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Many Thanks to Maggie Gallagher

for guest-blogging last week on the same-sex marriage question. Remember that University of Minnesota law professor Dale Carpenter will be guest-blogging on the other side -- in favor of legal recognition of same-sex marriage -- the week of the 31st.

A2 Reader:
Prof. Volokh,

I for one am interested to learn your views on the week past.

Thanks.
10.22.2005 9:31pm
llamasex (mail) (www):
These guests should be forced to get down and wrestle with the plebs. Let them make a thread then delve into the comments only able to make a new thread on a new point when the old one reaches an arbitary number or after a set period of time. Gallagher wasn't bad, but the way she made post after post tended to clutter up the page.
10.22.2005 9:41pm
Penta:
llama: The problem is, comments can get massive very quickly, especially for hot-button issues.
10.22.2005 9:47pm
Proud Generation Y Slacker:
I am not interested in Prof. Volokh's views on this past week's debate until the end of next week.
10.22.2005 9:51pm
Jack Bauer (mail):
Nothing against Ms. Gallagher, but perhaps complex issues should debate each point one at a time. Ms. Gallagher's posts were very long and it was difficult for the discussion to stay focused.

Perhaps the next chap will establish why he believes one thing and then extrapolate more in further posts.
10.22.2005 11:09pm
TJ (mail):
llama,

I think that is a fascinating idea.
10.22.2005 11:10pm
Jimbino (mail):
It annoys me to hear that Mr Carpenter will present "the other side." There are numerous other sides, one of which is to legally un-recognize all marriage, whether straight or gay. Another would be to make marriage illegal, in the clear interests of women.
10.22.2005 11:19pm
Marcus1:
I felt she was close to blog-style, but not quite there. She spent the first several days just establishing her premises without drawing any conclusions. That seems kind of just like a long, informal law review article in installments, not a blog.

Rather than starting with a "data dump," I would have suggested starting with some insightful points to get the debate going. Then, if clarification or backup is needed, that can be provided afterward. Basically, I think the order of her posts should have been reversed. I also think she could have shortened her posts by engaging in the comments section instead.

On another note, she got me thinking of a new argument for gay marriage (or at least new to me). She seems to think marriage really comes from government, and government defines marriage. I would argue marriage comes from the people and possibly is defined by churches, while the only role of government is to recognize where marriage exists.

The fact is, gays are marrying in their churches, regardless of whether the government recognizes them. If this is going to destroy marriage, there's nothing the government can do to stop it. The real debate isn't whether we should have gay marriages, but whether the government should recognize them. From this perspective, it seems the onus should really be on the government to show some strong public policy against recognizing these gay marriages, which certainly do exist. It also suggest that recognizing gay marriages really wouldn't change the definition or nature of marriages at all, because the government doesn't define marriage.

I've heard several people respond to the gay marriage debate that they don't think it should be a government issue. I wasn't really sure what that meant. Maybe, though, it's a strong argument for the recognition of gay marriages.
10.22.2005 11:49pm
Marcus1:
Jimbino,

Being in a stickler mood, I'd say yes and no are the two sides of the SSM debate. Making marriage illegal sounds like another debate.
10.22.2005 11:53pm
anonymous22:
It seems to me that many of the "technical" criticisms being made of Gallagher's posts are the result of people being hyper-critical because they disagree with Gallagher's viewpoint.
10.23.2005 12:22am
Defending the Indefensible:
Marcus1,
You make an excellent point, and I'm inclined to agree. Marriage is a religious institution predating the state, and to the extent the state confers recognition (separate and apart from the issue of state-issued marriage licenses) for some marriages and not others, a compelling state interest must really be shown to justify such discrimination in order to overcome the first amendment presumption.
10.23.2005 12:31am
Jimbino (mail):
Marcus1,

I suppose you could limit a debate as to whether there are either 3 or 4 angels on the pinhead, which is akin to what our law practically requires litigants to do. As a scientist, I am forced to footnote the other options, and the issue is vital to me, as the inability of gays to countenance the two options I listed is what denies them my support for their right to marry, since, if they gained the right, they might, I'm afraid, join forces with the usual marrieds in denying me my equal rights as a single.
10.23.2005 12:40am
Cornellian (mail):
You make an excellent point, and I'm inclined to agree. Marriage is a religious institution predating the state, and to the extent the state confers recognition (separate and apart from the issue of state-issued marriage licenses) for some marriages and not others, a compelling state interest must really be shown to justify such discrimination in order to overcome the first amendment presumption.

