lesbian individuals to the fringes of society,

I don't mean to insult anyone, but, as an empirical matter, isn't that already where they are? Isn't the whole gay marriage thing about gay people wanting to be out of the fringes? And isn't MG really just saying, "Hey, they're in the fringes for a reason, and that reason is justifiable, etc."? I think you're the activist one, not her, regardless of the validity of her arguments, on which I share no opinion.
10.21.2005 2:28pm
Houston Lawyer:
What will the consequences reap? I don't know. How about: fewer people getting married; fewer people staying married; more children born out of wedlock; fewer children being born; legitimization of other sexual practices now disfavored by society; the curtailment of civil rights of those who disagree with SSM; and possibly another AIDS epidemic.

I can't guarantee that any of these thing will happen, but you cannot guarantee that they will not. Even if you believe these things will not happen, there is absolutely no reason why I should put any faith in your beliefs. Once you let the horse out of the barn, closing the gate behind him is no longer helpful.
10.21.2005 2:28pm
Morat (mail):
I can't believe I wasted a whole week following this. A whole week.

And what's the end result? One side sputtering: "But you haven't actually SAID what the problem is!" and the other going "Sure she did. You're just too dumb to see it!".

The obvious disconnect between the pro and anti-SSM sides over the actual CONTENT of MG's posts means -- at the very least -- she's a poor writer.

It probably also means everyone's talking past each other (as per usual), but the inability of Maggie to get her point (whatever the hell it was) over to a large number of commentators is a real big problem in a writer.

Pages and pages of writing, and what have I got out of it? "It takes a mommy and a daddy to make babies, and it's a good thing if the mommy and the daddy stay together to raise the baby".

Yes, jolly good there. Spot on for basics. I'm just at a loss as to how, exactly, Bob and Fred getting married is going to lead anyone to be more (or less) likely to get divorced.
10.21.2005 2:30pm
Cold Warrior:

All of you saying that Ms. Gallagher is the worst VC guest blogger ever are just proving that you haven't been reading it long enough to remember Clayton Cramer.


Oh, I remember Clayton Cramer.

Thankfully, he still makes occasional appearances here in the comments section. I particularly appreciated his recent imaginative (or was it observational?) graphic description of some kind of gay bathhouse scene.
10.21.2005 2:31pm
M. Simon (mail) (www):
Noah,

I'd have to disagree about Cramer. I have been having some drug war discussions with him.

He can be moved by reason. He is slow and deliberate but open to reason.

I'm not sure the same is true of the Devine Miss (is it Mrs?) G.
10.21.2005 2:31pm
The Editors, American Federalist Journal (mail) (www):
Goober: "And if you believe that Ms. Gallagher has made an argument why marriage should be restricted to heterosexual couples, please, show us where."

If you don't know how to navigate the website, that's not my problem. *L*


Bowser: "She hasn't made an argument..."

Yes, she made many arguments. That is a fact. You may not like the arguments she made, but to say she didn't make any is a lie.


Michael McCulley: "By requiring licenses for marriage, and then denying those licenses to same-sex couples..."

That's like saying, "by denying fishing licenses to bicycle riders..."

Same-sex relationships and opposite-sex relationships are different. The society through its laws is under no obligation to act as if they were the same.
10.21.2005 2:33pm
xray (mail):
Houston Lawyer: Your list of potential results is helpful. The first 5 items are already here thanks to easier divorce and legal contraception. The AIDS epidemic suggestion is laughable. So your argument boils down to "Those of us opposed to SSM will be picked on." I imagine you will use Canada to weakly prove that feeble point, although I thought looking to foreign legal systems was frowned on by conservatives.
10.21.2005 2:34pm
Bowser:
Editors: if she has made an argument, then please state what it is. It's easy to be condescending and criticize other people's reading skills. So fine, I'm too dumb to figure out what it is. Please state her argument.
10.21.2005 2:35pm
TRL:
What will the consequences reap? I don't know. How about: fewer people getting married; fewer people staying married; more children born out of wedlock; fewer children being born; legitimization of other sexual practices now disfavored by society; the curtailment of civil rights of those who disagree with SSM; and possibly another AIDS epidemic.
Why? What is your evidence for that? Absent any justification for making such claims, you are presenting nothing more than fear-mongering.
I can't guarantee that any of these thing will happen, but you cannot guarantee that they will not.
You cannot twist the argument to transfer the burden. As many have said, it is not the job of SSM advocates to prove the negative. Those who are opposed have been charged with showing what harm will counteract the benefits of SSM, and, like Gallagher, you have offered none.
10.21.2005 2:36pm
spectator:
Morat wrote:

The obvious disconnect between the pro and anti-SSM sides over the actual CONTENT of MG's posts means -- at the very least -- she's a poor writer.

Perhaps. But I find it more likely that her detractors are so immersed in their libertarian sub-culture that they are, for all intents and purposes, talking a different language than the rest of the world. These people wouldn't have been less frustrated if Eugene got the Pope to guest-blog for a week.
10.21.2005 2:38pm
The Editors, American Federalist Journal (mail) (www):
Bob v: "Can a gay person marry someone they would, as the NIS put it 'build a life with'?"

Yes. Any person in America can marry another person of the opposite sex. The same limitations on the definition of marriage apply equally to every person.

"And if you have some empirical evidence that there is a qualitative difference between these relationships please speak up."

Go have sex with man, then with a woman. Report back if you find the two experiences identical. Give me a break.
10.21.2005 2:38pm
xray (mail):
Bowser: I asked first! And I am still waiting, so get in line.
10.21.2005 2:38pm
M. Simon (mail) (www):
Houston Lawyer,

Swingers Clubs can be found in every major city in America.

The bonds of matrimony may be moderately strong in this country. The bonds of fidelity less so.

So what is the great moral protection the prevention of SSM will confer?
10.21.2005 2:41pm
Goober (mail):
Editors,

So... is it fair to say your argument is roughly that (a) gay marriage shouldn't be permitted, because (b) you yourself don't like having sex with men (or women, whichever)?
10.21.2005 2:41pm
The Editors, American Federalist Journal (mail) (www):
I have no interest in restating someone else's arguments for those who can't read them or refuse to acknowledge that they've even been written. That's just a silly game.
10.21.2005 2:43pm
M. Simon (mail) (www):
Editors,

I get it.

If two people of the same sex want to marry one of them will have to get a sex change operation.

Then - no problem.
10.21.2005 2:46pm
Goober (mail):
You'll forgive us if we impute other motives to you, Editors? Because we still believe she's not written a valid argument to believe anything.

You do understand the difference between "argument" and "reason" on one hand, and "blog post" on the other, right?
10.21.2005 2:46pm
The Editors, American Federalist Journal (mail) (www):
As long as we're redefining words, why don't we call relationships between three or more people "couples"? Why discriminate? What's so sacred about the number two? Who are we to judge?
10.21.2005 2:47pm
xray (mail):
The Editors: I thought it was amusing watching MG lay all that groundwork and then give us a few last thoughts without ever stating her position, but you guys are hilarious. You really have nothing to say and yet you continue to act like you are the only ones who got it. Thanks for the smile!
10.21.2005 2:47pm
Simon (391563) (mail) (www):
Its no wonder that an increasingly growing number of americans, though they are more tolerant towards homosexuality each year, they are less tolerant of the redefinition of marriage in the image of ssm".

On Lawn, do you have a shred of evidence, even the tiniest morsel, to back up the assertion that over time Americans have grown less tolerant of gay marriage?
10.21.2005 2:48pm
Houston Lawyer:
The burden is not on those who wish to preserve the law the way it is, the burden is on those who wish to change it. You scoff at my reasons and I scoff back. The people of every state who have been asked to vote on this issue (including California) have backed traditional marriage. It's not just the law you have an issue with, its democracy itself.
10.21.2005 2:48pm
The Editors, American Federalist Journal (mail) (www):
Goober: "Because we still believe she's not written a valid argument to believe anything"

Earlier you said she hadn't made any arguments. Now you're saying she made no "valid" arguments. Were you lying in the first assertion or the second?
10.21.2005 2:51pm
Matthew Patterson (mail):
jACKJOHN:

And isn't MG really just saying, "Hey, they're in the fringes for a reason, and that reason is justifiable, etc."? I think you're the activist one, not her, regardless of the validity of her arguments, on which I share no opinion.

Actually, yes, that's basically what I think she wound up saying. And what *I* am saying is that this is a much bigger problem than "should gay people get married?" It's fine if Gallagher personally would like to marginalize gay people -- well, not in my opinion, but nobody should be able to stop her -- but if she's arguing that *governments* should be allowed to do so because of the argument she lays out, that's quite a different ball game. Last time I checked, gays and lesbians were citizens too.
10.21.2005 2:53pm
Crane (mail):
To those who want a summary of the argument:

I don't agree with Ms. Gallagher, so those who do might find fault with my summary, but I think she argued that the ideal family unit is composed of a father, a mother, and the babies they made together. I'm not so sure why some deviations from this ideal (adopted children, no children, a positive dislike of children, etc) are considered ok, while others (two fathers, two mothers) will bring about the End of Civilization.

It may have something to do with her belief that procreative sex is sacred, while non-procreative sex is, well, not.
10.21.2005 2:53pm
Randy R. (mail):
What's funny is that in Spain, 80% of the people support SSM. How can they all be wrong? In Canada, a huge majority (I don't know the percentage) supports SSM. In other places where it exists, same story.

The major difference between those countries and ours? The absence of a large number of right wing evangelicals and fundamentalists, or groups like Focus on the Family or James Dobson. Even the evangelicals acknowledge this fact. So what we have is that there is broad support for gay marriage, unless there is a large number of right wing fanatics to oppose it. And do those right-wingers love gays, but hate SSM? No way, they hate gays with a passion.

So what this all really boils down to is the strong influence of these religious nuts (and yes, anyone who believes literally in the bible is in my view nuts). Believe me, as a gay man, I feel the hate quite clearly.

What has this to do with Maggie? Maybe not much. But I just had to vent for a minute. The people she referenced in Canada? Those are the ones who lost the battle to prevent SSM, and now they refuse to accept defeat and are making attempts of civil disobedience (having justices break the law by refusing to administer to SS couples, for instance). What they fail to understand is that civil disobedience IS breaking the law, and you go to jail for it, but they don't like the jail part of it. So they ominously claim, as Maggie does, that there is some attempt to stiffle their dissent.

Well, they can dissent all they like, no one is stopping then. But if you break the law, you go to jail, just like the rest of us.
10.21.2005 2:55pm
Quixote:
The more I read, the more I think Prof. Volokh should make Ms. Gallagher a permanent blogger.

He should not allow her to be shouted down by the numerically superior, but ideologically and logically inferior - not to mention impolite - commentators above.
10.21.2005 2:55pm
On Lawn (mail) (www):
Simon,

Googling for this I found a writeup by Maggie. Given that this is her show, I'll defer. In it she points to polling trends that show evidence that the debate is indeed being won by marriage supporters.

Another interesting poll trend, if you include a program to recognize ss-couples like Reciprocal Benficiaries or Civil Unions then the trend is even more dramatic. But it is clear that equating CU's or RB's with marriage is not their desire either.
10.21.2005 2:56pm
The Editors, American Federalist Journal (mail) (www):
Matthew: "Last time I checked, gays and lesbians were citizens too."

You seem to be arguing there that the government is somehow obligated to officially affirm any behavior that "citizens" might engage in.

But there are all sorts of different interpersonal relationships that the government doesn't officially affirm with a license or call "marriage."
10.21.2005 2:56pm
Jimmy (mail):
Maggie- Thank you for presenting your argument. I found your points compelling and in many ways convincing. I'm now ready to hear the other side of the issue.

Eugene- Thank you for allowing a forum for this discussion. I look forward to next week's pro-SSM blogger.

As a fence-sitter with an upcoming State-wide constitional amendment vote on gay marriage, info like this is exactly what I need to make a fully informed decision. Now if I could just get the info without the comment snarkiness [Yeah right, this is the Internet Jack!].
10.21.2005 2:57pm
On Lawn (mail) (www):
Quixote,

Thank you, you are exactly right. Though there might be other voices (Glen Stanton, Michael Medved) that would do well here too, I think that Maggie has shown a class and grace that makes me appreciate her style all th emore. I think Chairm put it well.
10.21.2005 2:59pm
Designbot:
Editors,

This is really pathetic. "Oh, she made lots of great points, but, uh, uh, I don't feel like mentioning them now. You can't read! This is a stupid game! I'm going home! Waaaahh!!!"

Please. I think she made of a lot of complicated-sounding arguments about the philosophy and theory of what she thinks the purpose and "meaning" of marriage is.

I don't think she did make any concrete arguments about how, in practical terms, gay marriage would actually cause any changes. Did she ever specifically claim that more people would get divorced? That people would stop having babies? That fathers would be more likely to abandon their children? That fewer children would be raised in two-parent homes? It was certainly the implication of her copious verbiage, but I don't recall whether she actually made those arguments.
Even if she did, I know she never offered an explanation as to how the legalization of gay marriage would cause people to make these personal choices. This should not take 25,000 words to explain. You should be able to sum it up in a few bullet points. Here's an theoretical example:

Gay marriage will cause:
• Currently-married straight people to divorce
• Fathers to abandon their children
• People to stop having babies
• The breakdown of Western civilization
Because:
• Straight people will think marriage is now meaningless
• Fathers will turn gay and marry each other
• If people aren't married, they'll stop having kids
• Children will be raised to be hooligans by their non-married or gay parents

Did she actually make these arguments? No. This is an example. What arguments did she make? I can't figure that out. Apparently you can.
10.21.2005 3:00pm
The Editors, American Federalist Journal (mail) (www):
Crane: "I'm not so sure why some deviations from this ideal (adopted children, no children, a positive dislike of children, etc) are considered ok, while others (two fathers, two mothers) will bring about the End of Civilization."

Adopted children still have a mother and a father. Couples with no children now have the potential to produce them in the future, as a rule. Same-sex couples on the other hand are incapable of producing a child and providing that child a mother and a father. All of this is really rather obvious.
10.21.2005 3:00pm
The Editors, American Federalist Journal (mail) (www):
Designbot,

Yes, it is pathetic to repeatedly ask someone to restate arguments someone else has already made, after saying they didn't make them, because you just don't like what she said.
10.21.2005 3:04pm
jACKJOHN (mail):
MATTHEW: Last time I checked, gays and lesbians were citizens too.

Good, then why don't we put it to a vote and let legislatures decide. Then all citizens can evaluate MG's arguments and determine if they are valid and should govern how we collectively live.
10.21.2005 3:05pm
Stephen C. Carlson (www):
It probably also means everyone's talking past each other (as per usual), but the inability of Maggie to get her point (whatever the hell it was) over to a large number of commentators is a real big problem in a writer.

I think it has more to do with what Thomas Sowell called a "conflict of visions." Gallagher is sketching a Burkean argument that those in the "constrained vision" are used to understood but does nothing for those operating within the "unconstrained vision."

I suspect that even if Gallagher were to fit in all the blanks she alluded to with the materials on her website, it wouldn't make much of a difference to a lot of the commenters. Her reliance on the lessons of history that have accumulated in the institution of marriage--lessons that no one has yet to articulate (fully)--is simply a non-starter for those in the unconstrained vision, as is the demand that she articulate reasons that SSM won't harm society is a non-starter for those in the constrained vision.
10.21.2005 3:05pm
On Lawn (mail) (www):
Editors to Designbot,

Agreed. It seems plenty of people *have* seen the arguments. Perhaps we are left with people who have not read her posts applealing to others who have not read her posts. The blind finding others like themselves to lead with their personal judgements.
10.21.2005 3:05pm
JW (mail):
Riddle me this, Editors:

A man's fiancee is forced to undergo a hysterectomy. Does he now have an obligation -- moral or otherwise -- to break off the marriage?
10.21.2005 3:06pm
M. Simon (mail) (www):
Quixote,

If a person truly believes no argument has been made is it impolite to say so?

Now it is possible it may be wrong, but impolite? I don't think so.
10.21.2005 3:06pm
Designbot:
Off topic, but boy, that Maggie's so smart, she knows about stuff nobody's talking about!

Your search - "New Institutionalist Economics" "isomorphic institutional change" - did not match any documents.
10.21.2005 3:07pm
guest:

The more I read, the more I think Prof. Volokh should make Ms. Gallagher a permanent blogger.

He should not allow her to be shouted down by the numerically superior, but ideologically and logically inferior - not to mention impolite - commentators above.


Who's "shout[ing]"? There have been a handful of rude comments on both sides, but the reason there are so many more comments opposing Maggie's position than supporting it merely reflects that most commentators aren't persuaded by her arguments.

"Shouting down" implies heckling. The fact that the vast majority of comments are not supporting of Maggie's position is not tantamount to "shouting down".
10.21.2005 3:07pm
Colby:
As a fence-sitter with an upcoming State-wide constitional amendment vote on gay marriage, info like this is exactly what I need to make a fully informed decision.

Jimmy, My state too. Though if your state is anything like mine (Wisconsin), the amendment is not even close to being a vote on marriage. It's about civil unions, domestic partnership rights, and the like. Indeed, most such amendments are about excluding lesbian and gay couples from any of the responsibilities and rights of marriage.

Here is the text of the proposed Wisconsin amendment, which seems to be standard for such amendments: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."
10.21.2005 3:07pm
weboy (mail):
Boy am I relieved to see I'm not alone... I think the problem is Gallagher doesn't like to follow any of her lines of logic through to their conclusions. There are tangential questions raised, as others note, about divorce, adoption, and her views on homosexuality, that get dismissed or ignored, but if investigated, probably make her arguments less meaningful than at first blush. I have always been personally most offended by the anti-single parent line to Gallagher's reasoning, since it tends to insult people like my own Mother, who did a yeoman's job raising me and my sister, and a more supportive society would have helped her, not a judgmental, punishing one. Never mind how these "let's frown on single parenting" discussions ignore practical realities, such as how best to deal with, say a violent alcoholic (get him away from the small kids, is that so odd?).

I digress, but this always annoys me. And anyway, this to me is Gallagher in a nutshell - lofty bromidea about ideal situations, ignorance of practical reality. If intact two parent families are the ideal, where does adoption fall? When should we ignore adoptions if a man and woman want their kids back? If marriage is so sacred, why is divorce not the biggest problem for protecting the sanctity of marriage? And, if same sex marriage is so bad - presumably because of two same gendered people not being procreative in the expected way - why is Gallagher, like so many others, so obssessed with discussing how odd two men getting married is? Why never (or rarely) two women?

Like so many others, apparently, I don't get it - I have no idea, outside of her own personal biases and prejudices (and I mean that in the most non-judgemental of ways - we all have them), just what Gallagher's best argument against marriage for people of the same gender is, exactly. Ideally a man and a woman should marry and have kids, she says. That seems to be about it. I don't disagree - I grew up in the same culture. But life is full of less than ideal situations and less than perfect choices. And Gallagher's biggest flaw has always been gliding past the realities and contrating on the ideals. All very nice, not very useful. Hopefully one day she'll dive in, extrapolate on her ideas, and do the hard work of adapting her proposals to real life. But at this late date, I doubt it.
10.21.2005 3:09pm
A Berman (mail):
As someone who has changed his opinion on SSM twice, it's pretty clear to me that acceptence of the other side's arguments usually comes down to emotion-- are you even emotionally available to the other side or not?

Many people opposed to SSM will never accept arguments that it is a civil rights issue, or that homosexuality is a legitimate form of sexual expression. At the same time, many SSM proponents seem to have trouble accepting the fact that societal views/laws about sexuality possibly have societal consequences and that those possibilities should be examined.

But some of us can be convinced. I was -- twice. I first was against it emotionally. I got over that and said to myself 'There are gays who want to get married and get all those benefits. Really, unless someone convince me that that's a problem, we should let them.' What the anti-SSM group has done was, to be blunt, convince me that yeah, there very well might be some real serious problems. That *even though* promoting marriage (man/woman) over other forms of relationships is to implicitly demote those other relationships, that sometimes promoting something over other things is necessary.

And history supports this. Here's a thought question-- suppose Gay Marriage had no negative impact on societies. There have been thousands of societies throughout history. Where are the ones with gay marriage that lasted a long time? Where are they?
10.21.2005 3:10pm
On Lawn (mail) (www):

To those who wish to argue Maggie made "no arguments",

Perhaps if it were stated with more unverifiable equivocation it would be more defendable a statement. Something along the lines of "Maggie made arguments that didn't persuade" or "Maggie made arguments that would be better if". But to say "no arguments" is easily disproven.

One wonders how Orin Kerr (among others) were able to see and distill the arguments made even without agreeing with them, yet so many continue to look at over a dozen posts and imagine to pull the wool over people's eyes with the exclamation, "no arguments were made".
10.21.2005 3:11pm
The Editors, American Federalist Journal (mail) (www):
JW: "A man's fiancee is forced to undergo a hysterectomy. Does he now have an obligation -- moral or otherwise -- to break off the marriage?"

Of coruse not. I don't see how that question has any relevance to anything I've said.
10.21.2005 3:14pm
Morat (mail):
Okay, I think I've got this straight:

Maggie: Gay Marriage would be BAD because it's a change from what we have now, and what we have now is already bad, and this would make it be worse.
Liberatarian-Minded Commentators: How, exactly, would it make it worse?
Traditional Conversative Comemntators: Dude, she just TOLD you it'd make it worse. Gays would be marrying, and marriage is in enough trouble!
Libertarians: But how, exactly, would it make it worse?
Maggie: Look, for the last time. DUDES MARRYING IS CHANGING MARRIAGE. Marriage has enough problems without changing it.
Libertarians: But, seriously, I'm not arguing this is a change for the better, but it seems like the problems with marriage -- at least, the ones you're listing -- have bugger all to do with gay marriage, so once again, what's your point?
Conservatives: She's MADE the points, you're just being obtuse.

It's become pretty obvious there are two camps: One side doesn't want things to change -- either because they're worried change will make a bad situation worse. (We'll leave out the flaming bigots). The other side doesn't see it SSM doing jackall to change marriage whatsoever, so wonder what all the fuss is about.

Maggie isn't talking to you guys. She doesn't have an argument for you guys. You aren't the people she's interesting in talking to.

Gay marriage being "bad for marriage" is an article of faith. Reason, logic, and evidence have nothing to do with it and never had. If there happens to BE some of that, then it's a happy accident.

The Sun revolves around the Earth, no matter what that Galileo chap says about shadows on the moon. END OF DISCUSSION.
10.21.2005 3:14pm
Bob Van Burkleo (mail):
The Editors, American Federalist Journal (mail) (www):
Bob v: "Can a gay person marry someone they would, as the NIS put it 'build a life with'?"
Yes. Any person in America can marry another person of the opposite sex.


Well pedantically correct and yet obviously flawed. Gay people want and should 'build a life' with someone of the same gender. So the answer is still 'no they can't'.

"The same limitations on the definition of marriage apply equally to every person."

Since current dictionaries include same sex marriage I would agree with that statement. The question is why are there licensing prohibitions that prevent married same sex couples from accessing the civil contract in support of their marriage?

"And if you have some empirical evidence that there is a qualitative difference between these relationships please speak up."

Go have sex with man, then with a woman. Report back if you find the two experiences identical.


Actually they are other than one has no desire or feeling going with it. And since sex is only a minority part of a relationship we are back to the situation where there is more variability within a group than there is between the groups. Same relationships, same needs, same rewards. I am thinking that its more likely you haven't actually given it try - if you think there are differences please list a few, the fact you didn't is a bit telling.

Interestingly your using the wrong case in my family name is illustrative of you and your's skewed viewpoint. You think you can tell others how they should run their lives and that their lives should conform to what you think they should be. The family name has been an upper case 'V' for about 300 years yet you are fixing it for me.

Don't like same gender marriges - don't be in one, but don't think you can tell others if they can.
10.21.2005 3:15pm
On Lawn (mail) (www):
Colby,

I'd beg to differ with your assessment, which is a talking point right now in Florida as well as Wisconsin. We've seen in Michigan where an ammendment such as the one being voted on in your state did not have the outcome you predict.
10.21.2005 3:15pm
Joshua (mail):
Quite some time back, Deontologist wrote:
Wherever rights derive from, it is not from the common good or the interests of society, and so considerations of the common good cannot show that people do not possess a right. On the contrary, the right takes priority over the good. This is, I think, the fundamental insight of liberalism in both its egalitarian and classical forms. Insofar as the form of you're argument rests on denying this, it rests on denying one of the core values of American political society.
(Emphasis added by me.)

Very, very well put. In fact, to be honest I'm a little disappointed that not many other commentors on MG's posts have eschewed the quibbling over the evidence, or lack thereof, to support MG's claims and simply stood on principle: that even if there were irrefutable evidence that SSM would harm society as we know it, it just doesn't matter: continuing to ban SSM still amounts to discrimination and is still wrong - the consequences be damned. All the argument over evidence of societal harm reminded me of PETA trying to fabricate health scares to get people to stop eating meat, instead of simply staying on-message with the idea that killing animals for food is (to paraphrase another commentor to a different MG post) wrong, wrong, wrong.

A few posts ago, Cornellian brought up slavery. How often did abolitionists waste their breath trying to deny or downplay that ending slavery would have any negative unintended consequences on American society? As far as I'm aware, the answer is "not very." And why should they have? They believed that slavery was wrong, wrong, wrong (there I go again) and ought to be abolished, and let the chips fall where they may. Hell, not even a civil war with a six-figure death toll fazed them. Why should SSM be treated any differently? (By that I mean standing on principle, of course, not necessarily having another civil war over it.) If legalizing SSM does indeed lead to the collapse of American society, then so be it. After all, if any society really does need unjust laws to keep it going, does it even deserve to keep going?
10.21.2005 3:15pm
M. Simon (mail) (www):
jACKJOHN,

If marriage is a IXth Amendment Right then I do not think you can bring it to a vote.

I think Nevada rules would solve the problem: if you can get someone to marry you the state will register it. I don't think they have gone as far as same sex yet. But they might if shown the business model. We would see some truly lavish and FABULOUS weddings. Liberace would have loved it.
10.21.2005 3:17pm
Designbot:

Editors to Designbot,

Agreed. It seems plenty of people *have* seen the arguments. Perhaps we are left with people who have not read her posts applealing to others who have not read her posts. The blind finding others like themselves to lead with their personal judgements.


Surely you would agree that Maggie wrote a great deal of text over several posts. And it is also indisputable that many people here have had difficulty understanding the structure of her argument.

It doesn't seem unreasonable to ask for a simple summary of what her main points were, so we can at least agree about what we're disagreeing about. All this patting your back over how smart you are for "getting it" while refusing to articulate exactly what it is you're getting does nothing to advance your position.
10.21.2005 3:17pm
Goober (mail):
On Lawn---

But to say "no arguments" is easily disproven.

Please, disprove it. Please. Identify an argument that actually contains a reason why same-sex marriage is a bad idea that Maggie Gallagher made. If you'd read Prof. Kerr's posts (both of them), you'd see that he came to his own reasons, independently of what Gallagher said. It is our contention---still!---that Ms. Gallagher has not made any arguments herself.

But you're of a different belief and it appears you'd take a great deal of satisfaction in proving that she had made an argument. I humbly invite you to do so.
10.21.2005 3:18pm
Bowser:
Designbot and others: it's probably best to ignore the Editors. They aren't contributing anything, and they don't deserve any attention.
10.21.2005 3:19pm
On Lawn (mail) (www):
Bob,

Gay people want and should 'build a life' with someone of the same gender. So the answer is still 'no they can't'.

Because they don't have a marriage certificate? This argument is not only wrong, but we see how ss"m" supporters quickly abandon it when it no longer serves their point.
10.21.2005 3:23pm
The Editors, American Federalist Journal (mail) (www):
Bob; "Interestingly your using the wrong case in my family name is illustrative of you and your's skewed viewpoint. "

Actually, it's indicative of a failure to hold down the Shift key. Don't be so paranoid.

What some current dictionaries might say is not particularly relevant.

I would wager that 99% or more of humans find the gender of their partner to be a critical distinction when choosing a mate. This would not be the case if the relationships were essentially identical.

No one here is talking about banning same-sex relationships.
10.21.2005 3:24pm
On Lawn (mail) (www):
sorry, to add the link...

Bob,

This argument is not only wrong, but we see how ss"m" supporters quickly abandon it when it no longer serves their point.
10.21.2005 3:24pm
JW (mail):
Editors --

Well, in case I was being opaque, here's the relevance: you appear to agree with MG, who says that the overriding social purpose of marriage is "generativity." Marriage to someone whom, ex ante, one knows to be infertile would be, in MG's words, "a public act [that] is clearly no longer related at all to generativity," which is something that MG (and, presumably, you) believes to be harmful to society. If preserving a generativity-based understanding of marriage is so crucial, why wouldn't one be under an obligation to call of the wedding in those circumstances?
10.21.2005 3:24pm
M. Simon (mail) (www):
The best way to deal with a violent alcoholic? Get him to switch to pot. Except that would be illegal.
10.21.2005 3:25pm
DM Andy (mail):
Johnjack: "Good, then why don't we put it to a vote and let legislatures decide. Then all citizens can evaluate MG's arguments and determine if they are valid and should govern how we collectively live."

That's a good idea, and what's happened over here in Europe, in the 1980s there were legal cases on the legal benefits of marriage being denied to same-sex couples. There were a few minor victories, but generally the European Court of Justice said "You're not married and you're in exactly the same position as non-married opposite sex couples, therefore there's no discrimination here." Knocked back in the legal sphere, SSM activists have worked on public opinion to get legislatures to pass equality legislation. So therefore, right now, SSM or civil unions are now law in the majority of EU member states.

My advice to SSM supporters in the US is point out the unfairnesses of the current system, make your case, use the fact nothing bad has happened in the other countries that have SSM as evidence. I'm hopeful for the future, we have common decency on our side.
10.21.2005 3:25pm
Designbot:
A Berman,


And history supports this. Here's a thought question-- suppose Gay Marriage had no negative impact on societies. There have been thousands of societies throughout history. Where are the ones with gay marriage that lasted a long time? Where are they?


This argument is meaningless. Where are the societies that banned gay marriage that lasted a long time? Do think there are more collapsed societies that banned gay marriage or that allowed it? Is this in any way relevant?

I have an equally compelling argument for you. Billions of people in history have been opposed to gay marriage. How many of them are still alive?
10.21.2005 3:26pm
Matthew Patterson (mail):
jACKJOHN

Good, then why don't we put it to a vote and let legislatures decide. Then all citizens can evaluate MG's arguments and determine if they are valid and should govern how we collectively live.

I have been trying to say, over and over, that if Gallagher's arguments hold, then the issue goes *beyond* marriage. If gays and lesbians are so irrelevant to humanity in general, as Gallagher seems to be saying, then what does this imply about the way governments should be allowed to treat them?
10.21.2005 3:26pm
On Lawn (mail) (www):
Bowser,

Isn't that what people are saying about Maggie? Its best to ignore, and that is what Editors are pointing out is egregious behavoir.

Its tantamount to ignoring the 800lb Gorilla. Which was one of the first observations noted in this debate by Maggie by refering to staring at a blank wall. Ignorance is indeed a weapon, and one that ss"m" supporters can't seem to do without.
10.21.2005 3:26pm
The Editors, American Federalist Journal (mail) (www):
So Goober is returning to the "no arguments were made" lie. Sad.
10.21.2005 3:27pm
Bowser:
On Lawn: no, we aren't trying to ignore Maggie, we are trying to figure out what her argument is. I think that's a significant difference - we are trying to listen to her, rather than ignore her.

The Editors are acting like 6th graders. They should be ignored.
10.21.2005 3:29pm
NaG (mail):
Children have a right to a society that respects their deep, passionate longing for a mother and a father; one that calls on adults to make significant sacrifices to satisfy this longing.

What right is this? How is this any more authoritative than, say, the declaration of a "right to privacy" in Griswold v. Connecticut?

Even worse, the logical extension of this so-called "right" is to ban divorce since that creates single-parent homes, and that would violate the "right" of a child that longs for a two-parent household.

Frankly, I don't think a kid sits there with a mental checklist of his/her emotional needs: "Two parents of the opposite sex? Check." Kids need nurturing. They need to be loved and cared for. Whether they get this from their mother and father, or just the mother, or a father and step-mother, or an aunt and uncle-in-law, or grandparents, or an adoptive couple, or a nanny, or a father and his domestic partner, is simply not that important. That they are loved and cared for is the important thing; exactly WHO does this is a minor matter. Certainly, a child is better off with an adoptive lesbian couple that love and care for the child than an abusive mother and father that neglect and beat the child. So why does the lesbian couple automatically get the short shrift here?
10.21.2005 3:29pm
jACKJOHN (mail):
Matthew: If gays and lesbians are so irrelevant to humanity in general, as Gallagher seems to be saying, then what does this imply about the way governments should be allowed to treat them?

I don't care. But then, I won't be out voting if this is put to a vote, because I don't care. Since you care, I would suggest you get out the vote and win an election.
10.21.2005 3:33pm
On Lawn (mail) (www):
Goober,

Identify an argument that actually contains a reason why same-sex marriage is a bad idea that Maggie Gallagher made.

In this article alone...

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That's what "no difference" means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.


f you'd read Prof. Kerr's posts (both of them), you'd see that he came to his own reasons, independently of what Gallagher said.

That directly conflicts with what Kerr said,

Reading over the various posts and comments, I think I'm beginning to understand the argument Maggie is making.[emphasis mine]


Then in the next sentance he states that very argument he pulled from Maggie's posts...

The argument is that extending marriage to include same-sex couples would not just give rights to a small subset of the population, but would radically transform what marriage is. So long as only opposite-sex couples can marry, the thinking goes, marriage is linked to procreation; if same-sex couples can marry, too, then marriage is transformed into something else entirely. Adding same-sex marriage would ruin the old institution and create a new one, and the new institution would not longer retain a focus on having and raising children. Viewed in that light, same sex marriage is a threat to society: by redefining the institution, it will kill off its most important feature.


Kerr saw an argument, and you do not?

You strain credibility.
10.21.2005 3:33pm
Medis:
I, for one, am willing to state that Maggie presented "arguments" in the broadest sense. They were mostly presented through vague suggestions, analogies, or rhetorical questions, but it wasn't too hard to piece them together.

I think the real problem is that these implicit "arguments" were obviously flawed in various ways, including being internally contradictory at several points.

So again, my question is: how can we tell the difference between merely bad arguments, and arguments that are actually rationalizations offered in lieu of a person's real reasons? Can we just look at the arguments themselves and note how implausible it is that anyone would find them convincing, or do we also need more direct evidence that the person has real reasons that she is not sharing with us?

Of course, Maggie ultimately did give us more direct evidence of her real reasons in various spots (in short, I believe that she confirmed my suspicion that she has a taboo attitude when it comes to gay people and/or gay sex). Many of the commentators, of course, were even more explicit (and thus more honest, which I appreciate).

But can we say as a general matter that those offering Maggie's arguments, minus the elements that more directly confirm her taboo beliefs, are rationalizing? I'm not sure yet it is fair to charge all such people with Maggie's failures and admissions.
10.21.2005 3:34pm
On Lawn (mail) (www):
Bowser,

Your self-assertions are noted but, your actions are speaking much louder.
10.21.2005 3:34pm
Maggie Gallagher (mail) (www):
How should government and society treat gay people, if I'm right that there is something unique and important about union of husbands and wives?

With respect to the marriage argument the answer is: like all other people who aren't married, that is: with respect for their rights and their basic human dignity.

My own sense is that I am required to treat gay people as a. children of God b. fellow citizens and c. people with whom I agree about somethings and disagree about others.


Maggie
10.21.2005 3:34pm
The Editors, American Federalist Journal (mail) (www):
JW:

First, I have not been arguing that procreation is the only distinction between same-sex relationships and opposite sex relationships.

However, it is an important, critical, distinction. Society is under no obligation to base its institutions on rare exceptions to the rule. As a rule, male-female relationships have the potential to produce children. We aren't obligated to perform a fertility test on each couple before issuing license. On the other hand, same-sex couples are never capable of producing a child, nor providing a child with a father and a mother.
10.21.2005 3:35pm
On Lawn (mail) (www):
Medis,

I appreciate the honesty, and I don't disagree. My prescription for debate is as follows:

We are all advocates and we should remain such in debating these issues. Personal judgements only persuade people who do not think for themselves. Better to encourage people to think for themselves through advocacy.
10.21.2005 3:36pm
Morat (mail):

How should government and society treat gay people, if I'm right that there is something unique and important about union of husbands and wives?

You should FIRST start by pointing out how, exactly, Bob and Steve getting married does anything to the unique and important union of husbands and wives.

To quote Jon Stewart: "Wait, are they going to MAKE me marry a guy. Cause, if not, how is this an issue?"
10.21.2005 3:38pm
Kendall:
Alright, then how about this. Maggie's argument is poor and repetitious. It boils down to "Sex makes babies. Babies are good for society. Babies need mothers and fathers" Her evidence of that last assertion btw was a studied that compared married couples with children to single parent homes. Nothing to do with same sex couples, just "single parents." I'm sorry if I'm not persuaded that that indicates that "babies" (really, kids of all ages, not just the limitted term) need "mothers and fathers." She never explained why, if that were so, most states currently allow gays to adopt, nor did she explain why the gender of the parent is more critical than having a loving home. It seems even states don't have the "procreative orientation" (a term used by several anti-SSM people I've heard used) requirement that Maggie waxed philosophically and constantly about.

In other words? she didn't adequately support the only point she made. If not even states believe that all children require a mother and a father then what makes us believe that the law should believe that in regards to marriage rights?

Maybe I missed it, but to me those omissions, along with others are either sloppiness, or a deliberate willingness to ignore fundamental questions about the connection she was trying to make.
10.21.2005 3:39pm
JW (mail):
Editors --

Follow the bouncing ball. I didn't ask you about society's obligation. I asked you about the man's obligation.
10.21.2005 3:41pm
The Editors, American Federalist Journal (mail) (www):
Designbot: "Where are the societies that banned gay marriage that lasted a long time?"

No one is talking about banning gay marriage. Gay couples can currently have a ceremony in a church, proclaim their love in front of family and friends, rent a hall and throw a reception, live the rest of their lives together, all of it.

They do not have the right to have the government redefine marriage or officially affirm those relationships. The state is not obligated to call different types of relationships the same.
10.21.2005 3:41pm
On Lawn (mail) (www):
Editors to JW,

Indeed, what JW brings up is what we call The Sterility Strawman. On the face of it, trying to pass off as disabled-yet-not-disabled shows an important point. Ss"m" is not about the equal protection, its about the totalitarianism of equalization.
10.21.2005 3:42pm
Chairm Ohn (www):

Certainly, a child is better off with an adoptive lesbian couple that love and care for the child than an abusive mother and father that neglect and beat the child. So why does the lesbian couple automatically get the short shrift here?
Probably because they are short one sex and thus cannot form a conjugal relationship that is recognized as marriageable.

[Lacking gender-equality, they are gender-short. It takes one of each sex to make gender-neutrality a reality. There is no individualized right to marry the person of one's choice; the right is to join in mutual consent in a conjugal union.]

But in the above quotation, the issue is really the social instituiton of adoption and the protocols for becoming eligible to adopt a child in need. There is no human right to adopt a child, and adoptive status does not bestow marital status; in fact, marital status and marriageability are appropriate criteria for prioritizing prospective adoptors.

All told, the topic of adoption does not advantage either side on the marriage issue.
10.21.2005 3:43pm
The Editors, American Federalist Journal (mail) (www):
JW: This discussion is not about a man's personal obligation. It is about what types of relationships the goverment officially sanctions. So your question has no relevance whatsoever.
10.21.2005 3:45pm
The Editors, American Federalist Journal (mail) (www):
Classic apples/oranges argument: "Certainly, a child is better off with an adoptive lesbian couple that love and care for the child than an abusive mother and father that neglect and beat the child."
10.21.2005 3:47pm
Cornellian (mail):
That seems to me to be ripe for negative unintended consequences, since the latter portion of it applies to both same sex and opposite sex couples. Would it prohibit the legislature from enacting a law stating that where an opposite sex couple lives together for 5 years in a conjugal relationship, then separate, that one owes the other support payments for some limited period of time?

Here is the text of the proposed Wisconsin amendment, which seems to be standard for such amendments: "Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."
10.21.2005 3:48pm
JW (mail):
Editors --

Just humor me and answer the question.
10.21.2005 3:48pm
On Lawn (mail) (www):
Morat,

You should FIRST start by pointing out how, exactly, Bob and Steve getting married does anything to the unique and important union of husbands and wives.

Maggie met that burden in her first post, and this one by pointing out how marriage is replaced with another institution with the same name. That changes everyone's marriages. See Daniel Gottlieb's A defining moment in mathematics and the Gay Marriage decision.

To quote Jon Stewart: "Wait, are they going to MAKE me marry a guy. Cause, if not, how is this an issue?"

Jon "terrorism is not a noun" Stewart is really good at making statements that are easily seen through. Its why he isn't funny, even with a healthy dose of humurous absurdity one is left shaking there head not because they didn't get it but because "No, Jon, you don't get it".

The dictionary includes ss"m" as a seperate definition of marriage. This new definition is far removed from the previous one, and is instead more of a bandage of any two things than a union of opposites (in this case genders). In Massachusetts marriage has already been replaced with something of the same name. But since it means something very different, it has a different effect in Society. This is Jane Gaults contension in noting the marginal cases that this would effect for the worse.
10.21.2005 3:49pm
Designbot:
On Lawn,

Have you actually read the things you're quoting? What are the pratical consequences spelled out here? There are a lot of words, but it doesn't say much.

After SSM, the law will be committed to reclassfying the once-privileged conjugal vision of marriage—with its deep roots in the reality that humanity comes in two halves, male and female, who are called to join together in love, not only as a private satisfaction, but in order to make the future actually happen—as at best a private understanding and most likely a discouraged, discriminatory understanding of marriage.

Stated consequences to human beings: None.
Implied consequences to human beings: People with traditional views may be looked down on.

If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad. So long as they have love, money and stability, fathers (or mothers) are equally dispensable. That's what "no difference" means. The institutions of government, including public schools, will begin to enforce this new concept of marriage. This is not a conservative case for marriage; it is the final triumph of the family diversity argument.

Stated consequences to human beings: Public schools and other government institutions will endorse gender neutrality with regard to marriage.
Implied consequences to human beings: People with traditional views, and children of those people, may be looked down on.

The argument is that extending marriage to include same-sex couples would not just give rights to a small subset of the population, but would radically transform what marriage is. So long as only opposite-sex couples can marry, the thinking goes, marriage is linked to procreation; if same-sex couples can marry, too, then marriage is transformed into something else entirely. Adding same-sex marriage would ruin the old institution and create a new one, and the new institution would not longer retain a focus on having and raising children. Viewed in that light, same sex marriage is a threat to society: by redefining the institution, it will kill off its most important feature.

Stated consequences to human beings: None.
Implied consequences to human beings: Society is "threatened"? Unclear.

Here whole argument here is that her views will be unpopular. Is that so terribly frightening?
10.21.2005 3:49pm
On Lawn (mail) (www):
JW to Editors,

I answered it above. If you want to disagree, disagree with the answer provided. Chasing around people with hoops you want them to jump through is not very couth behaviour.
10.21.2005 3:51pm
On Lawn (mail) (www):
Designbot,

Admission that an argument has been made is progress. The attempt at mind reading is not. Try starting with Kerr's restatement if you find her argument too nuanced or complicated. Or start with the 800lb Gorilla you are most desperately trying to ignore and margionalize into the sidelines.
10.21.2005 3:54pm
Shawn (mail):
A Berman asks:

There have been thousands of societies throughout history. Where are the ones with gay marriage that lasted a long time? Where are they?

I'm not sure this is a fair question because our modern-day understanding of marriage and homoseuxality are very different than that of past societies.

As an example, I'm not sure SSM would have made sense in a society where the woman was an owned object (chattel) and that marriage had little to nothing to do with love. And that just describes our own American marriage culture as recently as the 20th century. After all, which of the two men would become the chattel and voluntarily give up rights? Would society then even allow a male to do so? Or, would society then allow a woman to have equal status as a male if she heads a woman-woman houshold and takes another woman as her chattel? SSM would only make sense in a culture where both partners in a marriage are considered equal both in and out of the relationship and where love and comittment are highly valued.

The word "homosexual" wasn't coined until the 1890s. Our modern understanding of homosexual unions as something more than just sexual entertainment is newer still. Homosexual relationships exist all through history. John Boswell's book mentions same-gender marriage within the early Catholic church. Certainly, if true, it wasn't "lasting".

