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Another prominent conservative against a federal marriage amendment:

You've already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you can add to the list James Q. Wilson, a respected voice in conservative intellectual and policy circles. Last March 18, in the Wall Street Journal, Wilson criticized the one-size-fits-all abortion policy represented by Roe v. Wade. Then he wrote this:

The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it.

Moreover, a state-by-state vote on the matter provides an opportunity for gay advocates of this policy to make their case. A constitutional amendment would deny them that opportunity, leaving them perpetually angry. Since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition.

I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.

Wilson continues:

If there is to be a constitutional amendment, it would be better if it said this: "Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman." If I could think of language to bar judges from making other social policy decisions, I would add it, but the words fail me.

This jurisdiction-stripping amendment would allow the states and the people to experiment with gay marriage, something George Will has said is worthwhile. I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low. But at least a jurisdiction-stripping amendment would actually address the stated, populist concerns about judicial activism. The amendment the Senate will vote on next week would do much more than that. It's overreach and overkill.

(Hat tip: Walter Olson.)

Duncan Frissell (mail):
it would be a mistake to let it be decided as the right to abortion was decided.

Big difference between a Supreme Court decision and a constitutional amendment. Nine people vs 2 houses of Congress and all the state legislatures.

I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low.

Same argument used in the Massachusetts Legislature to defeat the state constitutions SSM amendment a year or two before the MA SC legalized.

I take it that Dale also opposed Lawrence since it too blocked a state-by-state treatment of sodomy laws.
6.2.2006 10:36am
Duncan Frissell (mail):
Dale:

CATO Institute Advocates State Licensure!

Is there any other case in which you and/or CATO have advocated state licensure?
6.2.2006 10:38am
Ken Arromdee (mail):
I think it's consistent for a libertarian to argue that no licensing is better than equal licensing, but equal licensing is better than unequal licensing.

I wouldn't call this "advocating state licensure" since they believe that more licensing is better only as a local maximum, not better overall.
6.2.2006 10:56am
Humble Law Student:
Great!

James Wilson agrees with me on the proper alternate wording for the amendment. Or maybe, I internalized what he said and just have forgot where I got it from. Unfortunately, it is likely the latter.
6.2.2006 11:22am
Archon (mail):
Comparing Roe v. Wade to a gay marriage amendment is really comparing apples to oranges. One is a judicially imposed rule and the other involves 3/4 of the states ratifying the amendment.

I think the argument that this is an issue best dealt with on the state level is misplaced. The protection of the institution of marriage is something that concerns all citizens on a national level. The courruption of it in one or two states adversely effects the rest of the country and the institution upon which society relies heavily.

If 3/4 of the states are willing to ratify the amendment, I would say that if it occured, that there is more then enough support and reason to impose it on the few that did not.
6.2.2006 11:32am
AppSocRes (mail):
I second Archon.
6.2.2006 11:36am
Duncan Frissell (mail):
Ken,

"Equality" is not a libertarian value. Liberty is. No libertarian would argue that not licensing dentists when a state licenses physicians is worse than licensing both.

The fewer regulated categories the better.

Dale, CATO, and other libertarian commentators are arguing that expanding licensure to a heretofore excluded category of persons is a good thing. I've seen none of them say that "marriage shouldn't be licensed but if it's to be licensed it should be more inclusive." Even saying that is pretty strange libertarianism.

I've never heard a libertarian say that "there ashould be no taxation but if we're going to have taxation it should be extended to everyone". Traditionlly, libertarians were happy to see some escape thralldom.

I still ask, are there any other examples of libertarian advocacy of licensure?

This is just one of the things that bugs me about modern libertarianism. It seems to have drifted Left and pacifist. I couldn't care less about Equality or Peace. I want less government not more Equality or more Peace.
6.2.2006 11:38am
sunship (mail):
I understand that much of the discussion on these forums surround the legal questions. But, as an outside observer, it's painfully clear that, at base, it's about people that don't like homosexuals and those that do, those that think homosexuals aren't citizens enough, and those that do. That comments that a marriage between two people is somehow corrupting is absurd on its face. This nation should be ashamed.
6.2.2006 11:40am
Gabriel Malor (mail):
Archon and AppSocRes,

How does "3/4 of the states ratifying the amendment" mean that the amendment is not being imposed on the states that choose not to ratify?
6.2.2006 11:43am
sunship (mail):
err, that should read "...is somehow corrupting are tolerated and are absurd..."

I want to add that the decision to marry is, by definition, the opposite of what people that are afraid of homosexuals claim it to be...it does not destroy or corrupt...hard to believe, but fear or hatred of homosexuals' equal treatment turns "good" into "bad"
6.2.2006 11:43am
AppSocRes (mail):
Gabriel Malor: Let's apply your argument to murder: If everyone does not accept the laws against murder then those laws are an illegitimate imposition upon the murderers in our midst.
6.2.2006 11:51am
JC (www):
@AppSocRes:

This is a profoundly weak and disappointing reply.

I do share the view that the institution of marriage is vital for a functioning society, however, to compare "the corruption" (sic!? What exactly would that be? What are you afraid of?) caused by individual states allowing gay marriage to the damage and costs inflicted by murder is ludicrous.