I'd quibble with the description of marriage as a religious institution. It predates Christianity, and almost certainly any other religion as well, nor did the Christian Church originally involve itself in marriage. So it's a social institution upon which Christianity has made some encroachments, but I wouldn't call it a religious institution.
10.23.2005 12:49am
Bob (mail):
I agree with Cornellian. Christianity did not generally involve itself with marriage until the Middle Ages. Before that, in Christian countries, marriage was a generally secular affair. Originally the Church took on power over marriage largely as a means of acquiring power in the secular world. Thus, I am unconvinced that it is a religious institution.
10.23.2005 1:01am
Michelangelo (www):
Marriage may predate Christianity but what about Abraham and Moses and Judaism?

The problem with this pro/anti gay marriage debate is that marriage is pretty irrational to begin with so why expect a rationale discussion of it. Why should anyone get married? Why should two men and two women not be able to get married? It is none of my business or your business what a "family" is to them. Yet, so many people obviously do not feel this way. In fact, they seem to care a whole lot.
10.23.2005 1:17am
Georgio:
Michelangelo:

Marriage is not irrational, but it is against human instinct, which isn't a bad thing. In fact, marriage is healthy and extremely beneficial practice of self-control in productive moral societies. Unless, you want to live in a society with only selfish cares and training children to be corrupt diliquents.
10.23.2005 2:35am
Defending the Indefensible:
Cornellian,
Sorry, I don't see where I said marriage was a Christian institution. I said religious, but I did not specify any particular religion, organized or otherwise.
10.23.2005 3:59am
Noah Snyder (mail):
Kudos to Eugene for phrasing this as "legal recognition of gay marriage." Gay marriage is happening anyway, because many secular and religious groups are performing them. As long as couples are trading vows before their communities and their families they are getting married, whether the state recognizes it or not.
10.23.2005 4:00am
Cal Lanier (mail) (www):
"while the only role of government is to recognize where marriage exists"

This is either disingenuous or profoundly ignorant, and certainly evidence that you didn't read Ms. Gallagher's posts or the comments. The role of the government is to hand out substantial financial and legal benefits to those who marry once it has determined "marriage exists".

"There are numerous other sides, one of which is to legally un-recognize all marriage, whether straight or gay. "

I agree. The only positions discussed in the SSM debate are "yes on status quo" and "add SSM and maintain status quo".

There are also many variations on "dump the status quo". My own position is that all but a few legal benefits should be eliminated from marriage, in favor of more financial incentives for taxpaying parents.

Certainly the "dump the status quo" folks are in the minority (maybe even fringe), but the financial and legal benefits of marriage--and their cost--are worth bringing to light in the debate.
10.23.2005 12:23pm
JosephSlater (mail):
I'm all for equal time for opposing viewpoints, but I'm honestly curious -- ah, make that actively skeptical -- that we're going to see any arguments on either side that weren't made in the hundreds if not 1,000+ posts made by or in response to M.G.

And to "thedaddy," if you're going to tell people interested in this issue that they are "morons," I'll stoop to your level briefly. Your accusation that others are "mentaly masterbating" might not carry the sting you intend, given your failure to spell correctly even one of the two words in that phrase.
10.23.2005 1:08pm
Rhadamanthus (mail):

Gay marriage is an Oxymoron and only morons think that it has value or meaning to the vast majority of people in the entire world.
You people are just mentaly masterbating by having a "serious" discussion about this.


Well now that that issue has been clearly resolved, how about sharing with everyone your 10 second solution to solving poverty, famine, the First Amendment analysis and your theory on reconciling the 14th Amendment "right to privacy" with the 1st Amendment freedom of speech. 40 seconds starting.......now.
10.23.2005 1:19pm
paa:
Did the Bush administration pay Maggie Gallagher by the word for those horrible, incomprehensible novel-length posts?