One might make the argument that our modern view of homosexuality is in large part due to the other changes made to the social understanding of marriage. Especially "love" and "equality" changes. I suppose that would be considered fuel for the anti-ssm argument in that many who hold anti-ssm opinions would consider homoseuxality a negative. On the pro-ssm side of the argument, taking homosexuals out of heterosexual "sham" marriages is probably a good thing for the heterosexual spouses that might be "duped."
10.21.2005 3:54pm
Medis:
The Editors,

I agree it is important to get the contrast class right (or, as you implied, we shouldn't compare apples to oranges).

So, what is the right contrast class for "married gay couple raising this child" in the context of this discussion?

I think you are asserting that it is "married straight couple raising this child," but that is wrong (unless you are proposing taking children from gay couples and giving them to married straight people). Rather, the right contrast class is "unmarried gay couple raising this child."

So which is better for the child: being raised by a married gay couple, or by an unmarried gay couple? Because that is the real "apples-to-apples" comparison in this context.
10.21.2005 3:54pm
The Editors, American Federalist Journal (mail) (www):
JW: "A man's fiancee is forced to undergo a hysterectomy. Does he now have an obligation -- moral or otherwise -- to break off the marriage?"

None that I see. I still see no relevance to your question whatsoever, in the context of this thread or any other.
10.21.2005 3:55pm
Cold Warrior:

Kerr saw an argument, and you do not?

Jumping in to defend a fellow commenter:

I see the argument, too.

It is best described as the "Catholic Church Lite" argument.

The State: recognizes non-sacramental marriages
The Church: does not
Maggie: does, provided they involve members of teh opposite sex

The State: recognizes divorce, even of sacramental marriages
The Church: does not; recognizes only Church-rendered annulments
Maggie: adopts the Church position with respect to same-sex marriages (i.e., they are void ab initio), but adopts the State's position with respect to opposite-sex marriages (they are valid until a divorce decree issues).

Maggie: be honest. If you agree with the Church's position, espouse it. Be an advocate for the Church's position. Try to bring state and federal marriage laws closer to the Church's position on marriage in all respects. Support covenant marriages. Support legislation making pre-nuptial agreements legal nullities. Support legislation changing federal immigration law such that only marriages based on bonds of love and sexual attraction will be given effect for immigration purposes. Try to "restore" marriage as an institution by taking away the cheapening glosses of the 20th century. Convince people to support you.

But don't single out same-sex marriage as the villain.

Will bans on same-sex marriage lower the divorce rate? Lower the rate of ill-considered marriages, between opposite-sex couples who haven't the maturity or commitment to follow through on their promises? Lower the illegitimate birth rate?

Maggie's given us no reason -- NONE -- to believe that drawing the line at same-sex marriage will have ANY such positive effect.

Don't
10.21.2005 3:55pm
Goober (mail):
Nice, On Lawn. Except if you would read what I've been asking, which was that you show me where Ms. Gallagher made an argument. I would have thought it'd be easy once Prof. Kerr did all the work for her, but nevertheless she hasn't done it. And merely because Prof. Kerr was polite enough to say that Ms. Gallagher made a point is not, in fact, sufficient to show that she actually did.

Prof. Kerr makes a stab at something I still don't think is an actual argument against gay marriage so much as a metaphor about it. ("kill off its most important feature"---what does that mean, exactly?) But in any event, he certainly didn't deduce it from Ms. Gallagher, but rather from comments to his earlier post. (Like this one.)

With respect to your citation to Ms. Gallagher's paragraphs from this column: I think I must say this very slowly, but you do not understand what "reasons" are. What we have been asking for is a statement that, if believed to be true, would create a reason for someone to think gay marriage was a bad thing. I'm guessing it would be of the form: (a) if gay marriage were allowed, X would happen, and (b) X would be bad, because Y. (Although of course there are alternative ways to make an argument.)

What Ms. Gallagher has provided are exhortations, not reasons. "[H]umanity comes in two halves, male and female" is a characterization, not an argument.

On a possibly unrelated note: I'm trying to conceal my frustration talking with you; you've insisted that I've been incorrect through something like the 200th blog comment, and only now try to show me why you think that way, and it turns out to be based on a misunderstanding of what basic words mean. So I'm trying to be polite, and I ask that you forgive me to the extent I've failed.

But I would like to say thank you for an earnest and spirited conversation so far. I appreciate you keeping an open mind and trying to come to some resolution, if not eventual agreement, and hope you feel I've done the same.

Best,

Goober
10.21.2005 3:55pm
JW (mail):
On Lawn --

On the contrary, it is uncouth to speak out of turn. I didn't ask you the question, and it is rude to presume you know how the intended recipient of the question would respond.
10.21.2005 3:57pm
Chairm Ohn (www):
Designbot - the ojbective is to take steps toward seeing past, or around, the blank wall that all of us encounter in this discussion -- on all sides.

Children and the legal incidents of marriage.
10.21.2005 3:58pm
mattperkins (mail):
Thank you, On Lawn, for trying to summarize. I'm going to try re-summarizing:

1.) Marriage loses link to procreation; becomes a fundamentally different symbol/document/contract/relationship.

2.) ????

3.) End of western civilization.

The "loss of procreation" angle is welcome, because it's a fact I had not considered before reading MG's posts here. I do not agree that the connection between marriage and procreation would necessarily sever upon allowing SSM, simply because that connection is so overwhelmingly irrelevent (in my own, limited life experience).

From my numbering scheme you can probably tell that I find something missing, and that something is the "argument" so many of us are searching for. Look, I'm even willing to go along (in arguendo, or however the lawyers say it) with the lack-of-procreation-means-marriage-becomes-something-else assumption, which I'm not inclined to believe, but please -- throw me a bone, here. Tell me how one leads to the other.

Otherwise, what am I going to do with all these underpants? ...
10.21.2005 4:00pm
Cold Warrior:
Goober --

Everyone should read your post, linked to in your comment on 10.21.2005 at 2:55 pm.

It states Maggie's case -- at least I think it's her case -- far more succinctly and powerfully than her many posts.

It is an old-fashioned conservative approach. Someone earlier used the term "Oakeshottian." And such an approach may be criticized, but generally shouldn't be ridiculed.

Perhaps this type of argument was what she was referring to when she mentioned the New Institutionalist Economics -- the idea that social mores structure the universe of activities considered legitimate or illegitimate, and the behavior of individuals within such a social framework tends to reinforce the prevailing norms. Not really so hard to say after all.

Antony Giddens has made a career our of saying the same thing a million times over with a vague Marxian gloss ...

... so why the hell couldn't she just say it??
10.21.2005 4:02pm
Law Student Kate (mail):
Many posters here don't think that Maggie has ever actually articulated what the actual harm of SSM will be.

Here's what I think she thinks it is: SSM will shift the cultural meaning of marriage from the conjugal model to the "close relationship" model, and that this is bad for kids because it places a higher priority on adult desires than it does on children's.

That's all. I think that the answer is unsatisfying to so many posters here because they already conceive of marriage in the close relationship model, so it doesn't seem like any answer at all.

Having spent years living in both the most liberal state in the US and the most conservative, I can say that this is one major source of the disconnect in this debate. Many people living in liberal and/or urban areas already live in a culture where the close relationship model of marriage is the norm, so Maggie's argument seems completely nonsensical. But the so-called red-states still understand marriage as conjugal. And in the conjugal vision, it's SSM that's completely nonsensical.

If anyone wants to read more about the conjugal vs. the close-relationship model in the law, here's an overview:

Love and Marriage and Family Law


I know that a lot of posters here don't see it, but this whole debate is really more about what marriage is for than it is about what the marriage laws should be. If everyone could agree on what the purpose of marrige is, than it would be a lot easier to reach consensus on how best to craft the law to meet that purpose.

One last thing: can everyone at least agree that the entire thing is speculative? No one really knows what the long-term cultural effects will be of nation-wide SSM. There's no empirical evidence and no crystal-ball, so I would think that each side should at least have some doubts that they might be wrong. Only a true ideologue could be absolutely sure that SSM will destroy marriage, or absolutely sure that it will have no negative effects.
10.21.2005 4:04pm
jACKJOHN (mail):
If gays and lesbians are so irrelevant to humanity in general, as Gallagher seems to be saying, then what does this imply about the way governments should be allowed to treat them?

Oh, now I see. Well, I do think Bowers v. Hardwick was rightly decided and Lawrence v. Texas and Romer v. Evans are classic cases of judicial activism. And the "disparate impact" criminalizing sodomy has on gays I don't think is legally significant, because sexual orientation is not a suspect classification. I don't see why such decisions, like that child molestation is good or bad, or sodomy is good or bad, or marriage means x or y, can't be decided by legislatures. If were talking about killing, enslaving, taking property away from, or discriminating against gays and only gays just because they were born gay, then you'd have an argument. Otherwise, you're just spouting trash, especially given the success of the gay right movement in Europe -- as another commenter noted -- despite the lack of court order constitutionalizing the far left-libertarian ideological preferences of gay activists (whose views are not representative of average persons who happen to be gay).
10.21.2005 4:04pm
Morat (mail):

Maggie met that burden in her first post, and this one by pointing out how marriage is replaced with another institution with the same name. That changes everyone's marriages. See Daniel Gottlieb's A defining moment in mathematics and the Gay Marriage decision.


No it doesn't. Legalize gay marriage tomorrow, and my marriage to my wife is exactly the same. Handwave all you want, but nothing has changed for me. Not in the slightest.

Feel free to point out something that changed -- I realize handwaving and illusory BS is Maggie's calling card here, but surely you can point to a SINGLE concrete change in my marriage should gays be allowed to marry?

Anything? Any change at all? Even a little one? No? Didn't think so.
10.21.2005 4:05pm
On Lawn (mail) (www):
Cold,

Thank you. You and Goober can I'm sure hash it out whether an argument was made or not I suppose. But you made in interesting question...

Maggie's given us no reason -- NONE -- to believe that drawing the line at same-sex marriage will have ANY such positive effect.

Its curious however. Because it seems you demand for evidence something that one wouldn't intuitively expect. What Maggie is requesting is maintaining a status quo, which by its nature does not have effects but saves us from the effects of change. Yet you demand to see positive effects from maintianing the status quo?

Goober,

Yes your opinion and what you see and don't see is indeed your realm. In your own mind you profess and state many things you've convinced yourself of. But as Kerr, Cold Warrior and others show, there is an argument to be discussed. And self-serving margionalization and ignorance is not the discussion that it warrants.

JW,

If you want an answer, it was provided. It seems an answer is not indeed what you were looking for, however.
10.21.2005 4:05pm
Goober (mail):
Cold Warrior,

... so why the hell couldn't she just say it??

That's precisely what I've been wondering. I don't think it's because she's hitting at something distinct and different. But I suppose I just don't know.

It's my great shame that I've never actually read Oakeshott. I don't think the innovation was entirely his---it seems I remember Burke being in the same vein, and this guy whose name I'm going to misspell if I try, but this week's New Yorker had a very interesting profile on him.
10.21.2005 4:05pm
spectator:

The State: recognizes non-sacramental marriages
The Church: does not

That is not correct.
10.21.2005 4:09pm
Cornellian (mail):
Suppose you asked that question 200 years ago about the idea of giving women a legal existence apart from their husband's?

And history supports this. Here's a thought question-- suppose Gay Marriage had no negative impact on societies. There have been thousands of societies throughout history. Where are the ones with gay marriage that lasted a long time? Where are they?
10.21.2005 4:09pm
On Lawn (mail) (www):
No it doesn't. Legalize gay marriage tomorrow, and my marriage to my wife is exactly the same. Handwave all you want, but nothing has changed for me. Not in the slightest.

Funny, I've seen ss"m" advocates say the exact thing about what would happen should their relationships never be recognized as a marriage.

So if what the government thinks of marriage bears so little meaning on what relationships are to those involved, (as asserted by ss"m" advocates) then that is another reason one would conclude that marriage is unnessicary for the government to recognize at all. Giving more sway to my contension that the logical conclusion of the arguments for ss"m" is that marriage is nothing the government should be involved with anyway.

Which is why I don't agree with the arguments, and why I support marriage by pointing out the fallacies of the ss"m" arguments.
10.21.2005 4:09pm
Medis:
One idle thought on definitions:

It is true that you can change the overall definition of some term by changing its extension. So by extending marriage to gay couples, you would be making a change in the overall definition of marriage.

But that doesn't mean that the definition of marriage AS APPLIED to its original extension (before the change) is any different. This is the precise issue at hand: does the extension of marriage to this new group change the definition of marriage with respect to the old group?

And there is really no reason to think that is true simply on this extension analysis--in other words, if you are not taking anything away from the old extension of the term, but merely extending it to new areas, then there is no reason to say that this change in the overall definition of marriage will have an effect on the marriages covered by the prior definition.

Indeed, this extension analysis confirms how LITTLE this change in the overall definition of marriage would be, not how BIG this change would be. That is because the new extension of marriage would include the entirety of the old extension of marriage, and indeed the old part of the extension of marriage would still be much, much bigger than the new part of the extension of marriage.

Unless, of course, you believe the very small new part will somehow have the power to infect the very large old part.
10.21.2005 4:10pm
The Editors, American Federalist Journal (mail) (www):
Medis: The correct, apples/apples comparison would be "decent, loving same-sex couple" to "decent, loving opposite-sex couple". Or "abusive same-sex couple" to "abusive opposite-sex couple".
10.21.2005 4:10pm
Goober (mail):
Law Student Kate, for what it's worth, does a better job elucidating the case against same-sex marriage than I could do.
10.21.2005 4:12pm
jACKJOHN (mail):
Unless, of course, you believe the very small new part will somehow have the power to infect the very large old part.

Yes, Hegel called it called synthesis.
10.21.2005 4:13pm
Shawn (mail):
On Lawn says relating to prohibition of civil unions in constitutional ammendments:

I'd beg to differ with your assessment, which is a talking point right now in Florida as well as Wisconsin. We've seen in Michigan where an ammendment such as the one being voted on in your state did not have the outcome you predict.

Your Michigan example does not apply to Colby's situation. Roughly, the Michigan ruling was that employers could still choose to provide domestic partner benefits to their employees. This should not be confused with the state being able to create a "civil union" contract equal to or nearly equal to marriage in as far as a state can grant such a thing. (No federal rights confered.)

The Florida ammendment specifically prohibits civil unions.

Now to be very clear here--I'm making a distinction between employer-granted DP benefits vs state-granted marriage-like status. The former was not blocked by Michigan's law (though conservatives did attempt to use the law that way) and the latter still is blocked by Michigan's law.

"Civil Union" as it is spoken of in this debate seems to be universally thought of as similar or the same as marriage in all but name. "Domestic Partner" benefits (oddball California aside) are seen as employer-granted items.

From that angle, it is important to understand that the anti-SSM ammendments being passed in various states, and indeed the one going before voters here in Florida, also prohibit civil unions or any other state-granted marriage-like status. For gay and lesbians in Florida, and Michigan, and many other states, Civil Unions are (or will be) just as illegal as marriages.
10.21.2005 4:13pm
Morat (mail):

Funny, I've seen ss"m" advocates say the exact thing about what would happen should their relationships never be recognized as a marriage.

So if what the government thinks of marriage bears so little meaning on what relationships are to those involved, (as asserted by ss"m" advocates) then that is another reason one would conclude that marriage is unnessicary for the government to recognize at all. Giving more sway to my contension that the logical conclusion of the arguments for ss"m" is that marriage is nothing the government should be involved with anyway.

Which is why I don't agree with the arguments, and why I support marriage by pointing out the fallacies of the ss"m" arguments.

Do let me know when you find one.
10.21.2005 4:14pm
AppSocRes (mail):
I now really do understand that gay activists -- like slave owners just before the Civil War -- just don't get it. This discussion has been valuable to me, if only to make this absolutely clear. Now I understand better than ever before that the culture war is a real war with life and death consequences.
10.21.2005 4:14pm
Larry (mail) (www):
True. The culture war is real. Non-lawyers are trying to destroy our way of life. By letting Maggie guest-blog, this blog has surrendered America to people who show their hatred of America by not going to law school.
10.21.2005 4:15pm
Jimmy (mail):
Law Student Kate,

In my opinion, you've hit the nail on the head in regards to the communication breakdown with both of your points (different definition of marriage and absolutism). I also think that your four-point summation of Maggie's arguments in the comments section of a previous post did the best job of summing up her argument.

Thank you.
10.21.2005 4:16pm
Goober (mail):
On Lawn,

"There is an argument" and "Maggie Gallagher made an argument," it shouldn't need to be pointed out, are not identical statements. I'm not going to play the childish "are you lying now or were you lying then?" game you tried to start earlier, but I will note the shift.

For what it's worth, I don't think very many of us would dispute that there is some such argument, abstract in the ether or on print in the political journals. We just insist that Gallagher hasn't made one.
10.21.2005 4:16pm
jACKJOHN (mail):
Exactly, AppSocRes.
10.21.2005 4:17pm
Macman:
To me, the point of same-sex marriage as law is twofold. First, it is to enshrine in the law the idea that monogamous homosexual relationships are equivalent to monogamous heterosexual relationships, and second, to force the public to accept this proposition despite the majority of Americans being, at best, uncomfortable with this idea.

I think the reason most Americans are squeamish about the complete acceptance of this equivalence is that we know, deep down, that there is a difference. To me, the difference is primarily moral; I believe what Ms. Gallagher was trying to point out is that there is also a significant legal difference. The state has a vested interest in monogamous heterosexual relationships. If we discourage or fail to encourage them, then due to natural impulses of many people we end up with a huge number of single mothers and thus fewer stable and safe households for children. If we promote monogamous heterosexual relationships, we can ensure that children are more likely to have a stable home. Thus, we as a society have much to gain from promoting traditional marriage.

Conversely, what interest does the state have in homosexuals marrying? Promiscuous homosexual sex has no effect on children. The worst thing it causes is the spread of diseases, and I would think that due to the high concentration of libertarians here, we could accept that responsibility for that falls on the adults involved rather than the state's inaction. The fact that we may have same-sex procreation in the future doesn't change the fact that the state has no real interest in encouraging homosexual monogamy.

This is the real heart of the matter, to me. It's self-evident that there is no "right" to marry. If the state didn't have the concept of marriage, it would exist in society anyway. The idea of "brother" or "uncle" is not similarly enshrined in law, but those things exist regardless. The only reason marriage is recognized by the state is because it has an interest in doing so, which is absent for same-sex marriage.

I'm surprised at the relentless hostility to Ms. Gallagher, who to me is arguing in good faith. At least she has not suggested that those of you favoring same-sex marriage should not be allowed to hold your opinion or are evil bigots for doing so, a courtesy often denied by those arguing the other case.

At any rate, I'd like to thank Ms. Gallagher for her thoughtful arguments.
10.21.2005 4:17pm
Chairm Ohn (www):

This is the precise issue at hand: does the extension of marriage to this new group change the definition of marriage with respect to the old group?

I've explored that subtopic at Opine Editorials. I think I've done a fair job, but feedback would be welcomed as am hoping to make tentative steps toward seeing past the blank wall that is too common in these types of discussions.
10.21.2005 4:19pm
JW (mail):
AppSocRes,

Care to unpack a little of the crazy-talk for us? How are SSM-supporters like slave owners? Life and death consequences? How and for whom?
10.21.2005 4:19pm
Shawn (mail):
And Law Student Kate has just described the underpinnings of the "culture war" that is at the heart of this entire debate.

Thank you Kate.
10.21.2005 4:20pm
On Lawn (mail) (www):
Shawn,

Roughly, the Michigan ruling was that employers could still choose to provide domestic partner benefits to their employees.

Upholding domestic partnerships and reciprocal beneficiaries, yes. It means government can still recognize and assign benefits to same-sex couples which is something I agree with. And that is what I thought you were complaining about, that no such arrangement could be made.

This should not be confused with the state being able to create a "civil union" contract equal to or nearly equal to marriage in as far as a state can grant such a thing.

I used to be for Civil Unions for the reason I explained above. However this piece has shown me the wisdom in saying that they are a bad comprimise, which is something many ss"m" advocates agree with me on.

Morat,

We find them all the time. Defending marriage has been about the biggest no-brainer I've seen in political debate.
10.21.2005 4:22pm
Designbot:
On Lawn,

Admission that an argument has been made is progress. The attempt at mind reading is not.

I don't know what this means. I addressed the text that you quoted. I made no reference to anyone's opinion, thoughts, or motives, other than to state what appears to be implied, since nothing is clearly stated.

Try starting with Kerr's restatement if you find her argument too nuanced or complicated.

That would be the third block of text in my post. Thanks for paying attention. Kerr stated no specific, concrete consequences to any individual or society resulting from gay marriage.

Or start with the 800lb Gorilla you are most desperately trying to ignore and margionalize into the sidelines.

Thanks for all the external links. Not sure why they're neccessary if Maggie own words are as straightforward as you claim. The linked article seems to be more ponificating about theory and meaning, with little specification of the actual harm that would occur to individuals or society if gay marriage were legalized.

Can you show me where Maggie explains what she actually thinks will happen to people (not to the "definition of marriage" or "the underpinnings of society") if gay marriage is legalized?
10.21.2005 4:23pm
The Editors, American Federalist Journal (mail) (www):
Good points Macman.
10.21.2005 4:24pm
DM Andy (mail):
Law Student Kate: "One last thing: can everyone at least agree that the entire thing is speculative? No one really knows what the long-term cultural effects will be of nation-wide SSM. There's no empirical evidence and no crystal-ball, so I would think that each side should at least have some doubts that they might be wrong. Only a true ideologue could be absolutely sure that SSM will destroy marriage, or absolutely sure that it will have no negative effects."

Kate, I would admit that Denmark isn't the US but same-sex civil unions (equal in all ways to marriage except for the name) has existed now for 16 years with no apparent ill effects. Therefore that is (to me) at least some evidence towards the "no negative effects" view.
10.21.2005 4:25pm
The Editors, American Federalist Journal (mail) (www):
Law Student Kate:

"One last thing: can everyone at least agree that the entire thing is speculative? No one really knows what the long-term cultural effects will be of nation-wide SSM. There's no empirical evidence and no crystal-ball, so I would think that each side should at least have some doubts that they might be wrong. Only a true ideologue could be absolutely sure that SSM will destroy marriage, or absolutely sure that it will have no negative effects."

When in doubt, isn't it better not to cavalierly tinker with one of the foundations of our civilization?
10.21.2005 4:26pm
Morat (mail):

I'm surprised at the relentless hostility to Ms. Gallagher, who to me is arguing in good faith. At least she has not suggested that those of you favoring same-sex marriage should not be allowed to hold your opinion or are evil bigots for doing so, a courtesy often denied by those arguing the other case.

The problem isn't that people don't think she's arguing "in good faith".

The problem is people here expect a better argument than she's giving.

As I said before, it really boils down to the fact that people already have multiple ideas of "what marriage means". To the libertarian types, it's a personal decision between a man and a woman coupled with a government contract ensuring certain rights, responsibilities, and duties between the two.

To others, it's a quasi-mystical union which happens to ALSo have -- as a tiny and almost pointless aside -- a government contract that's really not even worth arguing about.

The libertarian types look and think: Well, in all honesty, the government contract bit wouldn't be different if it was gender neutral. And obviously the "personal committment" part is entirely up to the two people involved, so THAT's not a problem with gender either. Ergo, marriage should be extended to any two consenting adults, because there's no reason to discriminate whatsoever.

The more conservative types sees this as trampling all over their quasi-mystical union.

The liberartians don't see why they're getting upset, because no one's forcing them to go to the weddings, buy gifts, or let it happen in their church. It's not like there's a finite number of marriage contracts yearly.

The end result is an argument over whether a marriage contract (civil) should be limited to opposite gender pairs only.

The libertarians here wish a material argument -- a practical reason to deny marriage to gays. Maggie isn't giving one, because her reasons are more spiritual and personal.

So, in one sense, everyone is correct -- Maggie is giving reasons, but they're not the sort of reasons libertarians require to entertain her arguments. It's like going into a fora on advanced calculus and arguing the literary merits of Julia Childe. No matter how many words you devote to the subject, people are going to gripe that you're not talking about the subject at hand.
10.21.2005 4:30pm
On Lawn (mail) (www):
Goober,

"There is an argument" and "Maggie Gallagher made an argument," it shouldn't need to be pointed out, are not identical statements.

You are driving towards the refuge of triviality? They are not identical statements, no one asserted they were to my knowledge let alone myself.

JW,

Answering again, for myself, a question you posed someone else...

How are SSM-supporters like slave owners?

The most direct link is probably in how children wind up being purchased and sold property in order to equalize their relationships with heterosexual relationships.
10.21.2005 4:31pm
Antonin:
Macman wrote:

Promiscuous homosexual sex has no effect on children. The worst thing it causes is the spread of diseases, and I would think that due to the high concentration of libertarians here, we could accept that responsibility for that falls on the adults involved rather than the state's inaction. The fact that we may have same-sex procreation in the future doesn't change the fact that the state has no real interest in encouraging homosexual monogamy.

In our society our government has accepted responsibility for promoting public health. You can think this is a bad idea, but given that we have accepted this in the general case, to vociferously (rather than nominally) oppose the promotion of public health among gays and lesbians, and only among gays and lesbians, is simply homophobic.

Furthermore, your argment is based on homophobic stereotypes. The stereotype has some reality among gay men; gay men have, on average, more sex partners than straight men. However, many (such as myself) do not. Furthermore, insofar as the stereotype is accurate the behavior it references is based in large part on the stigmatization of gay men in society and law. If it's not socially acceptable to love another guy, live with him, raise children with him, etc., then gay men are less likely to do it.

In addition to that, the stereotype of promiscuous men spreading disease has no application to lesbians, who are neither promiscuous nor have the type of sex likely to spread disease.
10.21.2005 4:32pm
The Editors, American Federalist Journal (mail) (www):
DM Andy says:
I would admit that Denmark isn't the US but same-sex civil unions (equal in all ways to marriage except for the name) has existed now for 16 years with no apparent ill effects.



Stanley Kurtz says:

About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased.
10.21.2005 4:32pm
The Editors, American Federalist Journal (mail) (www):
Morat,

Why do you think the number "two" is of greater importance in a relationship than gender?
10.21.2005 4:34pm
On Lawn (mail) (www):
Designbot,

That would be the third block of text in my post.

Where you ignore Kerr's own assertions and decide to argue for yourself whether or not it is Maggie's argument?

That does not discuss the argument presented, it is a discussion about the argument. I suggest discussing the argument, and not substituting commentary for rebuttals.

Your own ignorance, and your own demands justify the re-statements. You should at least be true to yourself here.
10.21.2005 4:35pm
Marcus1:
I hate the idea that society needs babies. Who is the government to tell me or anyone else that we should have children? It's such a weird, anti-conservative notion of what government is for.

Nobody needs another person to have a baby. Leave that to the mothers and fathers who want grandchildren.

Sure, government rightfully protects babies through marriage, but to encourage actual baby-making? I find the idea disgusting.
10.21.2005 4:36pm
Charmander Jones (mail):
Imagine you stand in the middle of a vast, hostile desert. You have with you two lesbian camels, two gay camels, and two hetero camels (one male, one female). The sheik is scheduled to dine with you in exactly the number of weeks as a camel's gestation period. Furthermore, the sheik's favorite dish is roasted newborn camel.

Now chop off the male hetero camel's balls.

That's what SSM looks like, to me.
10.21.2005 4:38pm
The Editors, American Federalist Journal (mail) (www):
Antonin,

These two paragraphs totally contradict each other:

Furthermore, insofar as the stereotype is accurate the behavior it references is based in large part on the stigmatization of gay men in society and law. If it's not socially acceptable to love another guy, live with him, raise children with him, etc., then gay men are less likely to do it.

In addition to that, the stereotype of promiscuous men spreading disease has no application to lesbians, who are neither promiscuous nor have the type of sex likely to spread disease.
10.21.2005 4:39pm
DM Andy (mail):
Editor: "Stanley Kurtz says: About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased."

That's a trend that started in the 70s and actually slowed after 1989. There's not even a correlation. Excuse me while I dig out the actual figures.
10.21.2005 4:40pm
JW (mail):
On Lawn,

We get it, you really want people to visit your blog. Duly noted.

For those who are not inclined to visit, Ms. On Lawn believes that gay people have children (either on their own, through adoption, or through surrogates) not out of a sincere desire to have a loving family, but as a "ruse" to appear equal to straight people.

Nice.
10.21.2005 4:40pm
The Editors, American Federalist Journal (mail) (www):
Marcus1,

You don't think a society has any inherent interest in perpetuating itself?
10.21.2005 4:42pm
The Editors, American Federalist Journal (mail) (www):
DM Andy,

Kurtz argues that the introduction of same-sex marriage exacerbated the trend, not that it started the trend.
10.21.2005 4:45pm
Shawn (mail):
On Lawn, I read your link. It is unusual that Oregon allowed only same-sex couples to seek a civil union. The civil union I am more familiar with extends to heterosexuals as well.

The argument was very simply stated, and for that I'm thankful. Please let me paraphrase to make sure I really understand it.

Marriage is heterosexual. If civil unions are equal to marriage in all ways then the state is saying same-sex relationships are equal to opposite-sex relationships. [and because that is universally recognized as silly...] This is obviously a bad thing.

The bit in braces is the thing one must assume in order to achieve the "this is bad" conclusion. Do I have that right? It's not meant to be snide, by the way. I'm attempting to incorporate Law Student Kate's observation that there's a whole cultural subtext that I'm missing.

Cultural disconnects aside, I think the problem with DP and RB contracts is that they don't do what I really, really need. The only thing that does it is marriage or a marriage-like contract. That one thing is to make my lifepartner my legal next-of-kin in exactly the same way a marriage would a heterosexual couple. It sounds minor, perhaps, but homosexual couples need protection from people (parents, siblings, government agencies) that, like you and I, have a cultural disconnect in how our relationships should be handled.

Thousands of dollars in wills, trusts, and other legal documents later, I am still unable to ensure that if I die my partner will recieve my estate without legal battles from my conservative, anti-gay father, my fundamentalist christian sister, or my social conservative state government (Florida). Not to mention the fact that my partner is a foreign citizen. It's more than just a tax-free transfer of property that married couples get by default, it's more than hospital visitation rights, it's that legally, regardless of effort, we're still "strangers" and my legal next-of-kin have more power over my estate than my lifepartner does.

I have lived in a homophobic society my whole life. I have learned to survive it. I expect to live in one for the rest of my life. I am motivated more by gaining legal equality for my relationship without caring all that much if it is called the same thing or even missing a few things. And yeah, that's pretty pathetic, but beggars cannot be choosers.
10.21.2005 4:45pm
Morat (mail):

Morat,

Why do you think the number "two" is of greater importance in a relationship than gender?

It strikes me as quite obvious. Surely you can see that each additional person increases the complexity of a marriage contract dramatically. A simple boiler-plate contract works for two people (gender isn't relevant whatsoever), but adding a third or a fourth opens up a hornet's nest.

How do you sort out medical power of attorney? Custody of children in the event of death or divorce? Divorce, for that matter? Inheritance? Division of property?

Matters that are simple between a couple become very complex when you add a third. If polyamory ever becomes legal in the US, polyamorous marriages will require the services of a good lawyer to sort out the various issues.

The thing about modern marriage -- if you remove all gender references entirely, the law is still utterly clear and unchanged.
10.21.2005 4:46pm
Chairm Ohn (www):

I would admit that Denmark isn't the US but same-sex civil unions (equal in all ways to marriage except for the name) has existed now for 16 years with no apparent ill effects.
IF the Danish example of civil union can approximate marriage sufficiently to offer it as a potential example of the lack of negative effects, then, perhaps it can also provide some evidence of the positive effects of the proposed change in marriage "in all but name".

SSM advocates have made some tall promises about the benefits to society and to the social institution and to homosexual twosomes. The Promise Makers for Gay Marriage seem to have a couple of decades worth of evidence. If not, perhaps we can agree to look for longterm positive influences of the Danish experiment in a couple of generations.
10.21.2005 4:47pm
On Lawn (mail) (www):
JW,

There is really very little new in this debate. I am not at the moment a direct contributor there, and do not promote it as anything but a catalog of arguments in defense of marriage.

Should you find problems with the arguments, the comment section is open.

Do you usually rely on such cynicism to win arguments for you?

For those who are not inclined to visit,

Again the advocacy of ignorance...

Ms. On Lawn believes that gay people have children (either on their own, through adoption, or through surrogates) not out of a sincere desire to have a loving family, but as a "ruse" to appear equal to straight people.

Again the appeal to cynicism. Sufficient to me that those who read the arguments will see what my position is. Should it need to be explained, I am happy to. You have your brush to color with, and others have another.

DM Andy,

That's a trend that started in the 70s and actually slowed after 1989.

The trend is explained by Kurtz. Even Dan Morgan who read that study realized that begins that it is the welfare state's replacement of marriage that is due to the decline. That ss"m" exaserbates that problem is indeed born out by the evidence as the decline actually increases the closer those countries get to ss"m". IIRC around 1992.
10.21.2005 4:49pm
Herrmann:
Every society needs some social institution that channels the swirling erotic energies of young men and women towards each other...

I'm surprised that no one has picked up on this statement because this is what the whole debate is about - the swirling erotic energies of young men towards each other and young women towards each other. Until now our society has done a very lousy job of channeling these swirling erotic energies (I like that phrase) offering only the avenues of furtive backrooms, isolated park areas and grungy bars in unsafe areas of town with the reward being arrest, fine, imprisonment and, in some cases, death.

Through it all somehow meaningful contacts were made, love blossomed and, sorry, Maggie, marriages were formed. Oh, society didn't recognize them as such when it even noticed their existence, but they existed just the same. The two men or the two women involved recognized themselves as such as did their friends and, again, sorry, Maggie, their families.

So what we're really involved here is a discussion of whether to open the legal definition of marriage, a quite successful "social institution that channels, &c," to members of the same sex who are already in marriages of their own creation, or not.

In the past, cowed into silence and shame, gay people could only vaguely hope to have their relationships legally protected. But now, through the benefit of the scientific method, knowledge has increased to the point where it is a fact that a certain, small percent of the population has sexual attraction to members of their own sex and not the opposite sex. This has brought their existence out in the open. These people don't come from an inarticulate or excluded minority; they come from every family throughout all the social strata. And they are asserting their expectation that they should be treated equally and fairly.

These people aren't immoral perverts trying to seduce your children, they are adults requesting that the successful "social institution that channels the swirling erotic energies" be opened up to their marriages, too.
10.21.2005 4:50pm
Morat (mail):

SSM advocates have made some tall promises about the benefits to society and to the social institution and to homosexual twosomes. The Promise Makers for Gay Marriage seem to have a couple of decades worth of evidence. If not, perhaps we can agree to look for longterm positive influences of the Danish experiment in a couple of generations.

Really? So because some advocates made SOME promises we're all bound by them? How about boiling this down to the simple:
1) Two people fall in love, have a church ceremony, spend quite a lot of time with a lawyer signing papers that approximate a marriage contract but do NOT get a marriage license from the state. Is it any of your business? Yes or No.
2) Two people fall in love and get married. Is it any of your business? Yes or No.

What is the practical difference between the two cases?
10.21.2005 4:51pm
Macman:
Antonin,
I didn't feel that I was being stereotypical; indeed, I thought I was implying exactly the same thing about heterosexuals and homosexuals (that there are promiscuous people in both communities, and that lack of or weakness in marriage presumably causes more promiscuity by not encouraging lasting, monogamous relationships). Also, I specifically mentioned the spread of disease as the worst consequence of a lack of marriage for homosexuals to society that I could think of. I really don't feel that anything I said deserved to be taken as an affront to homosexuals as people, and I think it's a bit of a stretch to say that I was saying that we shouldn't be as interested in the health issues of homosexuals. Are you truly making the argument that marriage is a civil rights issue because the lack of it constitutes unequal treatment of health concerns? At any rate, I apologize for bringing up a subject I'm not knowledgeable enough to discuss effectively (marriage w.r.t. rates of promiscuity and contracting STDs).

I suppose I'm coming from something of a Hayekian viewpoint. Many SSM advocates argue, why not have SSM? I don't feel convinced of any good reason why we should have SSM to begin with, other than it would probably make a small number of people happier. There are a lot of laws that could be passed that would make a small number of people happier, but that doesn't make them a good idea (I won't offer an example here because I guess I don't know how to craft one that isn't considered homophobic).

Morat,
I appreciate your comments about our difference in starting viewpoint; between you and Law Student Kate, it's easier to see why we can't even agree on the foundations of this debate.
10.21.2005 4:53pm
Quarterican (mail):
I have to wonder what the people running around claiming "Ms. Gallagher's opponents haven't even understood her argument! And moreover, they've offered no opposition other than to call her a bigot! Haha!" are on about.

We've hashed out the content of Ms. Gallagher's argument many many times now. Off the top of my head, without going back to look at the many many posts, here are some arguments arrayed against Ms. Gallagher:

A challenge of her assertion that the purpose of marriage - or the government's purpose in encouraging marriage - is procreation. This challenge took a variety of forms: attempts to formulate a single other purpose for gov't encouragement (not, in my opinion, hugely successful), attempts to argue that there are a variety of overlapping purposes to marriage and procreation is at best only one of them, demonstration that historically marriage, *especially* in its legal dimension, was much less about procreation than it was about, say, property, etc.

A challenge of her assertion that IF the purpose of marriage is procreation, gay marriage runs counter to that purpose. This basically boils down to what On Lawn keeps saying is the "Sterility Strawman," and he has an essay he links to which he thinks debunks it. I disagree, but am not inclined to elucidate why at length here because (a) I've decided I don't enjoy writing essay length posts in comments threads, and (b) I think it takes the discussion too far afield. Why? Because Ms. Gallagher hasn't even assembled anything as thoughtful or responsive to this critique as the "Sterility Strawman" essay.

A challenge of her assertion that gay marriage will contribute to an existing decline of the marital institution. The best evidence martialed for this notion seems to be data from Scandinavia which I and many others find unpersuasive because it's not clear from the data that gay marriage affected the pre-existing trends leading to more single-parent households and fewer marriages.

A challenge of the notion that a gay marriage creates a suboptimal environment for child-rearing; there is no evidence to support this claim, and emerging evidence to the contrary.

A challenge of the notion that the government has any business endorsing marriage in the first place. Similarly, and related to my first example, a challenge of whether the governmentally bestowed properties of marriage have any purpose towards promoting procreation as opposed to some other purpose, should be fairly denied to gay couples, etc.

That's some of them. Ms. Gallagher has attempted responses to some of these arguments, none of which I found convincing. You might not find these convincing either. But, frankly, I've gotten increasingly annoyed at the increasing number of "Nobody understands her argument! Nobody has argued against it other than to call her a bigot!" We know what her argument is, and different people have chosen different points upon which to place pressure. We've been at this since Monday morning, and I for one lost interest in repeating my little song somewhere around Tuesday or Wednesday; I'm sure I'm not alone, which is why the tenor of these comments threads has shifted to a more global critique of Ms. Gallagher's presence than specific attack of her arguments. But stop saying that no-one offered her honest intellectual debate and disagreement.
10.21.2005 4:53pm
JW (mail):
Ms. On Lawn,

You've equated SSM-advocates with pre-Civil War slaveowners, and I'm being cynical?

You've endorsed the idea that gay people treat their children as pawns, and I'm cynical?

My only cynicism is of your motives in advancing such morally reckless arguments.
10.21.2005 4:56pm
DM Andy (mail):
Editors, got that data for you from Eurostat

% of births in Denmark to married mothers by year
1960 92.2%
1961 92.0%
1962 91.7%
1963 91.1%
1964 90.7%
1965 90.5%
1966 89.8%
1967 88.9%
1968 88.9%
1969 88.7%
1970 89.0%
1971 87.7%
1972 85.6%
1973 82.9%
1974 81.2%
1975 78.3%
1976 76.0%
1977 74.1%
1978 72.1%
1979 69.3%
1980 66.8%
1981 64.3%
1982 61.7%
1983 59.4%
1984 58.1%
1985 57.0%
1986 56.1%
1987 55.5%
1988 55.3%
1989 53.9% (civil unions legalised)
1990 53.6%
1991 53.5%
1992 53.6%
1993 53.2%
1994 53.1%
1995 53.5%
1996 53.7%
1997 54.9%
1998 55.2%
1999 55.1%
2000 55.4%
2001 55.4%
2002 55.4%
2003 55.1%

Exactly how does this support the case that SSM promotes out of wedlock birth?
10.21.2005 4:57pm
Designbot:
On Lawn,

Designbot,

That would be the third block of text in my post.

Where you ignore Kerr's own assertions and decide to argue for yourself whether or not it is Maggie's argument?

That does not discuss the argument presented, it is a discussion about the argument. I suggest discussing the argument, and not substituting commentary for rebuttals.

Your own ignorance, and your own demands justify the re-statements. You should at least be true to yourself here.


I am having difficulty parsing your criticism here. I think this boils down to something like what Marat said—we're talking about different kinds of arguments.

Here is my perspective:

In order to debate the merits of legalizing same-sex marriage, each side should present what they believe the consequences would be, for individuals and society as a whole. The reasoning behind these projected outcomes should be analyzed for logical flaws, inconsistency, or unfounded assumptions. If the projected benefits to individuals &society of legalizing SSM outweigh the harms, it should be legalized. If legalizing SSM will harm more people, then we should not do it.

Correct me if I'm wrong, but here's my understanding of your position:

The specific, individual consequences of legalizing SSM are not the most important factors in determining its desirability. The principles and ideals behind marriage are more important. As a building block of society, the traditional concept of marriage is worth fighting for. The debate should center on whether legalizing SSM poses a threat to the rationale for this important institution. The practical consequences of undermining the instituition of marriage should be self-evident, and do not need to be specifically debated on an individual basis.

Is this a fair summary of your position?
10.21.2005 5:00pm
On Lawn (mail) (www):
Shawn,

A thoughtful reply. Many thanks. I wish I had more time to discuss the items that you present that I appreciate you considering because it does mean a lot to me. But as it is, I will regretably focus on some of the counterpoints.

If civil unions are equal to marriage in all ways then the state is saying same-sex relationships are equal to opposite-sex relationships. [and because that is universally recognized as silly...] This is obviously a bad thing.

The bit in braces is the thing one must assume in order to achieve the "this is bad" conclusion.


There are many dimensions to observe the differences between heterosexual and homosexual relationships. On many their are no differences, but on some there are. Of these differences most are petty but some are substancial, and I do not think on need take it as a premise.

Procreativity is the most physical manifestation of difference in the relationship. Humanitarianly, we can observe the diversity of the relationship as representing every gender, and the differences and benefits that entails. Especially in raising children, in that it gives each sex a person to identify with (the one with the same gender) and one to learn to relate to outside of self-identification.

Do I have that right?

So far other than I noted, I appreciate you understanding it. There may be some disconnects/amphibologies at play and maybe a bit to be filled in here or there but for now when I read it, it looks good.

I do think and do hope that with RB's the protections you wish will be realized. That the visiting rights, probate protections, etc... will be put in there. I will actually fight with you in ensuring that as I think it should be a part of RB's also. I hope that answers your concerns.
10.21.2005 5:00pm
Chairm Ohn (www):

So because some advocates made SOME promises we're all bound by them?

The impetus for the article to which I linked in my previous comment is no other than Dale Carpenter who, as you may know, will be presenting his contra views on marriage here in the coming weeks. He is among the most prominent promise makers for gay marriage. Andrew Sullivan has made similar promises as have a few commentators in this very thread.

If some SSMers have not made such promises, absolved you may be.
10.21.2005 5:03pm
Bob Van Burkleo (mail):
The Editors, American Federalist Journal
I would wager that 99% or more of humans find the gender of their partner to be a critical distinction when choosing a mate. This would not be the case if the relationships were essentially identical.


Waffling. I respond to your comment about sex and you shift gears to 'choosing a mate'. OF COURSE gender is important when choosing a mate. An individual's preference is not based on the relationships being different but their attractions being so. That's why your assertion that there is currently equal access to the civil contract of marriage is so obviously false. Yes straight people want a mate of the opposite gender, gay people want a mate of the same gender which is why only allowing license of the contract to those wanting mates of the opposite gender is so wrong.
10.21.2005 5:07pm
Chairm Ohn (www):

Yes straight people want a mate of the opposite gender, gay people want a mate of the same gender which is why only allowing license of the contract to those wanting mates of the opposite gender is so wrong.

But neither two men, nor two women, can mate together. A friendship may become very profound and it may lead to mutual dependencies, but sex play is not conjugal and is not mating. For that the single-sexed twosome is gender-short.
10.21.2005 5:10pm
Marcus1:
Editors,

>You don't think a society has any inherent interest in perpetuating itself?<

I think this interest is unthinkingly way over-stated. "Perpetuating" is a very broad term, which could include providing food or defending against enemies. Those are great purposes of government.