Consequently, comparing justified limitations to individual freedom imposed by criminal statutes prohibiting murder with a constutitional amendment banning gay marriage arrangement in certain states is not a sound argument at all.
6.2.2006 12:13pm
Thorley Winston (mail) (www):
Wilson's argument would be a lot more convincing if he acknowledged and came up with a concrete proposal other than a FMA to deal with the fact that proponents of SSM aren't generally trying to prevail in the legislatures -- they're by and large using the courts to impose their own policy preferences on States where the people there didn't chose to define marriage as being something other than one man and one woman.
6.2.2006 12:16pm
SimonD (www):
Comparing Roe v. Wade to a gay marriage amendment is really comparing apples to oranges. One is a judicially imposed rule and the other involves 3/4 of the states ratifying the amendment.
While certainly the former is invalid and the latter is valid, both have the identical practical effect of creating a national policy straightjacket on a contentious social issue, and are therefore very much comparable. See discussion here.

I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low.
Prior to Lawrence, that might have been a tenable assertion, but I'm not sure that it is now. All that really stands between us and "federal judicial imposition of nationwide gay marriage in the near- to medium-term" is whether or not Justice Kennedy is willing to follow his Lawrence opinion to its logical conclusion; given his refusal to do so vis-a-vis Casey and Stenberg, we have to hope so.
6.2.2006 12:23pm
Ken Arromdee (mail):
"Equality" is not a libertarian value. Liberty is. No libertarian would argue that not licensing dentists when a state licenses physicians is worse than licensing both.

If the government refused to give licenses to physicians whose names begin with the letter "A", I think few libertarians would prefer that to a situation where the government licenses physicians regardless of their name, even though the government is doing less licensing.

There's also another issue, in that the license grants permission to do something that libertarians believe you should be allowed to do anyway. If you think the state shouldn't license physicians, what you really object to is the state saying 'since you don't have a license, you can't practice'. Wider licensing, in this case, means more liberty, so libertarians would object to the licensing regime but believe that as long as the regime exists, as many people should be licensed as possible.

Likewise, a libertarian might think that the more people are licensed to marry, the more people have a right to let spouses inherit despite the objection of relatives, visit sick spouses in hospitals, etc.
6.2.2006 12:29pm
sunship (mail):
Thorley, I think that's a bit disingenuous. Same-sex marriage proponents are using the courts because they believe that denying equal access to institutions available to people that aren't homosexual infringes on their rights. What makes it a _policy_ "preference" are the people who think homosexuals don't deserve equal access to those institutions and wish to encode that in law. Each side is using the appropriate avenue for action: anti-homosexuals trying to make laws that deny access to the same institutions by homosexuals that are enjoyed by non-homosexuals and "ssm" proponents using the courts to address unequal treatment by government. Insinuating that using the courts to try to right a wrong is some sort of tyranny is a bit rich. I can see how one would come to that conclusion if you thought that homsexuals were "sub-citizens" that shouldn't be able to ask the courts to interpret existing laws in such a way that they aren't prevented from access to the same institutions provided under law. One group is trying to ensure their equal rights under the constitution while the other is trying to change the rules of the game against the other group. Ultimately, there is no utility to denying homosexuals the right to marry...unless you take pleasure in denying that right, I guess.
6.2.2006 12:32pm
Paul Sherman:
Duncan said:
"Equality" is not a libertarian value. Liberty is. No libertarian would argue that not licensing dentists when a state licenses physicians is worse than licensing both.

The fewer regulated categories the better.

Dale, CATO, and other libertarian commentators are arguing that expanding licensure to a heretofore excluded category of persons is a good thing. I've seen none of them say that "marriage shouldn't be licensed but if it's to be licensed it should be more inclusive." Even saying that is pretty strange libertarianism.

I've never heard a libertarian say that "there ashould be no taxation but if we're going to have taxation it should be extended to everyone". Traditionlly, libertarians were happy to see some escape thralldom.

I still ask, are there any other examples of libertarian advocacy of licensure?

This is just one of the things that bugs me about modern libertarianism. It seems to have drifted Left and pacifist. I couldn't care less about Equality or Peace. I want less government not more Equality or more Peace.


Do you know many libertarians who would say that, in the interest of limiting government, it would be preferable to only require licenses for black doctors than to require licenses for all doctors? I think many libertarians would say that government-imposed burdens, where they exist, should be distributed uniformly because this increases the long-run chances that an aggrieved majority will democratically repeal the burden. Libertarians believe that liberty is the highest political end, but most also believe that there are more and less pragmatic and moral ways of working towards that end.

At any rate, I think your argument fails on a more fundamental level. In your dentists/doctors hypothetical, the dentists have access to the same benefit as licensed doctors: the right to pursue an honest living. With a prohibition on gay marriage, the unlicensed party is denied a benefit available to the licensed party: legal benefits exclusively associated with marriage. One could believe, with perfect libertarian consistency, that the government should not create these legal benefits in the first place, but that having done so it must dispense them equally; a politician unable to dispense favors to targeted groups is less likely to distribute them at all.

Your short-term approach to liberty strikes me a sure road to long-term tyranny.
6.2.2006 12:49pm
Paul Sherman:
...and everything that Ken managed to say while I was typing my response!
6.2.2006 12:51pm
Houston Lawyer:
There is no law currently on the books that says that homosexuals can't marry. Prior to the last few years, SSM has never existed anywhere. SSM advocates want a new right, not access to an old one.
6.2.2006 12:52pm
Bruce Wilder (www):
"Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools . . . think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference."

Sounds like a fair summary of conservative political "principles" generally.

The 10th Amendment, always one of my favs, states the proposition: "The powers not delegated to the United States . . . are reserved to the States respectively, or to the people." Or, to the people. Now there's a concept.

The effect of Roe is to reserve to the people, choice in the matter of abortion. And, the liberal view of gay marriage is the same as the liberal view of marriage: let those foolish enough to want to marry, decide case by case.

