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LET THE CONSPIRING BEGIN:

Thanks much to Eugene and all the VC for letting me join in.

I plan to post mostly on gay legal/political/cultural issues, especially developments on the gay-marriage front. Believe it or not, I have a few other interests and I'll explore them on occasion. Overall, I don't expect to contribute nearly as often as the most prolific bloggers here. I have no idea how they do it so responsibly and hold down day jobs.

I think I'll start out with a presumption in favor of allowing comments to my posts, since part of the value of this for me will be to try out ideas I haven't fully thought through. If I find that reviewing and responding to the comments becomes too time-consuming (or not very constructive) I might reverse the presumption.

Mostly, I'm just delighted to be here with you all.

Steve:
Welcome, Prof. Carpenter. As you choose your post subjects, keep in mind that we have already more than filled our allotment with respect to gun rights, Joe McCarthy, Israel, and the "Kelo backlash," as well as things that have never been in my kitchen.

We don't see nearly enough Third Amendment blogging, though.
2.8.2006 10:07pm
Daniel Chapman (mail):
I just hope the comments don't get out of line... they were nigh on unreadable during guest-blogging week. People feel the need to comment on some topics whether they have anything useful to say or not.
2.8.2006 10:29pm
Humble Law Student:
Hello, Professor.

Welcome to the blog, once again! I must say that I thoroughly appreciated your contributions last November. You gave many important points to consider in your defense of SSM.

So,... to launch right in. Are you familiar with the study the Canadian government comissioned to defend its stance on SSM? and how that same report rather startled everyone by also calling for ending the ban on polygamous marriages?

From what I understand about the report, it argued that it is morally and legally inconsistent to allow SSM and to still ban polygamy. Now, if I remember correctly, you argued, quite forcefully, that there isn't a slippery slope between the two. However, as much as you may think or argue that a slippery slope does not exist, many in the intelligensia think allowing the former and banning the later are two logically/legally/morally inconsistent positions. Even though you do not want those two positions to exist on the same plane - they seem to for an awful lot of people. For them, it is inconsistent to have SSM and to not slide on down to other forms of "alternative" marital relationships. As such, your personal assurances come across as rather unpersuasive.
2.8.2006 10:39pm
Tom Anger (mail) (www):
I didn't clutter the comments during your guest-blogging stint, but I did record my reaction to your final post, at my blog. (The post is here.) Perhaps what I said may suggest a point or two you'd like to address in your new role at the Conspiracy.
2.8.2006 10:42pm
Professor Frink:
I didn't realize the bloggers here held down day jobs. I thought most of them were professors.
2.8.2006 10:42pm
Tom Anger (mail) (www):
P.S., You might look at this one, as well.
2.8.2006 10:43pm
Jon N (mail):
Welcome Professor Carpenter, I have a very good friend who is currently a student in your con law class. She speaks very highly of you and I am very excited to read about what you have to say.
2.8.2006 10:51pm
anonymous22:
Prof. Carpenter, I'm sure as a very smart man you will feel free to blog on whatever you wish here. The gay marriage issue has gone the way of the Whig Party and prohibition, however, and I would prefer not to have to suffer through more of the tedium that the issue generates. Personal preference.
2.8.2006 10:51pm
minnie:
Welcome again, Dale. May I suggest a subject? One of the moderators, I think Orin, made mention recently of an item that appeared on a gay blog called blogActive. In short, it was a Letter to an Unknown Senator threatening to out him if his future votes were as unacceptable to the gay community as some of his prior votes.

I have confused thoughts on this. It's literally horrifying to think something so personal as one's sex life would be a matter to be aired publicly against one's wishes, but it's also horrifying and the height of hypocricy for an elected official to follow one set of principles in his own life, and attempt to legislate another, if that's what the charge is against this particular Senator. Is the contention that all closeted gays should support gay marriage? If so, is that a rational position?

Could you tell us your thoughts on this matter?

Thank you!
2.8.2006 10:54pm
FXKLM:
In the list of conspirators on the right, your name appears in red, but your name on this post appears in black. Can somebody fix that? I like having each conspirator associated with a different color. When a see an author's name in black, I immediately think it's a Eugene post.