But perpetuating itself through social engineering, at the level of getting involved in the decision of whether to have children? I hope that's not why we have marriage.

Maybe the difference between Gallagher and me is that I think marriage is primarily a personal relationship that the government recognizes because we want it to, whereas Gallagher seems to think marriage is a primarily a government tool that we are hearded into accepting....

I believe China has marriage, even as it tries to reduce babies. What's that about?
10.21.2005 5:10pm
Elliot123 (mail):
Houston Lawyer wrote:
"What will the consequences reap? I don't know. How about: fewer people getting married; fewer people staying married; more children born out of wedlock; fewer children being born; legitimization of other sexual practices now disfavored by society; the curtailment of civil rights of those who disagree with SSM; and possibly another AIDS epidemic."

Forget about Gallagher. Just make the causal connection between gay marriage and fewer people getting married. Why will one lead to the other?
10.21.2005 5:11pm
Medis:
The Editors,

Again, unless you are proposing taking children away from gay couples and giving them to straight couples, then you have gotten the wrong contrast class. Consequently, the issue in this context is whether the children being raised by gay couples are better off being raised by married gay couples or by unmarried gay couples.

Chairm Ohn,

I didn't see a convincing reply to my point about definitions. Let me quote a few of your key phrases and I will explain why.

You say, "Consent does not make the nonconjugal, conjugal; nor the nonmarital, marital." That is correct. Similarly, though, consent does not make the conjugal into the nonconjugal, or the marital (on the old definition) into the nonmarital. That is precisely my point: this new part to the extension of marriage does not change the old part of the extension of marriage.

You say, "SSM would replace state recognition of marriage with state recognition of a new non-marital status. Yes, it might still be called marriage, and it would inherit a network of related benefits, but eventually the value of the status would deteriorate as a public policy vehicle." But that is exactly my point: gay marriages would not "replace" straight marriages, because the extension of marriage with respect to straight couples would remain exactly the same.

And why would the status enjoyed by straight marriages "deteriorate" as a result of gay marriages having status? There is no law of conservation of the status of marriage, such that more relationships enjoying that status mean each relationship gets a little less status.

You say, "If the state must indirectly benefit marriage after conflating it with non-marriage, then, the flow of benefits to and from the state would become more confused and obscured by the pull of 'adult choice' and radical individualism intrinsic to the SSM argument." I'm not quite sure what this means, but I don't see how you get it out of the new extension of marriage. Just as with status, the state benefits flowing to the old part of the extension of marriage need not be diminished simply because new relationships also start getting benefits (and the numbers are so low there is hardly going to be a serious scarcity issue in any event).

And you have actually done a good job in explaining how there will be no "confusion" at all: no one is going to actually confuse straight marriages (or "conjugal" marriages, if you prefer) with gay marriages (or gay couples receiving benefits, if you prefer) simply because the state uses the term "marriage" for both of them.

To be sure, I agree the new extension of the term isn't inconsequential insofar as it is likely to provide status and benefits to those gay relationships. But as noted, I don't see how those effects will reduce the status and benefits enjoyed by straight (or "conjugal") marriages.

So insofar as your argument depends on this "confusion" as opposed to this alleged "deterioration," my point stands: this new extension of the term does not necessarily change the definition of the term as applied to the old extension, and thus no "confusion" need arise. Indeed, you have argued that this new extension of the term won't in fact change the old definition of the term, and I suspect that is correct.
10.21.2005 5:14pm
On Lawn (mail) (www):
Quarterican,

We've hashed out the content of Ms. Gallagher's argument many many times now.

Yes that is true. If you forgive me for pointing to it this way, it is what makes the contention that there was "no argument" made by Maggie all the more egregious. It in no way impugns everyone supporting ss"m", just some.

Because Ms. Gallagher hasn't even assembled anything as thoughtful or responsive to this critique as the "Sterility Strawman" essay.

I've let the author know you said that. He has asked me to convey his thanks and appreciation.

I suppose the debate will go on as it goes, but I thought I'd pause and note the appreciation to your comment.
10.21.2005 5:15pm
Shawn (mail):
On Lawn,

I do appreciate that direct procreative sex is primarily the only major difference between opposite-gender and same-gender couples. You and I disagree on the significance of that, but at least understanding that argument helps me focus my own better to those concerns.

Sadly, I do not think RB's will ever happen. My forcast on this issue is that roughly the blue-state/red-state boundaries will be drawn here. Gay and lesbian couples will have similar rights through civil unions in blue states and those rights will be prohibited as a constitutional ammendment in the red-states. And in all cases, federal recognition and rights will be withheld.

While it may be true that some conservative voices, such as yourself, are willing to compromise a bit, most are not. Especially given the amount of political blood now in the water.

Thank you for your considered responses.
10.21.2005 5:17pm
JW (mail):
Elliot123,

One might argue that the fiercest critics of SSM are asking to be saved from themselves. Empirical research suggests that those with the most hostile and negative attitudes towards homosexuals demonstrate high levels of homosexual arousal.
10.21.2005 5:19pm
DM Andy (mail):
Chairm, I'm sorry, missed your question earlier as I was finding the data for Editors (Eurostat is not the easist site to use).

I've never claimed a big society benefit for SSM, the fact that it would make the lives of gay and lesbian couples easier is reason enough for me to support SSM. I was merely opposing the argument that it would harm society.
10.21.2005 5:21pm
Kendall:
But neither two men, nor two women, can mate together. A friendship may become very profound and it may lead to mutual dependencies, but sex play is not conjugal and is not mating. For that the single-sexed twosome is gender-short.


Why then is it public policy in a majority of states to allow gays to adopt? Its true, gay couples cannot reproduce as a couple. So what? How does that relate to the care and raising of children which is in essence the purpose of stable relationships which are produced by marriage? You're offering a definition that is incomplete. The purpose of marriage is not simply cranking out babies.

The purpose of marriage is the raising and care of children to encourage them to become productive and contributing members of society. Its true that gay couples cannot reproduce, but it is also true in ways more operationally related as to why marriage exists (the raising of children) gay couples are ALREADY included in society's parameters.
10.21.2005 5:21pm
Observer (mail):
Judging solely by the number of comments, MG was by far the best guest blogger ever on the VC.

And I think it's worth noting that at least some advocates of homosexual marriage were willing to engage in reasoned debate rather than ad hominem attacks.

I still say federalism is the answer but no one here, whether in favor of or opposed to homosexual marriage, seems to agree. Most of you are hell-bent on enforcing your morals on the entire country.
10.21.2005 5:27pm
Macman:
Just make the causal connection between gay marriage and fewer people getting married. Why will one lead to the other?


Elliot123,
Not to jump in the middle here, but I wanted to address your idea of why SSM could lead to fewer traditional marriages.

The distinction drawn above between the conjugal view of marriage and the 'close relationship' view I think is key here. As long as marriage is understood by society to be a conjugal arrangement, one of the main purposes of which is to create and foster children, there is a strong reason to do it. As long as marriage is recognized as a critical step to creating a family, there is a strong reason to do it.

This is in conflict with the 'close relationship' model, which says that marriage is almost entirely about the personal satisfaction of the people involved. Gay marriage pushes us much farther down that road; indeed, it becomes difficult to make the other case. In this context, more and more people are likely to say "You know, I'd be just as happy to live together but not be married because it imposes less responsibility on me personally. Since marriage is just a function of my happiness, why get married?" Obviously this is a growing trend regardless; but if we redefine marriage to be a state-recognized acknowledgment to the effect of "these two people care about each other quite a bit" and nothing more, the societal reasoning in favor of marriage grows ever.

The other problem with this is that it promotes a very self-centered view of marriage. Traditionally, one of the reasons marriage was so important was that, in addition to celebrating the union of two people, it was meant to focus those people on their responsibilities to each other and to their future children. The 'close relationship' view is all about making the adults involved feel good, which is nice and all, but doesn't really address the reality that children need mature adults who are willing to sacrifice for them.

I hope this answers your question to at least some extent.
10.21.2005 5:29pm
Joshua (mail):
"One last thing: can everyone at least agree that the entire thing is speculative? No one really knows what the long-term cultural effects will be of nation-wide SSM. There's no empirical evidence and no crystal-ball, so I would think that each side should at least have some doubts that they might be wrong. Only a true ideologue could be absolutely sure that SSM will destroy marriage, or absolutely sure that it will have no negative effects."
I can certainly agree with that - indeed, I posted a comment along those lines to a different MG post the other day. I just happen to think that in the end it doesn't matter. Government's place in a free society is not to steer its citizens toward some idealized lifestyle, even if universal adoption of said lifestyle really would benefit society as a whole. Rather, government's place is to adapt itself to its citizens' own lifestyles as they evolve of their own accord, for better or worse.

Since, again for better or worse, that evolution has included same-sex coupling and a demand to have such coupling legally recognized as marriage - along with the idea that denial of such recognition is fundamentally unjust - government's place is to adapt its marriage laws to this new reality. Would doing so have a major impact on, or even a dire threat to, American society? I wouldn't doubt it. But even if it does, then government's place is, once again, to adapt to that new reality. In other words, to deal with it.
10.21.2005 5:30pm
On Lawn (mail) (www):
JW,

I think you'll find that "empirical research" to have a number of problems. Just so as not to be seen stacking the deck, I'll link to where SS"m" advocate Ampersand (of Alas, a blog) took that study to task recently for both content and usage at FamilyScholars.org.
10.21.2005 5:30pm
JW (mail):
Observer,

I don't the federalism argument figures into this ... yet. The discussion is about whether allowing same-sex marriage is a good or bad policy decision.

Questions about how such a policy should be implemented (by legislatures, by courts, by referendum), or where (state-by-state, nationwide), are subsidiary.
10.21.2005 5:31pm
Macman:
Empirical research suggests that those with the most hostile and negative attitudes towards homosexuals demonstrate high levels of homosexual arousal.

I'd like to think that if it's not okay to use stereotypes about homosexuals that have quite a bit of statistical support (i.e. gay male promiscuity) then something like this statement is probably out of bounds as well. I also have a hard time accepting that an intellegentsia which is almost entirely liberal would be able to be objective on a study like this.
10.21.2005 5:36pm
JW (mail):
Ms. On Lawn,

Ampersand's off-the-cuff, non-expert opinions of research methods published in a peer-reviewed journal are not terribly persuasive. Any criticsim of that study by, say, people with actual expertise? If so, I'd love to hear about it.
10.21.2005 5:36pm
José Solano (mail):
Thank you Maggie for one of the greatest expositions on the meaning and function of marriage that I have read online. Thoughts complementing and augmenting your own may be found at The Opine Editorials.

"And the people who advocate SSM do so (mostly) with very little insight into the magnitude of the change they are asking us to accept." (Maggie Gallagher)
10.21.2005 5:44pm
On Lawn (mail) (www):
JW,

That would be Mr. On Lawn if you were endeavoring for accuracy as I am a male. But as you quoted a discredited and off-topic survey, accuracy and integrity may not be your intension as much as simply calling people names ;)
10.21.2005 5:46pm
Medis:
Macman,

But there really isn't a necessary conflict. One can say that "one of the main purposes of [marriage] is to create and foster children" without saying that is the ONLY purpose of marriage. One can say "marriage is [partially] about the personal satisfaction of the people involved" without saying marriage is ONLY about the personal satisfication of the people involved. In short, marriage can ... and obviously does in our society ... have more than one purpose.

And since we already apply this "mixed purpose" model of marriage to straight couples, there is no reason to think that applying it to gay couples too will somehow change the model.
10.21.2005 5:49pm
JW (mail):
The study was discredited by whom, exactly? Are you referring to the passing comments of an anonymous blogger with no apparent expertise and who doesn't even appear to've read the study?

I meant no disrespect by referring to you as "Ms." I don't know why I was under that impression.
10.21.2005 5:52pm
DM Andy (mail):
On Lawn, I had a chance to read that Dan Morgan blog piece that you refered to earlier. I agree with him, in fact I posted a similar comment on Wednesday showing that marriage rates decline when the welfare system moves from one that gives benefits to married couples regardless of children to one that gives benefits to parents regardless of martial status. The effect of such a change is noticable on the figures of all countries that have done such a change, the introduction of SSM or civil unions does not seem to have a noticable effect.

If you're worried about children being born out of wedlock then why waste time opposing SSM, instead campaign for tax breaks for married couples.
10.21.2005 5:52pm
PeterH:
I freely admit that I have just come across this thread. I've read all the posts responding to today's blog by Ms. Gallagher, but not the previous days' ones, so forgive me if I retread over previously covered ground, but there are two main points that I want to bring up, one that has only been touched on, the other seems missing entirely (again, they may have been beaten to death on earlier days.)

The first is in response to Kate's assertion that the disconnect comes between the "close relationship model" and the "conjugal model". Kate, you did a good job of defining the two, and I would agree that a big part of the controversy comes from people who THINK that they believe in the conjugal model. But I honestly don't know of anyone who does, and there is certainly no movement whatsoever to institute it (much less "maintain" it.)

By that model, taken strictly, nobody who does not mutually procreate should be allowed or considered to be married. Post hysterectomy, post menopause, or post vasectomy people cannot mutually procreate. And you can't allow adoption by mutually non-fertile people, or you allow same sex couples. You can't even allow remarriage and the raising of children from a previous marriage, because gay people can do that too. Where are the calls for trial marriages with no benefits until a child is produced? Where are the calls for medical certification of fertility? Where are the mandatory annullments of unfruitful marriages? For that matter, mandatory paternity tests on all children to prove that the husband is actually the father, with forfeiture of all marital incidents if he isn't?

No, the model doesn't exist. To dust it off and say that it only applies to gay people but not the far more numerous straight people invalidates it completely.

Ah, but we are talking about the IDEAL, right? Remember the IDEAL, and since straight people as a group contain individuals who can "meet the ideal" they all get a pass, while gay people, who as a group, don't "meet the ideal" get excluded regardless of the realities. Forget for a moment that the "ideal" is transparently crafted specifically to exclude gay people by definition.

Are the proponents of the ideal really prepared to take that to its logical conclusion? After all, the ideal isn't important enough to apply it to straight people now. We can weed out the gay people by applying it gratuitously.

But Ms. Gallagher specifically uses, as do so many of the people who are against same-sex marriage, the (unsupported) statement that the ideal situation for raising children is a "one-man, one-woman married household." We are left to make the jump ourselves that since gay couples cannot be "ideal" in this sense, they need to be excluded from marriage (but not from raising their children.)

The only possible support for this is a clear belief that by definition, the very best possible gay parents are worse than the worst imaginable straight parents. And before you attack that one, remember that abusive or negligent parents may lose custody of their kids, but the government does not void their marriage. They want us to believe that they are drawing a "this far but no farther" line, preventing that pesky slippery slope thing. What, other than prejudice, possibly supports this? Ease of administration?

But even granting (and I emphatically do not) that the best gay parents are not ideal, what are we saying? This will sound like a slippery slope argument, and it may be. But up until now, the only people who get to decide whether they marry, whether they have children, and how they will conduct that marriage are the participants themselves.

These same people also say that monogamous couples are more ideal than those who aren't, regardless of what personal agreements they may have made and how they conduct their non-monogamy. Religious households are more ideal than non-religious ones, regardless of how those beliefs are applied.

Presumably, wealthy households are more ideal than poor ones, socially advantaged ethnicities are more ideal than socially disadvantaged ones, educated households are more ideal than uneducated ones.

Many people bluntly state that a stay-at-home mom is more ideal than a two-career household.

If "this couple is not the most ideal available" is enough of a reason to prevent a couple from marrying (whether, gay or straight, they even intend to raise children), then why is the ONLY non-ideal that applies the gender of the individuals? Why is every other "non-ideal" seen as the business of the people involved in the union, but only same-sex couples singled out to bear the weight?

People insist that this isn't about anti-gay prejudice. But if I opened an elegant restaurant, and posted a "formalwear only" dress code, because I have a "purpose" in mind for how dinner should be, so far so good, yes? But if I let all white people in regardless of how they dressed, but excluded all black people, again, regardless of how they dressed, would you buy it if I said it wasn't based on racial prejudice?

Someone explain why this is different.
10.21.2005 5:54pm
Anonymous Coward:

Goober (mail) (www):What bugs me is that Prof. Volokh is going to say what he's already said, that the people who don't think she offered anything constructive are just knee jerk types unwilling to consider an alternative viewpoint. And then say we made comparisons to Nazis.


Well, in cases where gays are involved, it's easy enough to bring Nazis into the picture since they killed plenty of gays themselves. The truely outrageous part is that when the Americans went in to free the Jews, they just took the gays from the concentration camps and stuck them in prison.
10.21.2005 5:59pm
Shawn (mail):
Observer says:

I still say federalism is the answer but no one here, whether in favor of or opposed to homosexual marriage, seems to agree. Most of you are hell-bent on enforcing your morals on the entire country.

I was under the impression, and please correct me if I'm wrong, that federalism was already the case up until the Defense of Marriage Act (DOMA). Additionally, I don't see how this debate assumes "the entire country" over "the entire state" given that the legal battle is being waged via state constitutions, which to me seems federalist in nature.

Now we could talk about the federal government taking no position on marriage at all, but certain marriage issues involve inherently federal issues, like immigration. On top of that, the Full Faith and Credit clause of the US Constitution has been invoked relating to marriage and divorce.

I believe states should work out what a marriage is for that state and the federal government should just treat those marriages equally.
10.21.2005 6:01pm
PeterH:
And by the way, as often as it has come up even here, are there REALLY any people, gay or straight, who actually believe that recognizine gay relationships by granting civil marriage benefits will stop straight people from having babies?

Given that straight people are roughly 95-97% of the population, and gay people are ALREADY in relationships and more or less out of the reproductive pool (and fighting tooth and nail to be allowed into it, in many cases) could one of the "society has an interest in ensuring people reproduce" folks PLEASE explain why this is an issue?

You can't honestly think that recognizing gay relationships legally will cause all straight people to immediately want one, nor that even if that were so, people would stop wanting to have babies!
10.21.2005 6:04pm
devin chalmers (mail):
Goodbye and good riddance. I am overcome with violent thoughts when I hear your hypocrisy, accusing SSM advocates (and anyone who disagrees with you, it seems) of behaving irrationally and closedmindedly, while continuing to refuse to engage in any rational thought or justification of this "two gay men can never be fathers" nonsense.

Your a posteriori posturing is reprehensible. Your obsession with the generative act is, what shall I say, ridiculous? sophomoric? Your arguments are dull, and badly constructed--I wish your college composition teacher had taught you to defend your positions, instead of assuming them. If you want your detractors to open their minds, addressing these issues in your writing would be a wonderful place to start.

"Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled..."
I think I know how the camel feels, every time I read another Gallagher post. Promise this is the last one?

I had never heard of you before you started posting at the Volokh Conspiracy, Maggie, and I hope to never again.

*spits on the ground*
10.21.2005 6:04pm
JW (mail):
PeterH,

That’s why I brought up the study mentioned above. It helps explain some inferential leaps that others of us may not find terribly persuasive. Some critics of SSM think it’s compelling to argue that recognizing SSM will cause people to abandon or cease being interested in traditional male-female marriage. Lots of people -- myself included -- respond with puzzlement: why would I not want to be married to my wife simply because the gay male couple next door can get married? But, bearing in mind what we know from the study, I’m sure there are some people with strong homosexual inclinations who actually would abandon the idea of a traditional male-female marriage if the option of SSM were available. I have absolutely no problem with that, but I’m sure the idea is horrific to someone who consciously abhors homosexuality but has strong subconscious homosexual leanings.
10.21.2005 6:06pm
Eric Muller (www):

I have most of human history on my side. You have your personal moral conviction that only hate explains why people object.


Well. That settles that then.
10.21.2005 6:06pm
PeterH:
JW posts"

"I’m sure there are some people with strong homosexual inclinations who actually would abandon the idea of a traditional male-female marriage if the option of SSM were available."


Thus strengthening the institution to the degree that closeted gay people in unhappy straight marriages damage it. Noticeable, certainly deeply tragic to those involved. A big percentage of all straight marriages? No. But certainly something to put in the "same sex marriage is good" column.

Do the people who insist that gay people have the right to marry the opposite sex person of their choice think things through?
10.21.2005 6:11pm
Aultimer:

Jose Solano quoting Maggie G. "And the people who advocate SSM do so (mostly) with very little insight into the magnitude of the change they are asking us to accept."

Many here have asked repeatedly for an explanation of this magnitude. I am among those who foresee no change at all in my own marriage if SSM is legalized, and can't imagine any difference had there been SSM my whole life.

You might argue that either my spouse our I would have been gay had it been more socially acceptable. I disagree, but at least that's a claim. You might argue that we would have elected to co-habitate because our preferred date at the church was taken by a gay couple. I'm sure we would have just taken the next available week.

None of these things seem like much in the way of magnitude. What am I missing?

And thanks to Law Student Kate and Morat for your VERY lucid contributions.
10.21.2005 6:11pm
On Lawn (mail) (www):


PeterH, et all...

Note that when JW says:

Lots of people -- myself included -- respond with puzzlement: why would I not want to be married to my wife simply because the gay male couple next door can get married?


He doesn't really seem to be looking for an answer. Much like the Jon Stewart quote of the same nature, it seems it is a vehicle to sluff off a bad premise more than a genuine inquiry. The answer was provided.
10.21.2005 6:12pm
PeterH:
Eric Muller

I have most of human history on my side.

So do slavery, syphillis and cholera. Your point?
10.21.2005 6:13pm
JW (mail):
PeterH,

I agree 100%. Gay people are going to have children and families whether we recognize SSM or not. If marriage is such a great instutition for fostering families and raising children -- and I agree that it is -- why not make it available to them? This was David Brooks's argument a while ago in the NYT.
10.21.2005 6:16pm
JW (mail):
PeterH,

If you had any exposure to Eric's blog, you'd know he was being sarcastic.
10.21.2005 6:17pm
Colby:
On Lawn: I'd beg to differ with your assessment [that current amendments block not only marriage, but civil unions and domestic parnership rights for unmarried couples], which is a talking point right now in Florida as well as Wisconsin. We've seen in Michigan where an ammendment such as the one being voted on in your state did not have the outcome you predict


As Shawn notes, this point is not without relevance to the discussion at hand. For if opponents of extending marriage responsibilities and rights seek only to keep lesbian and gay couple from marrying, why don’t their constitutional amendments solely do that? Why do they also block anything “identical to or substantially similar to that of marriage” for unmarried couples?

While a judge has currently ruled that Michigan may extend domestic partner benefits to unmarried state employees, the case is on appeal, and the crafters of the amendment no doubt meant this question to be resolved by the Michigan Supreme Court. (Those in Wisconsin explicitly say they wrote the amendment so that such questions would end up in court.) We can thus say that the authors and supporters of such amendments at least support the possibility that they would prohibit domestic partner benefits for state employees and for employees of private companies that contract with the state. Further, it is not in the least controversial to conclude that this last clause constitutionally prohibits civil unions; this is the definition of civil unions. We can thus say with certainty that they (including On Lawn, if he supports the Florida amendment) mean to prohibit—constitutionally—the recognition of what many (myself not included) in this discussion see as a reasonable compromise position, civil unions.
10.21.2005 6:21pm
DM Andy (mail):
On Lawn: "He doesn't really seem to be looking for an answer. Much like the Jon Stewart quote of the same nature, it seems it is a vehicle to sluff off a bad premise more than a genuine inquiry. The answer was provided."

That's not particularly fair On Lawn, after all, there is evidence that SSM or civil unions does not affect marriage rates in the slightest.
10.21.2005 6:22pm
On Lawn (mail) (www):
JW,

Gay people are going to have children and families whether we recognize SSM or not.

That is answered to a large degree here.
10.21.2005 6:23pm
Law Student Kate (mail):
PeterH -

I think your analysis is quite right. I agree that legalizing SSM won't have any more of an effect on the move away from the conjugal view of marriage than any of the other many non-conjugal exceptions that we now allow.

I would, however, challenge your assertion that no one actually believes in the conjugal view. They do. While the law might allow childless couples like myself to remain married, there are many people who do not really view my marriage as a "real" marriage. I know this because I'm confronted with it all the time. Likewise, while the law might allow second marriages, there are many people that don't view them as being as valid as first marriages. Again, I know this because I'm a second wife, and am regularly confronted by people who think my marriage is less "real" than a first marriage. A third example: while the law might allow two post-fertility 75 year olds to get married, there are many people that don't really think of that as a "real" marriage in the fullest sense. It's really just sort of cute, and celebrated to humor them. When it comes down to it, there are many people for whom the conjugal model is the only "real" marriage, and anything else is really just a sub-par imitation.

But what I've said above really just strengthens your argument, because if SSM were legalized, then I think those Americans who absolutely do believe in the conjugal model would just have the same reaction: they would view SS spouses as not having marriages that are as "real" as OS spouses. And so what? I think we could all live with that.
10.21.2005 6:24pm
Neal R. (mail):
I have asked this before but not received a response. Can someone please provide a link to a logical, persuasive piece in opposition to SSM (other than the "Sterility Strawman" link I've seen a dozen times now, which is okay but only goes so far)? I am sincerely interested in understanding why one would oppose SSM, and Maggie Gallagher's rambling and illogical blogposts did little to forward my understanding. Some of the comments here have helped, but I would prefer someting approaching a fully developed academic essay. Please help. Thanks.
10.21.2005 6:26pm
On Lawn (mail) (www):
Colby,

Why do they also block anything “identical to or substantially similar to that of marriage” for unmarried couples?

I know why I do, and it was presented in this link which changed my thinking on the issue.

Seperate but equal doesn't make sense from either side really. If its equal it should be the same name. If it is not, then it should be given the benefits based on the subset of merits it does posess.

Yes, the Michigan decision is on appeal. I am hopeful (if not a little confident) that the appeal will fail. I agree with the legal reasoning presented and feel it presents a counter to the conserns that no relationship but marriage will ever be recognized with benefits.
10.21.2005 6:28pm
JW (mail):
MR. On Lawn,

Thank you. The answer provided was perfect gibberish, particularly the part about the gorilla. If, as you argue, marriage has no intrinsic merit and does nothing more than confer a title on a relationship, you're position is in far worse shape than you realize.
10.21.2005 6:29pm
DM Andy (mail):
On Lawn, let's for the moment accept your blog entry that "As Stanley Kurtz points out, there is a large contingent of people who see endorsing marriage for same-sex couples as a way to destroy marriage." is true.

But we know that SSM and civil unions in other countries has not destroyed marriage so wouldn't the fact that some people want to destroy marriage be completely irrelevant?
10.21.2005 6:34pm
On Lawn (mail) (www):
Can someone please provide a link to a logical, persuasive piece in opposition to SSM

The Sterility Stawman is a description of a disconnect in the discussion, and how false conclusions have been drawn from it.

For argument as to why ss"m" is a bad idea, lets try Prof. Velleman of NYU. Another good one is from the Clairmont Institute called ,"Love's Language Lost".

I also encourage you to peruse Opine Editorials where they catalog many arguments about ss"m". The "Hall of Fame" on the right hand side is a good place to start. On the front page I highly recomend (and if you only took one of my suggestions I'd hope this was it), "In defense of the Marriage Culture," written by the same author of "The Sterility Strawman".
10.21.2005 6:34pm
Medis:
On Lawn,

I read that attempt to answer this issue (that the children being raised by unmarried gay couples would be better off if those couples were married). I don't get it. I gather the underlying assumption was that marriage would have no real effect on gay couples raising children (unlike with straight couples). Are you seriously proposing that is true?
10.21.2005 6:34pm
PeterH:
Law Student Kate

I would, however, challenge your assertion that no one actually believes in the conjugal view. They do. While the law might allow childless couples like myself to remain married, there are many people who do not really view my marriage as a "real" marriage. I know this because I'm confronted with it all the time.


I stand by my point, but I agree that I didn't phrase it carefully. There are plenty of people who believe in the conjugal model for their own marriages and live by it. There are plenty of people who judge others' marriages based on it.

So yes, it does exist. But I see absolutely nothing going on in society to make the slightest attempt to apply it legally. The same people who judge your marriage as inferior are not lobbying their Legislators to amend state and local Constitutions to invalidate it or prevent similar ones in the future.

I have absolutely no problem with people judging my relationship as inferior to mine. In a lot of cases, I am more than willing to return the assessment in kind. What I object to is the pretense that they are applying their standard AT ALL, to ANYBODY other than gay couples.
10.21.2005 6:35pm
Kendall:
On Lawn -
Generally, adoptive parents experience obstacles in raising their child that the ideal situation does not. Step-parents married to divorces experience even more. A step parent who is simply co-habiting with a parent, or parents who were never married seem to have an even tougher row to hoe. Foster parents seem to have even more obstacles to rearing children than the rest. The more obstacles the more we see a greater risk failure.


This seems to be the crux of what you think the argument you appeared to be responding to is. And frankly, well, not related at all. marrying someone with kids is a choice, as is co-adopting the kids. Its comparatively simple for someone who marries a spouse with kids to adopt them so its recognized for the purposes of the law that they have guardianship along with the biological parent and not doing so is a choice of both adults.

However, the issue is SSM and gay adoption. Gays can and do adopt, the legal hurdles so easily overcome by heterosexuals (a fact that you fail to mention) CANNOT be easily overcome. If the "wrong" parent winds up in a hospital (its difficult, although not impossible for gay couples to jointly adopt in many states obviously) and then the child breaks his/her leg at school what could the healthy parent (I use the term in a nurturing sense, although the law in this case wouldnt' recognize that) do? not a thing. Not one thing. And that ISN'T in the child's best interests.
10.21.2005 6:38pm
juris imprudent (mail):
"...to reclassfying the once-privileged conjugal vision of marriage..."

Folks, this is the meat of the nut - it's all about sex. In MG's view, marriage is the only legitimate domain for sexual relations. Allow gays to marry and you can't morally condemn their intimacy. We've already fairly well given up on that and she (and folks that share her view) just can't stand it.

Conversely, what is it that drives advocates of SSM? The desire for the social respectability that comes with the institution of marriage. Aside from that, the benefits of marriage are a mixed bag, financially and so forth. Forget tolerance, it's all about acceptance - and those really are two different things.
10.21.2005 6:41pm
Medis:
So I am trying to figure out what people like Maggie actually want to happen to children being raised by gay couples, and how a lack of gay marriage supports those goals.

Should those gay couples give those children over to the care of some straight couple? Should the gay couple break up, each enter straight marriages, and then do some sort of joint custody? Would it actually be better if this child had never been born at all?
10.21.2005 6:41pm
On Lawn (mail) (www):
But we know that SSM and civil unions in other countries has not destroyed marriage so wouldn't the fact that some people want to destroy marriage be completely irrelevant?

I'll agree. It has weakened marriage but not destroyed it. I'm in the same camp as Maggie when I say that I'm sure marriage will survive, but I wonder about the civilizations that try to supplant it with government welfare programs (of which ss"m" is the tantamount replacement),

The way I take the argument of "destroy marriage" as relevant is in two ways. First, the argument that "marriage isn't worth as much as I think it is, so give up on it," strikes me as more of a con-artists trick or supermarket haggling that winds up with me on the losing end. That the destroy marriage people latch onto the ss"m" argument so veraciously gives me an incling that it is generally understood that it will at least weaken marriage and further their purposes.

The second is a sort of reduction-ad-absurdum approach to the arguments. It seems to me that the arguments behind ss"m" logically conclude that marriage is not very valuable. Either it is myscoginist, theocratic, etc... it shows a logic of a witch hunt. Other arguments about how anyone who thinks they are married should be able to consider themselves married dilutes what marriage is, much like accepting diplomas from any old institution for a medical degree. The logical conclusion of that exercise brings us to a state where the diploma truely is meaningless for everyone and it is left by the wayside.

So thats where I see the exposition of the logic behind ss"m" as valuable. But admittedly only in an indirect kind of way.
10.21.2005 6:43pm
JW (mail):
Vellman's opposition to SSM is rather idiosyncratic and has nothing to do with any of the arguments presented here. In short, he opposes it because he fears that it will interfere with the right of children to know the identity of their biological parents. As he acknowledges, his concern and the underlying issue of SSM are separable, but I'll grant that it's a fair concern nonetheless. However, I think his response -- barring SSM altogether-- is out of proportion. Indeed, he acknowledges that similar problems arise with infertile couples who adopt or conceive through artificial means. Yet he doesn't advocate preventing marriage under those circumstances.
10.21.2005 6:44pm
Cold Warrior:
JW wrote:

One might argue that the fiercest critics of SSM are asking to be saved from themselves. Empirical research suggests that those with the most hostile and negative attitudes towards homosexuals demonstrate high levels of homosexual arousal.


On Lawn took the bait:

That would be Mr. On Lawn if you were endeavoring for accuracy as I am a male. But as you quoted a discredited and off-topic survey, accuracy and integrity may not be your intension as much as simply calling people names ;)


On Lawn, a little bit of advice on the art of rhetoric. The better response would be, "Interesting ... of course, I'm not at all homophobic ... ."

That would be a correct statement, wouldn't it??

And thanks to our contributor with the Danish stats. Certainly doesn't look like the rise of civil unions has had the feared consequence. Which, of course, supports my point that Maggie's barking up the wrong tree. Liberalized divorce laws and welfare state support for unmarried parents certainly had a much more profound impact on illegitimacy than gay marriage ever could ...
10.21.2005 6:44pm
Antonin:
American Federalist Journal Editors:

Antonin,

These two paragraphs totally contradict each other:


Furthermore, insofar as the stereotype is accurate the behavior it references is based in large part on the stigmatization of gay men in society and law. If it's not socially acceptable to love another guy, live with him, raise children with him, etc., then gay men are less likely to do it.

In addition to that, the stereotype of promiscuous men spreading disease has no application to lesbians, who are neither promiscuous nor have the type of sex likely to spread disease.


Can you explain the contradiction? The difference between gay men and lesbians is entirely ascribable to the differences in social expectations of men and women and general (and possibly inherent differences in amount of sex drive). Men are expected to be sex-driven fiends and women aren't, so social pressures against gay people openly settling down together have more of an impact on gay men than they do on lesbians. As a statistical matter, lesbians would probably be even less promiscuous and more likely to settle down than they already are if social institutions that supported that choice were widely available.
10.21.2005 6:47pm
PeterH:
On Lawn posts, in response to the question,
"Why do they also block anything “identical to or substantially similar to that of marriage” for unmarried couples?"
I know why I do, and it was presented in this link which changed my thinking on the issue.


Following the link takes one to the argument that people who are opposed to same-sex marriage want it prevented under any name. But since so far there are NO civil unions that grant anywhere near the same benefits as marriage, and that in every state where similarly worded amendments have passed, they have been used (as in Michigan) to fight the granting of ANY benefits to gay couples, if this argument changed your opinion to the opposition of both same-sex marriage and civil unions, I am left to wonder:

Exactly what benefits granted by marriage are they that you feel should be denied gay couples? Grant me the existence of committed, long-term, loving gay couples, some of whom are raising kids.

Granting that you've been as clear as anyone just WHY you think gay people should be denied benefits, please be clear on just which ones you think gay couples should be prevented from getting? Or do you think that gay people deserve absolutely no legal rights of any kind under any circumstances? Or that gay people should not be allowed to form relationships in the first place?

Ability to make medical decisions? Mutual financial support? The ability to provide for your heirs after death?

SOMETHING about same-sex marriage is a threat. What? The states that have done the parallel-track civil unions have enumerated which rights gay couples don't have. Why do you support outlawing civil unions entirely rather than constructing them consciously to exclude the "dangerous" stuff?

And precisely why is your position not prejudice?
10.21.2005 6:50pm
The Editors, American Federalist Journal (mail) (www):
"Liberalized divorce laws and welfare state support for unmarried parents certainly had a much more profound impact on illegitimacy than gay marriage ever could ..."

This is akin to saying that if a person has already been shot twice, then shooting him again won't hurt him.

But redefining an insitiution alters it in a way that allowing people to leave it does not. Divorce does nothing at all to redefine marriage as an institution.
10.21.2005 6:51pm
JGUNS (mail):
Wow, once again the liberal SSM advocates just can't quite wrap their heads around the arguments posed in this.

Firstly, I have never had a problem with Civil unions because I think they handle the issue quite nicely. However, Gay activists DO NOT support this and this is as pointed out due to the idea of forcing a new morality on a public that doesn't want it.

Again, the bigot label is thrown on anyone who doesn't support the idea of gay marriage. It really comes down to a simple fact for most people who are against gay marriage: A child has a right to a mother and a father. Where are all the people advocating for the children now? every single person I know that is for gay marriage is single and conversely most married people with children I know are against it. If gay marriage is legalized that truly does enforce a new set of moral standards. Let's look at adoption. Is it not true that with Gay Marriage a gay couple and a straight couple would receive equal treatment when it comes to adoption? Is that fair to a child. Do pro SSM advocates really believe that there is no difference between a mother and a father and say two fathers or two mothers on children. Yes, I know, the next argument will be that there are plenty of terrible fathers/mothers or children being raised by a single parent. But does that then SUPPORT the argument for SSM? This is where a clear example of a new morality enforcement is bared in all its reality. A child's best environment consists of both a mother and a father and that is proven scientific fact. I believe that Norway or the netherlands has SSM but when it comes to adoption, a married hetero couple gets preference, so even that "enlightened" country understands its significance.
Marriage was never backed by government for LOVE or intimacy, it was done for the children that come out of that intimate relationship. SS couples may be capable of an intimate relationship, but they are not capable of creating a child together, even with science. This is why there is no descrimination, only simple physiology.
10.21.2005 6:56pm
On Lawn (mail) (www):
Medis,

I gather the underlying assumption was that marriage would have no real effect on gay couples raising children (unlike with straight couples). Are you seriously proposing that is true?

Barbara DeFoe Whitehead made waves by coming to the defense of Dan Quayle in the 1990's with an astonishing thesis, re-marriage doesn't really help much at all. While at the time there was sufficient support for this, studies continue to show that from the child's perspective once the initial bond between their bio-parents is broken that marriage has no significant impact on their upbringing.

To me this suggests that if re-marriage has little impact on children even in heterosexual households, then it will have little impact on the households headed by homosexual couples.

Now this is an important point, because it shows the movement in the institution of marriage from keeping procreative unions in-tact (which there is overwhelming evidence benefits children) to using it as a bandage to wrap up situations where children are found. Its statistically useless in that function from the children's perspective, and is fraudulent for the government to suggest otherwise by orienting its policies in that direction. That would indeed increase the divorse rate as people taking a queue from the government think that re-marriage is just as good as the first one for the children. This provides much of the congruencey that many ss"m" supporters have sought in understanding the connection made by marriage supporters to no-fault divorse and ss"m".

Kendall,

This seems to be the crux of what you think the argument you appeared to be responding to is. And frankly, well, not related at all.

The argument is relevant in that it argues against the conflation you relate as being convenient. Distinction and deference to the situation children do best in gives government a better ability to help each particular case.
10.21.2005 6:57pm
DM Andy (mail):
Editors, you're back :-)

I posted up those Danish stats for you. How does that support your argument that the introduction of SSM or civil unions increases out-of-wedlock births?
10.21.2005 6:59pm
The Editors, American Federalist Journal (mail) (www):
Medis:

"unless you are proposing taking children away from gay couples and giving them to straight couples, then you have gotten the wrong contrast class."


That's just nonsense. To note that one family form is better than others in no way implies that the inferior forms must be forcibly disbanded.


Morat:

"It strikes me as quite obvious. Surely you can see that each additional person increases the complexity of a marriage contract dramatically. A simple boiler-plate contract works for two people (gender isn't relevant whatsoever), but adding a third or a fourth opens up a hornet's nest. "



Nonsense. If you're looking at marriage as no more than a business contract, contracts are completed between groups of three, four, or hundreds of people all the time.
10.21.2005 6:59pm
The Editors, American Federalist Journal (mail) (www):

"So I am trying to figure out what people like Maggie actually want to happen to children being raised by gay couples, and how a lack of gay marriage supports those goals.

Should those gay couples give those children over to the care of some straight couple? Should the gay couple break up, each enter straight marriages, and then do some sort of joint custody? Would it actually be better if this child had never been born at all?"


The ideal is to have more, rather than fewer, kids being raised with a mother and a father. The goal is to have policies to encourage such arrangements. Repeating, or worse institutionalizing, the lie that all family forms are equally good does not encourage such arrangements.
10.21.2005 7:04pm
On Lawn (mail) (www):
JW,

However, I think his response -- barring SSM altogether-- is out of proportion.

His response is one of dissapointment in ss"m" advocates. Essentially he can not trust them the way their arguments require. That there is a solution that they are unwilling to yield to is what he spends his last few paragraphs lamenting.

Cold Warrior,

I was hoping he'd actually start calling people "homophobes", rather than inferring it. In that way, he didn't take the bait ;)

PeterH,

But since so far there are NO civil unions that grant anywhere near the same benefits as marriage

I'm not sure what you mean by this, but Connecticut, Vermont and California all have CU's (DP's in CA) that are directly connected to the benefits given marriages. It is the direct tying at the hip that both ss"m" advocates and myself find egregious. Seperate but equal is nonsense.
10.21.2005 7:05pm
PeterH:
juris imprudent posts

Conversely, what is it that drives advocates of SSM? The desire for the social respectability that comes with the institution of marriage. Aside from that, the benefits of marriage are a mixed bag, financially and so forth.


I have to disagree completely. While social respectability is very nice, and there are a few misguided folks who seem to feel that it is the Holy Grail in this issue, most of us most definitely do not.

Ask the much-maligned Brittney Spears how much social respectability automatically comes with marriage. I, for one, have very few illusions that a change in legal status will materially affect the opinions of anyone about my relationship. I have no respect for the "if it's legal it must be moral" argument, and suspect that the people who claim to believe it will make the same exception about gay people that they do on every other issue.

No, most of us are very, very conscious of the concrete financial and practical aspects of marriage that are denied us. My love and committment to my partner are already real and solid. The extra $300 a month I pay for medical insurance that would be covered under his employer's plan if we were married, the medical decision making, the vast expenses and hassle of setting up as close a legal approximation for inheritance -- which will still not give either of us Social Security survivor benefits, nor him my veteran's benefits -- just to name a few. Those are concrete. Those are real.

Dismissing the concrete benefits of marriage in order to turn support for equal marriage rights into some warm and fuzzy unattainable cry for social approval is at best naive, and at worst insulting.

Give me all the same benefits, guarantees, and obligations as marriage, under ANY name, and then you can call me a whiner if I don't like what other people call it. Until then, please rethink your position.
10.21.2005 7:06pm
Quarterican (mail):
JGUNS -

Please cite evidence for your proven scientific fact; evidence that children benefit more from being raised by their biological mother and father than if raised from birth or near-birth by a committed gay couple? We know that mother+father provide a better average environment than a single mother, than single father, and than a parent + step-parent, and none of those situations is analogous to the situation of a gay couple entering into an adoption together or deciding to use a sperm donor or egg/womb donor.
10.21.2005 7:06pm
On Lawn (mail) (www):
DM Andy to Editors,

I thought I already took that on. 1989 was the year things were discussed, which I feel educated people better which caused a drop. By the time it was implimented (re: 1992) the rates start climbing much more dramatically than they were before.
10.21.2005 7:07pm
The Editors, American Federalist Journal (mail) (www):
Antonin: I think the contradiction of "gay men are promiscuous because society stigmatizes homosexuality - but gay women are not promiscuous" is self evident.

It really comes down to the fact that there are innate differences between men and women.
10.21.2005 7:09pm
juris imprudent (mail):
The ideal is to have more, rather than fewer, kids being raised with a mother and a father.

Are you seriously suggesting that SSM would result in more gay couples bidding for children?

The goal is to have policies to encourage such arrangements.

So shouldn't you be more opposed to divorce then to SSM? Abolish divorce and see how many SS couples are as keen to enter into it! Of course, you might also put a serious dent into OS couples and that could damage the almighty goal of more babies.
10.21.2005 7:09pm
DM Andy (mail):
On Lawn, nope on both levels.

1) Denmark introduced their civil unions in 1989 not 1992.

2) If you look upthread you will see that there is no decrease in the percentage of children born to married mothers from 1989 or 1992.
10.21.2005 7:12pm
Medis:
On Lawn,

Unless I read incorrectly, that is NOT what Whitehead is claiming (that remarriage has no effect). Rather, she is claiming that remarriage does not always undo all the damage caused by divorce. So it again seems like a case of the wrong contrast class: by denying these children the benefits of gay marriage, you aren't somehow putting them in the position of being raised from birth in an intact straight marriage. You are putting them in the position of being raised by an unmarried gay couple. And nothing in Whitehead's thesis suggests that married gay couples are not better for children than unmarried gay couples.