Conservatives, on the other hand, debate among themselves who is to be dictator. The idea that judicial tyranny could be the issue is undermined somewhat by the conservative determination to impose tyranny from either the Federal government or State governments or both.

Those who oppose abortion rights and gay marriage are advocates of tyranny, and advocates of tyranny are seldom persuaded by an argument, which would leave someone, somewhere free. I don't think James Q. Wilson's argument will prove persuasive among the opponents of gay marriage.
6.2.2006 12:54pm
margate (mail):
Dale:

I've really enjoyed your coverage of this issue. Very thoughtful.

At the same time, I'm pushed to throw my hands up about the whole thing because you're talking at cross-purposes with the GOP folks deciding how this issue should percolate through the political system.

Let's face it. The FMA has nothing to do with anything except demonizing a group of people to GOTV of the Repub base -- those people who, for reasons that escape me beyond selective use of Old Testament injunctions, fear that homosexuality will cause western culture to fail (something that, remarkably, still hasn't happened in the approx. 3500 years since Moses penned the very laws relied on by some of those FMA promoters -- go figure).

No amount of rational dialogue on this issue will make one whit of difference.

C'mon. When's the last time you've heard any of those hardline FMA advocates draft a constitutional amendment overturning Roe v. Wade and move for its vote on the floor of the House.

Demagoguery.
6.2.2006 12:55pm
sunship (mail):
Houston, what's your point? You border on self contradiction.
6.2.2006 12:56pm
Paul Sherman:
Houston,

Just as in Virginia, until 1967, there was no law that said a white man and a black woman couldn't get married. They just couldn't get married to each other.
6.2.2006 12:58pm
Spawn of Jim:
I do agree with the general assessment about gay marriage laws. I'm hesitant to compare slavery with marriage (I disapprove of the former and approve of the latter), but I understand that they're both one of those "full faith and credit" things--if you allow marriage (or slavery) in one state, you effectively allow marriage (or slavery) in all the states. That's why I think it's so important that the decision about gay marriage be made at the national level.

What do I feel that the decision should be? The list taken from this page pretty much sums up my feelings:
12 Reasons Gay Marriage Will Ruin Society
1. Homosexuality is not natural, much like eyeglasses, polyester, and birth control are not natural.

2. Heterosexual marriages are valid because they produce children. Infertile couples and old people cannot get legally married because the world needs more children.

3. Obviously gay parents will raise gay children because straight parents only raise straight children.

4. Straight marriage will be less meaningful, since Britney Spears's 55-hour just-for-fun marriage was meaningful.

5. Heterosexual marriage has been around for a long time, and it hasn't changed at all: women are property, Blacks can't marry Whites, and divorce is illegal.

6. Gay marriage should be decided by the people, not the courts, because the majority-elected legislatures, not courts, have historically protected the rights of minorities.

7. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are always imposed on the entire country. That's why we only have one religion in America.

8. Gay marriage will encourage people to be gay, in the same way that hanging around tall people makes you tall.

9. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage license.

10. Children can never succeed without both male and female role models at home. That's why single parents are forbidden to raise children.

11. Gay marriage will change the foundation of society. Heterosexual marriage has been around for a long time, and we could never adapt to new social norms because we haven't adapted to cars or longer lifespans.

12. Civil unions, providing most of the same benefits as marriage with a different name are better, because a "separate but equal" institution is always constitutional. Separate schools for African-Americans worked just as well as separate marriages will for gays &lesbians.


I'd like to see someone rebut at least one of these items effectively. And "get serious" doesn't count: satire may be irreverent, but it's not fallacious, is it?
6.2.2006 12:58pm
brian h (mail):
There's another difference between Roe and FMA, in that Roe errs on the side of liberty, if not federalism. Under Roe, a woman may choose to have an abortion or not. The choice remains squarely with the individual. Under FMA, as well as potential pro-life laws (and even a federalist repeal of Roe), the decision whether to abort/marry is moved to to the realm of the State, which forbids the actions in both cases.

Unlike a federal law banning gay marraige, Roe is not a trumping of federal power over that of the states. It's a trumping of individual power over both Federal and State government. The equivalent for the gay marraige issue would be for State and Federal government to get their noses out of regulating marraige all together (or at least to as large a degree possible).
6.2.2006 1:05pm
Paul S (mail):
Archon: Of course if the amendment is duly proposed and ratified it will be binding on everyone, including those who disapproved of it. No-one is going to start a civil war over the FMA. But that is not the point. The point is that precisely because it will bind all the states, regardless of their individual opinions the amendment may be objectionable.

What underlies that belief are the convictions:

(1) It would be better to leave SSM to be worked out state by state. That's really not a legal conclusion (no legal rules really apply to considering amendments to the constitution) but a political judgment. It's the key issue here, so I return to it below.

(2) This is what the constitution currently understood provides. A vast majority of people believe this, including virtually all opponents of SSM, and a good number of supporters. A few supporters of SSM believe (or claim to believe) that the federal constitution as currently drafted requires states to make SSM available, but that claim is implausible.

(3) Left to itself the federal judiciary will allow that to happen, i.e. will apply the constitution as it is properly understood. Some people's faith in the federal judiciary is so small that they doubt (3). Most well-informed lawyers are pretty certain that these fears are unfounded, though in the nature of things one cannot "prove" they are: but even if they were valid fears, the most that would be needed is some amendment that would preclude an "activist" judicial creation of a right-to-SSM, not the FMA which (at least on most readings) would go further by precluding state recognition of SSM as well.

