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Many Thanks to Dale Carpenter,

for his guest-blogging last week!

Mr. Justice:
I once had coffee with Dale Carpenter some years ago. I had asked him for some advice on career goals and he was unfailingly gracious and helpful. I am certain that he doesn't remember me at all and have not spoken to him in years, but it is wonderful to see that his graciousness and helpfulness have not changed. He did an excellent job of avoiding personal attacks, criticisms, etc., and sticking to the bounds of the subject.
11.6.2005 7:15pm
Julie C.:
Dale did a wonderful job. He is now my favorite guest-blogger of vc
11.6.2005 9:59pm
Public_Defender:
One sign of a strong advocate is the ability to concisely and fairly explain the opposing position.

Professor Carpenter did a better job of articulating the anti-gay position on marriage than the previous guest-blogger or the commentators. Of course, he then proceeded to pick it apart piece-by-piece (at least in my opinion).

Professor Carpenter's students are lucky. Even if they forget all the substance he teaches, they will learn many of the skills they need to thrive as an advocate.
11.7.2005 6:57am
none (mail):
Is there anyway all of Dale and Maggie's posts can be compiled at one link? I would like to be able to tell people to read their posts, but it can be hard to read them all spread out among the other posts.
11.7.2005 8:18am
Cory Olson (mail):
I don't know...University of Minnesota Professor getting high accolades? I put arrival at the University of San Diego about Spring 2007.
11.7.2005 10:50am
Mr Diablo:
Indeed, great job, too bad most of those posting seemed to not read any of it and instead preferred to shreik "that's a straw man!" until they turned into Christopher Hitchens.

Still, a well-written attempt to sanely explain the arguments of people who oppose civil equality because of their own bigotry. That takes a lot more time and skill than the swift debunking that the anti-equality types deserve.
11.7.2005 1:22pm
On Lawn (mail) (www):
Funny,

Mr Diablo noted the strawmen, and Public Defender said Dale articulated the other sides' arguments well.

Public Defender, I'm afraid, had his rosy colored glasses on. I found his articulation of Burkean philosophy to be self-contradicting. For instance, how did he come up with the conclusion that Burkean thought would prescribe a federal all at once view of same-sex marriage? This of course after spending much of the same article noting that Burke would have suggested an incremental approach.

In his articulation of the "standard" case of marriage he tried to cover every distinction offered that would explain why sterile couples can get married but same-sex couples cannot. How he missed the obvious distinction that they are handicapped and ss-couples are not is beyond me, but it was plenty obvious.

In his articulation of one of the arguments countering his position he pointed to "polygamy" as his slippery slope. Unfortunately in an attempt to divide his case from that of a polygamist he wound up cutting off his own legs. He argued that the redundancy of gender capacity caused strife, for example. Yet we can see from the courts that such strife happens all the time as ss-couples try to parent with a third party source.

I found Dale to be self-contradictory, slyly insulting, and never rising above the cheap commentary of justifying that someone has something he wants so he should have it too.
11.7.2005 5:30pm
Tam:
So that's the "conservative case for gay marriage"? Not very impressive, except to civil-rights lawyers. But then, that's who Dale Carpenter was aiming at, that's why he blogged on this particular site in the first place. The "burden of proof" he thought he could satisfy was never the burden of convincing a majority of ordinary Americans. All along it has been the lesser burden of ultimately convincing a few judges that tradition and morality are trivial considerations that can be argued any way you please so long as it's not by the democratic process. We will get SSM by judicial fiat just as ordinary Americans have suspected all along would happen. Call that conservative?
11.7.2005 7:41pm
Kendall:
This is continued from the last thread (I assume when a post is archived comments are automatically disabled) so I'll post this here in response to Chairm.


Chairm - That is a well stated and brilliant question and a brilliant position. I entirely respect the response. I also appreciate that you recognize why I'm limitting the debate to gay couples - because that is the main topic of this thread (not out of a particular animus toward other groups).

to answer your specific question though "From your perspective, how would the unisexed relationship (gay marriage etc) benefit society, thus moving the state's hand to enact a preferential status that would benefit the unisexed relationship?"

At the moment marriage is at a crossroads in this country. right now people seem to have a strange dichotomy in regards to the institution of marriage. On the one hand, Britney Spears can get married and annulled in a weekend binge and no one blinks an eye, people can go on reality shows such as "who wants to marry a millionaire" and divorce rates can continue to creep up. On the other hand people can talk about gay couples and claim that the "homosexual agenda" is to bring down the walls of what is already a crumbled, but not yet collapsed institution.

It is clear that the most harmful action in the last 100, perhaps last thousand years to marriage is no fault divorce. No fault divorce has changed the culture of marriage like a cancer. According to a CNN/Gallup poll: "Do you believe it should be harder than it is now for married couples to get a divorce?
YES 50% NO 46%"

"Which is the main reason for the increase in the number of divorces?
Marriage not taken seriously by couples 45%
Society more accepting of divorced people 15%
It is easier to get divorced today 10%
Spouses are selfish 9%
Changes in women's and men's earning power 7%
All equally 9%"


"Should the government make it harder for people to get a divorce?
YES 37% NO 59%"


You might notice the change from the first to the last question. People think it should be harder to get a divorce, but they don't want the government to take action to make it harder. Also interesting was the large percentage believing that marriage isnt' taken seriously any more.