The Editors,

That iS MY point. You aren't proposing we should take children away from gay couples and give them to married straight couples. So whether or not married straight couples are better for raising children than married gay couples is IRRELEVANT. The relevant question is whether married gay couples are better for children than unmarried gay couples. And as I just noted, I don't see any evidence for the view that marriage has no benefits for children being raised by gay couples.
10.21.2005 7:13pm
The Editors, American Federalist Journal (mail) (www):
DM Andy: I don't think there's much value in simply posting a list of numbers with no context. The context provided in Kurtz's article is important.

In any case, I doubt many Americans would view Denmark as a model society to emulate.
10.21.2005 7:13pm
Antonin:
JGUNS wrote:

Do pro SSM advocates really believe that there is no difference between a mother and a father and say two fathers or two mothers on children. [sic]

Basically, yes. None of the (many) studies on this subject have found that children raised by same-sex couples do worse on any indicator of well-being than children raised by opposite-sex couples. There are sample size and selection bias issues involved in any study of such a small population, so it's not completely conclusive. However, the failure to find any statistically significant difference on any measure of well-being in any of these studies is extremely strong evidence that if an effect exists, it's very small. It's certainly nothing like the enormous difference in outcomes between e.g. the kids of poor parents and the kids of rich parents.

Some conservatives worry that children who are raised by two parents of the same sex will have a less stereotypical and rigid view of gender roles than they would like. I don't know what the research says about this (nothing, probably) but if it's true, I think it's a feature, not a bug.
10.21.2005 7:14pm
JW (mail):
Translation of the Editors:

1) When viewed in "context," up means down

2) Did I say Denmark proves my case? Oh, I mis-spoke. I meant, uh, never mind.
10.21.2005 7:16pm
Medis:
The Editors, Part Two,

I am asking for the proposed mechanism to your desired result. Again, how exactly do you get the result of fewer children being raised by gay parents? The gay parents are giving them up for adoption? They are breaking up and entering straight marriages? They are not having the children in the first place?

Please clarify.
10.21.2005 7:16pm
The Editors, American Federalist Journal (mail) (www):
juris imprudent:

Are you seriously suggesting that SSM would result in more gay couples bidding for children?

Are you seriously suggesting it would have no effect?


So shouldn't you be more opposed to divorce then to SSM?

One can be opposed to multiple threats to marriage at once. The existence of problems within individual marriage in no way argues in favor of redefining the institution.
10.21.2005 7:16pm
juris imprudent (mail):
PeterH-

I was thinking with particular reference to civil unions vs. marriage and many gays will not accept a 'lesser' deal. Even now, most of the things you would like that come automatically with marriage can be arranged (with some exceptions) - just not in a convenient package. There's really no obligation of society to make your or anyone else's life just a little easier.

As far as mentioning Ms. Spears, that's a splendid argument for making entering marriage more arduous, not more accessible.
10.21.2005 7:19pm
The Editors, American Federalist Journal (mail) (www):
Medis:

You aren't proposing we should take children away from gay couples and give them to married straight couples. So whether or not married straight couples are better for raising children than married gay couples is IRRELEVANT.


No, that's illogical. One can promote polices to discourage more children being denied a mother or father without doing anything with children currently in that situation.
10.21.2005 7:22pm
DM Andy (mail):
Editor, I am starting to doubt your honesty in this discussion, you said "Stanley Kurtz says: About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased."

Now, I couldn't find information of first born children born out of wedlock, so posted the data on all children. I believe Stanley Kurtz's information that 60% of first borns are born to unmarried parents but the data shows that had nothing to do with SSM in 1989.

You posted something, I've proven you factually incorrect and you claim that it doesn't matter and it's out of context. That's the intellectual equivalent of sticking your fingers in your ears and shouting "I can't hear you."
10.21.2005 7:25pm
On Lawn (mail) (www):
Medis,

Defoe points out that after the intact family breaks, marriage does nothing to fix it. True for same-sex as well as heterosexed couples. To argue that ss-couples should get married to benefit the kids is unfounded.

DM Andy,

You are right. Not 1992, but 1997. The following is a collection of analysis done by Chairm Ohn,

The chronology in Holland makes the year 1996-97 a demarcation point from which we can discern a "before and after" comparison.

Dutch lawmaking is infamously slow but the government's readiness to experiment with SSM was communicated first in its express approval of RP (described locally as gay marriage), in the state commission's prominent 1996-97 hearings, in that commission's subsequent pro-SSM report, and in the government's announcement that it would enact adoption provisions and SSM.

The RP bill had been introduced in 1994; it made its way through the legislative process and was passed by the government in 1997, (to go into affect in January of 1998). Similarly, SSM was passed in 2000 and was implemented officially in early 2001. The campaign was successful by the mid-1990s, but its prominence may have had unintended consequences in boosting the unravelling of family formation traditions in that society.

I think it is plausible that the campaign was the most significant factor.

The correct way to calcuate the change on a given year is to compare that year with the previous year. For the record here is the list of point changes for 1997-2003.

1. 1997 - 2.2
2. 1998 - 1.6
3. 1999 - 2.0
4. 2000 - 2.2
5. 2001 - 2.3
6. 2002 - 1.8
7. 2003 - 1.7

The average point change for 1997-2003 inclusive: 2.0 (rounded-up from 1.96).

---

The 1.5 point threshold was hit in 1996 and breached in 1997. It was unprecedented.

The previous seven year period from 1990 to 1996 inclusive: 1990 - 0.7, 1991 - 0.6, 1992 - 0.5, 1993 - 0.7, 1994 - 1.2, 1995 - 1.3, and 1996 - 1.5.

Annual average point change: 0.9 points.

Previously, yearly changes hovered around 1 point and barely rose above 0.5 points prior to the mid-1970s.

The rapid change of 1997-2003 was a big deal in Holland given how low the share of non-marital births had been earlier, how little it moved, and given the strength of traditional family formation even in the face of liberalized laws prior to the mid-1990s.

The resistence to the changes experienced in other countries was attributable to the strength of societal adherence to traditional family formation. That seems to have been undermined during the mid-1990s.

The menu of alternatives was introduced and enacted at the instigation of the gay lobby which depended on most of the arguments that you have made in your advocacy of SSM (which is not really marriage).

Since most children living in same-sex households were NOT adopted, and since individuals, rather than couples, were able to adopt children, the pragmatic distinction between RPs and adoption was always very weak. Anyway, that part of the RP law was quickly changed.

While RP did not equate to marriage in all ways, it did send the public message that there was such a thing as state recognition of "gay marriage". That message was clearly used as a stepping stone toward enactment of SSM.

Kurtz pointed to the Netherlands in particular. And, as Dutch observers have well-noted, the social indicators for that society showed that among European countries Holland was an exceptional example where traditions remained stable despite a couple of decades of changes in family law. That came apart very quickly when the gay campaign made its rapid progress toward enactment of same-sex marriage.

Something boosted Dutch non-marital births by an unusual annual average of 2% points between 1997-2003. Although non-marital births increased steadily since 1970, it was unprecedented for the share of nonmarital births to increase above the threshold of 1.5% per year; and very unusual for both first and second order births to increase above this threshold. The pattern, after this significant bump in the trend line, has held.
10.21.2005 7:25pm
Medis:
The Editors,

Again, you are only raising, not answering, both parts of my question.

First, if you are motivated by concern for children, why aren't you trying to do what is best for the children being raised by gay couples? And I am not asking why you aren't advocating their removal: I am asking why you seem to give no weight at all to the idea that gay marriage may benefit them. Even if the harms of gay marriage ultimately outweigh these benefits, surely they should be part of the equation.

Seconde, I'm still trying to figure out how you think this policy will "discourage more children being denied a mother or father." Seriously ... are you actually proposing that the world would be a better place if these children had never been born at all? If not that, then what?
10.21.2005 7:30pm
Colby:
PeterH said: Even now, most of the things you would like that come automatically with marriage can be arranged (with some exceptions) - just not in a convenient package. There's really no obligation of society to make your or anyone else's life just a little easier.


But there's an advantage. And this speaks to the link reasoning why On Lawn disagrees with civil unions (namely: that there's no societal advantage to recognizing and granting responsibilities and benefits to a same-sex couple).

The advantage is less government. I said this yesterday: By encouraging, recognizing, and not standing in the way (e.g. thousands of dollars in legal fees; portfolios of documents in every glove box and every suitcase) of families , the government makes itself less relevant. When families take care of their ill members, their aging parents, the members of their extended family who are having a hard time of some sort, society doesn't have to. Recognition of either marriage or civil unions for same-sex couples will make it easier for us to form families. Therefore, through such recognition government makes itself smaller and creates a positive externality.
10.21.2005 7:35pm
DM Andy (mail):
On Lawn, I was sure we were talking about Denmark (the reason I chose Denmark was they have the longest time for long term effects to show) and not the Netherlands. But if you want to change the country then I'm happy to oblige but please bear with me while I get the figures off Eurostat.
10.21.2005 7:35pm
Medis:
On Lawn,

Again, I understand that remarriage may not entirely fix the damage done by divorce ("does nothing" is not my understanding, but that is a side issue).

Accordingly, I could understand an argument that said breaking up an intact family (gay or straight, for that matter) and then replacing it with a new gay marriage (or a straight marriage for that matter) would not be best for the child.

But that is NOT the issue. I'm not hypothesizing a child that would be taken from an intact family and put into a family based on a gay marriage. I'm talking about a child who starts life being raised by a gay couple, and asking whether that child would benefit from that couple being married.

And incidentally, the irrelevance of your data should be clear because it was based on straight remarriages! Obviously that does not prove that straight marriage in the first instance has no benefits for children, so it similarly does not prove that gay marriage in the first instance would have no benefits for children.
10.21.2005 7:36pm
The Editors, American Federalist Journal (mail) (www):
DM Andy: Kurtz provided context for his argument, you did not. If it makes me dishonest in your eyes to prefer his argument to yours, I can live with it.
10.21.2005 7:40pm
On Lawn (mail) (www):
Medis,

But that is NOT the issue.

Good because my issue is as stated. Marriage does not benefit children in ss-couple households.

I'm not hypothesizing a child that would be taken from an intact family and put into a family based on a gay marriage. I'm talking about a child who starts life being raised by a gay couple

Marriage benefits children in that it keeps both parents in obligation to raise them in respect to their rights. You are still advocating a departure from that in that the child is not being raised by his/her parents. Thus it is not an in-tact family.

DM Andy,

On Lawn, I was sure we were talking about Denmark

Honestly I haven't really given it that much of a look (which might be evident). The numbers from Holland certainly provide the evidence you are looking for, in any case. I'll deal with Denmark later.
10.21.2005 7:44pm
Antonin:
Editors: I think the contradiction of "gay men are promiscuous because society stigmatizes homosexuality - but gay women are not promiscuous" is self evident.

It really comes down to the fact that there are innate differences between men and women.


I have nothing much invested in the claim about stigmatization. I don't think it's a contradiction, but I don't feel like explaining the implicit nuances that I thought were obvious. Besides, don't you conservatives hate nuance anyway :P

But why are you so quick to jump to supposed "innate differences" as the principal (sole?) explanation? I have no interest in arguing that innate differences play no role here, but it's not as though men and women are socialized the same way. Men are socialized to believe they're supposed to be sex-crazed (and their success is judged by how much sex they get with how many different partners) and women are not. When I was in high school, I was under social pressure to get laid by fucking a girl, or preferably several, but a girl who got lots of different guys in bed was a slut. I could pull out lots of sociological research evincing essentially the same point if I wanted to.

The application to the statistical differences between the average number of sex partners gay men and lesbians have (or claim to) should be obvious. So what convinces you that it's principally about genetics?

My guess is that it's because you're a fu*king sexist.
10.21.2005 7:45pm
The Editors, American Federalist Journal (mail) (www):
Medis: You haven't demonstrated how giving two men a government license will help any children living in their house. It won't provide those children a mother.

I'm proposing that it is better for children to have a mother and a father raising them. You've said nothing to demonstrate that changing the definition of marriage will help further that goal.

It seems obvious that making marriage less about children will tend to be detrimental to children.
10.21.2005 7:48pm
On Lawn (mail) (www):
Antonin,

I'd like you to read this comment I made early on in the Gallagher debate.
10.21.2005 7:48pm
DanielH (mail):
On Lawn is failing to point out that out-of-wedlock births in Europe are not like out-of-wedlock births in the U.S. A large majority of European birth occur in intact, unmarried families where the mother and father cohabit and eventually marry. That is in sharp contrast to the U.S. where most out-of-wedlock births do not occur in an intact household.

While I know that the marriage folks believe that marriage is the panacea and salve that solves every problem, they have created a problem by looking at European data that doesn't exist.

So what if a kid is born to an intact, unmarried couple that is cohabiting and later commits to marry--which is the "objectional" situation in Europe. How is that bad for the child, if the biological parents are in a committed--albeit, unmarried--relationship???

Using On Lawn's logic, we can blame antimiscegination laws for the decline in marriage in the U.S. Divorce started to climb within a year after Loving v. Virginia. Under On Lawn (and Kurtz's and Gallagher's) logic, Loving is to blame and therefore interracial marriages are bad for marriage.
10.21.2005 7:52pm
jACKJOHN (mail):
MEDIS: Would it actually be better if this child had never been born at all?

Yes, and thank goodness our Constitution mandates abortion-on-demand, right, Medis?
10.21.2005 7:53pm
The Editors, American Federalist Journal (mail) (www):
Antonin: If recognizing the reality that women and men are different makes one a sexist, then I can live with it. Your foul-mouthed(keyboarded?)insults are of no interest at all.
10.21.2005 7:53pm
The Editors, American Federalist Journal (mail) (www):
DanielH:

While I know that the marriage folks believe that marriage is the panacea and salve that solves every problem


Who said they believe that? I think you just made it up.
10.21.2005 7:57pm
DM Andy (mail):
On Lawn, having checked out your figures, now that's evidence that something's going on. I'm wondering whether there are tax regime changes going on at the same time as talked about earlier - as we know that affects the out-of-wedlock birth rate.

Editors - You said that something had gone up, I showed that you were incorrect. Sorry for upsetting you.
10.21.2005 7:57pm
On Lawn (mail) (www):
DM Andy,

having checked out your figures, now that's evidence that something's going on.

Thank you.
10.21.2005 8:00pm
DanielH (mail):
Editors, spend any time reading the Marriage Movement's rhetoric and it becomes quite clear that they veiw marriage as a panacea for almost anything.
10.21.2005 8:01pm
DanielH (mail):
I think you need to leave the U.S-centric mindset regarding out-of-wedlock births and think like a Euro. In a social welfare state where there is little financial incentive to marry, more people will remain unmarried.

Unlike in the U.S. where out-of-wedlock births usually equals young women by themselves and people in poverty raising children alone, in Europe it means middle-class couples living together in committed relationships.
10.21.2005 8:04pm
DM Andy (mail):
I've found something On Lawn which may explain the Netherlands data. When same-sex civil partnerships were introduced (1998), it was also left open for mixed-sex couples as well.

So pre-1998, a mixed-sex couple had to be married to enjoy the financial benefits the Netherlands tax system gives married couples. Post-1998 a mixed-sex couple had a halfway house of civil partnership which granted the financial benefits of marriage without the moral status.

In contrast Denmark did not have that, it was civil unions for same-sex, with only the option of marriage for mixed-sex couples.
10.21.2005 8:07pm
Designbot:
Medis: You haven't demonstrated how giving two men a government license will help any children living in their house. It won't provide those children a mother.

The Editors: You haven't demonstrated how giving a man &a woman a government license will help any children living in their house. It won't provide those children a mother.
10.21.2005 8:07pm
The Editors, American Federalist Journal (mail) (www):
DanielH:

Editors, spend any time reading the Marriage Movement's rhetoric and it becomes quite clear that they veiw marriage as a panacea for almost anything


This is simply a bald-faced lie.
10.21.2005 8:09pm
DM Andy (mail):
Editors: "This is simply a bald-faced lie."

Mr.Pot meet Mr.Kettle :-) (apologies for the excessive UK-centric humour)
10.21.2005 8:13pm
The Editors, American Federalist Journal (mail) (www):
Designbot,

Children living in a household with a man and a woman don't have a mother???
10.21.2005 8:15pm
On Lawn (mail) (www):
Daniel H,

spend any time reading the Marriage Movement's rhetoric and it becomes quite clear that they veiw marriage as a panacea for almost anything.

Just because I've seen this discussed before I thought I'd share this from Sara Butler Nardo of the Marriage Movement.

Unlike in the U.S. where out-of-wedlock births usually equals young women by themselves and people in poverty raising children alone, in Europe it means middle-class couples living together in committed relationships.

I believe the argument is framed around how much birthing happens outside or marriage as evidence in the decline of marriage as an institution, not outside of poverty. Is there something in this thread that has lead you to believe otherwise?

DM Andy,

Interesting. Do go on...
10.21.2005 8:15pm
duglmac (mail):

I think that there are many here that have misconstrued MG's arguments. I think that what she is saying is very clear.

Society recognizes that procreation and the family support of children is important for the survival of the nation. To ensure continued survival, legal instruments were architected to emulate and support this 'national program'.

Regardless of how effective she may have been at getting this accross, I still have yet to hear one person here who advocates SSM make a case as to why this designation should be expanded to include gay couples as well. Or polygamists, for that matter. "It's only fair" doesn't cut it.

It is important to note that nowhere has she attacked SSM directly. This has been pointed out in many comments, but as attacks on her case instead of astute observation: it is to her credit that she has not resorted to opponent bashing. It is not a trivial task to foresee actual effects, harmfull or otherwise, and this in itself is a reason not to change anything. I'm not sure if it's a 'good enough reason', but it is valid. Proponents of SSM haven't really been very convincing that SSM will NOT be harmfull. If the debate is framed as "Come up with harmfull effects, or you don't have a case", then it sounds one sided, and precludes full understanding of both sides of the issue.

I haven't made up my mind yet. I look forward to next week's arguments from the other side. I like this format of having proponents from each side take on all comers.

As a libertarian, I am inclined to say that SSM should be allowed, but I am also wary of the effects it will have on the 'national program', so this debate is far from over in my view.
10.21.2005 8:15pm
Designbot:
Designbot,

Children living in a household with a man and a woman don't have a mother???


They certainly do. Is that mother provided to them by a government license?
10.21.2005 8:17pm
stephen (mail):
I don't know why so many others just don't get what Maggie has been saying. She is saying ITS ABOUT THE KIDS. If kids don't get the love they need they suffer, their children will suffer and everyone else will suffer too. She saying that once society believes that personal adult happiness is more important than the stability and the happiness of the kids - then we get into making a sad society. That's what happened when no fault devorce came along in heterosexual relationships. Yes it helped some people, but it was wrong because it HURT FAR MORE CHILDREN - and society has been badly wounded - with ever increasing levels of violence, incarceration and drug abuse. Another solution should have been found. She's saying the same thing now. Once we accept SSM - she fully believes it is the children who will suffer. She believes it is the kids that will suffer because if we give the same word to SS unions as we do to heterosexual unions then it will be impossible for parents and society to tell heterosexual children WHAT THEY NEED to hear - and what the research consistently shows to be true - that the best place for the next generation to raise their future children is in a marriage with both biological parents. The SSM issue will cloud the whole presentation of this idea to heterosexual children - children who form over 95% of the population. Teachers, parents and society will not be able to say what the research shows for 2 main reasons. Firstly, once is SSM accepted by law makers those who say this sentence will start to be called bigots or homophobic - even though these people are just concerned about their own children's future happiness. Secondly, kids don't look at our words but at our actions and they will say - well SS people are married - and they're not both the biological parents so it seems that any 2 people who love each other can raise a kid. But research on heterosexual couples and kids finds this is not to be true and that many, many kids grow up in deep pain because of the falacy of this argument (e.g.; 75% of children of cohabiting parents will see their parents separate versus only 35% of children of married parents; also research shows children in heterosexual stepfamilies to have almost as many problems as children from single parent homes)

What she's asking very nicely for is for the gay community to leave the term 'marriage' to mean the union of a man and a woman. This offers society the best protection for future children because it will allow for a clear, unambiguous marital model for the 95% of heterosexual children. If the gay community wants to create a new word to mean a SS union, any word, a royal and regal word that even sounds better than marriage, no one would object. But to want to take over the word 'marriage' which up until now has meant the union of a man and woman and make it mean something different will just cause many, many future children a lot of pain because their parents will believe that any union of 2 heterosexual people is good enough. And she asks - is it fair, kind, or loving for a small group in society, less than 5% of the population, to demand something which will cause so much pain within the other 95% of the population. She's also asking social leaders whether it is good social policy to create a situation which might even cause more divorces and unstable cohabitation.

I hear many of you say, well can't Maggie see that SS unions have children and they are just like marriages so why not call them marriages. Of course she sees the reality of 2 SS people and one or two children. But she's saying even though they look the same as a heterosexual marriage - they are not the same. We don't call a television a computer monitor even though they look the same because they have different internal dynamics - and heterosexual marriages and same sex unions have different internal dynamics. I can not say to partners in a SS union, the husband should fulfill the affection needs of the wife or the wife should show apreciation to the husband. When any professional talks about a SSM - they will have to define it as a SSM first, then everyone can put the information in context. In other words because the internal dynamics are different then we have to use different words to describe the two different types of union. If we don't, we end up with confusion. If a person says married partners should do this or that - does that mean both Heterosexual and SS partners should do this - or does this only mean heterosexual partners, or just the SS partners. These differences in internal dynamics will force us all to to define which kind of union we are talking about first. In other words, the differing dynamics will force us as a society to give the two types of unions two different names - so why on earth do advocates of SS unions want to create confusion by saying they want the same name as heterosexual couples. If I meet someone, and they say they're married, I will have to now ask, is that heterosexual married or gay married. And will gay's start to sue people who say something like 'In a marriage, the husband should talk with his wife everyday' because they feel the person is not being inclusive in his langauage. Put simply, the internal dynamics are different, with the differing forms of union having different problems and needs. For the sake of clarity and definition and to stop constant unwanted misunderstanding, it's by far the best solution that the 2 types of union have different names. If SS advocates can just accept this reality, then we will end years of stupid arguments and debates and a lot of pain.
10.21.2005 8:17pm
Designbot:
You haven't demonstrated how giving two men a government license will help any children living in their house. It won't provide those children a mother.

The point is, if marriage encourages stability, fidelity, love, commitment, yadda yadda yadda, then it will confer the same benefits to same-sex couples, thereby, wait for it… helping the children living in their house. If marriage does not confer these benefits, then what's the point of protecting it?
10.21.2005 8:20pm
PeterH:
Colby -- you appear to have attributed juris imprudent's fairly lame response to me as mine. Please be a tad more careful in the future. HE's the one who seems to thing that making the same arrangements horrendously more difficult and expensive constitutes equal treatment. I most certainly do not.
10.21.2005 8:22pm
Antonin:
Duglmac: I think that there are many here that have misconstrued MG's arguments. I think that what she is saying is very clear.

Society recognizes that procreation and the family support of children is important for the survival of the nation. To ensure continued survival, legal instruments were architected to emulate and support this 'national program'.


This strikes me as extremely dubious as a historical claim. I'm no expert on this history of marriage, but my guess is that the issuance of mariage licenses by the state had to do with keeping powerful people powerful and oppressed people oppressed. This would put it in the same class as virtually every legal instrument in all of history. I've seen some suggest that in the U.S. it was a way of deligitimizing the marriages of black people, who couldn't get licenses, although I don't know if this is true or not.
10.21.2005 8:25pm
Quarterican (mail):
stephen -

Please cite the research which shows that children benefit more from being raised by their biological mother and father than if raised from birth or near-birth by a committed gay couple. We know that mother+father provide a better average environment than a single mother, than single father, and than a parent + step-parent, and none of those situations is analogous to the situation of a gay couple entering into an adoption together or deciding to use a sperm donor or egg/womb donor.
10.21.2005 8:31pm
On Lawn (mail) (www):
Antonin,

I'm no expert on this history of marriage, but my guess is that the issuance of mariage licenses by the state had to do with keeping powerful people powerful and oppressed people oppressed.

Seems overly churlish to me. As religions held marriage regulation previously, it probably has more to do with seperation of church and state (i.e. secularisation). Why marriage is between a man and a woman goes even beyond religious recognition.

While you are talking about two different things (the arresting of marriage regulation from the church) and marriage recognition and regulation in general, I find Duglmac's observation to be much more intrinsic.
10.21.2005 8:33pm
DM Andy (mail):
On Lawn, glad you find this line interesting. I think what I'm getting to is that if you want to affect marriage rates and out-of-wedlock births, then you have to use fiscal measures. Admittedly I am an accountant so I would think it's all about the money.

That's it for me tonight, it's past midnight here.
10.21.2005 8:35pm
On Lawn (mail) (www):
Quarterican,

raised by their biological mother and father than if raised from birth or near-birth by a committed gay couple.

A vast majority of children raised in same-sex households do so by the product of divorse. Its unlikely that the study you request has been made considering the recent nature of technology *and* the ethical considerations it involves.

Prof Velleman of NYU points out that the creation of babies for same-sex couples involves violating their rights. Beyond that I find conflict in that practice with the 14th ammendment as it turns children into commissioned works, a purchased product. An unwanted baby -- industry.

And yes I have simular concerns when heterosexual couples engage in commissioning children.
10.21.2005 8:39pm
MarcL (mail):
Dang, you go off to work and then check back and there are 8 zillion comments--

in case you're still there Chairm--

I think I made an error in presenting my point which you ridiculed. When I said

"Of course society needs babies, but on an individual level there is a huge battle between the Male need to have as many babies as possible and the Female need to wrest as much parental investment out of her family group as possible. The history of marriage is a varying account of the by products of this war, not some grand teleological mission."

I was referring to a large body of well documented research and theories regarding different reproductive strategies between different genders within different species. If you don't think there is a kind of war between genders, how do you explain the child murder in baboon troups, the fertility strategy of lionesses, the difference between diploid-diploid strategies of most animals and haploid-diploid strategies of most colony insects &c. &c. &c. You might enjoy reading E. O. Wilson or Irv DeVore.

All these things are natural for better and for worse. And, like it or not to deny that we are subject to similar behavioral pressures is to be too hopeful by half. Why do you think some societies practically imprison their women? Is it not because of fear of reproductive competition? Why are men such hounds? Is it not because they are capable of having many children so any genes that spur male promiscuity will tend to replace those that don't? And women, capable of having fewer children tend to maximize the investment in each one. This is irrespective of right and wrong, it's just where we come from.

You say:


"Rather than war, sex integration through conjugal union is a blessing. "

Of course it is. Our moral obligation is to transcend our biology. But to ignore it and its role in the shaping of our social conventions is to invite irrelevance. The institution of marriage has been both a blessing and, where misshaped, a curse. I was just taking exception to MG's statement that "Marriage is for procreation." That is an oversimplification. that ignores the tensions between morality and biology.

It reminds me of the specious arguments for "Intelligent Design."

Cordially,

Marc
10.21.2005 8:39pm
PeterH:
I'm seconding Quarterican, stephen.

A lot of anti-same-sex marriage folks try to use the statistics from the studies that compare families with one mother and one father to those with only one parent, either a mother OR a father, and then claim that it is the specific lack of a mother or a father that creates the difference, rather than acknowledging that no data whatsoever was collected IN THOSE STUDIES about two-parent households of the same gender.

Most of the actual difficulties lie in the difference in income, the fact that a single parent has less available time, on average with the kids, and if they are dating, further time lost. None of those issues apply in a committed two-parent SSM.

Also, while it is true that kids need modeling of gender behavior from both genders, it is ridiculous to assume that a gay male couple has no strong women in their children's lives or that a lesbian couple has no appropriate male models. Same-sex parents have more in common with other parents, and their children will have friends, many of whom will have both gender parents. And gay parents will probably be a little more sensitive to the issue than straight ones.

You can't map one study onto an entirely separate question than the one it was designed to ask. So far, all the actual studies of same sex parents show that their children grow up pretty unremarkable, with fewer issues than one might assume arising from social disapproval, and next to none because of the gender of their parents.
10.21.2005 8:40pm
On Lawn (mail) (www):
DM Andy,

Thanks again, and I think we are in agreement on that one (citing back to my Dan Morgan reference earlier).
10.21.2005 8:40pm
Antonin:
On Lawn - yeah, it was churlish, but the important point was that the purported history of legal marriage is probably inaccurate as a historical fact. I just couldn't resist the temptation to make an irrelevant snide point about the motives of state action.

It would be interesting to know to what extent religion actually regulated marriage before the state started handing out licenses. I know ceremonies were performed, but was it universally (generally?) true that a couple wasn't considered married unless they had the blessing of one or another church? But that's completely tangential from the discussion at hand.
10.21.2005 8:43pm
The Editors, American Federalist Journal (mail) (www):
Designbot, the point is, children need a mother and a father. Redefining marriage does not help provide that to more kids.
10.21.2005 8:44pm
Danny K in Arlington:
This was posted as a straw man, right? I hope this was not intended to be an argument by anything more than a good attorney making a claim she does not believe but is the best that can be made under the circumstances. ("If the glove does not fit...".)

Because it's just a long-winded version of "it will lead to polygamy and people marrying box turtles."

Nothing new to see here folks. Move along.
10.21.2005 8:46pm
PeterH:

It would be interesting to know to what extent religion actually regulated marriage before the state started handing out licenses. I know ceremonies were performed, but was it universally (generally?) true that a couple wasn't considered married unless they had the blessing of one or another church?

Nope, not a bit of it. The Church actually refused to be involved in marriages for almost a thousand years, and didn't get involved until they got dragged into it over inheritance law and such. For a while after that, a priest would bless the union, but it had to be OUTSIDE the actual church building. The idea that for thousands of years marriage was Church-only territory is completely backward.

Also, one has to remember that the separation of Church and State is a very recent development, and in most cases that the Church did get involved in civil affairs, it was acting in a civil capacity rather than a theological one -- which is a distinction they at the time would have seen as meaningless.
10.21.2005 8:49pm
duglmac (mail):
Antonin,

"I'm no expert on this history of marriage, but my guess is that the issuance of mariage licenses by the state had to do with keeping powerful people powerful and oppressed people oppressed. "

I don't think it's so dubious when you consider that the concept of 'marriage' predates any notion of 'marriage license'. By the time our nation formed it's laws, the 'nature' of marriage was already existent. I am not an historian either, but I think that the concept of protecting the 'family' goes back pretty far.
10.21.2005 8:51pm
Antonin:
E,AFJ:

the point is, children need a mother and a father. Redefining marriage does not help provide that to more kids.

The point is, what evidence is there that children raised by two parents of the same sex do worse than children raised by two parents of the opposite sex? The studies on this issue, although they suffer from the selection bias and sample size issues that plague all research concerning gays and lesbians, have universally found that children raised by gay parents do no worse than children raised by straight parents on any measure of well-being. Given the uniformity of the study results, it's quite clear that if there's an effect it's very small. If it exists (whether it's positive or negative) it's nothing like being raised by one parent rather than by two or being raised by poor parents rather than rich ones.

So no, the evidence indicates that children do not need to be raised by both a father and a mother.
10.21.2005 8:52pm
On Lawn (mail) (www):
PeterH:

Again I'm curious as to your basis.

I've read church records back to the 11th century, for Muslim, Christian and Jewish faiths. Regulation for marriages exists in religious code as far back as religious code exists.

Perhaps you looking directly at the beaurocratic process of licensing, accrediting? Not much beaurocracy existed at all during those times, and what little did exist that I have seen was sponsored by the churches of the time.
10.21.2005 8:53pm
The Editors, American Federalist Journal (mail) (www):
"the evidence indicates that children do not need to be raised by both a father and a mother."

Utter nonsense.
10.21.2005 8:55pm
Quarterican (mail):
On Lawn -

Well, part of my point is that no study has been done. Ergo, stephen and JGUNS and others have no basis for making the claims they made. If you have evidence that in a situation where:

"Married parents have child. Married parents divorce. Parent with custody remarries/enters into serious longterm partnership with someone else,"

the child suffers more if the "someone else" is of the same gender as the custodial parent, that would be germane evidence.

Re: Professor Velleman, I'm quite confused. Let's say I'm married to a woman. After some time unsuccessfully trying to have a child, we go to a fertility doctor who discovers that my wife is perfectly normal but I'm sterile - not just that my sperm need to be implanted medically, but that there's nothing going on there. The Quarterican genes die with me. We still want to have a child. We decide we want to have a child with an anonymous sperm donor. As far as I'm aware, this is totally legal, and exactly the same situation as Prof. Velleman outlines, no? As per the United Nations, I'm apparently not the father of this child because I'm not its biological father. Does Prof. Velleman want to shut down the sperm/egg donation industry for straights as well as gays? If so, he's at least consistent, but his argument ceases to be germane re: same sex marriage, since he doesn't want anyone to enter the situation I outlined.
10.21.2005 8:56pm
Law Student Kate (mail):
There seems to be a dispute about whether it's truly better for children to grow up with their two biological parents, or whether two loving and committed but non-biological parents will do just as well.

This might help:

Adoption studies

It outlines most of the studies that have been performed in the past few decades comparing outcomes between adopted and non-adopted children. The results aren't completely clear, but it seems that biological children do have slighty better outcomes on some measure. However, the effect appears to be rather small.
10.21.2005 8:58pm
On Lawn (mail) (www):
Antonin,

Not only does the acceptance of such studies depend on overlooking sample bias, but there are tough camels to swallow in overlooking the research that does exist on the subject.

I'll defer to Glen Stanton for more. His footnotes are not near exhaustive. The overwhelming evidence goes much beyond his citings and shows that children do best with a father and mother. I've expressed my own feelings on why that is the case based on basic humanitarian principles in the link I provided to you earlier.
10.21.2005 8:58pm
Antonin:
duglmac - I think we may be speaking past each other. There was probably a lot of rhetoric about "protecting the family" or something similar when the State started handing out marriage licenses (sometime in the 19th century, iirc), but it doesn't follow that that was the reason the State started doing it.
10.21.2005 8:59pm
Quarterican (mail):
On Lawn -

I have no knowledge of PeterH's data, but I ought to point out that you said you'd looked at Church (let's just go with Church = Christians for the moment, since that's what PeterH presumably meant) back until the 1100s. PeterH said that for almost a thousand years the Church wasn't involved...If we say that by around 100AD Christianity had turned into something recognizable and by 330 (that's the right date?) it was the official state religion of the Roman Empire and thus really became the Church...well, by either mark you've got "close to a thousand years" before we get to your dates.
10.21.2005 9:03pm
On Lawn (mail) (www):
Quarterican,

As far as I'm aware, this is totally legal, and exactly the same situation as Prof. Velleman outlines, no?

Yes. But I avocate that third party fertility technology should not be legal.

As per the United Nations, I'm apparently not the father of this child because I'm not its biological father.

Specifically, if you deny the child his/her heritage in order to call yourself the father instead of the other guy, you've violated the child's rights. I tend to agree, and it appears Velleman agrees also.

This is what I feel he references directly when he states how this policy would impact both hetero- and homosexual couples in the article.
10.21.2005 9:04pm
Antonin:
Law Student Kate - thanks for the link.

However, I'm not sure you've described the dispute accurately. Perhaps adopted children do worse than children raised by their biological parents, but that isn't going to impact gay marriage one way or another, although it might impact whether we think any couples should be allowed to reproduce by e.g. sperm/egg donation. The relevant comparison for the purposes of this discussion is between adopted children raised by gay couples and those raised by straight couples, and as I said the research shows uniformly that there's no statistically significant difference.
10.21.2005 9:07pm
Designbot:
Designbot, the point is, children need a mother and a father. Redefining marriage does not help provide that to more kids.

The Editors,

Failing to redefine marriage does not provide a mother &father to more kids either. Therefore, the assertion that children "need a mother and a father" argues neither for nor against legalizing SSM.

As many people have pointed out, there are many legal avenues to increase the number of kids with their biological parents (outlawing no-fault divorce, preventing remarriage, tax incentives for biological parenthood, etc.). Recognizing or not recognizing SSM has just about the weakest effect of any of these—so why is it the key issue?
10.21.2005 9:07pm
Quarterican (mail):
On Lawn -

Then make that argument, but Prof. Velleman's position doesn't obtain anymore to this one! If he/you dislike 3rd party fertility technology, full stop, then "Those sneaky ssm advocates! They're so callous that they want to use 3rd party fertility technology! Can you believe such a thing?" doesn't really scan as another reason to oppose same sex marriage. And really, this is a question of law whose answer I don't know: whose name *does* go on the birth certificate if my boys don't swim and my wife and I outsource the job? Mine, right?
10.21.2005 9:09pm
Kendall:
Why can no one answer my simple question? If marriage is about children, and the state chooses to recognize that in some cases gay couples can provide the best care for children, then on what basis are you denying marriage for those same sex couples, IN THOSE STATES THAT ALLOW GAY ADOPTION? Do you see my point? its somewhat equivalent to arguing that a person is for example mature enough to engage in sexual acts without parental permission but isn't able to get married without it. Afterall, children, its been repeated and implied are the reason for marriage. Alright, so what do you do with the families of gay couples? That is the question that should be answered because its a "Pandora's box" as it were that has already been opened voluntarily by the states.
10.21.2005 9:11pm
On Lawn (mail) (www):
Quarterican,

well, by either mark you've got "close to a thousand years" before we get to your dates.

Yes, you are right in that. Since then I looked back and found that the records of my Arab ancestors marriages goes back to 400ad which I believe is pre-muslim.

I have European records that go back far beyond that (allegedly to Adam and Eve as that was the custom for Royalty back then), but past the 11'th century its my impression that things really get fuzzy and they are not reliable. The reasons they are unreliable to me happens to be the same reason I contend with what Peter is saying. What he is looking at specifically looks to me to be more of a product of available beaurocracy more than regulation of marriage. Like I said, marriage code seems to go back as far as religious code in this matter.
10.21.2005 9:12pm
Quarterican (mail):
400ad which I believe is pre-muslim.

Yep...I thought Peter's contention was that marriage code didn't = religious code, not that there wasn't marriage code.
10.21.2005 9:16pm
Quarterican (mail):
On Lawn -

delayed reaction off-topic, but back to 400AD?!?! That's amazing. From my paternal grandmother I can go back to the 1500s, but otherwise the trail stops cold a few generations back. Of course, them Europeans weren't so big on the literacy and the learning for a couple thousand years...
10.21.2005 9:20pm
M. Simon (mail) (www):
On Lawn says:

Yes. But I avocate that third party fertility technology should not be legal.

Outlaw turkey basters.
10.21.2005 9:21pm
On Lawn (mail) (www):
M Simon,

If you must. I don't have any culinary use for them anyway. I follow Alton Brown's suggestions for roasting a Turkey in "Romancing the Bird". Hmm, I wonder if he meant anything by that title...
10.21.2005 9:24pm
PeterH:

"US Catholic article

Here is one link to a discussion that matches my understanding. The Church did not get into the marriage business until sometime in the 1100's, while before that some priests did bless unions AFTER the marriage ceremonies, they were clearly blessing something that had already happened rather than causing it to happen themselves.

I am not sure the link will work. I did a Google seach on the phrase "history of marriage When did the Church start to bless" and poked around a bit. This is a post from USCatholic.org.


Another reference I found was in an article from Commonweal :

In the early Christian church there was no marriage ceremony or special blessing. The marriage of Christians was considered sacramental, in the sense that this relationship between a married Christian man and woman revealed something about the relationship between Christ and the church. The wedding itself, however, was a feast conducted according to the prevailing social custom, after which the couple was expected to be faithful to church teaching. For example, the Roman customs of abandoning unwanted children, abortion, or tolerated infidelity would obviously be rejected by a Christian couple.



During the fourth century, in some parts of the Eastern Church, a bishop or priest might bless a marriage during or after the wedding feast, though the prayer would not be offered if either partner had been married before. By the eighth century this was the norm in the East, but it did not become common in the West until the eleventh century.

"Commonweal article"
10.21.2005 9:28pm
M. Simon (mail) (www):
On Lawn,

My point is: how can you ban third party involvement even if that is your desire?

BTW I knew a gay couple who used the turkey baster method.

I'm told it tends to select for boys.
10.21.2005 9:30pm
The Editors, American Federalist Journal (mail) (www):
Designbot,

Failing to redefine marriage does not provide a mother &father to more kids either.


I think it does. I think why it does has already been covered ad nauseum.


so why is it the key issue?


It is an issue because a minority of radical activists is pushing through activist courts to redefine the institution of marriage, against the will of a clear majority of the American people.
10.21.2005 9:31pm
The Editors, American Federalist Journal (mail) (www):
Designbot,

Failing to redefine marriage does not provide a mother &father to more kids either.


I think it does. I think why it does has already been covered ad nauseum.


so why is it the key issue?


It is an issue because a minority of radical activists is pushing, in large part through activist courts, to redefine the institution of marriage, against the will of a clear majority of the American people.
10.21.2005 9:32pm
On Lawn (mail) (www):
M Simon,

Your point was sufficiently clear. And were I drawing up legislature and figuring out a way to implement what I advocate I would give it more consideration. As it is, 3PT is an egregious enterprise.
10.21.2005 9:33pm
Baskerville Boozehound (mail):
I still don't get this business about marriage being solely for procreation. We've always allowed marriages between people who were obviously sterile, two 85 year olds for example. Anna Nicole Smith and J. Howard Marshall: was that for procreation?

Sterility might be a ground for divorce or annulment, particularly if one of the parties was unaware of the other's sterility, but in general all you had to have was two unmarried competent adults of the opposite sex who weren't within prohibited degrees of kinship.
10.21.2005 9:37pm
On Lawn (mail) (www):
I still don't get this business about marriage being solely for procreation.

Probably because that is the Sterility Strawman. The state recognises marriage specifically because it promotes responsible procreation.

800lb Gorilla
Tradition and the Bedrock Social Institution
This isn't about Gays. It's about Marriage, Sex, and Responsible Fatherhood
10.21.2005 9:41pm
M. Simon (mail) (www):
On Lawn,

Your faith in the ability of law to control private behavior is touching.

Do you have an opinion on the Tooth Fairy? Bad choice of words. Perhaps Tooth Banker would be better.
10.21.2005 9:42pm
Cal Lanier (mail) (www):
I have two process questions--one of which I asked and didn't see answered, and one that arose today.

First, Maggie says that she has been "researching" marriage for 20 years, leaving the clear implication that she is an academic. But she doesn't mention the nature of her research, and she didn't answer my query as to whether or not she's the same Maggie Gallagher who was hired to ghostwrite Linda Tripp's tell-all, which seems an odd occupation for an academic. Given that Maggie brought up her qualifications (in a comment, and in many public statements), it seems reasonable to inquire. If there are two Maggie Gallaghers then apologies for the mixup.

Second, given that Maggie has been involved in perceived improprieties regarding payment for her work, I suddenly wondered if she is guestblogging for free, or if she was paid to post here--either by Eugene Volokh (which I certainly doubt) or by any other organization or, god forbid, government agency.

I'm not asking either of these as a form of attack. However, given that Eugene invited Maggie here to post, I think it's legitimate to inquire about the level of expertise and possible conflict of interest. Obviously, given that this is a blog and not a journalistic endeavor, no cut and dried rules apply. But I was curious to see what Eugene or other VCers hold as a standard. So if Maggie doesn't answer, I hope Eugene will consider giving some feedback as to the rules he uses here.

I should say that my name isn't really Cal Lanier, and I certainly appreciate the advantage that comes with less transparency. So if Eugene or Maggie don't think it's worth responding to, I'm in no position to argue about it.
10.21.2005 9:44pm
On Lawn (mail) (www):
M Simon,

You seem to be moving away from what I said into the dubious realm of mind reading.

I do have thoughts on The *Proper* Role of Government in Society but those are probably better saved for another day.
10.21.2005 9:45pm
Cal Lanier (mail) (www):
"I certainly appreciate the advantage that comes with less transparency."

Whoops--that's "less transparency on the Internet".
10.21.2005 9:47pm
Antonin:
Re redefining marriage:

At the founding of the Republic, marriage was a relationship between a man and his property. He owned all her stuff; he could order her around; he could beat and rape her; she couldn't do a thing about it. Social forces made it even worse: if he wanted to openly have a mistress, she couldn't do anything, but if she fucked another guy her life was at his mercy. Even if spousal murder was technically illegal, no jury would convict a man for killing a wife who cheated on him.

We don't do that today. Today marriage is a relationship between two equals, not between person and property. And I haven't even mentioned no-fault divorce yet, or the host of other social and legal changes that marriage has gone through.