I can't see why we should thank her for the worst blogging this site has ever seen.
10.23.2005 2:13pm
bearing (mail) (www):
Looking forward to the discussion.
10.23.2005 3:14pm
Marcus1:
Cal,

"while the only role of government is to recognize where marriage exists"

This is either disingenuous or profoundly ignorant, and certainly evidence that you didn't read Ms. Gallagher's posts or the comments. The role of the government is to hand out substantial financial and legal benefits to those who marry once it has determined "marriage exists".


Yes, recognition comes with benefits; I wasn't trying to minimize that. Tacking benefits onto marriage still doesn't make government the definer or creator of marriage though.

Gallagher's position is apparently that we need to stop gay marriage, because the very notion of it will destroy the institution. I'm saying that's not something the government can or should aim to do in a free society. If she wants to stop gay marriage, she should go talk to the gays who are marrying and the churches that are marrying them, not go to the government to try to stamp it out.

Of course, you can then ask whether gay couples logically should receive the same benefits as heterosexual couples. I think that's an appropriate question of government. Whether there should be gay marriage, though, really isn't, yet that's where Gallagher's focus is.
10.23.2005 5:20pm
Tim W (mail) (www):
Test Post
10.23.2005 11:32pm
Tim W (mail) (www):
Ok, it works.
So many gay people, including myself, have read many diatribes written about us, both for and against the marriage issue, and see through the prose that this is not about marriage, it is about the place of gay people in society as a whole. It is illogical to consider otherwise from the emotional intensity and untold millions of dollars spent in the US to fight gay equality. I am very familiar with all arguments against gay marriage, religious, moral, child rearing, etc, but it all comes down to do we accept or reject gay people. I can't speak for all gays but I do know when I read a lengthy analysis, particularly from religous groups on the "scourge" of homosexuality, I am deeply offended and want to lash out. It is often cloaked in double speak such as " behaviour, not people, love the sinner, hate the sin, nothing against gays individuallly", amongst other falsehoods. Well guess what, when an individual reads this garbage, they are talking about ME. Are we to accept this? Would other sectors of society accept such abuse if it were thrown in their direction? Highly doubtful. Especially when the material is half baked lies and rhetoric that has no basis in modern science or the use of statistics. Two words are used to describe the position of gays in society: tolerance and acceptance. Am I to believe that I'm tolerated and accepted but not equal? Neither are useful terms, equality is the term that applies. How in the world can a heterosexual decide what is right or wrong for a homosexual. That is a ludicrous premise. We are either equal or we are not, that includes marriage and all of the legal obligations and rights that go with it. Am I to accept inequality? I note in an earlier post one reader made a comment about "his taxes" being used to fund gay equality. Do gays not pay taxes? Would you like an itemization of the taxes that I do pay? I am from Canada where gay equality has been recognized. I feel that the United States is going about this issue wrong and is spending way too much time on debating whether or not all of its citizens are equal under the law. The simple answer is yes. Sure, the following statements are true:
"same sex marriage is wrong" Yes, for the heterosexual.
"same sex couples cannot procreate". Yes, but many adopt, use surrogate parenthood, have children from previous marriages, as do millions of heterosexuals.
" homosexual sex is wrong". Yes, for heterosexuals, completely innate and natural however, for the homosexual.
" homosexuality is against god's law/plan". Do christians not look at everything in life as being created by god? If so, then homosexuals are also created by god.
" the bible says homosexuality is wrong and they should die". Yes, so should adulterers, mixed seed farmers and youths who defy their parents. Are religuous groups protesting the lack of action on those items as well as homosexuals? No. This is obviously not the universal application of biblical law that fundamentalist christians so desparately want.
In two countries where gays were granted marriage equality, Spain and Canada, the leaders of those nations made the following comments: "we cannot cherry pick rights", "today, we re-store the dignity of a group of human beings who have long been denied such dignities". So, equality was granted to gays, after all, how can a heterosexual deny equality to a homosexual, they do not have the right to do that.
10.23.2005 11:55pm
BobNelson (mail):
Well, I realize that Maggie has passed (much slower than Wilma), but I thought folks might be interested in this little tidbit. It could explain why Maggie, despite her 20-year struggle to save marriage, seemed to have so much trouble with her argument. Apparently, it's relatively new:

Talking about sex with married women

http://archive.salon.com/sex/feature/2000/10/30/marriage/


"Not to put a wedge between you both," I say, smiling at Waite, "but your book states that you are pro-gay marriage and Gallagher is anti."