Thanks.
2.8.2006 10:54pm
snark (mail):
Steve, I highly value the Third Amendment -- without it, perhaps many soldiers would have been in my kitchen.

(Sorry, couldn't resist. I am a weak, weak snark.)
2.8.2006 11:05pm
Dave Hardy (mail) (www):
From what I understand about the report, it argued that it is morally and legally inconsistent to allow SSM and to still ban polygamy.

That's a very original argument for SSM! (Grin). Monogamy is, after all, merely a relic of Greco-Roman marriage law, not in accord with human nature, and rejected by many more enlightened systems.
2.8.2006 11:07pm
Dave Hardy (mail) (www):
We don't see nearly enough Third Amendment blogging, though.

Back in the 80s I coauthored an article on that much-neglected provision of the Bill of Rights. If the French hadn't invented barracks, it would have been a fruitful field of academia to this day.
2.8.2006 11:10pm
Jim Hammerand (www):
Good to see a fellow Gopher in on the conspiracy!
2.8.2006 11:20pm
Marcus1 (mail) (www):
Hi Dale --

I'm sure you know, but please don't feel you have to respond to us! That was appreciated in the gay marriage debate, but isn't something the bloggers here normally do.

Normally us commenters have a great time just blathering amongst ourselves. I think it'd be tragic if we didn't get to blather in response to your posts, which promise to raise all kinds of interesting things to blather about.
2.8.2006 11:36pm
George Gregg (mail):
Warmest welcome, Professor Carpenter!
2.9.2006 12:04am
Lev:

I plan to post mostly on gay legal/political/cultural issues...to try out ideas I haven't fully thought through


That may be the first idea you haven't fully thought through.
2.9.2006 12:44am
Steve:
Steve, I highly value the Third Amendment -- without it, perhaps many soldiers would have been in my kitchen.

That was pretty funny, actually. Possibly one of the top ten Third Amendment jokes of all time.
2.9.2006 12:51am
Fern:
At the risk of sounding like a blogger groupie, I am really looking forward to your contributions to this blog. Your previous posts as a guest blogger had a profound impact on my views regarding gay marriage.
2.9.2006 1:32am
Cornellian (mail):
Since polygamous marriages existed in Old Testament times and at various other times and places without leading to same-sex marriage, why should the existence of same-sex marriage lead inevitably to the existence of polygamous marriages?

And I don't buy the argument that if an adult is allowed to marry another adult of the same sex, that one must inevitably abandon any other restriction on marriage providing that everyone involved is a consenting adult. That same slippery slope argument can (and was) made in support of laws prohibiting people from marrying someone of another race.
2.9.2006 8:28am
Ken Arromdee (mail):
It's literally horrifying to think something so personal as one's sex life would be a matter to be aired publicly against one's wishes, but it's also horrifying and the height of hypocricy for an elected official to follow one set of principles in his own life, and attempt to legislate another, if that's what the charge is against this particular Senator.

It seems to me that whether or not hypocrisy is theoretically bad, deciding that someone's a hypocrite for being gay and not supporting gay rights means deciding *that* he's not supporting gay rights. Questions like that can be contentious and there are many, many, examples of politicians who are members of a minority being accused of being race traitors by other members when that accusation is not at all self-evident. The outing is not really being used to prevent hypocrisy, but to force the outer's opinion of what it means to support gay rights on others who may not agree.

Second, there's a difference between exposing a gay politician who opposes gay marriage so he'll be rejected as a hypocrite and exposing him so he'll be rejected out of general anti-gay prejudice. Almost all outing threats fall into the latter category.
2.9.2006 9:52am
SteveW:
In what may become a trend in conservative states, Focus on the Family is supporting a bill in Colorado that would create "reciprocal beneficiary agreements" between two people who are not allowed by law to marry or who were previously married (i.e., not limited to gay couples). The bill is viewed as a way to stop a competing bill that would allow broader benefits for gay couples.

Reciprocal beneficiary agreements would be formed by publicly filing a form provided by the state. The two participants would gain rights to intestate succession, hospital visitation, medical decision making and certain insurance benefits. No mention of parental rights.