Compared to the difference between "relationship between man and property" and "relationship and two equals, man and woman", adding a comparatively small number of gay couples to the mix is trivial.
10.21.2005 9:49pm
On Lawn (mail) (www):
We don't do that today. Today marriage is a relationship between two equals, not between person and property.

We find in looking through (an abbreviated look through) history that marriage has swayed in many directions, from very matriarchal to very patriarchal. From contracts among peers that either could dissolve to property as you discuss.

The more things change the more they stay the same though, which is why Websters and others chose to define marriage as an institution comprising of a male and female.
10.21.2005 9:53pm
Antonin:
The state recognises marriage specifically because it promotes responsible procreation.

Is this a historical claim? If so, I am skeptical. I suspect historical analysis will show that state recognition had little to do with promoting responsible procreation.

I suspect what you really mean is "the only good justification for having state recognition of marriage is to encourage responsible procreation." I think we don't need anything that strong. "Abolishing one of the principal institutions of our society without a Good ReasonTM would probably cause all manner of unforeseen problems" is a perfectly sufficient reason for keeping marriage around. Others there are, but that one is sufficient.
10.21.2005 9:57pm
Designbot:
Failing to redefine marriage does not provide a mother and father to more kids either.

I think it does. I think why it does has already been covered ad nauseum.


OK. If the core of the argument is in fact that children need to be with their biological mother &father, then this is the crux of the whole thing here. It has been danced around ad nauseum yes, but I don't think it's been directly stated. Please help us out here. Let's, for the moment, grant your premise.

How does legalizing same-sex marriage, in practical terms, reduce the number of children with a mother and father?

My best understanding of your argument is that legal SSM will:

1. Encourage gay couples to adopt children who might otherwise be adopted by opposite-sex couples.

2. Encourage some people to sire children with someone, and then allow the other parent to raise the child with their gay partner, thereby placing the child with parents who are not both a mother and father.

3. Weaken the meaning of marriage, causing more opposite-sex parents to divorce or never marry.

Do I understand you correctly?

With regard to the first point, gay adoption already occurs. However, it is feasible that legalizing gay marriage could cause an increase in interest in adoption among gay couples. Supposing that there is a finite pool of adoptable children, a larger number of children could end up in gay homes who could otherwise end up in mixed-sex homes. You may have a legitimate point. However, I believe your interest is primarily in opposite-sex biological parents, and you do not regard adoptive parents as your main concern.

With regard to point 2, surrogate parenting already occurs. It is feasible that legitimizing gay marriages would encourage more of this activity. However, the children in this situation are created specifically for the gay couple. Without the wishes of the gay couple, they would not exist. So they do not reduce the number of children with a mother &father in any meaningful sense.

With regard to point 3, if more couples do, in fact, divorce, this could reduce the number of children with their mother &father. A potentially legitimate argument.

Please note, I am not conceding that any of these arguments or premises are correct. I'm just trying to understand what the arguments being made are, since there seems to be such an aversion to spelling it out succintly. Do these arguments roughly reflect your reasoning?
10.21.2005 10:04pm
M. Simon (mail) (www):
On Lawn,

I asked a question about how a ban on gay couples (specifically female) procreating can be enforced. You seem to think it is a desireable position. How would you uphold it? What sanction would be effective in such cases? Would it be good for the child?

Sorry for going off topic on a subject you brought up.

The question originally was how would you deal with the fact of gay couples having children. Your answer is that it ought not be allowed. OK. How do you make that happen?

Until you make that happen what is to be done about it today?

When faced with a real world question your response is in effect: make the world go away.

Phlogiston.
10.21.2005 10:06pm
Antonin:
We find in looking through (an abbreviated look through) history that marriage has swayed in many directions, from very matriarchal to very patriarchal.

This actually supports my point rather than refuting it. I was comparing marriage in 1776 with marriage today, and noting that we've completely redefined it without society collapsing. As you correctly note, marriage has also taken on many other forms in other cultures and served a plethora of social purposes. Giving equality to a small number of same-sex couples is small change compared to the multitude of changes marriage has gone through just in American history, to say nothing of the history of the entire world.

As for definitions, I don't think the argument from Webster's (or the OED, for that matter) is a particularly sound one. Whether gay marriage is right for our society today shouldn't hang on what the dictionaries say.
10.21.2005 10:07pm
On Lawn (mail) (www):
As you correctly note, marriage has also taken on many other forms

Forms would be too strong a word for me. Different protocols, policies and regulations, yes. Different forms, no.

Whether gay marriage is right for our society today shouldn't hang on what the dictionaries say.

Then you mistake the argument. Marriage isn't right because its traditional, its traditional because its right. When I say the more things change the more they stay the same, we can tell what the actual substance to something rather intangible is. Statistically it provides perspective. That its universal form of one-marriage and one woman exists is event in its use in the dictionary, and is evidence of something where others seem to deny any evidence of.
10.21.2005 10:11pm
Raider (mail):
We all agree on what the defintion of marriage has been for the entire history of this country -- a union between one man and one woman.

This being the case, why, if one group is claiming the exclusive "right" to redefine the institution, can other groups not ask for the same? What possible argument can an advocate of creating SSM have against polygamy and polyamory?

I've heard the argument over and over about "marrying the PERSON one chooses." Why not the PEOPLE one chooses? If the PAIRING of one man and one woman is arbitrary and discriminatory -- why isn't the number of people involved similarly arbitrary?

Would anyone seriously make the argument that marriage was set up specifically to "discriminate" against homosexuals? Of course it wasn't -- that's why the comparison to anti-miscegenation laws is misplaced and disingenuous -- those laws were set up specifically to discriminate, marriage itself was not.

Marriage has existed for precisely the reasons that Maggie cites -- sorry, it's not about satisfying the egos of the adults involved, it's about the protection of children by ensuring accountability and allowing benefits to the parents that stay together to raise their own children in the ideal environment. Can anyone argue seriously that children are not best off with their own parents? Of course children need a mother and a father -- and this is the only arrangement that government should be involved in promoting. Please don't bring anecdotes -- the numbers are clear -- children brought up by their own (birth and adoption) mother and father thrive and children that grow up in any other relationship (especially fatherless homes) generally suffer. This is not a general condemnation of other familial arrangements (I myself was brought up in fatherless home). My Big Quetion is: Why force children to negotiate another social minefield when they have already been battered by the social turmoil created by our "enlightened" society?
10.21.2005 10:11pm
On Lawn (mail) (www):
Simon,

Again you seem to see a ethereal existance to posts I make that does not exist.

Until you make that happen what is to be done about it today?


You appear to expect that if government *can't* fully enforce a purpose with law then the law is moot. Even if it is not currently caught up with the problem you see, there the purpose is moot? But you yourself provided the argument against that...

Your faith in the ability of law to control private behavior is touching.

Do you have an opinion on the Tooth Fairy? Bad choice of words. Perhaps Tooth Banker would be better.


So when you come to a consensus with yourself as to what the implications of a law and its purpose are, let me know and we can move forward from there.
10.21.2005 10:16pm
Antonin:
Marriage isn't right because its traditional, its traditional because its right.

OK, great. Now we can stop these pointless arguments about history and get back to what the discussion should be about: morality and consequences.

1) Will allowing gay marriage have significant, known positive consequences for gays, lesbians, their children, and their families? (Yes)
2) Do we have sound reasons to believe that allowing gay marriage will have negative consequences for society? (No)
3) Does society have an interest in stigmatizing gays and lesbians or discouraging homosexual behavior? (No)

QED
10.21.2005 10:17pm
A Guest Who Enjoys This Site:
I will be charitable. I think Maggie Gallagher chose a specific line of thought and used the VC as a 'testing ground' for the stamina of that particular part of her overall argument. As she alludes to in this last post, her objections to homosexual marriage are far more encompassing and complex than simple procreation.

This has been the major weakness in her presentation and a major non-sequiter on the part of critics of her position. The weakness is in the fact that, on its own, the argument related to procreation is a non-starter. The larger portion of the debate to which procreation is an integral part, i.e., child-rearing (including male/female stimuli, environment, social acceptance, etc.), appeared to be her real agenda, but was never fully admitted to or articulated within the constraints of time or intent. The non-sequiter is the presumption on the part of participants in the discussion that she would take time to address their criticisms (many of which have been little more than specious, spurious, and deliberately inflammatory - i.e., the internet posting equivalent of 'shouting down' through volume rather than substance a guest speaker) directly rather than take the opportunity to lay out her argument without digressing into point/counter-point debate.

Frankly, Maggie Gallagher's argument, as presented here, is less than compelling and incompletely addresses the realities of homosexuality vis a vis the social institution of marriage. In the end, her stronger, more factually based, and complete argument is a more effective combination of the factors she alludes to in this final post. It's too bad she can't find a way to more effectively and concisely encapsulate these points into a comprehensive form for digestion on a board such as this.

Volokh, as a professor, is compelled to pedagogically experiment with ways of introducing information, alternative points of view, and encouragement of discussion into the 'classroom.' To that end, there can be little doubt that Gallagher's guest blog 'encouraged discussion;' something not necessarily synonmous with 'productive discourse.' Gallagher's point of view is obviously an alternative to that held by many posters. But, insofar as 'introducing information,' I think Gallagher's posts, not to mention many of the posts from her more savage critics, largely fail in terms of anything 'new,' enlightening, or persuasive in their effect.

I guess that leaves us with a quote from the singer/actor Meatloaf: "Two outta Three Ain't Bad."
10.21.2005 10:22pm
On Lawn (mail) (www):
Antonin:

My answers...

1) No basis
2) Yes
3) Red-Herring as marriage does neither. In fact if anything ss"m" would get the government into homosexuality as a business.
10.21.2005 10:25pm
Cornellian (mail):
I still don't get this business about marriage being solely for procreation. We've always allowed marriages between people who were obviously sterile, two 85 year olds for example. Anna Nicole Smith and J. Howard Marshall: was that for procreation?

Sterility might be a ground for divorce or annulment, particularly if one of the parties was unaware of the other's sterility, but in general all you had to have was two unmarried competent adults of the opposite sex who weren't within prohibited degrees of kinship.


That's because you have to understand that a couple's lack of ability to produce children with each other is a problem for those opposed to SSM only when the couple is of the same sex. When the couple is of the opposite sex, it's no problem at all. In the latter situation, marriage conviently stops being about procreation, and only goes back to being about procreation when a same sex couple shows up for a marriage license. Get it now?
10.21.2005 10:27pm
On Lawn (mail) (www):
Cornelian,

A little churlish don't you think.

I wonder if ss"m" advocates think that secretely throughout history when marriage is proposed that the groom gets down on one knee and says, "Will you join with me in marriage, and by so doing support an institution that will deny homosexuals the very things they need to be full citizens in society?"

Besides his concern was already answered.
10.21.2005 10:31pm
MarkW (mail):
What possible argument can an advocate of creating SSM have against polygamy and polyamory?

For starters, it might be noted that, unlike SSM, there is clear contemporary evidence that polygamy causes harm (and in a free society, demonstrating that a practice causes harm is a mandatory prerequisite to restricting people's liberty). One could also note the difference, in principle, between a law that places a prohibition that applies equally to all and one that arbitrarily places a prohibition on a minority.
10.21.2005 10:37pm
Medis:
On Lawn:

It doesn't matter if you call the gay couple who has raised the child since birth an "intact" family or not. My point is simply that this child has NOT gone through a divorce. Hence, the claim that remarriage does not (completely) undo the damage done by a divorce is simply irrelevant, because the child in this case hasn't gone through that experience. And again, your "proof" in this case actually would prove that straight marriage has no benefits for children ... do you really believe that? Would you, for example show no preference in adoption between married straight couples and unmarried straight couples? Really?

But I think you are at least being more clear than some others: I take it you are saying that it would be better for the child never to have been born at all, if being raised by a gay couple is its best option.
10.21.2005 10:56pm
Pro-Marriage:
law that places a prohibition that applies equally to all and one that arbitrarily places a prohibition on a minority

How do you identify that minority? I don't want to put words in your mouth so I am asking for the criteria you'd use in the licensing office to determine when to apply the prohibition.
10.21.2005 11:04pm
MarkW (mail):
Stanley Kurtz says:


About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased.


Stanley Kurtz's assertions have three shortcomings that prevent me from treating them as a legitimate contribution to the debate over SSM. I, as a Ph.D.-holding social scientist, would want to see three things in any attempt to demonstrate that SSM causes some sort of harm that might justify banning it.

1) Any serious analysis of human decision-making should have a sound theoretical basis. While I am not among those social scientists who insist that every theory be worked out in "rigorous" mathematics, sound analysis should start from a solid, general theory of how people make decisions about child-rearing/marriage/etc. Kurtz, on the other hand, has nothinig to offer but post-hoccery. That's strike one.

2) Any analysis of a social outcome which, like childrearing, marriage, out-of-wedlock births, etc., is driven by several causes, must engage in a multivariate analysis in order to identify the specific impact of one supposed cause like SSM. Kurtz does not engage in any statistical analysis of any kind, much less any serious multivariable analysis of the sort that this issue requires--he doesn't even offer any summary statistics on the outcomes he is supposedly explaining. That's strike two.

3) Serious research in the social sciences is published in peer-reviewed journals, not ideological propaganda organs like The Weekly Standard Why? Because, while the peer-review process is not infallible--any social scientist can give numerous examples of flawed research that was nevertheless published--it does act as an important guarantor of a certain level of professionalism. No serious research journal would have published Kurtz's Weekly Standard articles, not because of his conclusions, but because his unbelievably amateurish methods make those conclusions worthless as social analysis. That's strike three.

Anyone who still thinks Kurtz's articles are the last word on the subject might find it interesting to take a look at
an article which, unlike Kurtz's, was published in a peer-reviewed journal, and which finds his conclusions and methods to be seriously flawed.
10.21.2005 11:17pm
MarkW (mail):
Oops, the link didn't work right. The article in question is titled "Will Providing Marriage Rights to Same-Sex Couples
Undermine Heterosexual Marriage?" The author is University of Massachusetts economist M.V. Lee Badgett, and the article was published in the September 2004 issue of Sexuality Research and Social Policy.
10.21.2005 11:20pm
nk (mail) (www):
Dear Ms. Gallagher:

As a Christian, conservative and confident heterosexual I cannot even begin to tell you how wrong you are. Ever since when we were cast out of the Garden, human life has been short and painful. Happiness and love are precious things wherever and however they may be found. I do not know whether gay people will go to Heaven any more than I know whether I will go to Heaven. I know that I do not want to create a Hell on Earth for them or for anybody else. Yes, I do believe that the joining of a man and woman is a special and sacred thing. It has happened in my marriage. BUT I do not consider that the union of two people of the same sex takes anything away from me and my wife. They may find the same thing we found, or more, or less, but it will have nothing to with us. If they offend God, they will answer on Judgment Day as we all will. Please remember that the Good Thief repented at the point of dying. Love, charity, hope and faith are from God. Anger, resentment, despair and hate are from Satan.
10.21.2005 11:32pm
Kendall:
So, I suppose the question remains: Why don't opponents of SSM wish to talk about the existance of gay families or the million children according to the 2000 census being raised by gay couples? Is it that they're so loathsome their perversion should go unspoken? surely not, since no one here is homophobic. Is it perhaps that these families aren't capable of being self sustaining because of promiscuity? Oh, surely not or they wouldn't be committed to raising a child, right? Why the silence? Why the reluctance to mention that the social policy advocated by opponents of gay marriage has DIRECT influence on families and friends of gay individuals?
10.21.2005 11:52pm
Dan Larsen (mail):
You have altered significantly my thinking on the nature of marriage, however, I have a few questions, the first more contextual leading into a series which gets to the crux of the debate: I think that you are right about the nature of marriage--that marriage is about procreation--and yet that that need not pose a hindrance to gay marriage.

First, could you tell me what your message to gay people would be? Not gay activists, but gay people? Consider, for example, the most sympathetic case: a young gay person, the nicest person you should ever meet, spends his first 7-10 years after sexual awakening in utter denial until he finally admits the truth to himself. Up until the very moment of self-admission, he continues to conceive of his future along the same lines as most other straight people: he will find himself a girl who will be the love of his life, settle down, and perhaps have children. The self-admission, of course, necessitates a massive reconstruction of his conception of his future. What, exactly, do you say to him? Am I correct in my interpretation that it would be along these lines: "Well, I may sympathize with you, but I think God just kind of screwed you over with respect to that whole 'marriage thing' you had planned. I'm sorry about that." (Of course, life does frequently screw people over with respect to all kinds of things, so this does not necessarily pose any kind of intellectual problem to opposing same-sex marriage—it is more for context concerning my next series of questions. And, of course, it assumes that you accept the generally accepted notions that sexual orientation is not chosen and that it is unalterable, though continuing this dialogue without your acknowledgement of those two points would be pointless and, further, justifiably render your arguments extremely suspect to most people.)

Next, let me begin by saying that I accept your definition of marriage as fundamentally about procreation. Further, I accept your argument that fertile couples without children and aged couples beyond child-bearing age pose no problems for marriage with a procreation basis under your "natural cycle of marriage" concept. However, I want to consider the most extreme case: let us suppose that a young couple (let's call them William and Carol) want to get married, except that William and Carol were both born sterile. This sterility, of course, implies that neither William nor Carol could ever be responsible for an out-of-wedlock child. Further, because of the fact that both of them are sterile means that their marriage does not even serve the purpose of preventing their spouse from causing out-of-wedlock children (i.e., if William were to marry a fertile woman instead, it could still serve a societal purpose in preventing that fertile woman from bearing an out-of-wedlock child by pairing her, but since he is marrying a sterile woman, that argument does not apply.) There is no "natural cycle of marriage" in this case, for William and Carol do not fit at all in that framework. Their marriage does not help ensure that children will not be born out of wedlock at all. Their marriage would be a different kind of marriage. Theirs is simply a joining based on mutual love with the potential for eventual adoption, and nothing more. What, then, is the rational basis for having societal recognition of their union as marriage? It does neither of them or society any good, really--cohabitation would suffice, with perhaps some kind of legal arrangement beyond that to clean up some of the legal problems, wouldn't it? I urge you to consider at some length whether there is a basis for recognizing William and Carol's marriage under the standard you have laid out.

Perhaps you can find some way to resolve why William and Carol should be recognized as married under the standards you have laid out. If so, I'd like to hear it because I can't come up with anything. And yet, even if you can't find a basis for their marriage...refusing to recognize them as married seems so impossible. Why? Because it offends our sense of fairness and equality. We are willing to make an exception, a dispensation to them notwithstanding their inability to procreate or prevent illegitimate procreation. Their situation is not their fault; they should not be excluded for factors over which they have no control. Marriage is still about procreation. And yet, we are unwilling to deny marriage to them out of a sense of compassion, despite the fact that their marriage would be, well, a different kind of marriage. Am I wrong?

In a post-gay marriage society, could not an argument for marriage as fundamentally about procreation read: "The fact that we do permit marriage for sterile couples and homosexuals does not prove that marriage isn't fundamentally about procreation. In fact, quite the contrary--they are the exceptions proving the rule. You see, denying them access to the institution because they are, by biological accident, unable to procreate or prevent illegitimate procreation offends our sense of fairness and equality. Accordingly, we make an exception, a dispensation for the tiny minorities in that situation because we are unwilling to relegate them to second-class status by allowing them only a 'marriage-lite' institution. But theirs is fundamentally a different kind of marriage by its very nature, an exception to marriage in its procreation-based conception." In short, I see no reason why considering marriage as fundamentally about procreation need pose an obstacle to same-sex marriage; SSM supporters need not argue that marriage is not about procreation. If we are willing to make a dispensation for William and Carol, why cannot we make one for gays and yet still remain in a procreation-based construct?
10.22.2005 12:55am
civil truth (mail):
I would oppose imposing SSM through the courts as a new fundamental right, in part because it creates a new right not found in the Constitution and turn those who oppose SSM or gay sexual activity, even on religious grounds, into lawbreakers. If done at the Federal level, it would also involve another expansion of the Federal government into an area traditional reserved to the states

However, I do believe that the state legislators are free to legislate SSM or civil unions, so long as churches are not required to accept the legitimacy of such marriage under religious law. The state has the right to define marriage as it wishes with respect to its interests just as churches and other religious groups have the right to define marriage in their sphere of interest.

Also, as an intermediate step, if states did legislate civil unions with equal rights and responsibilities as marriage, open to any gender pairing, we would then have an interesting test of the marriage/relationship market. If couples flocked to civil unions, this would argue that the relationship was central; if couples avoid civil unions, then this would argue that the title was central.

In the long run, under current trends, I suspect that the U.S. will increasingly allow SSM in the civil sphere. If this indeed comes to pass, I would it would come through legislation reflecting an emerging societal consensus rather than through imposition via the courts.

I would also hope that dissenting opinion would be allowed. Unfortunately, the experience in Canada and the development history of speech and harassment codes and employoment law in the U.S. suggest that subsequent to legalization, the power of the government will soon be employed to make dissenting speech (and not too far behind, thought) regarding SSM and gay sex illegal. And logically, I don't see how this could be prevented. This is a big problem.
10.22.2005 1:00am
Marriage Advocate (mail) (www):
I am overcome with violent thoughts when I hear your hypocrisy, accusing SSM advocates (and anyone who disagrees with you, it seems) of behaving irrationally and closedmindedly, while continuing to refuse to engage in any rational thought or justification of this "two gay men can never be fathers" nonsense.


Sounds like "Irrational" is the right word for you. You really should get professional help if your violent thoughts overcome you so easily.

I don't recall Ms. Gallagher ever saying that gay men can't be fathers. She said that men can't be mothers. Why does the idea of wanting children to have mothers and fathers fill you with violent thoughts? Get help.

Why don't opponents of SSM wish to talk about the existance of gay families or the million children according to the 2000 census being raised by gay couples? Is it that they're so loathsome their perversion should go unspoken?


Why don't you want to talk about the Amish? Why aren't you talking about the orphans of Basque separatists? Perhaps because they aren't relevant to the question of whether we should redefine marriage?

If you've looked at the census, you'll note there are many more single mothers who have children and families than same-sex couples. There are also single-father couples. By your logic, we should pretend that they are married too, or we are treating them as "so loathesom that their perversion should go unspoken."

Just because you have kids, have a family, and get laid regularly, doesn't mean you are married.

I do not consider that the union of two people of the same sex takes anything away from me and my wife.


it's relieving to see that at least one ssm promponent here has a stable temper, but your argument is irrelevant. No one said that the union of two people of the same sex takes away from you and your wife. The argument here is that calling such a union a "MARRIAGE" takes the elements of husband and wife away from the marriage concept.
10.22.2005 1:06am
On Lawn (mail) (www):
Medis,

It doesn't matter if you call the gay couple who has raised the child since birth an "intact" family or not.

Marginalization is not an argument.

My point is simply that this child has NOT gone through a divorce.

This can be taken two ways. The child wasn't married so of course he/she didn't go through a divorce (if you mean a divorce as a seperation of a marriage). Or if you mean in general a seperation, the child most undoubtedly was seperated from a father or mother.

I believe this is something you need to consider more deeply. If not just because you really should understand the arguments you are rebutting.

MarkW,

You really should read Kurtz. His analysis is from a study that is not his own, and is supported by other studies. That is rather evident, which makes me question how well you read his articles.

Badgett quotes the same study actually, but winds up not understanding what is being written.

nk,

You may wish to read this.

Dan Larsen,

The message to everyone dispite their sexual orientation would be the same, actually. I know Rauch makes a big point of asking who would actually be the one to break the bad news to a hypothetical self-identified young homosexual. I would say (maybe in more, maybe less words) something along the lines...

"People are free to pursue any relationship they feel will bring them happiness. Because there is much more potential for harm in a heterosexual relationship, we have marriage."

After sitting down with a friend who is homosexual, I was suprised to find him saying to me after a little big "yeah I don't know why homosexuals are trying to imitate heterosexuals anyway.

This sterility, of course, implies that neither William nor Carol could ever be responsible for an out-of-wedlock child.

I know where you are going with this. Should they choose I would support their adopting any number of needy children because that restores as best as we can a capacity that they were robbed of.

Since homosexuality is not a disability or handicap, it would not fall under the same exception.
10.22.2005 1:31am
Kendall:
Why don't you want to talk about the Amish? Why aren't you talking about the orphans of Basque separatists? Perhaps because they aren't relevant to the question of whether we should redefine marriage?


But I thought marriage was about children? And I thought the issue we were discussing is about gay marriage, and hence, I think it is entirely relevant to discuss how current families with children would be affected by the particular change we are discussing.

If you've looked at the census, you'll note there are many more single mothers who have children and families than same-sex couples. There are also single-father couples. By your logic, we should pretend that they are married too, or we are treating them as "so loathesom that their perversion should go unspoken."


So, because I brought up the existance of people who would be directly affected by the change being proposed the fact that I didn't mention people who would NOT be affected (unless someone established how single parent house holds are affected by gay marriage...) means I'm being unfair to them? That's such a ridiculous straw man.

Just because you have kids, have a family, and get laid regularly, doesn't mean you are married.


True to all three. The issue isn't isn't whether gay families are or are not married, some are, according to churches, some aren't according to churches. The issue is, of course, whether the STATE should recognize those unions. Saying that those parties that are going to be directly affected should be just ignored, dismissed and forgotten because the gay couple at the center of these families is not married (according to the STATE, not necessarily to THEIR church) when the debate is over allowing gay couples to marry is an outright farce.
10.22.2005 1:38am
Bob Flynn (mail):
"A page of history is worth volumes of logic"
---Justice Oliver Wendell Holmes

Until about 7 or 8 years ago, NOBODY in the USA was yapping about gay marriage. Only a few renegade courts in Hawaii, Vermont, and Mass -- fueled by legal zealots -- brought the issue to the forefront.

Men have been marrying women for 5000 years. Why change this?
10.22.2005 1:40am
Kendall:
Until about 7 or 8 years ago, NOBODY in the USA was yapping about gay marriage. Only a few renegade courts in Hawaii, Vermont, and Mass -- fueled by legal zealots -- brought the issue to the forefront.
Men have been marrying women for 5000 years. Why change this?


I'm sorry... was that supposed to be a defense of traditional marriage... that its "traditional" so why change it? That's a little like a slave holder arguing that slavery was part of western culture, it had been around for centuries, even millenia... so why change it?

I'm not saying tradition is a bad argument, far from it! tradition keeps the countries strong. Traditions are our past, our present, and our future. However, in this country we have another tradition... pushing the boundaries of freedom.

In many ways, that is the real debate. Not whether procreative marriage is reason enough to keep marriage for heterosexual coupling only. Not whether gays deserve civil rights. Its about both those issues, but they're only a reflection of a larger issue. Traditions. A tradition of marriage on one side, and a tradition of expanding personal freedoms on the other side. This is a debate that happens more frequently than we might think. In the 60s it was about traditional roles... in the civil rights movement, the feminist movement, and the sexual revolution. In the 20s it was again, about specifically traditions of voting and the place of women as voters. In the 1860s the issue was slavery obviously.

The tradition examined always changes, the side that it is compared to, a tradition of expanding rights never does.
10.22.2005 1:54am
Patrick Meighan (mail):
No one said that the union of two people of the same sex takes away from you and your wife. The argument here is that calling such a union a "MARRIAGE" takes the elements of husband and wife away from the marriage concept.

So, lemme get this straight: this is all over a *concept*? You're trying to defend marriage, but you concede that no actual, genuine heterosexual marriages would be damaged by legal recognition of same sex marriages.

Wow.

You know, an awful lot of real, flesh-and-blood human beings are being discriminated against in this country right now... all so that you can protect that concept of yours.
10.22.2005 2:00am
On Lawn (mail) (www):
Kendall

The tradition examined always changes, the side that it is compared to, a tradition of expanding rights never does.

Alexander Hamilton would disagree...

[... A] dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter...


I always am suspicious when I hear civil libertarian wedding bells.

Equality through homogenization is a specious agenda on its own right. And it can in fact yeild less liberty for everyone.
10.22.2005 2:07am
On Lawn (mail) (www):
Patrick,

I believe you are suffering from a semantic hangup. Please re-read to gain a better understanding.
10.22.2005 2:08am
Kendall:
On Lawn - So... basically you have no pre-written propaganda on gay families?
10.22.2005 2:09am
On Lawn (mail) (www):

Kendall,

Did you write that as an attempt to ignore the arguments presented, saving face moderately by trying to call them "propoganda"?

We are all advocates here, persuasive arguments abound in this kind of atmosphere. To suddenly stop and call someone elses arguments propoganda is assuredly admitting no proper rebuttal.
10.22.2005 2:12am
Kendall:
On Lawn -

I've been making the same point in my last several posts about the refusal of traditional marriage (please note I did not demean that by adding quotes as you do with your sss"m" bit and then call others disrespectful) advocates to acknowledge that families of gay men and women are adversely affected by current policy and would substantially benefit with a change in policy while there has been no listed detriment to traditional families if SSM were legalized.

You replied to ONE LINE of a post that was an aside to Bob Flynn on tradition... not something we're specifically discussing. You're right, I was curt, but saying I'm the one ignoring arguments presented when you have yet to mention any harm to heterosexual families which outweighs or remotely compares to the benefits to homosexual families should gay marriage be legalized? I'm sorry, I just don't see how I'm ignoring the substance of debate when you pick and choose lines you can respond to with prepackaged essays and ignore those you don't have an essay or article for.
10.22.2005 2:21am
On Lawn (mail) (www):
Kendall,

families of gay men and women are adversely affected by current policy and would substantially benefit with a change in policy

I doubt that is the case, and if it were it is debatable if marriage is required.

there has been no listed detriment to traditional families if SSM were legalized.

You should probably re-read this thread. That was discussed almost constantly. Search for "re-definition" for a starter.

I'm sorry, I just don't see how I'm ignoring the substance of debate

What you think others ignore is no wise covers for what you are ignoring. Remember that.
10.22.2005 2:28am
MarkW (mail):
You really should read Kurtz. His analysis is from a study that is not his own, and is supported by other studies. That is rather evident, which makes me question how well you read his articles.

I did read Kurtz, of course. The fact that I do not slavishly accept his opinions does not mean I didn't read him.

As for the study that "his analysis is from" and the "other studies" that "support" him, those who have read his article will quickly note several things Kurtz does not do:

1) he never provides a single endnote or footnote citing the sources for any of this claims or data, so it is impossible to tell where he gets any of the numbers he waves around from;

2) he never quotes any of the "supporting" studies at any length--one would think that if the research he was waving around really supported him, he would reproduce their conclusions to demonstrate this support. In particular, he never mentions if any of the "supporting" studies engaged in the multivariate analysis that is the only way to isolate the impact, if any, of SSM. His failure to do so, when such a citation would be a clear trump card, is a good indicator that the "supporting" studies really don't support his conclusions, or that they are as methodologically weak as his own article.

Nothing you have said refutes any of my criticisms of Kurtz's article.
10.22.2005 2:36am
Kendall:
On Lawn

I doubt that is the case, and if it were it is debatable if marriage is required.

I already pointed out a circumstance where such a thing occurs. Because you only replied to the first sentence of it I will repost it in its entirety:

This seems to be the crux of what you think the argument you appeared to be responding to is. And frankly, well, not related at all. marrying someone with kids is a choice, as is co-adopting the kids. Its comparatively simple for someone who marries a spouse with kids to adopt them so its recognized for the purposes of the law that they have guardianship along with the biological parent and not doing so is a choice of both adults.

However, the issue is SSM and gay adoption. Gays can and do adopt, the legal hurdles so easily overcome by heterosexuals (a fact that you fail to mention) CANNOT be easily overcome. If the "wrong" parent winds up in a hospital (its difficult, although not impossible for gay couples to jointly adopt in many states obviously) and then the child breaks his/her leg at school what could the healthy parent (I use the term in a nurturing sense, although the law in this case wouldnt' recognize that) do? not a thing. Not one thing. And that ISN'T in the child's best interests.


You're right in one sense. Marriage isn't required in an absolute sense. The law COULD be simply redefined to include "gay unions" as having the same rights and privileges as a marriage would have. Then again, many advocates for traditional marriage contend that this would be "marriage lite." Would it be? I don't see how, the state really is only recognizing a contract between two people, we're speaking of a matter of civil law here. The religious component attached to the word marriage would not be in the law in this example and thus would remove that "conflict" should one arrise in someone's mind.

You should probably re-read this thread. That was discussed almost constantly. Search for "re-definition" for a starter.

Fair point, I should have clarified to say "I can see how SSM benefits real, living, homosexual couples and their extended families. No TANGIBLE harm is inflicted on heterosexual couples, no forced break ups, no dissolution of heterosexual unions, etc" Is that clearer?

[i]What you think others ignore is no wise covers for what you are ignoring. Remember that.[/i]

Fair point, although again, I could do without the smugness at the end.
10.22.2005 2:40am
On Lawn (mail) (www):
MarkW

The fact that I do not slavishly accept his opinions does not mean I didn't read him.

Funny, the reason I am suspicious you didn't read what you critiqued was mentioned and that wasn't it. Perhaps it is simply poor reading comprehension skills that plagues you. (I mean that with the highest respect...)

I'll add that what you wrote was far too generic to show you had any reading and understanding.

My experience with Kurtz is that what he has to say is often far more intelligent and persuasive than what people say he says.

For instance...

he never provides a single endnote or footnote citing the sources for any of this claims or data, so it is impossible to tell where he gets any of the numbers he waves around from

Yet in this paragraph in the standard "Marriage is dying in Scandinavia" we see...

This is not how the situation has been portrayed by prominent gay marriage advocates journalist Andrew Sullivan and Yale law professor William Eskridge Jr. Sullivan and Eskridge have made much of an unpublished study of Danish same-sex registered partnerships by Darren Spedale, an independent researcher with an undergraduate degree who visited Denmark in 1996 on a Fulbright scholarship. In 1989, Denmark had legalized de facto gay marriage (Norway followed in 1993 and Sweden in 1994). Drawing on Spedale, Sullivan and Eskridge cite evidence that since then, marriage has strengthened. Spedale reported that in the six years following the establishment of registered partnerships in Denmark (1990-1996), heterosexual marriage rates climbed by 10 percent, while heterosexual divorce rates declined by 12 percent. Writing in the McGeorge Law Review, Eskridge claimed that Spedale's study had exposed the "hysteria and irresponsibility" of those who predicted gay marriage would undermine marriage. Andrew Sullivan's Spedale-inspired piece was subtitled, "The case against same-sex marriage crumbles."


Note the choice of study was not his own, and Badgett (IIRC) quotes from that study also. But he clearly sources his work, all of your posturing aside. Other citations include...

Eurostat's just-released marriage rates for 2001 show declines in Sweden and Denmark (Norway hasn't reported). Second, marriage statistics in societies with very low rates (Sweden registered the lowest marriage rate in recorded history in 1997) must be carefully parsed. In his study of the Norwegian family in the nineties, for example, Christer Hyggen shows that a small increase in Norway's marriage rate over the past decade has more to do with the institution's decline than with any renaissance. Much of the increase in Norway's marriage rate is driven by older couples "catching up." These couples belong to the first generation that accepts rearing the first born child out of wedlock. As they bear second children, some finally get married. (And even this tendency to marry at the birth of a second child is weakening.) As for the rest of the increase in the Norwegian marriage rate, it is largely attributable to remarriage among the large number of divorced.


They aren't footnoted, true. But that is a stylistic complaint which is honestly about as trivial as they come.

Nothing you have said refutes any of my criticisms of Kurtz's article.

You are free to take from this discussion what you will, of course. I make no pretense as to the impact they will have on your arguments in your own mind. But I make no deferance to your self-serving judgements either.

However, I must remain in my judgement that your errors about Kurtz are so egregious that something is to blame. Either you are lying about reading them or your reading comprehension skills are not quite up to par. But that is just my own judgement.
10.22.2005 2:49am
On Lawn (mail) (www):
The law COULD be simply redefined to include "gay unions" as having the same rights and privileges as a marriage would have.

And to help me through traffic my car could be re-defined as having the same rights and privileges as an ambulance has. But that doesn't mean that I've been harmed because my car is not an ambulance.

Same with ss"m". Calling a same-sex couple "married" certainly doesn't make them love each other more. It doesn't grant them anything that can't be granted in another way. And many of the benefits of marriage wouldn't even apply to their situation. Some benefits would be applied most certainly at the expense of others.

And how we've come full circle to the post that you hoped to call "propeganda" so that you wouldn't have to reply to it.
10.22.2005 2:53am
On Lawn (mail) (www):
MarkW:

A clarification. The following was ambiguous...

and Badgett (IIRC) quotes from that study also. But he clearly sources his work, all of your posturing aside. Other citations include


It should read, "But [Kurtz] clearly sources his work".
10.22.2005 2:56am
Medis:
On Lawn,

I believe that I fully understand your argument. I'm not sure that you do, frankly. Your claim is that the failure of remarriage to completely ameliorate the breakup of an intact family proves that there would be no advantage to the children being raised by gay couples if they could marry.

What you seem to be ignoring is that data you are looking at involves many cases in which the child has experienced a family disruption of some sort: usually divorce, but it could also be a death of a parent. As has been well-confirmed, going through this sort of experience is harmful to the child--it is a form of trauma. The thesis is that remarriage does not completely undo the harm caused by this trauma.

But you apparently want to apply this same data to a case in which the child has not experienced such a trauma, because there has been no divorce or death of a parent.

Accordingly, I believe that your assumption must be that simply starting life in a household without one of the natural parents, but with two parents, will have the same traumatic effect as a divorce or a death of a parent. Do you have any evidence for this assumption?

Finally, I am pretty sure you do not believe the implications of your claim. Consider a child who has had a parent die. The remaining parent finds a new partner--for your sake, let us assume this is a straight couple.

Are you really prepared to say that it simply does not matter to that child whether or not the parent and prospective stepparent get married? Yes, it doesn't completely ameliorate the trauma caused by the death of the parent, but are you really claiming it would do no good at all?

Similarly, consider a child who is eligible for adoption (perhaps both parents have died, or are unfit, or so on). Are you really prepared to say that it doesn't matter whether the child is adopted by a straight unmarried couple, rather than a straight married couple?

Or how about a straight couple that conceives using artificial insemination from a sperm donor? Are you saying it doesn't matter if that couple is married or not?

Again, the whole point of this discussion is that naming some sort of ideal family doesn't wipe out further distinctions. You might think that none of the three scenarios I just described (death of one parent, adoption, or artificial insemination from a sperm donor) are ideal, but are you really claiming that because they are not ideal, the marital status of the straight couple raising the child is completely irrelevant?
10.22.2005 2:57am
On Lawn (mail) (www):
As has been well-confirmed, going through this sort of experience is harmful to the child—it is a form of trauma.

I believe you are making a mountain out of a molehill. One, the studies Whitehead point to include situations where children never knew one of their parents so there would be no sting of divorse. Second, a vast majority (95%) of children in same-sex households are from a divorce.

Or how about a straight couple that conceives using artificial insemination from a sperm donor?

I've answered that already.

Again, the whole point of this discussion is that naming some sort of ideal family doesn't wipe out further distinctions.

Actually, that is the very argument I make here. I don't think it supports your position.
10.22.2005 3:04am
Kendall:
Same with ss"m". Calling a same-sex couple "married" certainly doesn't make them love each other more. It doesn't grant them anything that can't be granted in another way. And many of the benefits of marriage wouldn't even apply to their situation. Some benefits would be applied most certainly at the expense of others.

You're right, it wouldn't change their relationship. But it would help that little boy or girl in my example pretty darn clearly, and you still haven't addressed that. I'm really curious now as to WHY not? What's the harm in telling me how that situation should be dealt with? Surely you have a fair answer?
10.22.2005 3:04am
On Lawn (mail) (www):
But it would help that little boy or girl in my example pretty darn clearly

Could you cite it a little more specifically? I'm having trouble locating that example (which I take full responsibility for). Is it the Rauchian "what to do about an gay child with no marriage to look forward to" or is it a child in a household headed by a homosexual couple?
10.22.2005 3:12am
Kendall:
How can you not see it when I put it in block quotes? Alright, I'll restate it. In fairness, there were some parentheses which I'll remove to leave absolutely no doubt but maintain substance: Take a gay couple, gay male or lesbian, doesn't matter. Lets say they're in a state which allows for gay adoption but not joint adoption, so only 1 parent is legally recognized (A situation which happens all too frequently). Lets then say that they adopt a little girl or a little boy. Then lets say that the legal parent of the child (both in my opinion would be parents, both are raising the child, both providing care, etc, I'm just speaking of the parent recognized by law as the guardian) is hospitalized, a heart attack, stroke, what have you, medical emergency, can't be contacted. Now lets say the child breaks his/her leg at school. What could the healthy parent (I use the term in a nurturing sense, although the law in this case wouldnt' recognize that) do if the school refused to release the child to the non parent? what if the hospital didn't allow the same sex partner to make an important medical decision (to try a drug, or to perform a medical proceedure, or perhaps NOT perform a medical proceedure) and the legal guardian ends up dying? the child may wish to stay with the partner of the legal guardian, but the law might not allow it. Where is the legal recourse? What is your non marital (I use that word specifically because it speaks more to the RIGHTS of marriage than the title neither of which you seem willing to bestow) solution?
10.22.2005 3:26am
On Lawn (mail) (www):
Kendall,

I have to run to bed. In a pre-emptive kind of way let me point you to some discussions that I feel may parallel where you are headed.

In talking with Shawn, I discussed that I do see some benefits as being beneficial to same-sex households raising children. But as I see "romantic relationships" as just a subset of these households, I want to see a plan that is more inclusive. I think Reciprocal Beneficiaries could do this while avoiding other pitfalls.

I replied briefly to the Rauchian example in talking to Dan Larsen. Also, there is an ongoing discussing with Medis in that post on why I think the case for marriage for same-sex couples raising children is overstated (which I alluded to in talking with you.
10.22.2005 3:32am
MarkW (mail):
Note the choice of study was not his own, and Badgett (IIRC) quotes from that study also. But he clearly sources his work, all of your posturing aside.

No, what Kurtz does is mention the names of authors who, he claims, support his conclusions. But he fails to provide complete information about the articles so that a reader could actually track down his sources. And, as I noted, he never quotes any of these "supporting" studies at any length, even though doing so would, as I noted, have been the obvious thing to do if they really reached conclusions that supported him.

Checking into a couple of the authors Kurtz makes hand-waving references to, I found further reason for doubt. I did a Google search for the study of Norwegian marriage by Christer Hyggen referred to by Kurtz, and found 1) a whole lot of pages which reproduced Kurtz's article, and therefore gave hits on Hyggen's name, 2) a few links to an abstract of an article on a completely different subject by Hyggen, and 3) nothing whatever about his paper on Norwegian marriage.

I was more successful in locating a second paper by Wehner, Kambskard, and Abrahamson on families in Denmark. Kurtz quotes a brief fragment from this paper, making it appear that the authors are entirely supportive of his conclusions about "the end of marriage in Scandanavia," however, a read of the entire paper shows that the authors reach more nuanced and ambiguous conclusions. Had Kurtz been an honest scholar, he would also have cited, for example, the authors' conclusions that:

However, from a general perspective the idea of the nuclear family with a male and a female adult and a certain number of children is still the prevalent and most popular family form – even though some children might experience a number of ‘nuclear families’.

They also conclude that:

However, a number of factors seem to have stayed constant throughout the 1990’s. For instance, the divorce rate presumably has found its level, and so goes for remarriages, and the proportion of lone parents. In addition to the latter, the composition of the different types of child family forms generally has experienced no significant changes during the 1990’s. Furthermore, traditional patterns also to some extent prevail. Despite the large number of mothers on the labour market, some women still prefer men with great abilities as breadwinners as fathers of their children.

Finally, the authors do not reach any conclusions about the causes of the trends they observe, so they offer no support whatever for Kurtz's claims about the supposed evils of SSM.

The full information for the article, by the way, is as follows:

Cecilie Wehner, Mia Kambskard, and Peter Abrahamson, ”Demography of the Family: The Case of Denmark,” The University of York, 2003.

The article seems to be some sort of a working paper put out through a university, as I found no indication that it had ever been published in a peer-reviewed journal.

And my complaint about the total lack of footnotes/endnotes is not a "trivial" matter. It is the practice of providing such source notes that makes it possible to match specific claims by an author with specific sources, and thereby to determine if an author is accurately representing the work of those he cites.
10.22.2005 3:43am
Medis:
On Lawn,

I applaud your creativity: I was originally criticizing a key assumption in your second link, and to support that assumption, you eventually provide the exact same link.

I note that you didn't actually answer my questions (even in the case of artificial insemination: I know you don't like it, but I am asking what you think is better for the child when it happens).