The real argument is over (1). The main point here is that it is perfectly possible to believe that SSM is a very bad idea and still think that the decision whether to allow it should be left to be decided on a state-by-state basis. That's not ridiculous, any more than it would be ridiculous to believe that SSM is a very good idea but that it is ultimately a matter that ought to be decided on a state-by-state basis. Both perfectly respectable views.

Among the reasons to believe (1) is that those cases where the constitution has been held to enforce a particular controversial moral view on which public opinion is polarised and in flux have not on the whole been happy experiences. Those include the Supreme Court's discovery/invention (in Roe) of a constitutional right to abortion, and prohibition. Now it may well be true that Roe is "worse", because there are very strong reasons to question whether the decision was legally right (whereas the prohibition amendment was at least legally valid), in which case it was a doubly illegitimate case of federal interference. But one may well hold the view that even if a constitutional right to abortion had been introduced by completely legitimate means, for instance by constitutional amendment, it would still have been an inadvisable innovation. In other words, the arguments against Roe are not just about its pedigree, but about whether that sort of issue ought to be dealt with nationally at all. The same may well go for all sorts of other issues around controversial sexual and personal relationships. There's a very credible case to be made for the argument that a lot started going wrong (institutionally) when SCOTUS first discerned on pretty slender grounds any sort of constitutional limitation on the power of states to regulate personal sexual conduct.

In fact one can believe that even if one supports the actual outcome of the cases. I happen to believe that birth control should be permitted, that gay sex should be permitted, that abortion should be quite readily available, and that SSM should be recognised. In other words, I buy the entire liberal agenda on that. But I do not believe that the Constitution, correctly interpreted, gave anyone a right to use condoms, practice sodomy, have an abortion, or marry his boyfriend. I do not believe that there is any inconsistency in those positions.

The question one should ask is this: Supposing someone proposed an amendment which would mandate every state to provide and recognise gay marriage. You would oppose it. But on what grounds? If your answer is: "only because I think gay marriage is wrong", then you can consistently support the FMA. But if the answer is: "because I think gay marriage is wrong and that sort of issue ought to be left to states to decide" then you cannot, in good conscience, support the FMA.

(Of course it also follows that those who advocate rejecting the FMA as inconsistent with a proper understanding of what it means to be a federal republic would have to oppose an amendment which would mandate the availability of SSM.)
6.2.2006 1:07pm
Bob Van Burkleo (mail):
ok, you are a bunch of lawyers please explain how license to a civil contract can be limited to reasonable access to only some citizens? That is the issue that has been having courts rule for marriage equality.

If the problem is legislation that promotes unequal access to government, isn't voiding such legislation the province of the courts, not the legislature that made the mistake in the first place?
6.2.2006 1:16pm
Anderson (mail) (www):
There is no law currently on the books that says that homosexuals can't marry.

Houston, what are you talking about? Mississippi certainly has such a law (MCA 93-1-1(2)), &I'd imagine other states do as well.

Or are you trotting out the obtuse "gays can marry, they just can't marry each other"?

As for the jurisdiction-stripping amendment, it needs some work. Suppose a federal judge has a case requiring him to apply Massachusetts law to a gay married couple, an ERISA case perhaps, where it matters whether they're married. Could he do so under that amendment? His sole power to hear the case comes from the Constitution; if it doesn't let him decide the case &apply Mass. law, then he can't do it.
6.2.2006 1:19pm
Achilles (mail):

If there is to be a constitutional amendment, it would be better if it said this: 'Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman.'


But this objective could be accomplished through ordinary legislation, couldn't it?
6.2.2006 1:27pm
Medis:
There is probably little point to us rehashing all the arguments about whether gay marriage anywhere is in fact likely to corrupt all marriages everywhere. Obviously, if you believe that, then you believe this is necessarily an issue of federal concern.

I'm a bit more interested in arguments to the effect that the federal constitution should stop state judges from finding that state statutes and state constitutions require the state to provide some or all of the legal incidents of marriage to gay couples. Again, you don't need this argument if you think gay marriage will corrupt all marriage everywhere. But people seem to think this is an independent argument, and that it makes sense for the federal constitution to mandate what state court judges can do with respect to this issue.

What exactly is the principle here? And is it limited to gay marriage? Should we be passing federal amendments barring "liberal activist judges" from finding that state statutes and constitutions provide any other rights or entitlements? Is there a general civil right to not live in a state with "liberal activist judges"?
6.2.2006 1:59pm
Michelle Dulak Thomson (mail):
Anderson,

I seem to remember a Laurence Tribe article from maybe 20+ years back (during the Reagan Administration, anyway, the last time I remember jurisdiction-stripping proposals being much in vogue) making much the same point: Taking away jurisdiction is a terribly blunt instrument, and one that could very easily frustrate the proposer's intention in all sorts of not at all farfetched hypothetical situations. Tribe was writing mainly about various appraches to thwarting Roe IIRC, but the problems are similar.

IANAL, but a plain reading of Wilson's proposed amendment's text suggests that the judge in your own hypothetical is in a pickle.
6.2.2006 2:17pm
Closet Libertarian (www):
As Duncan already pointed out, those who say there is no need to worry that eventually the courts will invent a constitutional right to marry, are trying to maintain that possibility. Dale is missing the point here. It doesn't have to be soon to be a worry. What if we thought the courts were going to read away the 1st amendment because of ambigious wording. Wouldn't it be worth it to pass an amendment to clarify now?