When a reciprocal beneficiary arrangement is dissolved, the dissolution is handled the same way as the dissolution of a general partnership, instead of like a divorce.

Bill text in PDF format

Is anybody aware of similar laws in other states?
2.9.2006 10:02am
Charley:
Welcome to blog.

I read this blog regularly. However, if I wanted to read blogs about gay issues, I would read one of the numerous bloggers who blog on this issue.

If you are going to be a "one issue" blogger, then I think the Volokh Conspiracy will quickly become a less interesting blog.

With the addition of a "one issue" blogger to the Volokh Conspiracy, this blog more or less crosses the line into activism based on that particular "one issue".
2.9.2006 10:06am
Cornellian (mail):
It seems to me that whether or not hypocrisy is theoretically bad, deciding that someone's a hypocrite for being gay and not supporting gay rights means deciding *that* he's not supporting gay rights. Questions like that can be contentious and there are many, many, examples of politicians who are members of a minority being accused of being race traitors by other members when that accusation is not at all self-evident. The outing is not really being used to prevent hypocrisy, but to force the outer's opinion of what it means to support gay rights on others who may not agree.

There's a difference between having a position on a debatable issue and going on a crusade against a group of which one is secretly a member. If you say I think one should concentrate on enacting protection against employment discrimination rather than same sex marriage, that's one thing. If you go around making speeches about how gay people are a threat to society, should be fired from public employment are immoral, disease carriers etc., then yes it seems to me to be perfectly legitimate to reveal the fact that the person making those comments is concealing the fact that he is gay. If I recall correctly, the closeted ex-mayor Jim West actually introduced legislation to ban gay people from employment with the city (it never passed). It is not legitimate to point out that the legislation would have prohibited Mr. West himself from continuing as mayor? His pathetic "defense" afterwards was that he was just doing what his constituents wanted, as if the citizens of the city were some how clamoring for that legislation and he was just dragged inevitably into drafting and introducing it.
2.9.2006 10:07am
David Matthews (mail):
"There's a difference between having a position on a debatable issue and going on a crusade against a group of which one is secretly a member."

I don't think that voting to confirm Samuel Alito qualifies as "going on a crusade." I think it more falls into "having a position on a debatable issue."
2.9.2006 10:47am
Houston Lawyer:
Let the name calling begin. Few topics on this site more quickly bog down into name calling and moral posturing than gay rights measures (on all sides). I suggest we proceed promptly to the gay Muslim jokes.
2.9.2006 11:42am
Mr Diablo:
Yeah, Charly, there are no one-issue bloggers on this site. Cough cough, Kopel.

BTW, let the outing continue. Aggressively confronting such naked hypocrisy should be encouraged.

Welcome, Prof. Carpenter. Your posts last fall exposed the name-calling opposition to gay marriage.

I promise that will be my last nudity related comment today.
2.9.2006 11:56am
AppSocRes (mail):
Welcome: I did not agree with your arguments on SSM, but they were thought provoking and well-presented. What's your take on the following argument: When Phyllis Schafly helped defeat the ERA by arguing that it would quickly lead to SSM, she was denounced as a loony-tune. It seems to me that almost all the state court decisions in favor of SSM have been based on an appeal to state ERAs, so Phyllis was far more on the mark than her critics. Now, not just Phyllis, but Canadian legal authorities, are arguing that SSM is a slippery slope to polygamy, incest, and essentially any imaginable form of "marriage" between adults. In light of past experience, wouldn't it seem a little presumptuous to write these arguments off as unenlightened gay bashing?
2.9.2006 12:38pm
Mr Diablo:
First of all, who knows who was on this Canadian thing, and does anyone have a link to its existence? Second, sadly, Phyllis is loony, and there will never be much to change that.

And I don't understand why, and it is probably because I am forgetting Prof. Carpenter's stuff from last fall, any SSM leads to polygamy. I think in hypothetical land, you can probably take SSM anywhere you want, like when anti-abortion types discuss the Road to Infanticide. But in practical land it might be another story completely.