So I'll repeat (holding aside artificial insemination): in the case of the death of one parent, do you really think it does not matter if the remaining parent marries a future partner (assuming a straight relationship)? When a child is adopted, do you really think it does not matter if the adopting couple is married (again, assuming a straight relationship)?

And please answer these specific questions without links. You shouldn't need them.
10.22.2005 3:46am
On Lawn (mail) (www):
but I am asking what you think is better for the child when it happens

Adoption by another family. Anyone who commissions a child like a work of art, asking someone to be a father/mother that cares so little as to conveniently abandon them for the purposes entirely against the child's rights is dubious as a parent for the child.

in the case of the death of one parent, do you really think it does not matter if the remaining parent marries a future partner

The studies in the Dafoe Whitehead paper deal with this case also. Barbara actually took her conclusions from papers with a much more braud scope than the conclusions she draws from them. I don't think it matters as far as the child is concerned, some psychologists even take this to mean that parents are better off not even dating until their children are adolescents.

Now, you get chided...

I was originally criticizing a key assumption in your second link, and to support that assumption, you eventually provide the exact same link.

I found your criticism was already addressed. That isn't creativity, that is helping you understand what you are critiqing.

I note that you didn't actually answer my questions

There are many reasons I don't answer questions...

1) No time.
2) They involve a false premise
3) I see a way to answer many questions at once (which I think is your case) so I reference the argument being presented with the questions and answer that.

And please answer these specific questions without links.

If I provide links, you should read them. I'm not about to re-hash the same argument over and over for everyone who hasn't seen them. They are complete and well thought out and often (especially in this case would have) answer many concerns that might spring from the concepts raised.
10.22.2005 4:00am
spectator:
Kendall wrote:

I'm sorry... was that supposed to be a defense of traditional marriage... that its "traditional" so why change it? That's a little like a slave holder arguing that slavery was part of western culture, it had been around for centuries, even millenia... so why change it?

The slave holder would be quite wrong. His redefinition of slavery, chattel slavery, was indeed a novel and unwelcome alteration to traditional slavery. Neither ancient Roman slavery nor medieval serfdom treated human beings as a rightless commodity. Consequently, true traditionalists opposed chattel slavery as soon as it sprang up after the discovery of the New World.
10.22.2005 4:02am
Medis:
On Lawn,

Believe it or not, just answering a few questions can sometimes be a lot more efficient than providing links, particularly when the link in question raised the questions in the first place.

OK, to be clear: you think that children born to straight married couples through artificial insemination with a sperm donor should be taken away from those people and placed for adoption. You believe that single parents should not date and if they do date it does not matter if they get married.

Just one more: do you believe that there should be any preference for married couples over unmarried couples in adoption cases?
10.22.2005 4:14am
Josh Jasper (mail):
The Editors, American Federalist Journal:

Just to clear things up, civil unions in California do not grant the same rights as a marriage does. they're not transferable to other states, and they don't cary federal benefits and responsibilities.

It's disengenuous to pretend that an equivilant status to marriage has been offered, because there is no such status that exists in the USA. No civil union is transferable state to state, and there are no federaly recognized laws that apply to civil unions.

IF there were, THEN you could talk about GLBT people trying to push for marriage when being offered an equal deal. But until then, be honest and recognize that there is no equal status to marriage in civil unions.

I await your thanks for this correcting of your error.
10.22.2005 4:17am
BobNelson (mail):
My, my, my. I'm slogging my way through 400+ posts and I've got to start responding to some points or my browser is going to crash (I'm saving post in new tabs).

I thought I'd start with just a general statement that I hope that lurkers can see the disingenuousness of some of the opposition to same-sex marriage. It's apparent in their phrasing and there choice of "evidence".

Two examples: The first is from Ms. Gallagher herself. At several points she mentioned that Civil Unions could address many of the concerns of gay people. What she fails to mention is that she OPPOSES those as well. In a particularly fatuous post (which I think I've lost track of) she says that she would want for gay people all the rights that single people have. It's bad enough that she just say "I would give them nothing", but what she doesn't mention is that one of the things she would give to gay people that she would give to all single people is the reversal of Lawrence v. Texas. You see, ALL single people, straight and gay, could be put in jail for having gay sex. Ain't she a peach?

A smaller bit of dishonestly can be found in the statistical analysis of Mr. Kurtz, frequently cited above.

"Stanley Kurtz says: About 60 percent of first born children in Denmark now have unmarried parents. The rise of fragile families based on cohabitation and out-of-wedlock childbearing means that during the nineties, the total rate of family dissolution in Scandinavia significantly increased."

What Mr. Kurtz doesn't mention is that many Swedish couples WAIT until their marriage HAS BECOME GENERATIVE to get married. That's why he doesn't mention the rate for SECOND-BORN children. He also fails to mention that the divorce rate for marriages with children in Sweden is BELOW that of the U.S.

Oooops. Oversight, I'm sure. It's not like "moral" people would lie...
10.22.2005 4:19am
BobNelson (mail):
Antonin:


Some conservatives worry that children who are raised by two parents of the same sex will have a less stereotypical and rigid view of gender roles than they would like. I don't know what the research says about this (nothing, probably) but if it's true, I think it's a feature, not a bug.


Your guess is correct. The boys are less aggressive (and a lot more willing to help around the house) and the girls are more independent and self-confident. The real horror (to the conservatives) is that both groups are more open to the idea of same-sex relationships -- it appears only the girls translate that into somewhat higher rates of same-sex experimentation. As for ultimate sexual orientation, there appear to be no higher rates of homosexuality, although the kids who are gay have a heck of a lot easier time growing up.

(this post will be attacked because the studies are few and "flawed" -- you'd think if there were so many flawed studies out there, that SOME of them would indicate observations in the OTHER direction... but no one manages to reference them for some reason)
10.22.2005 4:26am
BobNelson (mail):
The Editors:


In any case, I doubt many Americans would view Denmark as a model society to emulate.


Do tell us why not. Please.

(I'm old enough to remember when the U.S. ranked NUMBER ONE (rah! rah! RAH!) in all sorts of measurement in quality of life. You don't much hear about those rankings anymore...)
10.22.2005 4:28am
Maggie Gallagher (mail) (www):
In case anyone here is interested (You guys seem to be having a good discussion on your own, though), I'm continuing to blog at my own site www.marriagedebate.com)

"I'm going to try to do here, what I meant to do at Volokh.com i.e. spend some time figuring out why the wall of incomprehension exists and what it consists of. BTW, I'm perfectly aware that for many of my readers last week, the wall was up and particularly excrutiating. i.e. they were bringing up what they saw as key and fatal flaws, which were met with blank silence on my part.

Of course from my point of view, it was rather like being in a room with 1000 kids tugging at your elbow, interrupting your train of thought, sometimes with innocent but ignorant questions, often with complete irrelevancies, but in any case each one convinced that his question required my attention right then.

. . .In brief posts from time to time over the next few weeks (I'm travelling a lot next week), I'm going to just continue the conversation.

Some of you will get your questions answered. But for a week or so, mainly I'm going to talk about what interests me. If you listen carefully, though, I'm pretty sure at the end you'll understand better why we disagree, if we do. Only a very few people are really interested in knowing such things.

The rest of you feel free to think that the reason I'm not responding to you is that I am stupid, irrational and write badly. (I'm not particularly insecure on any of those points).

To those who think I'm just a bad person, thank-you. As a Catholic, I know it is good for my soul to contemplate the possibility you are right, and the reality of my sins, even if you may be a little off-topic on exactly why I'm a bad person. Vox Populi, Vox Deo."
10.22.2005 9:05am
Medis:
"Of course from my point of view, it was rather like being in a room with 1000 kids tugging at your elbow, interrupting your train of thought, sometimes with innocent but ignorant questions, often with complete irrelevancies, but in any case each one convinced that his question required my attention right then."

That was unnecessarily insulting, Maggie. Admittedly, some commentators were unnecessarily insulting to you, but do you really want to stoop to their level?
10.22.2005 9:21am
A Berman (mail):
All the arguments about how SSM isn't actually ruining marriage in Northern Europe come down to this:
"Marriage in Northern Europe was ruined before SSM came to Europe. Here's some Danish birthrate stats."

Not impressive.
10.22.2005 10:21am
DM Andy (mail):
A Berman, you're missing the point of that data, it's not a pro-SSM argument, it's a negation of an anti-SSM agreement.

Some people arguing against SSM (most noticably Stanley Kurtz but in this comment thread it was The Editors, American Federalist Journal) have made a case that runs simply as follows. "Scandinavia is an region where marriage is severely weakened, Scandinavia had had civil partnerships for many years, therefore SSM harms the status of marriage in society where it's introduced."

However in societies where SSM or civil unions have been introduced have had weakening marriage prior to the introduction of SSM. Maybe that's why these societies have SSM, if marriage is held in lower esteem the need to "protect marriage" is seen to be less important. But I digress.

Now I'll compare various European nations figures for births to married mothers (Kurtz specifically addresses first borns but I cannot find that information online). All figures from Eurostat http://epp.eurostat.cec.eu.int

For each I'll use three data points, 1970 (when all Europe has relatively high incidents of marriage), the year SSM or same-sex civil partnership was introduced, and 2003, the latest year for which information is available. I have also included the United Kingdom as a control (a European nation that has not yet introduced SSM or civil partnerships).

Denmark: 1970 (89.0%), 1989 (53.9%), 2003 (55.1%)
Netherlands: 1970 (97.9%), 1998 (79.2%), 2003 (69.3%)
Sweden: 1970 (81.4%), 1994 (48.4%), 2003 (44.0%)
Norway: 1970 (93.1%), 1993 (55.6%), 2003 (50.0%)
United Kingdom: 1970 (92.0%), 2003 (58.5%)

There is obviously a weakening in marriage in Western Europe, saying that weakening is the fault of SSM is less convincing. There could be a case based on the Netherlands experience that while SSM doesn't harm societies where marriage has already lost ground, it does harm societies where marriage is still held in high esteem. But that is not what was being suggested.

It does anti-SSM advocates little good to make claims that are factually incorrect.
10.22.2005 11:16am
Raider (mail):
I have to ask this question again.

If limiting marriage to one man and one woman is discriminatory to homosexuals, how can one argue that limiting marriage to TWO PEOPLE is not.

Another contributor talked about demonstrated harm in the case of polygamy (which the ACLU is on record as advocating BTW). I agree that it an abusive relationship generally, but we can't say it would be in every case and after all who is the government to decide what peoples' ideal private relationship preferences may be?

If one group (homosexual couples) may force the state through the courts to redefine marriage to honor THEIR relationships, why should this option be closed to other petitioners on the same legal grounds?

What about an arrangement of three men and three women? How can an advocate of SSM argue AGAINST this union being recognized as a marriage? Those that would sound like they are arguing for a special right for a preferred political group.
10.22.2005 11:27am
Raider (mail):
Why should government not license friendships or close family that live together and depend financially on one another as "marriages?"

If love and financial dependence is the issue as I have seen argued, why would these relationships be excluded from "marriage" recognition?

Or are we going to have the government impose some sort of system of proof that there is sex involved with the relationship?
10.22.2005 11:40am
DM Andy (mail):
I never saw your question first time around Raider, but I'll have a shot at answering now:

At the moment, the state gives benefits to people who are married. Those benefits are not available to gays and lesbians, therefore that is discrimination. If there were no government sanctioned benefits to marriage (effectively not recognising any marriage), then there would be no discrimination.

So, why only two, why not three? If the state does not recognise any poly relationships (which is currently the case in the US) then the state is not practising any discrimination.

If, for sake of argument, Utah had legalised polygamy, then there would be a case of discrimination against women who wanted to marry more than one man. Does that make sense to you?
10.22.2005 11:54am
DM Andy (mail):
Raider: Why should government not license friendships or close family that live together and depend financially on one another as "marriages?"

Let's try an example. Mary, an 80 year old woman and Doris, her 78 year old sister are both widows and have decided to live together for financial reasons and for companionship. Neither have any children and so decide to leave their half of their house to the other on their death. They decide to "marry" so that one partner is free from inheritance tax when the other dies.

Doris meets William, an 81 year old widower, romance blooms and he asks her to marry him. Now Doris is a bit stuck, she will have to "divorce" her own sister with all the legal complications that will cause in order to marry this man and have a happy relationship in the last years of her life.

There are solutions to financial dependence between carers and relatives that do not need the full range of marriage.
10.22.2005 12:08pm
Bob Van Burkleo (mail):
I have to ask this question again.

Rader,

You have made a host of errors:

The question isn't about 'limiting marriage' - no one can limit marriage since that is decided by the individuals not the group. Nuns all marry the same dead guy, I know a 3rd wife of an islamic man right here in Washington state. Marriage comes from beyond government and the group and cannot really be controlled by same. The right to marry is an individual right and no one can really prevent you from marrying anything. Marriage isn't currently limited to opposite gender or even just two - only the licensing of the civil contract is.

The question is about equal access to a civil contract licensed in support of marriage. Hopefully we can agree that any particular citizen for the most part has only one gender that they would really want to 'build a life with'. All permutations of citizens to who this individual is of the opposite sex have a large pool of potential co-signees with whom they can find someone to license a copy of this contract. Those that want to license it with someone of the same gender have NO qualifying members as all are proscribed by the licensing conditions of the contract. So the different is that the right of those attracted to the opposite gender is at most regulated, but for those attracted to the same gender it has been effectively proscribed. Regulation of a right vs blanket proscription. One is within the prevue of government, the other is not. If the government is going to license a civil contract in support of the fundamental right of marriage it must be reasonably available to all citizens. (and no it is NOT reasonable to expect a gay citizen to marry someone of the opposite gender)

So your question "How can an advocate of SSM argue AGAINST this union being recognized as a marriage?" is erroneous in itself:

Citizens of a polygamous bend (both true and the bigamy of classic mormonism and eastern religions) already have access to the civil contract of marriage that currently exists - they can license one mutually exclusive civil contract with someone they would actually want to 'build a life with' as long as they are of the opposite gender. The only citizens who have NO reasonable access to the civil contract are those that need to marry someone of the same gender. Whether any would like to have MORE people in the contract, or be licensed more copies of the contract is merely quantitative and a totally different issue - whether the contract is to their exact liking or not, they still can license a copy with someone they would actually want to marry as the contract exists now as long as they are of the opposite gender. Regulation vs proscription. That is the issue.

And it seems these discussions always go off into esoteric abstraction when the reason same gender married couples need the civil contract is exactly the same as opposite gender: to blend two people's rights and responsibilities into one allowing asymmetrical divisions of family responsibility not possible if each citizen is viewed individually. Many families have a breadwinner and a stay at home parent - and the relative percentage is identical for contracted married families with children and gay ones. All families should be able to merge their assets, make important decisions for each other, and provide for their children regardless of the gender combination of the parents.

So why is the civil contract unnecessarily limited to opposite gendered couples only when all such couples have the same reasons for needing it?
10.22.2005 12:12pm
jrose:
Raider,

Concerning your questions about polygamy and friendship marriage, are you referring to Constitutional law or what makes good public policy as determined by the elected branches?
10.22.2005 12:14pm
Antonin:
If limiting marriage to one man and one woman is discriminatory to homosexuals, how can one argue that limiting marriage to TWO PEOPLE is not.

This is actually pretty simple. There are, as a matter of fact, such things as homosexuals: people whose attractions and loves run exclusively to members of the same sex. Prohibiting us from marrying members of the same sex effectively prohibits us from marrying anyone. That's discriminatory, and absent a compelling state interest to the contrary, it's wrong.

By contrast, there are no such things as "polyamorists" in the sense that there are homosexuals. Polyamorists aren't pople who only experience sexual attraction only to groups of people rather than individuals or something like that. They're just people who feel capable of (and interested in) pursuing relationships with multiple people at once. So they're not being discriminated against in the same way: they're not forced into the situation where no legally permitted partner could possibly be acceptable.

If there were such things as polyamorists in the same way there are gays and lesbians, we'd move on to the discussion of whether there's a state interest in refusing to recognize group marriages. (Yes, imho.) But that discussion is rendered moot by the facts on the ground.
10.22.2005 12:16pm
Raider (mail):
Thanks DM--

We must also look at WHY as well as the WHAT when determining discriminatory treatment. That brings me to my the post just below the one you responded to.

Additionally, marriage was not set up to discriminate against homosexuals. This makes the comparison to anti-miscegenation laws completely inappropriate. My understanding of Loving is that it affirmed the one-man, one-woman requirement for marriage while striking down laws that were set up SPECIFICALLY to discriminate against black people.

Finally, every person has the EXACT same marriage options as every other mentally-competent, of-age, distantly-enough-related, not-already-married person.
10.22.2005 12:19pm
DM Andy (mail):
Raider, are there a lot of women out there that want to marry a gay man with no sexual interest in them? Yes, that couple could marry, but why would either party want to?
10.22.2005 12:26pm
Bob Van Burkleo (mail):
DM Andy

Yes, the cvil contract of marriage is a mutually exclusive one, and so anyone contracting is saying 'this is the person I wan't to be contracted with'. If two sisters were to do so it would only be if they weren't looking for any other partner. If they are looking to 'upgrade' then obviously a marriage contract was the wrong way to go.
10.22.2005 12:28pm
jrose:
Raider,

The various DOMAs are intended to discriminate against gays.

Loving was silent on the one-man, one-woman requirement.

Loving found that the existence of the same marriage options for all, does not prima facie establish no violation of Equal Protection.
10.22.2005 12:38pm
Antonin:
DM Andy,

First, your example would be prohibited by the laws against incest. But why don't we try another example:

Mary, an 80 year old woman, and Jim, a 78 year old man, are both friends and have decided to live together for financial reasons and for asexual companionship. Neither have any children and so decide to leave their half of their house to the other on their death. They decide to "marry" so that one partner is free from inheritance tax when the other dies.

Doris meets William, an 81 year old widower, romance blooms and he asks her to marry him. Now Doris is a bit stuck, she will have to "divorce" her friend Jim with all the legal complications that will cause in order to marry this man and have a happy relationship in the last years of her life.

Can't this already happen today?
10.22.2005 12:39pm
Antonin:
DM Andy,

Sorry - just noticed that I completely missed your point in my previous post.
10.22.2005 12:42pm
Antonin:
Raider

every person has the EXACT same marriage options as every other mentally-competent, of-age, distantly-enough-related, not-already-married person.

You forgot "of the same sex." Your statement would be true only if we already had gay marriage.
10.22.2005 12:44pm
Raider (mail):
To VBV:

You know full well when I talked about "limiting marriage" that I was talking about state recognition. Definitely not among my "host of errors."

Regarding your argument about people of the same gender "needing" to be married...merging assets, decision-making, children, 'building a life' etc. Why then would we not license friendships and close family members that love one another and wish to have all these same protections for all these same reasons?

Will the government require proof a sexual relationship in order to qualify?

Again, it isn't only the WHAT, but the WHY when we are talking state interest and social policy (which should, of course be subject to the democratic process and not imposed by the court). The WHY of marriage, regarding state interest isn't so people can 'build a life together' or for inheritance, hospital visits, etc. -- which are of course incidental to marriage, but not the REASON for state interest. All those things (aside from tax-payer funded benefits like SS) are available to homosexual couples through contract and personal commitment -- marriage does not have to be redefined in order for homosexual couples to have relationships and the existence of marriage does not prevent them from making private choices. Why wouldn't a reciprocal beneficiary package be acceptable?
10.22.2005 12:44pm
Raider (mail):
To Antonin Scalia : )--

"there are no such things as "polyamorists" in the sense that there are homosexuals. Polyamorists aren't pople who only experience sexual attraction only to groups of people rather than individuals or something like that."

Here you are making an argument you yourself deplore. What if I were to make that argument about homosexuals (I wouldn't)? How are you to know if the attraction of polyamorists is not uncontrollable and cannot be satisfied by just one partner and that they cannot live as anything but polyamorists? Are you making a moral distinction?

See, this is what we get when we have this discussion...you seem to want to group sexual attraction into the acceptable and the unacceptable, imposing your own standards, when you demand that others refrain from the same...and parlay that into an argument as to why public marriage policy should be altered (through the courts) within the limits that you have imposed...and then pretend that arguments like mine are not relevant because, after all, "there is no such thing as a polyamorist in the sense that there is a such thing as a homosexual."
10.22.2005 12:57pm
Raider (mail):
Concerning your questions about polygamy and friendship marriage, are you referring to Constitutional law or what makes good public policy as determined by the elected branches?

Both. What is your view jrose?
10.22.2005 1:01pm
Raider (mail):
There are solutions to financial dependence between carers and relatives that do not need the full range of marriage.

I agree completely DM. The problem with your scenario is that the same can happen if a woman wants to leave her husband for another man.

Raider, are there a lot of women out there that want to marry a gay man with no sexual interest in them? Yes, that couple could marry, but why would either party want to?

They wouldn't want to. But that goes back to my question concerning the government requiring proof of a sexual relationship in order to qualify for a marriage license. Pretty intrusive no?
10.22.2005 1:10pm
Antonin:
Raider,

If you said that there were no such things as homosexuals (in the sense I'm talking about) I'd just appeal to the facts. You know the drill: people try to change from straight to gay all the time, but it generally doesn't work, etc.

I've never heard a polyamorist advance the claim that they can only be attracted to people in groups, that attempts to find individuals attractive have always resulted in failure, etc. If there really were people like that, then it wouldn't be right of us to look on them with moralizing scorn and condemnation. But back in reality, that's not what polyamory's about, so the question is moot.
10.22.2005 1:13pm
jrose:
Raider,

My opinions.

On Constitutional law: If the level of scrutiny is rational basis, the state can deny polygamy. Likely ditto for same-sex marriage, although a Romer-like animus challenge gives the state a slightly tougher hurdle to get over.

On policy: I see serious harm with polygamy as it is practiced (abuse to women, hordes of single men). I see no problems with SSM, to the contrary I see benefits.
10.22.2005 1:13pm
Porkchop (mail):
Sorry to be late to the party here (and it's my first post). I don't want to put words in anyone's mouth, but it seems that a significant part of the argument in opposition to SSM relates to the environment for children. I tend to agree that in an ideal world, the best family structure would be dad, mom, and biological children with extended family support -- maybe because that's how I grew up. That being said, I think that the argument about the rearing of children ignores the reality that divorce and death happen, illegitimacy happens, abandonment happens. and that some people (of both genders) are lousy parents and lousy partners. There is a real issue about real kids who don't. and won't, under any circumstances, ever have that ideal family again, if they had it in the first place.

It is also a fact that there are more children who need adoption than there are people willing and able to adopt them. While we see significant importation of babies from other countries for adoption, it is not for lack of native-born candidates. Step-parents and adoptive parents may be "second-best" in the estimation of some, but second-best is better than nothing.

There are gay &lesbian couples who want to adopt, but are not able to in some states. There are also children shuffled from foster-home to foster-home for years until they reach the age of majority. Does anyone here seriously believe that such a child is better off in permanent fostercare than in a permanent home?

There may be other arguments against same-sex marriage, but I find it hard to credit a position that bootstraps itself up from the concept that somehow the rearing of children in a same-sex household is inferior to the rearing of children in a "traditional" one. Offering up the ideal biological family model in opposition poses a false choice. The "ideal" model is not descriptive of reality. The reality for many is no family at all.

Some background: When I married my wife, I adopted her daughter. The father had abandoned them. By some accounts, this may be second-best, but it is the only alternative to fatherlessness, and no laws governing marriage, divorce, or child support would have made any difference. That makes me a bad alternative to some of you, but it has made me "Dad" to her for the last eighteen years. I am the paternal connection, and biology is irrelevant.

I also happen to have gay friends who are married (under the law of British Columbia, Canada). I have a lesbian acquaintance who has three children from in vitro fertilization. Over years of observation, I have seen absolutely nothing that would suggest to me that any of them would be anything but stable, good, loving parents.

All of these acquaintances are attorneys (as am I), and all have had to resort to astonishing amounts of legal work to construct a framework that approximates the legal relationship of marriage. Even then, they cannot construct a framework that would give children the same degree of stability and protection as marriage.

If the issue under discussion is the effect of SSM on the rearing of children, then it seems to me that it offers significant advantages and no disadvantages.
10.22.2005 1:18pm
Bob Van Burkleo (mail):
Raider,

Sorry, marriage and the civil contract of marriage are two different things. Since heterosexual polygamists already have access to the contract, I was assuming you meant the former.

"Why then would we not license friendships and close family members that love one another and wish to have all these same protections for all these same reasons?"

Because none of these ARE 'building a life together' in a mutually exclusive way. Friends will find spouses just as will close family members. Neither are suitable for permanent exclusive commitment excluding all others.


"Will the government require proof a sexual relationship in order to qualify?"

Of course not, they don't require it now. Sex is a drop in the relationship bucket - many people are married and don't have sex. Many people have sex and aren't married. Sex isn't what's important, its the way you feel about the other person."

"Again, it isn't only the WHAT, but the WHY when we are talking state interest and social policy (which should, of course be subject to the democratic process and not imposed by the court). "

No, the is about a fundamental right - the mob as no say in it. *IF* the government is going to license a civil contract in support of a fundamental right it must be reasonably available to all citizens. They couldn't license the ability for some segment of the citizens to talk about politics and say non-licensed couldn't, not even if it had been voted on and passed, right? This is an equal access to a civil contract issue and that IS supposed to be decided by the courts, not the mob.

"The WHY of marriage, regarding state interest isn't so people can 'build a life together' or for inheritance, hospital visits, etc. -- which are of course incidental to marriage, but not the REASON for state interest. All those things (aside from tax-payer funded benefits like SS) are available to homosexual couples through contract and personal commitment -- marriage does not have to be redefined in order for homosexual couples to have relationships and the existence of marriage does not prevent them from making private choices. Why wouldn't a reciprocal beneficiary package be acceptable?"

So many questions:

The NIS used the phrase 'building a life together' as their criteria for deciding what was or wasn't a marriage. You can get more technical if you like but that is basically marriage in a nutshell.

And no, there is no way via contracts or 'personal commitment' to duplicate the qualities conferred by the civil contract of marriage, and of course there is no reason any citizen should - the state has a civil contract that confers them for citizens already and it should be reasonably available to all of them.

"Marriage does not have to be redefined". See, that's why I made it clear in the first statement - marriage already includes same gender couples, and nuns marrying dead guys, etc. No redefinition needed since YOU don't get to decide who is and isn't married (other than yourself). As to the civil contract, no one is trying to 'redefine it' the contract remains the same, only one particular licensing requirement is being contested as unnecessarily discriminatory.

"Doesn't not prevent them from making private choices" Never the issue. They can't 'choose' to have the attributes for their family that licensing the civil contract bestows - that is the issue - equal access to a civil contract.

And if you are talking about 'civil unions' the problem with that is it DOES dilute marriage. There would be no legal way to limit civil unions to just same gendered people just as there is no legal way (save constitutional amendment) to limit the civil contract of marriage to just opposite gender ones. Seattle allowed city employees to register as domestic partners - 80% of them are HETEROSEXUALS. And you would only be able to limit civil unions to same sex couples by having yet another constitutional amendment. Does that seem a bit silly? Far better to just have one such contract and let all citizens have reasonable access to it. If it is the word 'marriage' that is the problem get the government out of the marriage business and let them just issue civil union contracts.
10.22.2005 1:22pm
Raider (mail):
Loving was silent on the one-man, one-woman requirement.

Loving found that the existence of the same marriage options for all, does not prima facie establish no violation of Equal Protection.


This is true to a degree, except that marriage was understood and as a given did not need to be defined in the opinion. You can only apply Loving (and the only reason I brought it up was because it is cited in EVERY case before the courts now) if you equate a race of people and sexual preference. What I meant when I wrote that Loving affirmed marriage is that it struck down specific limitations that were irrelevant to the state interest in recognizing marriage. The sex of the applicants is completely relevant.

The DOMAs and laws passed by the many states recently were not passed for the reasons you say. They are ALL pretty clear, that NO relationship other than one man-one woman will be recognized as marriage. That homosexual activists have taken this issue to the courts is consequential (and did initiate these democratic votes), but the people in those many states (with more to come) passed these measures to prevent ANY redefinition of marriage.
10.22.2005 1:26pm
Raider (mail):
I've never heard a polyamorist advance the claim that they can only be attracted to people in groups, that attempts to find individuals attractive have always resulted in failure, etc. If there really were people like that, then it wouldn't be right of us to look on them with moralizing scorn and condemnation. But back in reality, that's not what polyamory's about, so the question is moot.

So since you haven't heard the claim, the point is moot? What about the day when you hear it? Is the discussion then open? I think for your argument my point isn't moot, it's inconvenient and it's difficult for you to rationalize your opposition using your own arguments for SSM.
10.22.2005 1:33pm
Bezuhov (mail):
Thanks for playing, Maggie. On the evidence of cogent argument frequency in these threads, among others, it seems the great unwashed masses have switched sides in the culture debates. The telomeres of this particular civilization continue to shorten - wonder what comes next?
10.22.2005 1:37pm
PeterH:

Regarding your argument about people of the same gender "needing" to be married...merging assets, decision-making, children, 'building a life' etc. Why then would we not license friendships and close family members that love one another and wish to have all these same protections for all these same reasons?

Will the government require proof a sexual relationship in order to qualify?


This is a false question. First, right now, friends of the opposite gender have no impediment to marrying. If they want the benefits and agree to the obligations, the fact that they do or do not have sex is not an issue. They can marry.

Close family members, regardless of gender, are prevented from marrying each other, but for completely different reasons than are being presented to deny same-sex couples.

The point is that each and every straight person in the country has the right to chose someone to marry. They may not be able to choose ANYONE they want to marry (close relatives, already married people, people who don't consent) but they are allowed to choose someone.

Gay people right now are functionally prevented from marrying anyone that they want to marry.

If they passed a law that said everyone is allowed to choose the Baptist Church Congregation which they want to join, but outlawed all other denominations, is that Freedom of Religion? After all, everyone gets the same choice. The fact that it is not an impediment to Baptists but it is to everyone else makes it discriminatory.

Actually, since gay people can and do have relationships and families, and for the most part are no longer actively prevented from it legally, a more precise analogy would be if tax benefits, health decisions, inheritance laws, immigration laws, community property, and a thousand other rights and benefits were attached to church membership, but only for people who join a Baptist congregation, and were not available to anyone else. Each citizen would have the same right to choose WHICH Baptist congregation. And it would deeply violate the concept of Freedom of Religion.

Until the government makes being mutually fertile and having given birth to a biological child of both parents a minimum requirement for marriage rights -- and applies them equally to all citizens, then unilaterally (and falsely) claiming that "marriage is about children" is patently false.
10.22.2005 1:39pm
Bob Van Burkleo (mail):
Raider,

Of course the point is moot if it hasn't been presented. Might as well be speculating about if a Vulcan marrying a human is beastiality. There are NO truly polyamorist people known to exist, i.e. somone who CAN'T marry just one other person. Biblical polygamy is really bigamy so they gotta start out with some one. Don't know of anyone who says they can't marry just one, so yes until one shows up it is really in the realm of science fiction.
10.22.2005 1:40pm
Antonin:
So since you haven't heard the claim, the point is moot? What about the day when you hear it?

Sorry for being imprecise again; there was an implicit "and I have heard a reasonable number of others attest to the contrary." I'm friends with a fairly large number of poly people, and none of them are constitutionally incapable of finding indivuals sexually attractive (like the men only get erections when they're having group sex or something.)

If a nontrivial number of people start claiming something like that, and the evidence supports it, the issue will indeed be open. Then we'll have to think about the effect on society of allowing group marriages, examine the evidence, etc. I haven't thought about this carefully, but the history of plural marriage as actually practiced in the U.S. puts a pretty strong presumption against permitting it.
10.22.2005 1:42pm
Porkchop (mail):
Bob Van Burkleo:


Of course not, they don't require it now. Sex is a drop in the relationship bucket - many people are married and don't have sex. Many people have sex and aren't married. Sex isn't what's important, its the way you feel about the other person."

People who think narriage is about sex either aren't married or haven't been married very long. :-D Marrying may very well be about sex; Staying married is about living life together. The level of importance of sex varies from couple to couple, as well as over time.
10.22.2005 1:49pm
jrose:
Raider: The DOMAs and laws passed by the many states recently were not passed for the reasons you say.

All the DOMAs were passed in response to various state (e.g., Hawaii and Massachusetts) rulings on same-sex marriage. They were intended to insure a state would not be required to recognize a same-sex marriage performed in another state.
10.22.2005 1:57pm
PeterH:
Get off the polyamory issue. It has no place in this discussion whatsoever.

If there is a case for allowing more than two people to get married, then it needs to be made on its own merits, and if there is a reason that it shouldn't be allowed, then it needs to be prevented on its own merits.

Banning gay people from marrying each other in a effort to prevent polygamy is absurd.

The question is not and never has been "If we allow same-sex marriage, how can we prevent polygamy." The only valid reply to that is "what prevents it now?"

What prevents it now is NOT the fact that gay people cannot legally marry. What prevents it now is that the marriage laws are structured so that only two people can get married. Adding same-sex couples to that does absolutely nothing to affect either polygamy or incest. The only reason anyone would bring those issues up is as chimera to make same-sex marriage more frightening.

In fact, most of the arguments against same-sex marriage are actually arguments in favor of polygamy. More parents for children, more children, Biblical support, etc, etc.

Personally, if the laws are carefully written and all aspects taken into account (such as how things like Social Security benefits are apportioned to multiple surviving spouses, and how to handle disagreements between spouses in the case of medical decisions, etc) I don't see what the big deal with polygamy or polyandry would be.

But allowing same-sex couples the same rights as straight people ALREADY have (rather than discussing the hypothetical of creating new rights for everyone) is simply a matter of basic equality.

And, by the way, your understanding of Loving is wrong, if you think that it reinforced man-woman marriage. It was in fact the opposite. The lower courts had said that as long as they were allowed to marry someone, it didn't matter if they were legally prevented from marrying someone different, just because they loved them. (In other words, whites could marry any white they wanted, and minorities could marry any other minority they wanted.)

The court declared that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. "

Taken literally, of course, this only addresses race. But it clearly places the freedom to marry as a fundamental right, and the freedom to choose who to marry with the individual, not with the State.

At the time, many states declared that they needed to limit miscegenation for the good of society, and particularly for the good of the children of mixed-race unions. There was a lot of "tradition" and "religion" thrown in.

This is absolutely no different, and the underlying points of the Loving decision clearly apply. It is NOT the right of the government to tell us who we may and may not marry. If it was unacceptable to tell people that they were limited only to their own race (when they at least had the chance of finding a compatible partner within it) how can it be acceptable to tell people they cannot choose ANY of the class of people that they might wish to marry?
10.22.2005 1:57pm
jrose:
What I meant when I wrote that Loving affirmed marriage is that it struck down specific limitations that were irrelevant to the state interest in recognizing marriage. The sex of the applicants is completely relevant.

Why?
10.22.2005 1:58pm
PeterH:
Re-reading my post about polyamory -- I want to reinforce that I think it is probably a worthwhile and necessary conversation. I recognize the existence of people in polyamorous relationships, and know a few groups like that myself who are fine people. They deserve to make their case and the rest of us should be able to listen.

But in this context, it ends up being an excuse for that last line of defense of the bigot: I see all your points and I can't refute them, so I will say it isn't really about this at all, but about this other thing. So gay marriage has to be prevented to protect monogamy. Phooey.
10.22.2005 2:09pm
jrose:
jrose: Loving found that the existence of the same marriage options for all, does not prima facie establish no violation of Equal Protection.

Raider: This is true to a degree, except that marriage was understood and as a given did not need to be defined in the opinion. You can only apply Loving [...] if you equate a race of people and sexual preference.

I know of no argument to suggest that the principle (the existence of the same marriage options for all, does not prima facie establish no violation of Equal Protection) does not apply equally to race and sexual preference. The only distinction I know of between race and sexual preference is the level of scrutiny used to determine whether the resulting disadvantages pass constitutional muster.
10.22.2005 2:12pm
PeterH:
The state interest in preventing same sex marriage always comes down to some unspecified way in which allowing the 3% of population that is currently denied the right to marry is going to prevent the other 97% from having children and living productive, law-abiding lives.

Ignoring for the moment that a noticeable percentage of gay couples either have or are trying to have children, what is the deal?

What is it about gay people that prevents the straight people from having children? More specifically, what is it about gay people getting married that does it, because we don't seem to be causing much problem by existing.

There is supposedly some nebulous link that "redefining marriage" will what? Confuse straight people into accidentally marrying someone of the same gender and only notice once they are past their childbearing years? Anyone that stupid probably shouldn't be breeding in the first place.

There is all this talk about the "institution" of marriage, and how allowing other people into it changes it. But the actual, real, practical fact is that a marraige happens between the participants. Changes to the "institution" make no difference whatsoever in the actual marriage.

Take two straight couples. One is deeply religious, waited until they were married to have sex, is monogamous, will never divorce, and don't use birth control, with the natural consequences. What effect on them is there from the other couple, who are a two-career couple that has carefully chosen not to have children, and since business takes one or the other out of town for long stretches, have worked out a deal whereby they are discreetly open sexually?

The way in which other couples conduct their marriages in NO WAY affects the first couple's ability to make their own choices. Nobody is forcing them to be monogamous; it is their choice. The other couple makes a different choice. They are both equally married. Judge them as you will, but they have the same legal rights and obligations.

How does the nice gay couple down the street change that in the slightest.

Anyone who has the illusion that not being able to get married ever changed someone's sexual orientation doesn't know any straight people. Yes, it has caused closeted gay people to marry for cover, but just legalizing gay marriage isn't going to change that until society changes its opinions.

Honestly, what is the big deal? How can something that doesn't even affect straight marriages -- not a jot of the rules change for them -- somehow threaten them?
10.22.2005 2:42pm
Dan Larsen (mail):
Sheesh, a lengthy thoughtful post and only one response. Well, here goes.

The message to everyone dispite their sexual orientation would be the same, actually. I know Rauch makes a big point of asking who would actually be the one to break the bad news to a hypothetical self-identified young homosexual. I would say (maybe in more, maybe less words) something along the lines...

"People are free to pursue any relationship they feel will bring them happiness. Because there is much more potential for harm in a heterosexual relationship, we have marriage."

So, "I think God just kind of screwed you over with respect to that whole 'marriage thing' you had planned. Here's why. I'm sorry about that." Fair enough. Like I said, "life does frequently screw people over with respect to all kinds of things, so this does not necessarily pose any kind of intellectual problem to opposing same-sex marriage." But I still think that the remainder of my argument holds. See below.

After sitting down with a friend who is homosexual, I was suprised to find him saying to me after a little big "yeah I don't know why homosexuals are trying to imitate heterosexuals anyway.

Your friend has no right to speak for all gay people. The vast majority of them--and I know individual cases personally--strongly support gay marriage.

This sterility, of course, implies that neither William nor Carol could ever be responsible for an out-of-wedlock child.

I know where you are going with this. Should they choose I would support their adopting any number of needy children because that restores as best as we can a capacity that they were robbed of.

Since homosexuality is not a disability or handicap, it would not fall under the same exception.

I don't see why the distinction is relevant with respect to this discussion. You acknowledge that William and Carol fall out of your marriage framework--the "much more potential for harm" in the form of out-of-wedlock children you've cited does not exist for them--but you are willing to waive the requirements for them anyway. Doesn't this imply that the concept of marriage as fundamentally about procreation can survive such dispensations, made out of compassion and a sense of fairness and equality, without harm?

Since a dispensation can be made for couples who are rendered unable to procreate due to disability, why can't a dispensation be made for those who possess an unusual, unchosen trait that also renders them unable to procreate?
10.22.2005 3:33pm
jrose:

Dan Larsen: This sterility, of course, implies that neither William nor Carol could ever be responsible for an out-of-wedlock child.

On Lawn: I know where you are going with this. Should they choose I would support their adopting any number of needy children because that restores as best as we can a capacity that they were robbed of.

Since homosexuality is not a disability or handicap, it would not fall under the same exception.

Not only do I agree with Dan's rejoinder that making an exception for an infertile couple because they are disabled - while gay couples are not - is unpersuasive, what about my father? He's a 74-year old widower (who long ago had a vasectomy) who is about to marry a post-menopasual woman. Why does the state allow him to marry?
10.22.2005 4:18pm
countertop (mail):
ou seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view, to the best of your abilities. And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use government power to impose a new morality on a reluctant people.

Amen!
10.22.2005 5:33pm
Antonin:
ou seek to use the power of government to take all those accumulated meanings of marriage (which were not created by the government) and re-direct them to same-sex relations, and many of you clearly also want to discipline those who don’t accept your moral view, to the best of your abilities. And so many want to do this in the name of liberty, without even acknowledging what SSM is: the use government power to impose a new morality on a reluctant people.

Amen!


Hey, I'm happy to endorse everything Ms. Gallagher said except the part about not acknowledging, since I'm happy to acknowledge it. There's nothing wrong with using the government to enforce a new morality when that morality is objectively correct.
10.22.2005 5:50pm
Bob Van Burkleo (mail):
"the use government power to impose a new morality on a reluctant people. "

Ha! when and if someone is forced to be in a same gender marriage you can talk about 'impose'. Letting your fellow citizens follow their own path as they allow you yours is not FORCING anything on you.

Analogy - having worked in an emergency room I know just how foolish it is to ride a motorcycle on the freeway - doesn't matter if you are in the right or not, you lose in any accident. Yet I would never dream of telling someone else they can't. Why? Because it is their life and their choice - trying to manage other people's lives is just about the most universally 'evil' thing a human can do.

Your morality is for YOU, not for me.
10.22.2005 6:18pm
Goober (mail):
Will I be flamed for posting just to do my part to get the number of comments over 500?
10.22.2005 6:19pm
Noah Snyder (mail):
Law Student Kate,

Nice comment, if only you'd have been invited to guest blog instead of Ms. Gallagher it might have been a more interesting week. Nonetheless I think you're skipping over a crucial step in your argument.

I'm willing to grant that the "close relationship model" and the "conjugal model" are genuinely different models of marriage. I'm also willing to grant that most people who support SSM ascribe to the former. However, other than the fact that red states aren't a very hospitable place for gay people, I can't see why one can't have a "conjugal model" view of gay marriage. Gay marriage can be based on the idea of joining together for the purpose of raising children.

I don't see how your argument leads to the idea of banning gay conjugal model marriages, but not straight close relationship model marriages.
10.22.2005 6:49pm
Hans Bader (mail):
Cornellian,

You say in your post that the "crisis of fatherlessness" is "due almost entirely" to heterosexual males.

This is incorrect. The blame is far more evenly shared between the sexes.

Many households with "fatherless" children got that way because the mother evicted the father through a no-fault divorce.

According to the National Center for Health Statistics of the Centers for Disease Control, more than two-thirds of all divorces are sought by wives, not husbands.

The vast majority of divorces are no-fault divorces.

So a household characterized by fatherlessness can be that way owing to unilateral decisions by the mother for which the father bears no blame.

Most state judiciaries categorically forbid consideration of fault in alimony and equitable distribution decisions, and do not consider fault as such in child custody decisions.

So a wife can obtain custody of the kids even if she was at fault in precipitating the divorce, through, for example, adultery or cruelty towards the husband.

And, especially if the wife relocates away from where she and the husband lived during the marriage, or the wife refuses to comply with court orders permitting visitation to the husband/father, the husband/father may not be able to play a part in the children's lives even if he wishes to do so.

When I worked at a nonprofit law firm, the above scenarios were among the most common ones brought to my attention by poor people seeking legal assistance.

Sadly, I could not help any of them because we did not practice family law.

(Incidentally, I am not divorced and have no kids).
10.22.2005 7:09pm
Chill:
Have can there be 500 posts on an issue like gay marriage that is largely symbolic, rather than substantive?

Discuss a family issue that affects larger numbers of people, like divorce, out-of-wedlock births, child custody.

The gay-marriage issue affects very few people, indeed, no more people than laws requiring people to be 18 or 21 rather than 16 to get married, or forbidding cousins from marrying each other.

Yet no one is spilling ink on those subjects.

People need to chill out and focus on more important topics.
10.22.2005 7:16pm
Kendall:
Chill - Interracial marriage affected only a small ammount of the population. It still isn't a huge phenomenon yet was one of the biggest fights we saw, and that fight went on for almost a century until the Loving case. It matters because people care about the issue - on the one hand people care about traditional values and on the other people care about the freedom to live life as they wish.
10.22.2005 7:39pm
Dan Larsen (mail):
Law Student Kate's summarization of Gallagher's argument restates it too narrowly. As I understand it, Gallagher is advocating not just the conjugal model of marriage emphasizing procreation, but rather a more expansive model that also emphasizes the prevention of out-of-wedlock procreation. A marriage in which children are not produced is not problematic for her because the marriage is still serving a societal purpose in preventing out-of-wedlock children. Taken to its logical conclusion, even a couple in which one person is sterile and the other is fertile still serves a societal purpose in that it ensures that the fertile spouse is not out making illegitimate children. She argues thus that allowing gay couples to marry is harmful because it is neither procreative nor preventing illegitimate procreation and, indeed, seems to reject explicitly her concept of marriage, redefining it as "close relationship" only.