Medis,

I don't like the the state courts inventing state constitutional rights, but will tollerate it as long as they don't violate federal constitutional rights. And I still don't see how some states with gay marriages can work with the full faith and credit. Should the other states that object to gay marriage fail to recognize those marriages as being against public policy?
6.2.2006 2:18pm
Marcus1 (mail) (www):
Perhaps supporters of Roe v. Wade don't believe they have absolute truth, but do believe that the Consitution protects autonomy over one's own body, and that mere state majorities should not be allowed to take such a fundamental right to personal autonomy away.

In this way, Roe v. Wade supporters would simply require a constitutional amendment to be able to curtail such a fundamental right. That doesn't say absolute certainty, but it says that for such fundamental and personal rights, 51 out of 100 votes to take them away doesn't cut it.

So what about here, where you could potentially have 2/3 willing to foreclose a right? Well, basically, I think they shouldn't. I guess the liberal federalism argument, however, would be this: Yes, states should decide, unless it involves depriving someone of a fundamental right. I'm less sure how conservatives reconcile their argument.
6.2.2006 2:29pm
Cornellian (mail):
I think the argument that this is an issue best dealt with on the state level is misplaced. The protection of the institution of marriage is something that concerns all citizens on a national level. The courruption of it in one or two states adversely effects the rest of the country and the institution upon which society relies heavily.

I can't say I'm all that surprised that those who feel most strongly that Roe v. Wade was an invalid usurpation of democracy display such fear of allowing that same democracy to operate in the case of same sex marriage.
6.2.2006 2:32pm
Tony (mail):
Prior to the last few years, SSM has never existed anywhere. SSM advocates want a new right, not access to an old one.

Sigh... I don't get this notion that marriage does not "exist" without state recognition. Of course it exists, whether the government chooses to recognize it or not. Saying otherwise is, truly, trivializing it; marriage is surely more a matter of the heart than a piece of paper issued by a bureaucracy.

The process of recognizing SSM is not inventing a new right, it's bringing the law into alignment with long-standing human relationships that have probably existed for all of human history. Denying SSM is denying reality.
6.2.2006 2:33pm
Cornellian (mail):
I'm not sure the suggested alternative amendment is properly characterized as jurisdiction stripping.

Also, just because it's fun to do, I wonder what happens if this amendment is enacted and a state court then decides that the federal constitution mandates SSM. The amendment on its face applies only to federal judges. Does the amendment then force SCOTUS to grant cert? Or could it deny cert and leave the ruling intact (albeit applicable only inside that state) on the grounds that denying cert isn't a ruling on the merits, and therefore not within the scope of what is prohibited by the amendment.
6.2.2006 2:36pm
Archon (mail):
Roe was a usurption of democracy. Seven justices found a "right" written into another "right" that has placed an entire area of public policy into a branch that was never envisioned to have such a policy role.

The constitutional amendment process is the definition of democracy at its core. The people of the States ultimately decide by direct voting.

Last time I checked, this country was not meant to be ruled by blacked robed kings and queens.
6.2.2006 2:40pm
Duncan Frissell (mail):
So we have those who claim to speak for libertarians (I don't know if they are personally libertarian or not) saying things like:

I think few libertarians would prefer that to a situation where the government licenses physicians regardless of their name, even though the government is doing less licensing.


the license grants permission to do something that libertarians believe you should be allowed to do anyway.... Wider licensing, in this case, means more liberty

"Wider licensing, in this case, means more liberty" I gather you're not a libertarian yourself. "Slavery is Freedom" -- amazing.

I think many libertarians would say that government-imposed burdens, where they exist, should be distributed uniformly because this increases the long-run chances that an aggrieved majority will democratically repeal the burden.

Since when were libertarians advocates of democracy? That's the "let's have more oppression so that it will lead to revolution" school of thought. Never liked it much.

With a prohibition on gay marriage, the unlicensed party is denied a benefit available to the licensed party: legal benefits exclusively associated with marriage.

Actually gay marriage is as legal as church on a Sunday. What has not been provided is state recognition of SSM.

I would guess that most libertarians would reject "equality of burdens" they certainly do in the area of taxation. They supposrt tax resistance and lower taxes rather than tax equality. Note that almost all licenses are also taxes since the government charges fees for their issue.

Likewise, many libertarians seek to discourage people lining up for government permissions and paperwork. They advocate avoidance.

Remeber that libertarians advocate the repeal of the Civil Rights Act of 1964. They advocate the legality of "invidious discrimination".

And obviously libertarian anarchists advocate that "others government" should not exist so they obviously oppose state licensure of family formation.

If this "equality" thing is so important to libertarians then government SSM advocates would be able to come up with other examples of cases where libertarians have advocated licensure in the name of equality or pragmatism or something. In my 40 years in the movement, I can't think of another example. Perhaps Dale or some of the commentators can.

I detect 'special pleading' at work.
6.2.2006 2:44pm
Medis:
Closet Libertarian,

Actually, although it is sometimes called a public policy exemption to the Full Faith and Credit clause, it is really more a choice of law principle. The basic idea is that states can enforce their own laws within their own jurisdiction. Again, for relevant discussions, see Baker v. General Motors Corp., 522 US 222 (1998), Nevada v. Hall, 440 US 410 (1979), and Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 US 493 (1939). As the Court stated in Nevada (citing Pacific Employers): "[W]e think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."

So, the question would be whether the second state's laws would allow the gay couple in question to be married. If not, then the second state does not have to treat the couple as married, even though the first state would continue to treat the couple as married under its own laws.