We live in practical land. Certainly with regard to expanding civil rights and changing any social norm.
2.9.2006 2:59pm
Cynicus Prime (mail) (www):
Welcome, Professor Carpenter.
I look forward to your ongoing input on marriage and other issues. It is refreshing to hear such logical and well-rounded arguments for equal marriage rights in this forum. For reasons that I cannot understand, the libertarian community has been less enthusiastically supportive of these rights than I had hoped. But keep making sense and helping some of us to make more of it.
2.9.2006 2:59pm
SacSays (mail):
SteveW:

The "reciprocal beneficiary" designation is taken from Hawaii, which pioneered this compromise when the state's voters became the first in the nation to change their state constitution to prohibit same-sex marriage.

There is now a spectrum of legal relationships recognized for same-sex couples. At one end are reciprocal beneficiaries, in which the personal relationship is secondary (in law) to the contractual one. At the opposite end is marriage, in which the personal relationship is primary, and the legal effects flow from that. The two (current) relationship forms that fall in the middle are California's Domestic Partnership and Vermont's Civil Unions. The primary difference between them is ceremonial. Domestic Partners sign a form and file it with the Secretary of State -- and their relationship is then recognized by the state (as well as counties, employers and others who so choose) for various purposes. Civil Union partners (I've yet to land on the right name for them: Civilized? Union members? CUs sounds a bit too IM for me) must actually go through an official ceremony before their relationship is legal. This brings that relationship closer to the marriage end of the spectrum, and those couples I know who have been through the ceremony uniformly testify to the importance of that state ceremonial aspect, both emotionally and publicly.

I think it's important to keep this spectrum in mind when talking about where we are on recognizing same-sex couples. We're all inventing this as we go along, and these four different phrases help to illustrate the differences in approach.
2.9.2006 3:48pm
Charley:

Mr Diablo stated:

"And I don't understand why, and it is probably because I am forgetting Prof. Carpenter's stuff from last fall, any SSM leads to polygamy. I think in hypothetical land, you can probably take SSM anywhere you want, like when anti-abortion types discuss the Road to Infanticide. But in practical land it might be another story completely.

We live in practical land. Certainly with regard to expanding civil rights and changing any social norm."


First of all .... in practical land homosexuality would be defined as a behavior. It is not a skin color. It is not a race, religion or creed. It is simply a behavior. Is it "practical" for society to now start creating rights for behavior.

Do you think that societal norms should be altered to include the abnormal and deviant behavior? I think society as a whole has a vested interest in not equating homosexuality and heterosexuality.

Regarding what you wrote about SSM leading to pologomy, all you have to do is do some research into homosexual activism. The activists have a clear agenda regarding their demands on society and what their ultimate goals include. It most certainly does include pologomy or what they call "group marriage".

The following are FBI documents declassified under FOIA. The first document contains copies of other documents retrieved from the Gay Activist Alliance in the early 1970's. That organization no longer exists, but it's members have moved on to other organizations. The activism and goals still remain exactly the same. Enclosed within the documents are political demands on government at both the state and the federal level.

http://foia.fbi.gov/gayalli/gayalli1.pdf
http://foia.fbi.gov/gayalli/gayalli2.pdf

You will easily recognize many of the demands. Many of them have already been achieved. Legislation and lobbying efforts are currently being persued to achieve the other demands. The last demand on the list covering those at the state level clearly states they wish to institute "group marriage". In fact the last two are very disturbing.

..... 7 -- Repeal of all laws governing the age of sexual consent

..... 8 -- Repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit; and the extention of legal benefits of marraige to all persons who cohabit regardless of sex or numbers.


None of the demands of the homosexual community have changed over the past thirty years. SSM will certainly not be the last demand on society from the homosexual community. If you think so , then you are an extremely naive individual.
2.9.2006 4:34pm
David Berke:
And here I was, worried that this entire stream of comments would not have a single irrational post on the conspiracy of the homosexuals to destroy society and molest all of our children.
2.9.2006 4:48pm
Matthew Patterson (mail):
I, for my part, am especially tickled that the esteemed commenters in this thread have managed to strike up a hot debate about a topic that is under discussion neither in this post nor in any other recent one.
2.9.2006 6:00pm