The one problem with her argument is that there are couples in which neither spouse is fertile, and yet they are still allowed to marry. I dealt with this extensively, providing a comprehensive argument as to why Gallagher's conception of marriage should not provide an obstacle to SSM, in a lengthy earlier comment--that thus far has, unfortunately, been almost entirely ignored. (Search for "Dan Larsen").
10.22.2005 7:57pm
Noah Snyder (mail):
But why would gay couples marrying prevent them from having children out of wedlock?

For example I have a lesbian friend who is very interested in having children. But she is considering having a child as a single mother instead of with a partner. If we encouraged gay marriage we would be less likely to have women like her choosing to get pregnant out of wedlock instead of inside a (same sex) marriage.
10.22.2005 9:37pm
Noah Snyder (mail):
But wouldn't gay couples marrying also prevent them from having children out of wedlock? Just like with straight couples?

For example I have a lesbian friend who is very interested in having children. But she is considering having a child as a single mother instead of with a partner. If we encouraged gay marriage we would be less likely to have women like her choosing to get pregnant out of wedlock instead of inside a (same sex) marriage.
10.22.2005 9:37pm
A Guest Who Enjoys This Site:
jrose wrote:


The only distinction I know of between race and sexual preference is the level of scrutiny used to determine whether the resulting disadvantages pass constitutional muster.


I was curious enough to ask for your clarification on this point. Is it that you are unaware of any philosophical, legal, or posited arguments distinguishing between race and sexual preference - or - is it that you are unaware of any that you accept as 'legitimate?' If the former, you might either go back through the posts on the earlier threads of this discussion or make yourself aware of the broader discourse in that there are a plethora of distinctions; philosophical, legal, and logically posited. If it is the latter, then I concede that yours is a results-oriented assertion that bears no relevance to an actual discussion of the issue; for it would be evidence enough of an immutable opinion on your part which precludes effective discourse.

I admit there is, on the whole, a lot more 'hot air' or invectiveness present in many of these posts than actual, logical, reasoned, sustainable discourse. However, there have been numerous citations of cultural and legal arguments that demonstrate a rather substantial and decisive difference between 'race and sexual preference.' In the end, I'm not looking for a debate between thee and me. I'm pointing out that this statement cannot stand on its own merit. For, even if you assume that race and sexual preference are both biologically determined, then I would point to the fact that 'sexual preference' is NOT a biological imperative, the drive(s) behind it is/are; thus the use of the word 'preference' rather than 'imperative.'

Just something to think about as we proceed to the next incarnation of this topic with the new guest blogger.
10.22.2005 10:13pm
Jimbino (mail):
Liberty is an inalienable natural right that is not subject to government definition or regulation. Two elements of Liberty are supremacy over one’s body and the right to freely contract with anyone about anything, without government interference except to enforce contracts or to nullify those involving incompetence, force or fraud.

Whether or not your free exercise of your natural rights interferes with other folks’ religion or superstition, even if it reduces or nullifies the value of their beliefs, contracts or relationships, is of no concern, as you are not your brother’s keeper. Indeed, it is your right to flush a koran or attempt to bring about the fall of the Catholic Church, the demise of Microsoft and the destruction of all marriages, as long as you do so without force or fraud!

Modern Marriage has been practiced for only 250 years, and only in the West. It is in no way a hoary tradition and is even far from universal today. Its touted elements of “intimacy and commitment” are neither certain nor unique. It is even far from biblical: I challenge you to cite a biblical passage that describes, much less extols, anything resembling marriage American-style. The only passage that even comes close is that of the short Book of Ruth.

Adam of the bible did not marry or even choose his mate out of love. His son Abel and his daughters practiced incest, Lot slept with his daughters, Abraham, Jacob, Moses and David were polygamous, David screwed around with Bathsheba, Solomon wrote dirty poetry to his lover, and Jesus and Paul were lifelong bachelors. When Paul said it was “better to marry than to burn,” what model of marriage was he thinking of? One in which you try to serve the wedding guests the cheapest wine? I’d have a better idea of marriage if the words uttered by Paul had come from the mouth of George Costanza.

The problem we libertarians have with marriage is that government uses it as a tool to grant special privileges to those who succumb to it. Almost everywhere on the planet, governments use marriage as a means of choosing winners and losers in life. I read that Vermont, in its latest review of civil unions, identified some 72 special state and federal privileges enjoyed by married folks—a number that wouldn’t surprise me. The privileges of marriage, like those implicit in our national parks, public universities and Social Security, are particularly perverse, since they favor the healthy over the disabled, the white woman over the black man, the rich over the poor and the educated over the educationally deprived. All of them are used by our government to grant the Rich White Widow who never worked many times the benefits given the Poor Black Man who’s slaved for 45 years until his expected death at 67. It would be in the interests of mankind to sell off the national parks and forests, abolish social security and public universities, and eliminate the privileges of marriage.

It is a canard, of course, that “humanity comes in two halves ... called to join together in love.” Such a view runs counter to both science and common historical experience and would surprise the Bonobo as well as the simple nut and bolt.

It is clear that marriage and monogamy are not clearly “related to generativity,” since all forms of life other than humans “do it” without the conceit.

Marriage as an institution for protecting children is another conceit of the lovestruck. If a society really valued happy and productive kids, as it surely values high-tech products, it wouldn’t automatically accept the output of just any pair of tyros. In teaching, medicine and law, our custom is to license the producer in advance and then hold our noses when dealing with his product. In computers and software, we let even college dropouts like Gates and Dell offer a product, then we accept the wheat and reject the chaff. Since few of us could stomach rejecting kids who are “chaff,” the licensing model may be the more applicable of the two. In any case, the position of kids in our society is confused by our schizoid treatment of kids as sometimes persons, sometimes parental property, and sometimes wards of the State.

Then there is the canard that those who seek equal rights for singles and gays are disregarding “the magnitude of the change they are asking us to accept.” This is a silly argument that could as well have been used historically against liberation of citizens, women or slaves. If that old-time revolution was good enough for Martin Luther or Abraham Lincoln, it’s good enough for me!

Another canard is that society needs the babies that are produced by loving married folks having sex. It should be no surprise to anyone (except perhaps the highschoolers we’re indoctrinating) that nowadays sex, love, marriage and procreation are four totally unrelated concepts, each of which occurs together with any of the others about as often as do a horse and carriage. I’ve experienced love without sex since birth and had sex without love many times since turning fourteen, while escaping marriage and procreation altogether; I’m sure the typical Pakistani woman has a totally different story that proves the same point. Nor do children need fathers: there is no end to the testimony of children whose father’s departure put the first smile on their faces.

Let’s free the marriage-minded to follow their superstition without tax subsidies, license them to procreate, and leave the rest of us alone to find sex and love without government interference!
10.22.2005 10:50pm
jrose:
jrose: The only distinction I know of between race and sexual preference is the level of scrutiny used to determine whether the resulting disadvantages pass constitutional muster.

A Guest: I was curious enough to ask for your clarification on this point. Is it that you are unaware of any philosophical, legal, or posited arguments distinguishing between race and sexual preference

Philosophical or posited arguments? My remark concerned only legal aspects (see the context of the debate). What legal aspects did I miss?
10.22.2005 11:26pm
miker (mail):
Why not call SSM, "garriage" instead of co-opting the word marriage, which already has a meaning?
10.23.2005 4:06am
A Guest Who Enjoys This Site:
jrose: Though not directly on point since the issue of homosexual marriage has yet to be directly adjudicated in the Supreme Court, Justices have repeatedly held different views of race and 'behavior.'

Yes, I have changed the term from 'preference' to 'behavior' in that the fulfillment of preferences is done through 'behavior' or 'conduct' and is not a biological imperative. Further, preference is defined through the examination of the behaviors exhibited. If you wish to conflate 'preference' with 'orientation' you are welcome to do so, but you are still within the realm of 'behavior' rather than the biological elements which drive such conduct, preferences, orientation, or behavior - fairly synonmous terms in relation to this discussion.

I recognize that many will not agree with this last statement. However, agreement is not necessary. Biology is simply a physical state. In this context, an arrangement of chemicals into a 'balance;' a balance which is then reinforced or altered in some manner by physical and non-physical stimuli. Although it is common to hear phrases of "gay since birth" or "I've felt attraction for - same-sex or opposite-sex - all my life," such statements are NOT scientific fact; they are emotional assertions. Responsiveness to pheramonal stimuli (the basis of sexual attraction) is reinforced or altered through positive and negative stimuli resulting from interpersonal or social behavior.

Now, while one may, correctly, argue that certain states (e.g., Washington, Massachusetts) have, in essence or specifically, seen adjudication of sexual preference as a 'protected class' roughly synonmous with 'race,' it must be remembered that these decisions were based, primarily, on the language of that state's constitution. As far as I have been able to discern, the Supreme Court has yet to render a ruling which specifically recognizes a circumstance of 'protected class' status based on 'sexual preference' being equitable to 'race.'

In Bowers v Hardwick (1986), the majority opinion, among many related statements, held that:


The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable...

We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U.S. 678, 685 (1977). Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923), were described as dealing with child rearing and education; Prince v. Massachusetts, 321 U.S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), with procreation; Loving v. Virginia, 388 U.S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U.S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 688-689...
[emphasis mine]

No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U.S., at 688 , n. 5, 694, n. 17... [emphasis mine]

...if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct [478 U.S. 186, 196] while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road...

The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.



Thus, in Bowers alone we see the Court drawing a distinction between homosexual conduct (i.e., sodomy) and the fundamental right of marriage based on racial classification as presented in Loving.

Now, before someone throws up the argument - Lawrence overturned Bowers! - I ask you to bear in mind three facts.

1.) We are NOT discussing the constitutionality of sodomy laws, but the legal distinction, if there is one, between 'race' and 'sexual preference.'

(2.) Lawrence was not decided on the basis of 'race' and 'sexual preference' being considered equitable as 'classes.' Up front, the majority opinion in Lawrence states: "Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause..." (Note the use of the phrase 'private conduct.')

(3.) Bowers was overturned by a new 'balance' on the Court disregarding a previous Supreme Court precedent and ignoring the majority opinion's admonition (see Scalia's dissent in Lawrence) in Bowers:


Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution...There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.


If the balance on the Supreme Court for Lawrence can effectively overturn precedent in less than a generation, so can a new balance (Roberts and whomever potentially creating a new 'balance') choose to uphold the sentiments in Bowers (see above) and the majority opinion in Lawrence that neither of these cases applies as precedent to marriage. Thus, a contemporary Court would not have to 'overturn' Lawrence, but could still rely on the stipulations in both majority decisions (that they do not, specifically, apply to homosexual marriage) to negate their use as precedent compelling the Court to extrapolate homosexual marriage as a derivative of the prior Courts' decisions.

Justice O'Connor in Lawrence:


That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.


The language used in BOTH Bowers and Lawrence is indicative of the fact that SCOTUS has viewed homosexuality in relation to 'conduct,' 'lifestyle,' 'practices,' and 'activity;' not biology (i.e., race and gender). In Lawrence, the majority opinion stated:


The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.


Perhaps, the closest SCOTUS decision in terms of relevancy is Romer v Evans (1996). But, one must be careful to differentiate between agenda group 'spin' and the language contained within the decision. The majority opinion did not base its decision on the premise that homosexuals were a protected 'class,' but on the argument that the newly enacted "Amendment 2" of the Colorado Constitution actually made them into a class which was then open to discrimination. Or, as the majority opinion ends:


We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.


In other words, by adopting the Amendment to obviate laws specifically designed to preclude discrimination based on sexual orientation in "housing, employment, education, public accommodations, health and welfare services, and other transactions and activities," Colorado had, themselves, designated homosexuals as a 'class,' or, as stated in the majority opinion: "...it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit..."

Therefore, the Supreme Court in Romer, rather than creating a protected class for homosexuals akin to classifications based on 'race,' actually holds that the Colorado Amendment was unconstitutional based on the very fact that it created a class based on homosexuality; said class then being useful to identify individuals and/or groups for discrimination rather than 'protection.' Further, it must be recognized that, despite the opportunity to do so, the Court actually avoided establishing 'homosexuals' as a 'specially protected class.'

This brings us back to your original statement, to wit:


The only distinction I know of between race and sexual preference is the level of scrutiny used to determine whether the resulting disadvantages pass constitutional muster.


What we see at the SCOTUS level is a near continuous reference to homosexuality by terminology synonmous with 'behavior;' something clearly distinguishable from those attributes which define 'race.' We also see where the Court has regularly been reluctant to create a 'protected classification' based on homosexual behavior; in fact, in one case, actually rejecting the creation of a class based on homosexuality by a State; and positing the protection of the 'conduct' of individuals rather than a 'class of individuals.' This is not the same as pro-homosexual agenda proponents would 'spin' the decisions, but I would rather be informed through the language of the decisions than the prosyletizing of pundits.

Even more to the topic of this thread is the fact that the Court has continuously, in the majority decisions, rejected, evaded, or precluded the interpretation that their decisions should or do apply to the issue of homosexual marriage. Even further, they have stipulated that myriad factors, including O'Connor's inference of a potential 'legitimate state interest in the preservation of the traditional institution of marriage,' would influence ANY adjudication related to homosexual marriage.

The Griswold v. Connecticut (1965) case is beloved by pro-homosexual advocates for its impacts on 'privacy' issues and the 'spin' they manage to place on the Court's proffered 'meaning' of marriage. Here's what the Court actually said:


Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.


Would it not be reasonable to interpret that the "way of life" referred to here by the Supreme Court is the one held by the definition of marriage, essentially the same in 1965 as in today's DOMA, and not the 'spinned' "cause/political faith/social project" which informs the pro-homosexual marriage agenda? Wouldn't such an interpretation also be consistent with another oft-cited case in the pro-homosexual marriage cause - Loving v. Virginia (1967); a case involving a Negro woman and a white man?

Could these be legal aspects you might have missed?
10.23.2005 4:19am
Ampersand (mail) (www):
JW wrote:

Ampersand's off-the-cuff, non-expert opinions of research methods published in a peer-reviewed journal are not terribly persuasive. Any criticsim of that study by, say, people with actual expertise? If so, I'd love to hear about it.


My methological criticism - which boils down to, "what the authors are assuming is arousal, could just as easily be explained by stress or anxiety " - is virtually identical to what some academic experts have said.

Are you referring to the passing comments of an anonymous blogger with no apparent expertise and who doesn't even appear to've read the study?


I have read the study you linked to, including this passage:

Another explanation of these data is found in Barlow, Sakheim, and Beck's (1983) theory of the role of anxiety and attention in sexual responding. It is possible that viewing homosexual stimuli causes negative emotions such as anxiety in homophobic men but not in nonhomophobic men. Because anxiety has been shown to enhance arousal and erection, this theory would predict increases in erection in homophobic men. Furthermore, it would indicate that a response to homosexual stimuli is a function of the threat condition rather than sexual arousal per se.


Even the authors of the study you link to, agree with me that the data can in principle be explained by anxiety and threat, rather than repressed homosexual desires. (They favor the "repression" theory, but their data is explained equally well by the "anxiety and threat" theory.)

For the record, I disagree with On Lawn that what I'll call the "repression" theory has been "discredited." It is contested, but not discredited.
10.23.2005 9:25am
jrose:
A Guest,

To summarize your points:

1) The Court has not stated that gays are a 'protected class' (i.e., sexuality is not a suspect classification). That's exactly my point when I said the level of scrutiny is all that legally separates race and sexual preference.

2) The Court treats sexuality as behavior, not a trait. That's debatable, but for the sake of argument let's assume you are correct. What difference does that make, other than the level of scrutiny used?

3) The Court has hinted that states are not required to recognize same-sex marriages. That too is debatable, but again for the sake of argument let's assume you are correct. The Court reached that conclusion because it applies a lower level of scrutiny than it does for race, once again confirming my point.
10.23.2005 10:07am
PeterH:
Chiming in on the "behavior" versus "preference" point. First, there is a reason why people use the word "orientation" far more commonly in regards gay people -- it is far, far more accurate.

The behavior issue is a false one, most commonly used as a straw man. But in essence its point is that gay people have no ability, and certainly no right, to identify and explain their own experience.

It means that gay people are not defined by our own characteristics or experience, but rather by straight people's ability to pick us out of the crowd. When people say that being gay is a behavior, what they are actually saying is that, absent specific same-sex sexual activity, straight people can't pick us out from other straight people.

Left-handedness is an innate characteristic. The majority of people are right-handed, and at the gross level, at least, everyone has the same two hands. A left-handed person's hands are not materially different from a right handed person. But a left-handed person is not only left-handed when writing or eating or performing "left-handed behavior." Nor does he become right-handed by suppressing his natural left-handedness.

The fact that an outside observer can't TELL that he is left handed unless he either "comes out" about it or behaves in an obviously left-handed way doesn't change that. Nor would we take seriously a right-handed person who says that there is no such thing as left-handedness, only people who choose to behave left-handedly.

But as obvious as it is regarding handedness, we still have a huge group of people spouting it about gay people.

Straight folks, please. While you are more than welcome to ask questions, and certainly have every right to be skeptical if something sounds wrong, or to disagree once you understand the points, could you at least please try to start from a point of accepting that whatever else may be true, gay people are the experts on our own experience?

Defining us a something other than who we are, and then basing the entire (or substantial part of it) argument against us from that is logically a Straw Man situation, but in truth, prejudice at best, and evil at worst. Maybe some of should listen to the people you are suppressing.

Peter
10.23.2005 12:31pm
stephen (mail):
Dear PeterH and Quarterican et al

Thanks for your comments
I didn't say SSM partners couldn't do as good as job as heterosexual partners (although having studied intensely why heterosexual partners do split up - my guess - and it is a guess - that SSM will suffer from more instability than heterosexual ones. Infidelity in heterosexual marriages is a big relationship breaker, and from what data I've seen SS partners have more chllenges in this area - but maybe I'm wrong). I can't say anything on this issue because have no data on SSM because SSM haven't been around long enough, and SS cohabiting can only be compared with heterosexual cohabiting - which always has a poor record against being married (even in scandinavia which is often used as the model of good cohabiting) - even with kids around.

But that wasn't the point I was making. If we allow gay couples to have and raise children - it is BEST for the kids that we do get some kind of social commitment from the 2 gay partners. Call that commitment anything you want except for marriage. The point I was making is that we, society and parents, have to have a 'best practice model' to aim heterosexual kids towards (and a best practice model to aim gay kids towards) - but if you call that model 'marriage' everyone will just get confused because a gay marriage has different dynamics than a heterosexual one - and thus the education model for both groups will have to be different. By the government offering the word 'Marriage' to mean SS Unions too, then the term marriage takes on 2 meanings - a man and a woman AND any two people of the same sex who love each other - and this means that the clear best practice model disappears - and all the government can say to the next generation is - WHAT! It can't teach heterosexual children best practice because the word marriage now means 2 things and you can't have 2 best practices - so all school education programs will have to be stripped of anything which doesn't agree with either of the 2 definitions of marriage which now exist - and you end up with a vague set of statements which offer no clear guidance based on the best research for EITHER heterosexual children OR for gay children. This REALLY will hamper the government if it wants to get government spending down and solve social problems because both these issues are deeply linked to the quality of marriages (which is why Maggie mentioned the Camel). Due to this lack of clarity, both sets of partner relationships will suffer from clear guidance - and ultimately it will the kids that will suffer (again - isn't it enough we now have 2 million in jail in the USA - a large part of whom come from the results of the well intentioned no fault divorce). If the government kept 2 terms for the 2 sets of unions, then you could have clear programs for both groups of programs, and heterosexual kids would get the advice they need, and the gay ones would get the best advice for them. I hope this is clear. All Maggie is trying to do is protect the kids. She is not anti-gay. She believes that SS partners should have all the rights that Heterosexual unions have - but let's not hurt the kids in the process. It's not only the hertosexual kids she's fighting for either - it's gay kids too and she just doesn't want the adults of today make life terrible for many kids tomorrow.
10.23.2005 1:41pm
ilya l (mail):
Lots of hostility here.

Even if you disagree with Maggie (I'm still not sure if I do, but I thought her posts were extremely thought-provoking), can't you take her word that she's attempting to lead a civil discussion?

The problem with this, as well as many other debates, is that people assume their opponents have some kind of sinister agenda. Maybe both sides genuinely want what they feel is better and more right? I think Maggie has made great strides in her clear arguments that people should assume good faith on the part of their opponents, ntil they're proven otherwise.

Thanks Maggie, and Eugene for giving her this opportunity.
10.23.2005 3:12pm
On Lawn (mail) (www):
Medis,

OK, to be clear: you think that children born to straight married couples through artificial insemination with a sperm donor should be taken away from those people and placed for adoption.

I baited you this way for an example. The question you asked was "what is best for the child", which I dutifully answered. And then you went all on your own just one step further, and that step is quite telling. You presumed that it is best for government to enforce everyone to do what is best. I'm sure that you have no problem with that but I do not see that government's job is to enforce everyone's whim and opinion of whats best for others.

You believe that single parents should not date and if they do date it does not matter if they get married.

I believe that it for the most part, psychologists, clergy, and others who are looked upon for advice in such situations have in general good grounding for making that suggestion. I've given that advice myself, but more to bring perspective that their family is not in jeopardy without a spouse and that in many ways the pursuit brings unneccisary jeapardy on the family.

do you believe that there should be any preference for married couples over unmarried couples in adoption cases?

Yes. A child is up for adoption when for some reason the parents are unable to care for the child. It is restoring as best as possible the rights of the child to a mother and father (equal gender representation in the household governance) to give them to stable married households.

Josh Jasper,

It's disengenuous to pretend that an equivilant status to marriage has been offered

If you mean that their replacement status is not equivelent to what is offered where the requirement for equal gender participation is intact, then yes. But I fear (having discussed this with you in the past) that you are simply trying to sluff off that any change was made at all.

BobNelson:

What Mr. Kurtz doesn't mention is that many Swedish couples WAIT until their marriage HAS BECOME GENERATIVE to get married.

Another person who is making blank observations about what he hasn't read? Kurtz mentions that, and then mentions how the trend looks to be increasing in people having two kids before getting married. You can find the quote for yourself, if you have troubles I will get it for you.

Your stats about children raised in ss-households are already found to have no basis. In fact more scientifically sound tests find the opposite. The only fact they agree on is that children become more willing to experiment with same-sex relations, which is its own can of worms.

PeterH,

Get off the polyamory issue. It has no place in this discussion whatsoever.

If there is a case for allowing more than two people to get married, then it needs to be made on its own merits


Reductio-ad-absurdum dicatates that ss"m" advocates would be polyamorous advocates also, were their case honestly about removing limits on marriage and not discriminating against loving relationships.

Of course, as many ss"m" advocates will balk at that, saying one of many things...

1) Polyamory is not politically strong a movement enough to consider.
2) Love is always between two people
3) Polyamory is an act, a homosexual is an individual.

The fatuasness of these defenses further weakens the credibility of ss"m" advocates.

1) If ss"m" was truely about minority rights, the political power as a pre-requisite to recognition wouldn't even be brougnt up.
2) Apparently there is disagreement here, as polyamorous people find love between three or more people. The ss"m" razor that since their relationship continues even if polyamory is recognized the less-limited defintion wins the day is in direct conflict to any attempts to preserve marriage as between two people.
3) Polyamorers are people too (they might as well argue). Who are ss"m" advocates to suggest that they are less of a human being because they can love "more" people all together?

The point of this exercise is to show that ss"m" advocates in looking so strictly at the demands of one segment of society (which is chauvanism, actually) have completely lost focus of the ramifications of their arguments. Its the classical foil to the argument ad-nuveau, do the people making the argument know why things are they way they are now? Apparently, in this mental exercise we see they do not.

Dan Larsen,

So, "I think God just kind of screwed you over with respect to that whole 'marriage thing' you had planned. Here's why. I'm sorry about that."

That interpretation of what I said plays directly into one of the ways the philosophy of ss"m" oppresses gays. Its not marriage supporters or "God" that is limiting what people can achieve. And its no capacity that government can bring about fraudulently.

Your friend has no right to speak for all gay people.

Actually, I've found that no one has the right to speak for all gay people. Only a small subset hold fast to any dogma inside that segment of society, and as such present a hydra-headed hodgepodgs of self-condradictory but individually useful at the moment arguments.

I don't see why the distinction is relevant with respect to this discussion.

Your blindness is a horrible excuse for an argument.

but you are willing to waive the requirements for them anyway. Doesn't this imply that the concept of marriage as fundamentally about procreation can survive such dispensations, made out of compassion and a sense of fairness and equality, without harm?

The link provided answered that specifically. Homosexuality is not a handicap, and any attempt for the same exemption is fraud.

jrose,

Not only do I agree with Dan's rejoinder that making an exception for an infertile couple because they are disabled - while gay couples are not - is unpersuasive

Which to me shows dramatic ideological blindness. To swallow the camel of fraudulent claim to resources and exemptions for the disabled, yet straining at the gnats to the effect of calling the elderly as not disabled displays a most egregious and wresting mindset.

Bob Van Burkleo,

Ha! when and if someone is forced to be in a same gender marriage you can talk about 'impose'.

How shameful that you continue in this cannard after it was already exposed to you as a strawman. To impose a new morality does not at all say one is making someone have a same-sex marriage. Search for "Jon Stewart" who as usual offers the most fatuous arguments for discrediting his audiences itching ears.
10.23.2005 8:42pm
A Guest Who Enjoys This Site:
PeterH: "Who we are" is not solely a function of biology. What you attempt to do is obviate the old 'nature vs. nurture' debate by stipulating that non-homosexuals cannot understand the 'nature' of homosexuality. Certainly, non-left handed people do not 'know' what it is to be left handed. However, they DO understand what it is to have a 'dominant' hand. It is also true that heterosexual individuals do not understand what it is to be attracted to individuals of the same sex in a 'sexual manner;' one can recognize a fellow female as 'pretty' and a fellow male as 'handsome' without being 'sexually attracted.' However, they DO understand the essence of 'attraction.'

Again, people can agree or not, the definition of "is" doesn't change with the vagaries of punditry, personal experience, or sympathies. Biology "IS" the basis of left handedness, sexual attraction, etc. In effect, what you are espousing is a philosophy of 'don't judge me for my behaviors because that's the way I was born.' Sorry, it doesn't work that way.

We are all born with the biological necessity of eating. WHAT we eat is a function of resource availability and cultural influences (which personally inform 'taste' to a greater degree than individuality). Humans are ALL 'born killers,' it being a biological imperative whether for food (omnivores) or protection; but the degree to which we actively participate in this activity is structured by necessity and social limitations. It is the same with ANY biological imperative. The degree to which we define ourselves or our society by biological impulses is the very essence of what we define as 'socially acceptable.' In fact, it is the social/cultural differences themselves which serve as the source for a 'lack of understanding,' not the 'innate' differences in biology.

jrose: Maybe I missed something in your arguments. But, the sense I get is that you are utilizing 'level of scrutiny' so broadly that we could fairly say that the only difference between widget A and widget B or policy A and policy B or individual A and individual B is the level of scrutiny the Court decides to give them? That would seem to be a rather broad definition and one that, in effect, provides virtually no information or insight into how someone should proceed in an analysis.

Ultimately, the issues of precedent and stare decisis tend to be the determining factors in 'level of scrutiny.' If that is what you meant by the differences in the level of scrutiny as regards 'race' and 'homosexuality,' then I now understand your statement. But, I question the value it has to this discussion without further extrapolation such as an examination of why 'race' is 'settled law' and 'homosexuality' is not.

Virtually any issue related to homosexuality is going to receive greater scrutiny than an issue involving race for the very reason that 'race' is a protected classification and 'homosexuality' is not. In part, that is because the greater scrutiny as regards race was provided decades ago and is no longer needed. But, the greater part is due to the fact that 'race' is not an aspect of behavior. Physical characteristics are now considered to be a literal personification of the word "is." Homosexuality, on the other hand, must be scrutinized on the basis of the degree to which the behavior may, or may not, be considered to fit within the definition of what "is" acceptable; something to which you allude in your statement regarding "resulting disadvantages."

Rational basis review, strict scrutiny and heightened or intermediate scrutiny are all functions of the effect that statutes have or are 'targeted' toward. In the case of homosexuality, SCOTUS has consistently addressed their 'level of scrutiny' toward the behavior or conduct issues of a case; behavior and conduct, by definition, requiring a greater level of scrutiny as regards state interest in moderating the behavior or conduct.

Once again, the time spent and the legal wranglings become much more abbreviated when there is precedent or an issue of stare decisis which predicates the answer vis a vis the necessity of determining the required level of scrutiny. Thus, the difference in the level of scrutiny stems from the Court's lack of confusion regarding the status of 'race' and from the Court's array of decisions which, even if taken in aggregate, do not provide a consistency or clarity as regards the status of homosexuality.

Thus, to simply state that the only distinction between race and sexual preference is the level of scrutiny is to attempt to summarize the legal issues intrinsic to the discussion as: "the only distinction between race and sexual preference is in how the Court views the issue." This is precisely what engendered my question as regards being curious enough to ask what you meant. If you intended to state that the Court(s) view 'race' as settled law and have numerous precedent upon which to draw and that they have not the same view of sexual preference, you have only restated the obivous reason why we now have multitudinous posts which do not seem to agree on the legal niceties.

In your reply to Raider, you state:

I know of no argument to suggest that the principle (the existence of the same marriage options for all, does not prima facie establish no violation of Equal Protection) does not apply equally to race and sexual preference. The only distinction I know of between race and sexual preference is the level of scrutiny used to determine whether the resulting disadvantages pass constitutional muster.

Thus, you are simply suggesting that the Court MIGHT be able to apply, assuming a suitable resolution based on the 'level of scrutiny,' a new definition of 'marriage' as including 'same-sex couples' based on the fact that it is not settled law and there is no precedent that specifically precludes the Court from incorporating this into the definition. Fine. You are "technically" correct so far as you go.

But, once again, you are attempting to avoid the legal issue that is left unresolved in such a summation based on the fact that the Court itself has indicated that there are myriad issues other than strict precedent (stari decisis does not apply specifically to homosexual marriage in that it is NOT settled law), such as philosophy, religion, morality, logically posited argument, the state interest in maintaining the 'traditional' definition of marriage, et al., that would factor into any 'settling' of the law. In a sense, they almost seem to 'hint' at the idea that SCOTUS may not be able to satisfactorily 'settle' the issue in light of these myriad factors. In fact, they have consistently 'stated' that the judiciary is NOT the appropriate venue to 'settle' this issue due to this branch of government's inherent limitations structurally, philosophically, practically, and constitutionally.

THAT is the 'legal issue' you seem to have 'missed.' Or, more accurately, that is the legal issue you appear to be attempting to avoid in reducing the issue to one strictly of 'level of scrutiny.'
10.23.2005 9:09pm
A Guest Who Enjoys This Site:
jrose: Since you like summations, what I am saying is that you seem to be "deliberately turning a deaf ear" to the 'advice' SCOTUS has provided in its decisions related to the applicability of 'precedent' on the issue of homosexual marriage. Historically, SCOTUS does not like that and, if forced to deal with the issue, tends to render a decision that don't make nobody happy.
10.23.2005 9:22pm
A Guest Who Enjoys This Site:
I REALLY wish we had a text editor here. The above summation should read...

jrose: Since you like summations, what I am saying is that you seem to be "deliberately turning a deaf ear" to the 'advice' SCOTUS has provided in its decisions related to the applicability of 'precedent' to, and the Court's indicated unwillingness or inability to effectively address, the issue of homosexual marriage. Historically, SCOTUS does not like that and, if forced to deal with the issue, tends to render a decision that don't make nobody happy.
10.23.2005 9:30pm
jrose:
jrose: Not only do I agree with Dan's rejoinder that making an exception for an infertile couple because they are disabled - while gay couples are not - is unpersuasive
On Lawn: Which to me shows dramatic ideological blindness. To swallow the camel of fraudulent claim to resources and exemptions for the disabled, yet straining at the gnats to the effect of calling the elderly as not disabled displays a most egregious and wresting mindset.
I can't parse your response. Please rephrase.
10.23.2005 9:44pm
jrose:
Guest,

You are reading far too much into my words. My only point was to counter Raider's claim that "every person has the EXACT same marriage options as every other mentally-competent, of-age, distantly-enough-related, not-already-married person" is a defense against an Equal Protection challenge.
10.23.2005 11:09pm
PeterH:

In effect, what you are espousing is a philosophy of 'don't judge me for my behaviors because that's the way I was born.' Sorry, it doesn't work that way.


Astonishing. Did you read my post at all? It is amazing how you not only got it completely wrong, but actually proved my point.

I am espousing no such thing. I have never and will never tell someone else that they cannot judge others' behaviors, nor am I excusing all behavior automatically because of "they way someone is born."

To use your take on my metaphor, you would condemn someone for doing something left-handed, since handed behavior is a choice.

What I was saying was about as opposite from what you claim I said as you can get. What I am saying is "Don't judge us as though we are straight and make things that are inherent in being gay automatically wrong by definition. Listen to who we are. Acknowlege that our experience is real, and make sure your judgements include our own experience, not just yours."

It isn't because "we are born that way." It is because our experience is real.

You acknowledge that straight people don't get what it is like to be fundamentally attracted to members of the same sex in the way that straight people are to members of the opposite sex, but that they DO understand the concept of attraction. And then, far from making any attempt to expand the concept of what might be right, wrong, moral or whatever to include same-sex attraction, you insist, having recognized that our attraction is different, on judging us based solely on your own;

That is prejudice.

And you have it.
10.24.2005 12:27am
Kendall:
On Lawn - I hope you'll understand that I'm still waiting for my response to your specific solution for handling the specific situation I presented? Frankly, I refuse to repeat the example a 3rd time as that's borderline spamming but I have yet to hear a satisfactory solution as to legal realities.

Some people suggest that laws shouldn't allow for homosexual adoption - that is one entirely valid answer to solving the problem... except in cases where the adoption already occurred legally. So, you have a certain class of people raising children. They're a couple that cannot get married and now the situation I described in a post above (the one you responded to by saying you were going to bed even as you replied to another post further down) occurs. What is the proper response in the interest of the child? what is the fair thing to do? what will the law allow to happen? what recourse should the people involved have? Why haven't you been able to answer this question in the several days I've been asking it?
10.24.2005 2:28am
Ghostmonkey:
Shifting through all the rhetoric and hate from the homo-activists is very difficult. The contempt for those who hold an opposite view point is rather obvious, and somewhat amusing.

However, let's look at this issue from two different aspects. First, Constitutional law, then Natural Law.

In 1971 two Male Subjects, Richard John Baker and James Michael McConnell, applied for a Minnesota Marriage license and were denied. The two filed litigation that made it's way before the Minnesota Supreme Court, citing violations of various Federal Constitutional Provisions. The Minnesota Supreme Court ruled that Marriage in the State of Minnesota was limited to One man and One Woman. Upon Baker and McConnell losing their case they appealed to the United States Supreme Court Invoking the Supreme Court's then-mandatory appellate jurisdiction, in 28 United States Code ' 1257(2) (repealed in 1980).

Upon review, the United States Supreme Court dismissed the appeal "for want of [a] substantial federal question." 409 U.S. 810 (1972).

Examining Precedent of the United States Supreme Court shows the clear and explicit directive that dismissals "for want of a substantial federal question" are binding precedents on all lower Federal Courts.

"[U]ntil the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that the Court has branded a question as unsubstantial". Hicks v. Miranda, 422 U.S. 332, 344 (1975)

"[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction." Mandel v. Bradley, 432 U.S. 173, 176 (1977).

Lower Federal Courts are expressely prohibited from ruling in a way inconsistant with binding precedent. "[Summary Decisions] prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions." Mandel v. Bradley, 432 U.S. 173, 176 (1977)

This is explicit not only in the holdings of the United States Supreme Court, but also the holdings of other Circuit Courts. "[L]ower courts are bound by summary decision by this Court 'until such time as the Court informs [them] that [they] are not." Doe v. Hodgson, 478 F.2d 537, 539 (2nd Cir. 1973)

Baker is binding precedent and until overruled by the United States Supreme Court, it remains that way.

Baker explicitly and with clarity addressed the 14th Amendment's Due Process and Equal protection claims in regards to this issue. It is clear that: "The due process clause of the Fourteenth Amendment is not a charter for restructuring [Marriage] by judicial legislation." Baker V Nelson (Citation Omitted).

With regards to Equal Protection the court stated: "The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination..." Baker V Nelson (Citation Omitted). They also noted that "abstract symmetry " is not demanded by the Fourteenth Amendment." Baker V Nelson (Citation Omitted).

Baker is not alone in this regard, indeed A long line of Court decisions make clear that: "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Patsone v. Pennsylvania, 232 U.S. 138 (1914). Tigner v. Texas, 310 U.S. 141 (1940), and Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)

Baker also expressly distinguishes Loving V Virginia 388 U.S. 1 (1967), upon which the petitioner relies, as not being applicable to the same-sex marriage debate. Loving V Virginia was decided on the grounds that it unconstitutionally prohibited marriages by invoking "invidious racial discriminations."

At issue in Loving was the Marriage between one Man and One Woman, who happened to be of a different race.

As the Minnesota Supreme Court stated, which was affirmed by the United States Supreme Court: "Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." Baker V Nelson (Citation Omitted).

Without Doubt, Baker V Nelson expressely establishes that a State's decision to limit marriage to One man and One Woman does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. The same applies to the Federal Government's decision to codify the traditional marriage relationship soley for the purposes of Federal law and Federal benefits.

The Plain fact of the matter is this, Homosexuals, just like anyone else, can receive a marriage license. However, Homosexuals, just like anyone else have to comply with the accepted criteria for marriage, including an intended spouse of the opposite gender, in order to receive that license. In that sense, Homosexuals are in the exact same position as all other residents. The State makes the same benefit, that being mixed-gender marriage, equally available to all individuals on the exact same basis. It does not matter that Homosexuals do not wish to enter an opposite sex relationship. It is the availability of the right on equal terms, not the equal use of the right that is central to the constitutional analysis.

What is quite clear is that homosexuals and their allies do not simply seek to lift a barrier to marriage, instead they wish to change its very essence.

Now, to natural law. There is a very simple and inescapeable fact that is very apparent in the same-sex "marriage" debate. It is one that cannot be ignored.

The very existence of the institution of marriage does indeed "privilege procreative heterosexual intercourse." In fact, Marriage is a privileged state and that is precisely why homosexuals, and their allies are waging this battle. No matter how hard anyone tries to escape reality, Procreative heterosexual intercourse is and has been historically through all times and cultures an important feature of that privileged status, and that distinct characteristic is a fundamental, originating reason why the State privileges marriage. (For commentary on this refer to: Dean v. District of Columbia, 653 A.2d 307, 337 (DC 1995)).

Homosexuals argue, correctly, that the State imposes no obligation on married couples to procreate. However, in making this argument, they badly miss the point. The Vital purpose of Marriage is not to mandate procreation but instead it's to control its consequences, this is called the "private welfare" purpose. The insistance on maintaining otherwise is absurd, and purposely ignores that Central to the Institution of Marriage is indeed the act of procreation.

There can be no denying what is the underlying purpose of homosexuals on this issue. Homosexuals are seeking public recognition and affirmation of their private relationship. It is the very essence of the battle that is being waged. Any talk of governmental benefits is necessarily a red herring. The real goal is changing the essence of marriage to seek societal and governmental approval of a particular type of relationship.

What is interesting however, is that during the course of the debate, Homosexuals necessarily admit that marriage is much more than a merely private declaration, instead it is an act of public significance and consequence for which the State exerts an important regulatory role. Indeed the very fact that homosexuals are seeking official assent, recognition and approval of their relationship, by the State, is to concede the authority of those whose regard is sought.

Throughout the history of American law, it is clear that marriage has secular implications (IE: governmental benefits), it is not an entirelly religious institution, therefore the State does have a legitimate interest in determining eligibility criteria for entrance into that institution.

As a result there are numerous reasons for limiting unfettered access to marriage. Otherwise, by allowing all range of potential human choices that bear no resemblance to marriage to qualify, the institution would become non-recognizable and unable to perform its vital function.

This is the reason that the States can Constitutionally ban bigamous marriages, common law marriages, incestuous marriages, marriages to persons adjudged to be mentally incompetent, or even marriages that have a partner infected with a venereal disease in a communicable stage. The governmental interest in these restrictions has been repeatedly and widely recognized.

What is also amazing is that the homosexuals and their allies basically concede the fact that a core feature of marriage is its binary nature. Very rare is it (Yet) for homosexuals to stat that marriage should be opened to more than one person, no matter how loving or caring these relationships are. The fact is however, that homosexuals ignore the fact that the binary idea of marriage arose precisely because there are two distinct and different sexes.

The fact is the homosexual position is therefore illogical. There is no way that any Court could logically open the institution of marriage to homosexual couples, but still limit the marriage institution to two people. (Please See Lawrence V Texas 539 U.S. 558 (2003) (Scalia, J. Dissenting)) If the essence of marriage and the right to marital status is sufficiently defined without reference to gender, then no principled objection could remain to removing its binary barrier as well.

The fact that homosexuals do not wish to enter into such a non-binary relationship is irrelevant. Homosexuals, and their allies continually define marriage as only in reference to emotional or financial interdependence, and in terms of autonomy, privacy, and intimacy. If this is the case, then no reasonable that is not of an arbitrary nature, can exist for denying marriage to polygamous unions, whose members also can claim the arrangement is necessary for their self-fulfillment, privacy, autonomy, and intimacy. The legal nature of marriage cannot be totally malleable without the durability and viability of this fundamental social institution being seriously compromised, if not entirely destabilized.

Going back to Baker above, The Minnesota Supreme Court stated: "]In commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."

The United States Supreme Court in Murphy V Ramsey, 114 U.S. 15 (1885) said: "For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment."

In Davis V Beason, 133 U.S. 333 (1890) The High Court Referenced the above case and restated this very phrase again: "...Consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement..."

What does this mean? What is the clear distinction noted by the Minnesota Supreme Court, affirmed by the United States Supreme Court, between laws prohibiting interracial marriage, and laws prohibiting homosexual marriage? That distinction in the eyes of the court is one of common sense. Marriage is based on the Fundamental difference of sex and the unique relationship that occurs between a man and a woman, and the validity of the governmental sanction of that relationship. What makes a governmental sanction of the union of man and a woman valid? The answer to this question was provided by the United States Supreme Court

"Marriage and procreation are fundamental to the very existence and survival of the race." Skinner V State of Oklahoma Ex Rel Williamson, 316 U.S. 535 (1942)

The key portion of that opinion bears repeating. What is at stake here is the very existance and survival of the human race.

Despite any feelings that a homosexual man may have for another man, or that a lesbian woman may have for another woman, their union can never result in the continuation of the human race. Their feelings for each other, no matter how sincere, are irrelevant to the Existence and Survival of the human race. Government has the right and power to reward and sanction particular behavior that is a benefit to society. Rewarding One Man and One Woman, who together form the family unit, continue the human race, and provide stable homes for their offspring, is a goal that is time-honored and legitimate.

Marriage is a natural institution, as It's union of a man and a woman is rooted in the order of nature itself. It is an institution that the state protects because it's members form the bedrock of society. The members of that institution must necessarily be of the opposite sex. No matter how seared one's conscience may be, reality dictates that Men and Women's bodies are different and that those differences compliment each other. Only a Man and a Woman can properly join together as one flesh.

While homosexuals may argue, correctly, that various individuals may choose to marry for all sorts of reason, some of which may even not be sincere. The fundamental fact remains that marriage is a natural institution that brings together men and women for the purpose of continuing the human race and keeping a mother and father together to work together in raising the children they produce as a result of their coming together as one flesh. The public interest in such an institution is without equal, because thousands of years of human experience and a vast body of scientific research demonstrate that married husbands and wives, and the children they conceive and raise, are Healthier (both physically and mentally), Happier, and more prosperous than people in any other living situation.

The argument in favor of redefining the institution of marriage to include members of the same-sex, can only be logically sustained if there is no real difference between men and women. In real difference, this means the actual physical differences between a man and a woman. One would have to make the absurd contention that Men and women are physically identical and are able to serve as completely interchangeable parts in the structure of the marriage relationship. The contention is an exercise in lunancy. Necessarily the term "same-sex marriage" is oxymoronic.