Society has walked down a path where what was once a sacred union, a bond for life has become for many a chain, one that the couple feels can and should be cast off the moment they're "unhappy" or they feel its not "working." Gone are the days when couples genuinely fight to make it work, gone is the idea that a commitment made for life IS for life.

marriage, quite frankly, needs to be drastically re-examined. I think it might surprise you (or maybe not) that I felt Mayor Gavin Newsom not only dramatically overstepped his authority but spit in the eye of the law when he started issuing marriage licenses to gay couples. I don't think he should have done that at all. However, in breaking the law, overstepping his authority and disregarding our legal traditions and constitutional separation of powers he revealed something.

He showed us a group of people that still believed in the fundamental institution of marriage. He showed us people, some of whom would wait for days or travel a thousand miles just to have a few words spoken and to sign a document that would turn out (as they had to suspect would happen) to be utterly invalid.

For those gay couples, some of whom had been together for 20, 30, 40, even in some cases more than 50 years the vows of marriage and the recognition that came with it was more important than anything. They stopped whatever they were doing, put their entire life on hold. Called in sick for work. Called the family, some of whom could fly in, some of whom couldn't, some of whom didn't want to go to the wedding, and they took a chance. They believe in the institution of marriage in a way very few heterosexual couples appear to. In many ways, gay marriage might very well SAVE marriage. Yes, it would change the form of marriage in US law, but then the US law on marriage has constantly been shifting in various ways for the last couple hundred years or so. It wasn't all THAT long ago (relatively speaking, not in any of our lifetimes obviously) when divorce was illegal in the US.

I'm aware of some arguments to address this position and I'd also like to discuss some of them. first of all, it might be pointed out that on average gay men are more promiscuous than straight men, and that gay women are less promiscuous and more likely to form committed relationships than married couples thus illustrating the intrinsic differences of the sexes which make marriage so special.

The problem with this I have is relatively simple (please btw, please don't pull out the Andrew Sullivan quote, he does NOT speak for all gay men). I have yet to see a study comparing straight unmarried men's fidelity with gay men. I always see gay men compared with married couples. I also realize, as I have never cheated on any past relationship (and been in love with the same guy unfailingly for 8 years) that individual differences also occur and the law shouldn't necessarily be based on faulty perceptions.

another problem with this might be that more people will become gay if this happens, at least in some people's opinions. Its true to some extent, at least in theory. More men and women might live life in openly gay relationships (if you want to say "gay lifestyle" please explain what it is and compare it to a "straight lifestyle"). That doesnt' mean it "turns" them gay. Jim McGreevey was a crook, was utterly corrupt and was not a great governor. However, he certainly makes a strong point that a gay man CAN marry a woman, it doesn't however mean its fair that he should to him OR to her, especially because he wasn't able to keep the vow of marital fidelity he made. I suppose what I'm suggesting is that if you eliminate closetted gays who are too afraid of alienating their families by living the life they want and instead marry a person of the opposite gender to please them, if you create an environment and a society where they feel more inclined to live a life more appropriate to their emotional state you're more likely to have straight people marrying straight people and gay people with gay people which would likely make more relationships tend to work.

Ok, that's a good start on that I think. Its a little late and I'm tired but that should give you some idea of where I'm coming from. Please if you address a point make it the main point and not 1 sentence of an entire paragraph
11.10.2005 1:45am
Chairm (mail):
Thanks.

That is a well stated and brilliant question and a brilliant position. I entirely respect the response.

Kendall referred to the following comments, here, and here, and also earlier here.

After reading Dale Carpenter's posts, and the comments that followed, it remains unclear what is the purpose of state recognition of the unisexed relationship. More specifically, how the homosexed relations need to be elevated to a preferential status -- on par with marital status or some other legal status. In other words, the baseline has not been sketched out for us. Instead the discussion has been about changing marriage rather than the merits of recognizing the homosexual relationship (which are a subset of the unisexed combination), in the first place.

Kendall, and others, is your baseline summed-up in the following remark:

They [gay twosomes] believe in the institution of marriage in a way very few heterosexual couples appear to. In many ways, gay marriage might very well SAVE marriage.

And that this is evident by the ambiguity about the ease and prevalence of divorce that exists in the general population?

The unisexed relationship is a subset of nonmarriageable combinations. It is not exclusively gay/lesbian. What distinguishes the gay/lesbian arrangement from the broader range of nonmarriageable combinations? And what is it about the unisexed relationship (you can focus on gays and lesbians if you wish, of course) that benefits society to the extent that society, through the state, is compelled to enact a special status to benefit that type of relationship?

Without twinning the unisexed relationship with marital status, can you describe the baseline from which a prefential status arises? If we did not have marital status, why would society make a status that was for the unisexed combination?
11.10.2005 1:21pm