The paradigmatic example actually involves age. Suppose State A allows 12-year-olds to get married, but State B does not. So, two 12-year-olds get married in State A, but then the couple resides in State B. State B does not have to treat these two 12-year-olds as married, because that is contrary to the laws of State B.

In short, the basic idea is that a state does not have to give some of its residents more marital rights than other residents simply because they originally got married in a different state. And that is because within its own jurisdiction, the state's own laws govern.

Incidentally, as a sidenote, an interesting problem would have arisen if Arnold had not vetoed the gay marriage bill in California. Supporters of the bill had claimed that Proposition 22 only dealt with the validity and recognition of out-of-state gay marriages, and hence it was not necessary to repeal Proposition 22 before adopting gay marriages within California itself.

Assuming that is a correct reading of Proposition 22, that would still have created what would likely be an unconstitutional situation under the Full Faith and Credit clause (or perhaps the Privileges And/Or Immunities clauses depending on the facts). That is because it would no longer be the case that California law did not recognize the validity of gay marriages, and hence California would be trying to treat gay couples married elsewhere UNequally, not equally, under their laws.

Anyway, the bottomline remains that if gay marriage was illegal in your state, that is the law that would govern marriages in your state.
6.2.2006 2:57pm
Boonton (mail) (www):

The real argument is over (1). The main point here is that it is perfectly possible to believe that SSM is a very bad idea and still think that the decision whether to allow it should be left to be decided on a state-by-state basis.


I think this is what is really behind the FMA and its advocates. They fear that some and eventually many or all states will be convinced to try SSM or some variation on it. So to prevent that from happening their goal is to freeze the status quo in place right now and forever.

The essence of this is an end run around democracy. If rogue judges were really the issue then shouldn't they explain to us how this could be a problem on the Federal level when the majority of judges were appointed by Republicans and it was easy for a minority of Republicans to filibuster judicial appointments that might have been radical during the Clinton years and Carter years long before that?

Another thing, many states have in their Constitutions the equilivant of the Equal Rights Amendment that was rejected by right wingers on the Federal scale in the early 80's. One of the big arguments used against the ERA was that it would enact gay marriage.

Now if a state like Mass. and its voters put ERA type language in their Constitutions AND the right was correct that such language means gay marriage then where do the crybabies get off complaining about judges 'imposing' their will on the state voters?
6.2.2006 3:04pm
Phutatorius (mail) (www):
It continues to surprise me that conservatives insist upon denigrating the constitutional power of the judiciary to intervene to protect the rights of political minorities. This is, after all, a pretty fundamental principle of our government -- and one that the religious right hastens to endorse when it complains to courts (to take just one example) that the California university system is "discriminating" against their scientifically backward textbooks.

Did these people cut civics class right after the "majority rules" lecture? Would they unwork the Supreme Court's desegregation of schools? Clearly not -- because they know enough to take their own social issues into court.

Let's call the "judicial activism" phenomenon what it is: a marketing gimmick drafted by the [admittedly gifted] conservative elite that enables the rank-and-file right to articulate "structural" opposition to social progress, so that they don't have to come right out and say what they really think about the substantive issues.
6.2.2006 3:06pm
Robert West (mail) (www):
Thorley -- proponents of gay marriage, at least in some places, are trying both lines of attack. In California, for example, the legislature has (a) adopted a domestic partnership system which is almost entirely equivalent to marriage, and (b) passed a gay marriage law (vetoed by the governor), while at the same time a gay marriage case is going through the courts.

Given that the legislature of the state with the largest population in the country has passed a gay marriage law, and given that attempts to repeal the domestic partnership law have repeatedly failed to gather enough signatures to qualify for the ballot, the argument that there is no legislative path to gay marriage is somewhat weak.
6.2.2006 3:06pm
Medis:
By the way, I want to note again an important aspect of marital law.

States will generally refuse to enforce private contracts that are too much like marriage. The rules vary from state to state, but generally if the contract involves romantic love and/or sexual relations as an essential term (what is sometimes called "meretricious consideration"), it will be declared invalid and unenforceable.

So, insofar as one thinks of marriage as a contract that typically involves romantic and sexual relations as essential terms, states have in fact prohibited marriages which do not conform with state requirements to the extent that they will refuse to enforce such contracts.
6.2.2006 3:08pm
JOSH:
"I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference."

This connotes all questions have two sides. Were the proposed amendment seeking to ban marriage among Jews or African Americans, I don't think Dale would argue against such line-in-the-sand thinking -- Scalian rationalizations about the Equal Protection Clause notwithstanding (Jews banned from marrying Jews would still be allowed to marry non-Jews; African Americans barred from marrying whites can still marry other African Americans, a la Loving v Virginia). This argument truly is about denying society's basic benefits to a discrete group, nothing more. It warrants "the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference."

As to the jurisdiction-stripping argument, of course if proponents don't view prohitting SSM as a constitutional violation, it makes perfect sense to throw Marbury v. Madison out the window as well.
6.2.2006 3:10pm
Closet Libertarian (www):
Medis,

With the stipulation that full faith and credit would be interepreted as you have outlined then the focus for me becomes (1) ensuring there is no federal constitutional right to gay marriage read into the constitution (2) the process by which states adopt gay marriage (I still have more concern about Massachusetues gay marriage than Canada's gay marriage because it is a state--just as I would care that they don't become a monarchy). Do you advocate courts over legislatures for deciding this?
6.2.2006 3:12pm
Robert West (mail) (www):
Medis - I was opposed to Proposition 22. That said, I remember there being two strains of argument among those who supported it: (a) gay marriage is bad and we shouldn't allow it; (b) we shouldn't allow those other states to tell us what to do, and this will prevent that.