The historic example of the Roman civilization sliding into family breakdown and sexual hedonism, and the ultimate fall of that civilization as a result, exclaims the damage that the attempt to break apart the nature order can cause.

Requoting the Supreme Court of the United States again, in light of this position: "For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement."

The fact is: "Marriage is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex." Black's Law Dictionary (4 edition.)

The Kentucky Court of appeals, in Jones V Hallahan 501 S.W.2d 588 (1973) refered to this precise definition when it ruled:

"In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because WHAT THEY PROPOSE IS NOT A MARRIAGE."

No matter how loving or devoted, without possessing the required prerequsites of being members of the opposite sex, one cannot obtain entry into the marriage institution, and any attempt to force entry only results in blurring the lines of reality and playing with the meaning of words. It also forever devalues and changes the meaning of that unique institution that exists between a man and a woman.

The relationship between a Man and a Woman is necessarily different from any relationship that can occur between a Man and a Man or a Woman and a Woman. Feelings and emotions are irrelevant. Men and Woman are different. The laws of nature demand it, no governmental interference can change it.

Homosexuals, those who despise Judeo-Christian Morality or the Natural Order, may want to play pretend, but they can never change reality. They can never change the fact that the union of a man and a man or a woman and a woman IS NOT A MARRIAGE.

Just as calling an apple and orange does not magically change it's character, neither can any governmental or activist interference can the nature of marriage.

Any attempt to do so is futile, and will be met with resistance the like of which has not been seen in politics for a long time.

In fact, I think that the attempt to redefine marriage by the activists would make 1861 look like child's play. It is that vital of an issue to millions of people like myself who will not permit marriage to be destroyed by hedonists.

This this We pledge our lives, fortunes and sacred honor.
10.24.2005 2:49am
DM Andy (mail):
Ghostmonkey: "Just as calling an apple and orange does not magically change it's character, neither can any governmental or activist interference can the nature of marriage."

So if you're right and "gay marriage" cannot change the nature of marriage then why not recognise SSM, it can't do any harm.
10.24.2005 4:23am
A Guest Who Enjoys This Site:
PeterH: We ALL have prejudices. That's the nature of the beast. However, you set an unrealistic and non-sequiter standard.

You claim that we cannot possibly understand what it is to be YOU due to the intrinsic nature of what you are. Yet, we can only judge your behaviors by taking into account how YOU view the world and those things that make YOU what YOU are. Therefore, in effect, you are saying we are not allowed to judge you because we can't understand what makes you who you are and the only standard you will accept is to judge your behavior based on understanding how you view things but since we can't understand how you view things therefore...

Do I sense a conundrum here?

Even beyond the conundrum is the inferred expectation that society must incorporate into its 'institutions' and 'expectations' a definitional quality you ascribe as outside the experience (intuitive, emotional, and intellectual understanding) of the vast majority of society. While it may be possible to 'protect' the 'experience' of the minority, it is certainly not reasonable to expect that the majority must incorporate and adhere to a definitional quality for its institutions and expectations outside its experience; and, therefore, by your arguments, outside their rational judgement.

Prejudice is defined as a "biased opinion based on emotion rather than reason." So, in your view, I am prejudice because I am not reasoning but using emotion when I say that my perception of your argument is rather self-serving and am judging you, not on YOUR standards, but on 'my own' (meaning as a heterosexual). MMMMM?

Since I don't accept YOUR definitions and YOUR rationale as 'the standard' that MUST be used, definitions and rationale you purport that I cannot possibly understand since I "do not share your experience," I am prejudicially judging your behaviors? So far as I can discern, society at large does not accept YOUR standard for just about any exhibited behaviors or "birth rights" through presumed physical characteristics that contribute or inform behavior. Psychologists, socio-anthropologists, some biologists, and certainly some criminal defense attorneys have argued that "it's in the DNA" and, therefore, persons cannot be held accountable for their behavior or their actions based on the combination of their physical characteristics and experience. While some mitigation may be permitted as to the consequences incurred, such claims have not been widely accepted or recognized as credible to the extent that society is not allowed to judge.

Why? Because, aberrant behavior (that which is outside what is considered 'usual' or 'normal'), no matter the reasons (physical or social) behind it, is NOT the "norm" used as the basis for establishment of a societal "standard." As most experts report and as you stipulate, homosexuality is outside the experience of most people in this society. Therefore, societal norms have not been established with this in mind. However, given that it IS outside the experience of the majority, how can you reasonably expect it to be incorporated into society's norms?

It seems that your premise is that homosexuality must be accepted and judged based on the perceptions and experiences of those who are homosexual; perceptions and experiences you allude to as beyond our ken. The problem with this is that you would have the larger portion of society incorporate the homosexual life as part of the 'norm' or 'accepted' standard of society based on how homosexuals view their experience, not on how society might view it, while simultaneously rejecting the idea that non-homosexuals are allowed to 'judge' the life you have chosen to be an active participant in because they cannot possibly understand how you feel (perceive/experience) about it. I ask you, how is it reasonable to expect society to judge the efficacy of incorporating something they are supposedly precluded from understanding?

You also reject any comparisons to this argument as being straw men, when, in fact, it is you who creates the straw men. Take for example your arguments about polygamy. You posit that:


Banning gay people from marrying each other in a effort to prevent polygamy is absurd.

The question is not and never has been "If we allow same-sex marriage, how can we prevent polygamy." The only valid reply to that is "what prevents it now?"

What prevents it now is that the marriage laws are structured so that only two people can get married.




One problem here is that it has not been the argument that we must prevent polygamists by preventing homosexual marriage. Another problem is that the question you reject is not the actual question; i.e., if we allow homosexual marriage, how do we prevent polygamy..." Finally, what prevents it now is not just that the marriage laws are structured for only two people being allowed to marry. [Note that it is one MAN and one WOMAN, not 'two people;' saying 'two people' is misleading given the topic under discussion.]

The issue is if we allow one 'aberrant behavior' or 'non-traditional lifestyle' or 'a type of relationship outside the normal experience of the majority' to be incorporated into the definition of marriage, how do we then legally, morally, or logically preclude other types of behavior/lifestyles/relationships from being incorporated; only one of which is polygamy? And, if we cannot thus preclude these without being intellectually, legally, or morally inconsistent regarding 'non-normal' behavior/lifestyles/relationships, then what does 'marriage' stand for? Is yours an argument for structured, social institutions or, more accurately, an argument for a society based on 'whatever feels good to participants, we allow it?' The former seems 'reasoned.' The latter seems more an appeal for deconstruction of societal norms you don't like.

The crux of your argument has nothing to do with societal norms, biology, or logical discourse. It can be found here:


What I am saying is "Don't judge us as though we are straight and make things that are inherent in being gay automatically wrong by definition. Listen to who we are. Acknowlege that our experience is real, and make sure your judgements include our own experience, not just yours."



You do not want to be 'judged' without society basing its judgement, at least in significant part, on your 'actual participation in or your judgements and reactions based on your past' or present choices in life (the definition of 'experience'). Further, you wish to have society acknowledge your experience (which I would argue comes before your requirements for 'judging') as real; real being defined as existing, genuine, true, or authentic. Supposedly, you assume that by acknowleding your experience, society will "expand the concept of what might be right, wrong, moral or whatever to include same-sex attraction" and, thereby, 'judge' you or homosexuals in general less harshly.

Problem: Society already acknowledges your experience as existing, genuine to YOU, true to YOU, and authentic to YOU. However, society, as yet, has not 'expanded the concepts' of right/wrong, moral, acceptable because it has not acknowledged, accepted, or judged homosexuality as genuinely true and authentic for society as a whole. Why? Because it isn't. Homosexuality is not genuine, true, or authentic for what "is" the greater part of society.

As a compromise, society has 'protected' homosexuality insofar as specific behaviors and access to the bulk of societal benefits without acknowledging it as part of the definition of what "is" society. Thus, society has remained consistent with the will of the majority while protecting the rights (bearing in mind that marriage is an associational right defined as between a man and a woman) of the minority.

So, is societal rejection of homosexual marriage prejudicial? Not any more so than many of our laws restricting certain behaviors, lifestyles, or sought after 'experiences.' Frankly, the accomodations and acceptance society has already made vis a vis the homosexual experience demonstrates the opposite of prejudice; i.e., a reasoned balance of 'protection' for the rights of a minority to indulge in a lifestyle, experience, and/or set of behaviors outside of societal norms with 'protection' of the larger portion of society's right to define social institutions based on the experience of the majority.

I ask you, which is more prejudicial, this 'reasoned balance' or your posit that society as a whole must expand their definitions of right/wrong/morality to include your 'actual participation in or your judgements and reactions based on your past' and present experiences (i.e., the 'homosexual experience')? Which one is more the 'reasoned approach' and which is the one more predicated on the biased opinion and emotion of a minority?
10.24.2005 5:12am
PeterH:
Guest,

Since you seem determined to deliberately miss my point, and any attempt to repeat it only generate longer answers that don't address it at all, I will try one last time.

Anyone who can state
Homosexuality is not genuine, true, or authentic for what "is" the greater part of society.
and maintain that he is operating from pure reason with no prejudice on the issue isn't someone I care to try to convince of anything. The disconnect is too severe.

But one last time, using small words.

A lot of people here, and in the world out there, insist that homosexuality is purely a behavior, and that regulating that behavior is a legitimate concern of society. But heterosexuality is seen as a complex set of needs, attractions, feelings, and emotions that infuse every part of straight people's live. What is missing is the understanding -- and by that, I mean a willingness to deal with the real consequences of understanding it -- that the homosexual orientation is just as deep and pervasive as a heterosexual one.

Saying that left handedness doesn't exist, only left handed behavior, and then passing a law that says all citizens are only allowed to use their right hand as the dominant one is NOT equal treatment, even if it appears on the surface to be, and no reasonable person would think so. That doesn't mean that everything has to be retooled for left-handed people, only that left-handed people should have access to everything that right-handed people do.

Fundamental individual rights to not suddenly have to meet some grand standard that they are "good for society" -- the devolve on the individual. And there isn't a straight person in this country (or a court) that doesn't recognize that it is a fundamental right of the [straight] individual to marry if they choose, and to choose who to marry. Straight couples don't have to contribute to society.

Suddenly there are all these "rules" that are being used to justify continuing to exclude gay individuals from this right that is considered fundamental by all straight people. But not a single one of them currently applies to a single straight person who is married. Not one. They don't need religious approval. They don't need to be able to or be intending to breed. They can choose to raise children or not. They don't need to contribute to society (convicted death row felons can - and have - marry.)

It is wonderful if straight couples do all those high-minded things. But not only don't they have to, be honest and admit that none of them get married for any of those reasons. They get married because they want to, and always, for deeply personal and individual reasons, about creating a life with that other person.

All we ask is to have the same rules apply to us. That is all. No different rules, no different benefits, no different obligations.

But apply them as though gay people have the same depth of experience, integrity of personhood, and complexity of reality as straight people do. It isn't a "behavior" to be regulated any more than the complete heterosexual experience is a "behavior."

Just. Apply. The. Same. Rules. To. Us. The rules that you take for granted apply to you. Just apply them fairly with none of this "well, just use your right hand" BS that you are trying to justify. The. Same. Rules.

Unless you are willing to use exactly the same rules for us as for yourselves, don't come at us claiming not to be prejudiced. When I see a social movement to ban straight marriage for the infertile, the divorced, the non-religiously approved, the "less than ideal" parents for children, and everything else that has been listed here as reasons why we can't marry, then it is all nothing more than a justification for anti-gay animus.

It is sad when people who don't approve of something for themselves try to take it away from others. But it is morally wrong when they insist on denying others something that they consider central to their lives, the basic building block of society, and a fundamental human right. To deny it to others without in any way inconveniencing themselves...that is evil.
10.24.2005 8:27am
On Lawn (mail) (www):
Kendall,

My previous reply suits adequate to your re-stated attempt to ignore. Please re-read as your contention that marriage would benefit children who are adopted by gay couples is doubtful for the reasons specified. If you have no premise to make your charge, restating and stomping your feet will not shore up the failings in your question.

DM Andy,

So if you're right and "gay marriage" cannot change the nature of marriage then why not recognize SSM, it can't do any harm.

Throwing oneself off a cliff won't really make an impact on the boulder's below, yet it does great harm to yourself in the attempt.

To try to equalize in a rather Orwellian way the homosexual and heterosexual relationships puts a strain on government that it is dubious to handle. The prescribed equalization winds up oppressing children, handicapped and even the people endeavoring for same-sex marriage.

PeterH:

Anyone who can state

Homosexuality is not genuine, true, or authentic for what "is" the greater part of society.


and maintain that he is operating from pure reason with no prejudice on the issue isn't someone I care to try to convince of anything. The disconnect is too severe.


You might want to review Quarterican and Perseus's replies to the reference of antiquity for homosexual relations. It is simply not the same thing, they reply.

Certainly that is true. For homosexuals in the past were actually cast as different genders in some cases, were brought about to further militaristic goals in other cases, and what Boswell and others cast as historic same-sex marriage was not a marriage at all. Talking with Gabriel Rosenberg (Galois) on this subject we find he makes a similar claim in that stability as an expectation in homosexual relationships is purely a recent construct, which is why ss"m" is a recent endeavor.

Now truly there is a hydra-headed nature to the ss"m" argument, in that you or others might try to impugn Galois and Quarterican as "not speaking for gays" or some such opportunistic nonsense. But their understanding of history remains, and the prejudice you ascribe to maintaining such a position is obviously fatuous when looking at their strong ss"m" support.

that the homosexual orientation is just as deep and pervasive as a heterosexual one.

Homosexuality and heterosexuality is a behavior, its just the nature of the actions they describe. That it may be brought about by "a complex set of needs, attractions, feelings, and emotions" does not change the behavior it is describing.
10.24.2005 12:46pm
PeterH:
So heterosexuality is not an inborn trait? Straight people are not naturally heterosexual? It is purely determined by conscious choice of behaviors?

Or are you one of the people who think that what goes on inside gay people is identical to what goes on inside straight people, but we just choose to act differently?

And why would that have anything to do with marriage? Especially if it is all about behavior, why are you burdening gay people, and not others who "behave" in non-child producing ways?

And, "Orwellian"? We are saying that who we marry needs to be the INDIVIDUAL'S CHOICE, and that it is not the job of the government, even as expressed by "majority vote" to tell us otherwise. How in the world is that Orwellian? You and those like you are the ones who are making it a federal issue.
10.24.2005 1:00pm
Dan Larsen (mail):
On Lawn:

You are missing my point entirely. I am not saying that gay people should be given the same dispensation as that for sterile couples, but rather a different dispensation, though both made out of kindness, compassion, and a sense of fairness and equality.

Put simply, there is no justification for letting known sterile couples marry other than the kindness of society. To use Thomas Sowell's formulation of marriage, albeit in a different sense: Society has no stake in the outcome of their relationship. It would do absolutely no harm to the concept of marriage-as-fundamentally-about-procreation to exclude them--indeed, it would instead make that concept even more coherent. The only reason we make an exception is out of compassion and a sense of fairness and equality. So why can't we make a different exception (albeit from the same source--kindness, compassion, a sense of fairness and equality) for gay people?

To use your "handicapped parking" analogy (though I really don't think it's very apt), gay people do not seek the right to park in handicapped spots, they're simply asking if society could be kind enough to let them have a spot too.

If marriage-as-fundamentally-about-procreation can survive a dispensation made for sterile couples, why cannot it not survive a separate dispensation made for gay people? If we can be nice to sterile couples (for letting them marry is really only about niceness), why can't we be nice to gay ones too?
10.24.2005 2:06pm
On Lawn (mail) (www):
I am not saying that gay people should be given the same dispensation as that for sterile couples

And I simply have been around the block to know that what you are saying is irrellevant. You are just as easily dismissed as any number of pro-ss"m" people who do not speak for the movement as any. Why should I care what you say?

What happens however, with the policies of the movement you advocate, (and even in your own post) we see that homosexuality is fraudulently portrayed as the deserving the same access to equalization as the disabled. In fact, we have PeterH and others describing homosexuality as a disability to love someone of the opposite sex.

Like I said very early on, y'all need to take stock of the train you are on because the actions are speaking far louder than your words. And the fact that so many pro-ss"m" people are dismissed opportunistically as not speaking for the movement pretty much shows the opportunism at work.
10.24.2005 2:31pm
Canadian Guest:
quote:
What's funny is that in Spain, 80% of the people support SSM. How can they all be wrong? In Canada, a huge majority (I don't know the percentage) supports SSM. In other places where it exists, same story.

Here you are wrong. Canada did NOT want SSM. The Liberal gov used tricks to pass it. I am a Canadian and I followed all the ins and outs last summer over the SSM bill. In terms of polls, 65% of Canadians voted agains it. As for freedom of speech, no there is not much of it around. How could it be when, if in your own time, you send a letter to the editor in which you present your own view on the SSM and as a result you are suspended from your position at school and your teaching license is also suspended?
And Spain did not want SSM - see the 1.5 to 2.0 million demonstrations against it. Where do you people get your information?
10.24.2005 2:31pm
DM Andy (mail):
On Lawn, I apologise for being too flippant with that no harm quote, it just amused me that after 500+ posts about Maggie's claim that SSM will destroy Marriage As We Know It (TM) along came Ghostmonkey to argue that we shouldn't allow SSM because it wouldn't change marriage.

As for Orwellian, where's that idea come from?
10.24.2005 2:33pm
DM Andy (mail):
Canadian Guest: I can't find any 80% Spanish poll but a poll in May 2005 had 62% in favour, 30% opposed (source ) and the Congress of Deputies voted for SSM by 183-136 with another vote of 187-147 to defeat the Senate's rejection.

So by any standard, the majority of the Spanish people did want it. To ask your own question back, where do you people get your information?
10.24.2005 2:43pm
DM Andy (mail):
Ack, messed up the link. try this USA Today
10.24.2005 2:46pm
DM Andy (mail):
Also Canadian Guest, I would like to know your source for your claim that "65% of Canadians voted against it"

The last reputable poll I can find is:
7-9 February 2005, EKOS Research Associates for the Toronto Star
42% in favour, 40% opposed, 17% don't care, 1% don't know

There was an internet poll with a high pro SSM majority but we all know the limitations of internet polls.
10.24.2005 2:58pm
jrose:
On Lawn,

Why should the disabled be given an exemption? What are the criteria for determining what is a disability?
10.24.2005 3:10pm
Dan Larsen (mail):
On Lawn, I hadn't read your posts over at Opine Editorals. Let me respond more clearly.

You've offered a set of proposals as to why sterile couples should be allowed marriage but homosexuals not--as to why the right of known doubly sterile heterosexual marriage is not based upon "niceness" as I have postulated. Your prose is somewhat...unstructured in places, so I will attempt to summarize and respond to them below. If in the case of summarizing them I unintentially set up a straw-man, or if I miss any arguments, please let me know.

1. Infertile couples are frequently not infertile later (thanks to fertility treatments), and without mandatory pre-marriage fertility testing, there would be no way to know most cases of infertility.

This is true, but it is not relevant. A general theory--such as that of marriage--must be able to handle the most extreme of cases. In the William/Carol case I have laid out, both of them are known to be sterile. Let us even say that it is established that William's testes cannot produce sperm and Carol's ovaries are empty and she has a non-functional uterus. Since you would still allow them to marry notwithstanding, this argument is irrelevant.

2. Infertile couples with one fertile member still serve to decrease illegitimacy by bonding the fertile member.

Yes, I have acknowledged this. But this does not cover the most extreme case, which any theory must, rendering this argument ineffective.

3. "Even in the rare case where both parties are infertile, a sterile member of an [sic] f[emale]/m[ale] married couple is less likely to develop a romance with a married mother or father, thereby putting the stability of a family in danger. Here again, this decreases illigitimacy [sic]."

He were have a argument that qualifies as covering the most extreme of cases. Essentially, you are saying that the state interest in William and Carol's marriage is that it would prevent a married person from being able to commit adultery with one of them and breaking up their (procreative) marriage. My question is: is there any reason to believe that this is true? I am no expert on adultery (and I suspect that you are not either), but is there really any reason to believe that allowing heterosexual sterile couples to marry has any impact on adultery numbers? My sense of an adulterer is that he or she would commit adultery anyway, regardless of whether the pool of possible co-adulterers is reduced by a very tiny fraction--that he or she is driven primarily by marital unhappiness. The state/societal interest here has to be negligible (though if you have evidence to the contrary, I would like to see it).

4. "[H]aving an infertile marriage around increases the chance that an illigitimate[sic] or abandoned child might be adopted and given a father and mother."

I am unsure exactly how the state/societal interest here applies to heterosexuals but not homosexuals. It would also serve a state/societal interest to have gay marriages, increasing the number of stable two-parent households available for adoption, except if you hold the position that adoption by a gay couple is not preferable to no adoption at all. Unless your argument is that heterosexual couples are so utterly, inherently superior to homosexual couples in raising children that it constitutes a state interest for heterosexuals but not homosexuals. To my knowledge, there are no studies or other empirical evidence that would support that contention. (It may be that, everything else being equal, an adoption by a heterosexual couple is preferable to a homosexual couple; however, I would postulate that this difference should be little more than a tie-breaker. And I would further surmise that when the adopted child is of the same sex as the homosexual couple, the "heterosexual advantage", such as it may be, is even further reduced. But the idea that a heterosexual couple is so inherently superior at raising adopted children that it constitutes a state interest for heterosexuals and not homosexuals it patently ridiculous, verging on offensive).

5a. "[T]he f[emale]/m[ale] model of marriage celebrates the[sic] gender diversity." AND "[W]hen you get down to it romance, sex, is a celebration of differences." [Italics in original]

I'm not even sure what this means. The implication seems to be that a doubly sterile heterosexual couple is so inherently superior by its very nature to a homosexual couple that it constitutes a societal interest to recognize the former but not the latter. With all due respect, this is ridiculous and, though I hesitate to say it at risk of having misunderstood you, verging on bigoted. Furthermore, I would postulate that your statement that "romance...is a celebration of differences" would hold for gay people as well.

5b. "[T]he f[emale]/m[ale] model...drives home the social lesson that a child needs a mother and a father."

Is there hard empirical evidence that suggests that a mother and a father is so utterly superior to two fathers or two mothers that it constitutes a state/societal interest to recognize doubly sterile heterosexual couples, but not homosexuals? Furthermore, would denying doubly sterile heterosexual couples marriage really damage this "social lesson"? (I refer also to my response to #4.)

5c. "The [female/male] marriage model...motivates single parents to marry."

I am uncertain how this warrants permitting doubly sterile heterosexual couples to marry, or how same-sex marriage would diminish this.

5d. "The [female/male] marriage model...motivates single mothers to at least to seek out some sort of godfather figure for the kids."

Again, I am uncertain how this warrants permitting doubly sterile heterosexual couples to marry, or how same-sex marriage would diminish this.

5e. "The [female/male] marriage model...motivates widowers and other single fathers to at least to seek out some sort of godmother figure for the kids."

Same answer.

5f. "The [female/male] marriage model...encourages many same-sex couples to find an opposite-sex godparent."

Same answer. Further, the implication seems to be that we should reject homosexual marriage for the sake of homosexual families. I find this ridiculous.

6. "[Homosexuals] choose to not procreate by excluding members of the other gender."

Yes, I admit that my argument for extending kindness to homosexual couples rests on the assumption that homosexuality is not chosen and that it is unalterable. I have no inclination to debate this matter here, except to note that should you adopt this position as fallback, it leaves you on extremely shaky ground.

7. Homosexuals can and should still marry members of the opposite sex. You are a bigot limiting love by suggesting otherwise.

Um. I don't think you understand what "being gay" means. How can you marry someone you're not attracted to? What sane heterosexual, for that matter, would want to marry a gay person? Since I think that you are heterosexual, I urge you to consider pursuing a romantic relationship with another member of the same sex (since I would postulate that the experience would be largely the same as for a gay man and a straight woman). See how well it works out. Or, for that matter, imagine yourself dating an opposite-sex gay person. I think that that should disabuse you of this notion rather quickly.


In the course of this, I believe I have sufficiently established that, as I have argued, permitting known doubly sterile couples to marry rests only on kindness, and not any kind of state or societal interest. This means that marriage-as-fundamentally-about-procreation can survive dispensations made for reasons of compassion. I ask again: Why cannot a different dispensation be made from that same sense of kindness for homosexual couples? (I guess that your response could be that "I feel kindness for the disabled but none for homosexuals." I guess that's fair enough, though its capacity to carry a public debate seems rather limited.)
10.24.2005 6:55pm
A Guest Who Enjoys This Site:
PeterH: You are correct in that continued discussion would be unproductive. At least three or four times on this thread you have accused anti-homosexual marriage proponents, and even heterosexuals in general, of being prejudiced, bigoted, and irrational. THOSE ARE YOUR WORDS, SIR.

What I always find...well, 'amusing' and 'ironic' aren't quite the correct words, but you get the idea...about the pro-homosexual marriage and/or homosexual advocates in general is the assumption that if we don't agree with your position, we must hold our views out of ignorance, an inability to understand precisely what you are saying, prejudice, bigotry, homophobia, or an irrational fear of homosexuals.

If 'intent' informs 'meaning' and 'meaning' defines 'purpose,' you attempt to villify our purpose by claiming an intent that is 'nefarious.' Somehow you think that stigmatizing with a presumed intent that may or may not be accurate, you undermine the purpose by stating "We know what you mean."

I will not go into a protracted litany of detailed reasons why I understand precisely what you are saying and further understand that YOU refuse to recognize exactly what you're saying. Suffice to say that I have friends and relatives who are homosexual. I have friends and relatives who have interracial marriages. You do not have to be black or purple polkadot in skin color or homosexual in preference to experience prejudice. I operate in work environments that are overwhelmingly liberal and pro-homosexual agenda. I have close relatives who work at an HIV clinic and have even had someone I'd known for 20 years die of AIDS related complications. And, to top it off, I am naturally left-handed in many things but operate as a 'righty.' (I'm not making any of this up folks. It just happens to be true.)

You keep referring to left-handedness as illustrative of the situation. The problem is that you refuse to recognize the reality in your analogy that society does not allow left-handers equal access to things. Automobiles in this country are for right-handed people; that's why there's a bit of 'dyslexic-like' experience when learning to drive a stick in England. Try to find a left-handed, bolt-action rifle in calibers other than those that companies perceive to be the 'best-selling' in that configuration; there are decidedly fewer options. The list goes on.

The point is that your analogy actually supports the position I presented above. Your problem is not in any prejudices I may or may not have. Your problem is in your own 'world-view.' As I stated above, society-at-large recognizes that homosexuality exists. It doesn't mean it is universally accepted, condoned, or encouraged. However, they do recognize, for the most part, that YOUR feelings and experience are genuine, true, and authentic for YOU as a homosexual. It doesn't mean that society shares those feelings and experiences or desires to 'experience' them personally.

Again, society has determined that, as of now, they do not intend to "expand the concepts" of how society views right/wrong, morality, or 'acceptable behavior' to include homosexuality as an intrinsic part of how our society is identified. Why? Because, as even you stipulate, homosexuality is not a genuine, true, or authentic 'experience' for what "is" the greater part of society. That's fact. That's reality. That's not prejudice. It is simply the definition of "is."

What society has done is strike a 'reasoned balance' between protection for the minority's 'homosexual experience' in terms of its behaviors and the rights of the majority to define what it considers to be the proper definitional quality of society's institutions based on what is genuine, true, and authentic in the majority's 'experience.' Therefore, society has compromised, acommodated, protected, and acknowledged the minority and their lifestyle. What they have not done is incorporated it as part of 'the standard' of what "is" society.

In order for any society to function, there must be a certain 'conforming' of individuals to 'societal standards;' i.e., a demonstrated willingness to work within the 'rules' established by society. What you continuously and ardently point to is the fact that your 'experience' is different. You maintain that you MUST be allowed to be different since you experience that difference as genuinely true and authentic for you. Yet, despite the fact that even you recognize that the greater part of society is incapable of 'fully understanding' your 'experience,' they must incorporate it as part of societal identity.

A society's or an individual's identity is defined by what it predominantly "is," not by what it "is not." Your very emphasis on and description of the differences between homosexuals and heterosexuals in terms of their ability to understand the differences in 'experience' undermines your case. "All [you] ask is to have the same rules apply to [you]. That is all. No different rules, no different benefits, no different obligations." Yet, you wish to maintain, participate in, and have society embrace a lifestyle, behavior, 'experience' that "is" different.

Since you seem to wish this to come down to small words and simple concepts, here's the problem with your argument...

You WANT and claim to be different. But you WANT to be treated the same as 'everyone' else.

Well buddy, I got news for you. You ARE being treated the same as 'everyone' else. There are restrictions on your behaviors, just as everyone else must adapt to the 'rules.' Life ain't universally "fair" insofar as an individual's perception of 'fair' being the operative one; just as everyone else discovers. If you want to be different, don't be surprised when other people treat you as different; ask anyone who works for a living.

Finally, not everyone sees the world the way you do; just ask any teenager, student, professor, judge, politician, et al. It does not mean they are prejudiced, bigoted, or intellectually incapable of understanding your 'point of view.' In fact, they may understand better than you actually want them to.
10.24.2005 7:41pm
Ghostmoney:
DM Andy [quote]So if you're right and "gay marriage" cannot change the nature of marriage then why not recognise SSM, it can't do any harm.[/quote]

[quote]it just amused me that after 500+ posts about Maggie's claim that SSM will destroy Marriage As We Know It (TM) along came Ghostmonkey to argue that we shouldn't allow SSM because it wouldn't change marriage. [/quote]

First of all that's not what I said. I said that playing pretend doesn't change reality. That doesn't mean that playing pretend doesn't have real consequences.

Basically it is not a proper function of government to help hedonists play pretend with reality. Just as it would be improper for a Court to decree that an "apple" shall hereafter be referred to as "orange" it is just as improper for a court to play pretend with marriage.

Further, we must also get deeper into the reasoning behind the drive for Same-Sex "marriage".

As I already said, There can be no denying what is the underlying purpose of homosexuals on this issue. Homosexuals are seeking public recognition and affirmation of their private relationship. It is the very essence of the battle that is being waged. Any talk of governmental benefits is necessarily a red herring. The real goal is changing the essence of marriage to seek societal and governmental approval of a particular type of relationship.

Justice Scalia acknowledged this in his dissent in Romer:

There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternate life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and of course care about homosexual rights issues much more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e.g., Jacobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation").

This is also why many homosexual activists say things like: , ["Gays and Lesbians should] fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely … To debunk a myth and radically alter an archaic institution. … The most subversive action lesbians and gays can undertake-and one that would perhaps benefit all of society-is to transform the notion of 'family' altogether." (Michelangelo Signorile Out! magazine, Dec./Jan., 1994)

So YES, it does matter if a State helps play pretend on this issue. Because playing pretend will lead to the deception of our posterity on the nature of marriage. Just as if a State decreed that an "Apple" was now an "Orange" would mislead future generations on the true nature of an Apple.

Homosexuals want public approval of their behavior, they want their fetish sex to be taught in schools, embraced by society and governmental sanction. Playing pretend is the only way to get that done. Playing pretend also has real consequences to our children.
10.24.2005 11:13pm
DM Andy (mail):
Ghostmonkey (or Ghostmoney), now I understand your point, although SSM would be just a pretend marriage it could confuse future generations.

That argument is sensible if you accept the premise that there is something immoral about homosexuality. I understand this is a widely held view but basing the argument on that premise renders it meaningles to some one (like me) who does not find anything immoral in sexual orientation. I'm not gay myself, but that's only because I don't fancy men than any deeply held moral belief.

I think I've just touched this wall that Maggie was talking about. I understand your argument against SSM, I understand why it's persuasive to you and I also now know why it's not persuasive to me. Finally after 500+ posts I get it.
10.25.2005 4:20am
PeterH:
Guest:
The problem is that you refuse to recognize the reality in your analogy that society does not allow left-handers equal access to things. Automobiles in this country are for right-handed people; that's why there's a bit of 'dyslexic-like' experience when learning to drive a stick in England.



But we do allow left-handers equal access. We do not guarantee that they have an equal or equivalent experience, nor do we make mandatory that, for example, manufacturers must make both left- and right-handed versions by law.

But we don't prevent left-handed people from having access to things that advantage right-handed people. We just give them identical access and let them work out any differences for themselves.

I have seen nowhere on this board or in the national dialogue any gay people asking for a special gay-only version of marriage. We just want equal access to the marriage rights everyone else has. It is Civil Unions, Domestic Partnerships and other such things that are the "left-handed" version -- and always made from inferior materials.

What's so scary about equality?

Peter
10.25.2005 11:04am
PeterH:
On Lawn posts:
we see that homosexuality is fraudulently portrayed as the deserving the same access to equalization as the disabled. In fact, we have PeterH and others describing homosexuality as a disability to love someone of the opposite sex.



I'd like a link or a quote to anything that even remotely suggests that I think, hint, or imply (much less state) that homosexuality is a disability of any kind, much less a disability to love.

Let me point out that gay people are perfectly capable of loving plenty of people of the opposite sex, just that it does not take a sexual form.

Your interpretation seems only possible if you start with the idea that sexual attraction to someone of the opposite sex is not only normal, but the only possible normal sexual orientation. That all people are "supposed" to be attracted to someone of the opposite sex, and that those who "can't" (which implies that we should "try to" and have failed) have to put up with the lesser and defective same-sex attraction.

Same-sex attraction (and bisexual attraction) are not disabilities. They are variants from the more common opposite-sex attraction, but they are perfectly normal and relatively common variants.

Just as with Guest, you get it absolutely backward. Handicapped access is, where appropriate, special accomodations to allow those with handicaps a chance to participate to the best of their ability.

We are talking about letting gay people in through the same door everyone else uses. We aren't talking about putting in wheelchair ramps for gay people. We are talking about having the people who guard the doors stop turning away perfectly able gay people.
10.25.2005 11:16am
On Lawn (mail) (www):
PeterH

Your interpretation seems only possible if you start with the idea that sexual attraction to someone of the opposite sex is not only normal, but the only possible normal sexual orientation.

Your overly constricting set of parameters are unjustified.

Romance need only be a product of an intimately loving relationship. No normality is assumed, nor is it needed. Yet for instance you say...

but they [homosexuality] are perfectly normal and relatively common variants.

Yet many disabilities are prefectly normal. They occur naturally and in sufficient numbers, and don't keep people from performing a number of normal daily activities. This razor of yours doesn't cut it.

Handicapped access is, where appropriate, special accomodations to allow those with handicaps a chance to participate to the best of their ability.

Yes, indeed.

We are talking about letting gay people in through the same door everyone else uses.

Not when the reason offered for entrance is, "look, there's also people in there that can't have kids we should be let in if they are". In your case I believe that is a good paraphrasing of the argument that marriage isn't about procreative responsibility while they are in there, which in turn is a question of enforcement and exception rather than disproving a rule. If you wish the same lax in enforcement the same exception, though in no wise handicapped that is fraud.
10.25.2005 6:26pm
On Lawn (mail) (www):
Dan Larsen,

I've taken the liberty to post your complaints to the article you are complaining about.

here
10.25.2005 6:27pm
Ghostmonkey:
[quote]That argument is sensible if you accept the premise that there is something immoral about homosexuality. I understand this is a widely held view but basing the argument on that premise renders it meaningles to some one (like me) who does not find anything immoral in sexual orientation. I'm not gay myself, but that's only because I don't fancy men than any deeply held moral belief.

I think I've just touched this wall that Maggie was talking about. I understand your argument against SSM, I understand why it's persuasive to you and I also now know why it's not persuasive to me. Finally after 500+ posts I get it.[/quote]

Perhaps you are right about a wall, and if Federalism were respected and honored as the Founders intended, I am willing to bet that both sides could be satisified. However, many on the Left are not willing to respect Federalism, and instead want to force their view on the rest of us.

I think you underestimate one thing, that being just how important this issue is to millions of Americans that share my view.

This issue is not just a light and transient one, but rather it is the last car in a long train of abuses and usurpations, designed to reduce the people under absolute despotism and depravity.

Indeed, usurpation of marriage, rises to the level of; When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
10.25.2005 6:27pm
PeterH:
On Lawn posts
Not when the reason offered for entrance is, "look, there's also people in there that can't have kids we should be let in if they are". In your case I believe that is a good paraphrasing of the argument that marriage isn't about procreative responsibility while they are in there, which in turn is a question of enforcement and exception rather than disproving a rule. If you wish the same lax in enforcement the same exception, though in no wise handicapped that is fraud.


Fraud? Please.

But your argument deliberately avoids a critical distinction. Legally, marriage is NOT an arrangement for having kids to which sterile straight people are given an approved exception. There is no requirement to have kids in the first place. Sterile straight people have no disability for contracting civil marriage if they are single, of age, and not close kin.

Your paraphrase remains inaccurate. It isn't that we are saying, "we deserve the same exception" -- although we certainly would if there were one -- but rather, other people saying "You can't come in because you can't have kids," to which we reply "since other people who cannot have kids are already just as married as anyone else, and nowhere in any legal code or description of marriage are children mentioned as a requirement, your reason to exclude us is invalid on its face."

We don't need any exceptions, because the reason you give for excluding us isn't a part of the legalities of marriage -- only the perception of it, and even then, only as it applies to gay couples.
10.25.2005 7:25pm
DM Andy (mail):
Ghostmonkey, I'm not American and not gay which means that I only have intellectual interest in the issue. Here in the UK we will have civil partnerships in December, voted on by the legislature not imposed by unelected judges).
10.25.2005 7:51pm
A Guest Who Enjoys This Site:
PeterH: I thought we weren't going to continue with this discussion? Oh well, let's see what happens.

Let me take your points out of order...


I have seen nowhere on this board or in the national dialogue any gay people asking for a special gay-only version of marriage. We just want equal access to the marriage rights everyone else has. It is Civil Unions, Domestic Partnerships and other such things that are the "left-handed" version -- and always made from inferior materials.


You continue to ignore the obvious. Even a "gay-only marriage" would, of necessity, require a society-wide change in the definition of marriage from one which stipulates "one man and one woman" to one that is potentially broader reaching, less specific, and open to far greater interpretation; such a definition opening the Pandora's Box that we've already discussed and do not need to revisit here.

As has been pointed out, ad nauseum, while some states have created civil unions, et al. that do fall short of providing all the same financial and legal benefits of marriage, other states have created civil unions that are virtually identical to marriage except that they don't provide the social identifier that allows the couple to say "We're MARRIED."

This leaves homosexuals with a choice. If you don't like the tax laws/rates, the environmental regulations, the living conditions, the employment opportunities, the scholastic prospects, etc. available in a particular state, you move to where the things you value are available. Even now, if "married" is a societal acknowledgement and recognition you simply MUST have access to in able to perceive your life as "complete," then you can move to Hawaii, Massachusetts, etc. and even have the the social appellation of being able to say "We're Married." If the financial and legal benefits without the social appellation is all you desire, then your options are even greater.

You don't want to move there or like where you are? Too bad. There are ALWAYS trade-offs in life. This is exactly the same as someone who doesn't want to pay sales tax moving to Oregon; but, they have to live with much higher property taxes. You like the lifestyle and employment opportunities in Los Angeles; you want to be socially recognized as a "star?" Then you move there (or, maybe, New York City). Trade-offs include the higher density of population, astronomical rents, pollution, yadda, yadda, yadda. You don't like mandatory waiting periods on firearms and the overall social mindset these imply, this being a paramount factor in your choice of where to live, then you are forced to weigh the viability of Texas summers or Idaho winters. The list goes on.

Not getting what you WANT, when you WANT it, and where you WANT it is not the same as being 'denied opportunity.' In this case, you are continuing to maintain the argument that NOTHING short of a change in the definitional quality society ascribes to 'marriage' is acceptable. Well, I'd like a lot of things to change in terms of the law, bureaucratic procedures, and entitlement programs. Somehow, I've come to the realization that it ain't government or society at large that owes ME the change when, where, and how I want it simply because I desire it.

Why? Because the laws, bureacracy, and entitlement programs were set up for specific reasons; often without me or 'my experience' (whatever that might mean) in mind. And, if I choose to ignore the laws, refuse to deal with the bureacracy, or fall short of meeting the definitional requirements of the entitlement program, then it is MY problem and MY choice that I do not meet the societally determined criteria.

Simply put, I cannot choose to be different and still expect to not be treated differently. Further, if there ARE places where I might live and not be viewed as 'different' by either the general population or even by the state government, then I DO HAVE ACCESS to what I want. It all comes down to deciding whether what I "want" is worth the trade-offs. And, my good sir, this is exactly what society has decided for now; i.e., the inclusion of homosexual marriage within the defintional quality of 'marriage' is NOT worth the trade-offs.

This is where your continued reliance on the 'left-handed' argument simply negates your case.


But we do allow left-handers equal access. We do not guarantee that they have an equal or equivalent experience, nor do we make mandatory that, for example, manufacturers must make both left- and right-handed versions by law.

But we don't prevent left-handed people from having access to things that advantage right-handed people. We just give them identical access and let them work out any differences for themselves.



We DO NOT allow left-handers 'equal access' in the sense of having something suitable to their specific wants/perceived needs available. We allow them access to a general concept which may or may not specifically meet their situation vis a vis the definitional quality of being 'left-handed.' And, as you say, we DO NOT mandate by law that society do so.

Yes, left-handed individuals have access to automobiles and firearms (to use the specific examples I provided earlier). But, the autos and firearms DO NOT necessarily meet a left-hander's specific needs nor are they designed, engineered, or intended to do so. A left-hander, to one degree or another, MUST adapt themselves, i.e., 'change to meet the standard of design,' to be able to operate a stick shift. If a left-hander wishes to use a 'right-hand' design bolt action rifle, then they must 'change to meet the engineered parameters.'

If a left-handed individual cannot change to meet the physical requirements inherent in stick shifts, then they accept that an automatic transmission (which many view as a 'less desirable' product in terms of economics, overall utility, maintenance, and longevity) is what they must live with to accommodate their situation. If the lefty cannot work with or does not feel comfortable with the Ruger bolt action which is only available in right-hand for the configuration and the .308 caliber they wish to utilize, then they MUST move to the Remington; or, they may even find that their options are strictly limited to only the Savage.

And, as you say, we do not guarantee that their, specific needs/perceived wants/wants are met through legislative mandate. We certainly aren't going to change the driving laws to encourage 'equal participation' and 'equal access' of left-hand friendly vehicles; although even postal vehicles and foreign imports ARE allowed on the road provided they are operated within the driving laws as they are currently DEFINED. Likewise, we aren't going to legislatively mandate or judicially stipulate that manufacturers are somehow prejudicially repressing a small percentage of the market because they do not manufacture a product that the largest share of the market (or society) finds unnecessary; especially given that OPTIONS ARE AVAILABLE.

I don't think I have to repetitiously detail the parallels here. In fact, these parallels have been repeatedly detailed throughout this discussion on all the threads dealing with Gallagher's posts. Suffice to say that homosexuals do have equal access to 'marriage' as it is currently defined; although it would require that they 'change to meet the standard of design.' Homosexuals actually do have access to 'marriage' as they would like to see it defined; but, they might have to change their state of residence to where these 'engineered parameters' accommodate their requirements.

In fact, this is actually the situation the Supreme Court has deliberately left us in. They have, in essence and in fact, created a 'reasoned balance' of 'identical access' based at the state level and left homosexuals and the societal structure within those states to 'figure it out for themselves.'

Isn't that what you said you wanted?
10.25.2005 8:18pm
On Lawn (mail) (www):
Fraud? Please.

[sarcasm]No, its inconcievable that ss"m" advocates are out to hoodwink the government out of resources. Why they are the victims here![/sarcasm]

The question is, do you know this or are you simply relying on the good intentions of political movements you have no real clue about.

The case was presented.

Legally, marriage is NOT an arrangement for having kids to which sterile straight people are given an approved exception.

Such faith you have in the revisionistism of those you trust.

It isn't that we are saying, "we deserve the same exception" -- although we certainly would if there were one

Admitting it as much as denying it. Interesting.

but rather, other people saying "You can't come in because you can't have kids,"

Admitting as much as denying.

It looks as though you have some self-reflection to do. I'll leave you to it.
10.26.2005 12:36am
PeterH:
For the record, don't take the fact that I don't respond to mean that you have convinced me of anything, but rather that it certainly doesn't seem to be worth continuing to try to get you to even read what you write, much less what I say.

The walls of your prejudice are higher than I am willing to continue to climb.

Good luck with it.
10.26.2005 9:00am