Waite holds my gaze. "That's putting it too strongly," she says. "I don't have a political agenda. But we have no evidence on gay marriage and there's no research on long-term gay couples. Given that we don't know anything, my guess is theoretical. If you have a gay marriage that's socially supported, it could provide the same benefits as heterosexual marriage."

"I don't mix the two issues," Gallagher says, giving me a pug-dog scowl. Then she starts speaking in incomplete sentences. "If you want to interview me about gay marriage, sometimes I do ..." she says. Then she says, "The reason is marriage is about us."

She says the word "us" and suddenly I realize that I've seen her little mug shot in the New York Post. She writes right-wing rants.

"Once we're on gay marriage," she says, "it's easy to say those people are causing the problems."

Those people?

"My own view is this crisis in marriage involves primarily the behavior of men and woman who are married together," Gallagher says. "I want to focus on that rather than giving attention to the great problem of gays wanting to get married. I don't support gay marriage. I think [the issues] are separate."
10.24.2005 3:08am
Public_Defender:
Perhaps you could get Ugandan dictator Yoweri Museveni for the reply. He just came out in support of a Maggie Gallagher/George Bush style anti-gay constitutional amendment.

www.andrewsullivan.com, 10/24/05.
10.24.2005 1:03pm
Appellate Junkie (mail):
Marcus wrote:


On another note, she got me thinking of a new argument for gay marriage (or at least new to me). She seems to think marriage really comes from government, and government defines marriage. I would argue marriage comes from the people and possibly is defined by churches, while the only role of government is to recognize where marriage exists.


I'd argue that your observation isn't really a new idea (even if it's new to you and/or this blog). In fact, I think you see this as the essential idea when you read Supreme Court opinions on the topic.

Even going back more than a century, when individual-liberty jurisprudence was in its infancy (and would be unrecognizable to those of us who study the law today), you see marriage defined as the most palpable manifestation of the pursuit of happiness--essential to one's identity and sense of security.

Perhaps that's an overly romantic notion of family, but that sentiment is a constant theme in SCOTUS opinions on the topic now. Individuals are free to form families. To the degree that the government needs (or wants) to be involved in the ordered administration of family life, it does so under the rubric of each individual's right to form that family—even unpopular ones.

No doubt, there are many who argue that government ought to get out of this family business and that references to the "pursuit of happiness" in the DoI and Constitutional individual liberties are really about property and contract rights. There's much to support to that view, including more than a century of early tradition.

I happen not to subscribe to that conclusion in its entirety, and that proposition obviously removes the debate from its current context altogether.

In the here and now, you're right. The government needs to offer the (compelling) rationale for why it requires a certain combination of genitalia to access the civil marital scheme. Given the demise of coverture in particular, that's a tough row to hoe. Obviously, Gallagher never got anywhere near this topic, but legalisms are government structure have never been her shtick.

I'll leave it others to examine the ways in which different religions, in different places and times, have had differing involvements in marriage.

Hopefully, Carpenter will address the topic. I happen to think it is the only relevant legal question.
10.24.2005 1:29pm
Shawn (mail):
This is an interesting article on the Texas anti-gay marriage ammendment:

Link

It quotes one divorce lawyer as saying he'll get rich off the new ammendment.

The ammendment does two things: 1) defines marriage as only a man and a woman. 2) prohibits anything else as being treated as a marriage.

Texas has common-law marriages. There is speculation that this ammendment would eliminate those. There is also speculation that it might void other contracts made with the intent of simulating marriage benefits.

It will be interesting to see what happens after this ammendment passes. (Does anyone doubt it will?)
10.25.2005 11:09am