It's not clear to me that the people who wanted the wider meaning would have been sufficient to enact the law, and certainly there were many people who voted for it who voted for the narrower meaning.

To a small degree, I feel like we were the victim of a bait and switch operation.
6.2.2006 3:15pm
eeyn524:

If this "equality" thing is so important to libertarians then government SSM advocates would be able to come up with other examples of cases where libertarians have advocated licensure in the name of equality or pragmatism or something. In my 40 years in the movement, I can't think of another example. Perhaps Dale or some of the commentators can.


Duncan, are you for or against "shall issue" concealed carry laws? Do they result in more licenses, or less licenses? I think more. More licenses, according to you, is less libertarian. Therefore libertarians must oppose shall issue laws?

As many others have pointed out upthread, you are conflating extending the category of activities that require licensing, with extending the category of people eligible to get the license.
6.2.2006 3:21pm
Medis:
Closet Libertarian,

You ask: "Do you advocate courts over legislatures for deciding this?"

I wouldn't "advocate" one or the other, in that I would not want to impose on every state one particular way of dealing with the problem. If, for example, State A wants to adopt broad anti-discrimination statutes and/or constitutional provisions, and then let the state courts apply those statutes and provisions to specific issues like gay marriage, then I don't have a particular problem with that approach. Conversely, if State B wants to provide that gay marriage can only be adopted through a specific referendum or legislation, then I have no particular problem with that approach either.

Of course, that analysis is holding aside the political issues. Obviously, at least certain people are willing to entertain the idea that it is a matter of federal concern how a state goes about resolving these issues. Personally, I don't see any validity to that idea, but insofar as it gives one more argument to those proposing the federalization of this issue, gay marriage advocates may want to think about what approach they take within their state.
6.2.2006 3:41pm
Christopher Cooke (mail):

Last time I checked, this country was not meant to be ruled by blacked robed kings and queens.


But see Bush v. Gore.
6.2.2006 3:42pm
tom@office:
1. Homosexuality is not natural, much like eyeglasses, polyester, and birth control are not natural.
It's not about natural vs. unnatural; it's about net benefit vs. net loss for a society. Irradiation has been approved for many uses in about 36 countries, but only a few applications are presently used because of consumer concern and because the facilities are expensive to build. DDT helps prevent malaria, but it's banned nonetheless. A society will generally accept changes when they perceive the benefits to outweigh the costs. Like it or not, many perceive possible costs to marriage between homosexuals that outweigh the benefits.

2. Heterosexual marriages are valid because they produce children. Infertile couples and old people cannot get legally married because the world needs more children.
If marriage is not about channeling impulses that can destroy a society into a productive form, then what is marriage about? Ask evolutionary psychologists for their opinion, you may see a consensus emerge...
And yes, the world needs more children.

3. Obviously gay parents will raise gay children because straight parents only raise straight children.
First, the weak response. The 'marginal case' argument suggests that a certain subset of children may be influenced, depending on attributes of both the parent and the child. While the validity of this argument vanishes if your conceptualization of homosexual behavior is purely biological, that conceptualization remains at this point, an article of faith.
Secondly, the main idea (as I understand it) is not that gay marriage will exert a direct influence on the children of gay couples as much as an indirect influence on how 'marriage' and 'family' are perceived in general.

4. Straight marriage will be less meaningful, since Britney Spears's 55-hour just-for-fun marriage was meaningful. I doubt you'll find many who argue that her 'marriage' was valid beyond the most superficial sense that vegas weddings have been associated with. That's the point, no one is advocating for its validity. The broader argument that the construct of marriage has a lot of problems it true, unfortunately, some feel that 'homosexual marriage' is one of them.

5. Heterosexual marriage has been around for a long time, and it hasn't changed at all: women are property, Blacks can't marry Whites, and divorce is illegal.
Change itself can be good or bad. Egalitarianism and destruction of racial taboos were positive changes for our society. No-fault divorce was probably not a positive change for our society.

6. Gay marriage should be decided by the people, not the courts, because the majority-elected legislatures, not courts, have historically protected the rights of minorities.
Using the word 'rights' does not suddenly make that framing of the issue correct. Many conceptualize abortion as a 'rights of the woman' issue, but that'll be a hard sell to someone who sees the embryo as human. The right to redefine a societal institution lies with no minority. If it is to be done, it should be by persuasion of the majority, until the minority position has become the majority position.

7. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are always imposed on the entire country. That's why we only have one religion in America.
Not a theocracy. A religiously-oriented constitutional republic. Seriously, there's disagreement on the meanings of 'secularism', 'establishment clause', the need for a religious citizenry and so on, but denigration of those on the other side yields few converts to the cause.

8. Gay marriage will encourage people to be gay, in the same way that hanging around tall people makes you tall.
It is easy to think this way if you feel homosexual behavior is 100% genetic. If one sees it as less than 100% genetic, there's some concerns to deal with. Maybe there's no correlation between your height and the height of your neighbors, nor is there a correlation between the heights of an Australian aborigine and his neighbors, but there's a mean difference between SUM(you and your neighbors), and SUM(the aborigine and his neighbors) that is environmental. Surely one can see the potential effect gay marriage could have on mean levels. Like contagion effects in advertising.

9. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage license.
"I can't imagine the effect, so it must not exist, because with my superior intellect I can see all possible ramifications of this policy decision, and you're obviously just driven by baser motives, because if you were enlightened like me you would see how obvious it is that…"

10. Children can never succeed without both male and female role models at home. That's why single parents are forbidden to raise children.
It's about probabilities, it's not about absolutes. "Only a Sith speaks in absolutes!" (yells Obi-Wan, speaking in absolutes). On a slightly more serious note, $20 if you can find 10 members of the Society for Research in Child Development (SRCD) that disavow the following "Nuclear families are, all things being equal, the optimal environment for childrearing."

11. Gay marriage will change the foundation of society. Heterosexual marriage has been around for a long time, and we could never adapt to new social norms because we haven't adapted to cars or longer lifespans.
Funny, but I'm pretty sure there's some concerted efforts being made to address the unintended, unforeseen consequences of just those two developments.

12. Civil unions, providing most of the same benefits as marriage with a different name are better, because a "separate but equal" institution is always constitutional. Separate schools for African-Americans worked just as well as separate marriages will for gays &lesbians.
I'm with you. Civil unions are a non-starter for me too. At last, we agree on something
6.2.2006 3:43pm
Medis:
Robert,

I'm no expert on Proposition 22, but it does seem to me that part of the lesson one can take from California's experience is that one should be careful about how one drafts these measures.

Unless, I suppose, the whole idea is simply to create as many legal obstacles as possible to gay marriage, even if that requires adopting ambiguous language and selling that language as doing less than it might actually do.
6.2.2006 3:44pm
Freethinker:
I think all of this arguing about SSM is just a waste of time. The Bible says to kill gay people; why don't we, the pious, just grow a set and kill them all? If there were no gays around, then no one would choose to be gay, because they wouldn't even know what "gay" was (of course it will take a generation or two for this to happen)! Think about it........

Of course, it will be near impossible to kill all of the fags in the gay meccas, places like San Francisco, New York, Chicago, and all of Massachusets. I say, we nuke 'em; it'll get rid of the fags, and it will make it a lot easier to enact the one party state we've been working so hard for over the years.

Grab a rock and stone-to-death your local faggot today!
6.2.2006 3:58pm
Ken Arromdee (mail):
"Wider licensing, in this case, means more liberty" I gather you're not a libertarian yourself.

I'm close enough (there are areas where I disagree, but they're not really relevant here).

Wider licensing means more liberty because the license is a permission to do something, and the more people have that permission, the more liberty. Ideally, getting the license should be no effort at all and everyone should automatically have one; this is the widest licensing possible and the most liberty.

It is true that libertarians would prefer no licensing at all, but in this case, "no licensing" and "nobody is given a license" refer to very different things. The former means everyone has permission and the latter means nobody has permission. In fact, "no licensing" here is equivalent to universal licensing.
6.2.2006 3:58pm
Davebo (mail):
Why even discusss this idiocy?

Look folks, it's an election year. George Bush knows this amendment isn't going anywhere, every Republican in congress knows it isn't going anywhere.

It's proferred for a reason. The same reason it was brought up in 2004. A good old fashioned election year wedge issue plain and simple.

And for serious people to bother debating it is just a case of your leaders yelling at you to jump and you asking "how high?".
6.2.2006 4:00pm
Davebo (mail):
Freethinker,

I think you'll like this line from a story discussing the large draw of homosexuals to the Catholic church.


"Jesus represents the perfect boyfriend — handsome, frequently shirtless, and willing to forgive pretty much anything."



link
6.2.2006 4:03pm
Christopher Cooke (mail):
While we are at it, maybe we should enact other constitutional amendments targeting other unpopular minority groups, like Arabs.

The "Keep America Safe Act of 2006":

It shall not be found to be a violation of any federal or state law, rule, or regulation, to deny equal protection of any such laws, rules, or regulations, to anyone of Arab origin. "Arab origin" shall mean any person whom a reasonable, Red state, caucasian male voter (defined, in turn, as someone who thinks Karl Rove is the Second Coming and is wrongly being persecuted by Patrick Fitzgerald), deems to be "an Arab," and may include Sikhs, and other "darkies"

Any other ideas for groups to pick on? Come on, lets get this constitution thing right, for once.
6.2.2006 4:03pm
Bob Van Burkleo (mail):
A society will generally accept changes when they perceive the benefits to outweigh the costs. Like it or not, many perceive possible costs to marriage between homosexuals that outweigh the benefits.

Lets see, systematic unequal treatment and access to government services for law abiding citizens that undermines the founding postulates of the government's rationale, or treating them all equally and having 1% or so of the population licensing these contracts with someone of the same gender. I know which one seems more dangerous to me.

Still since courts are deciding upon grounds of unequal treatment isn't making constitutional amendments to prevent equal treatment just admitting the one of our nation's founding premises isn't valid? Sort of like being constitutionally obligated to share a pie equally and after the fact defining 'equal' as being 60:40?
6.2.2006 4:09pm
tom@office:
Lets see, systematic unequal treatment and access to government services for law abiding citizens that undermines the founding postulates of the government's rationale or treating them all equally and having 1% or so of the population licensing these contracts with someone of the same gender.

Are we talking about equal treatment? Talking about equal treatment under the law suggests that if gay couples were granted every last benefit of marriage that is the government's to grant (under the law), but withheld the social approbation and title of marriage (that government has no legitimate authority to grant), that would be an acceptable compromise. I doubt that is the state of our current affair. Many gay marriage proponents feel government has the right to change the basic definition of marriage. Government certainly has the power, but not the authority.

I know which one seems more dangerous to me.

Not nearly as dangerous as the futile deconstruction of the societal ideal of marriage down to individual statues and laws that will forever fail to encompass the whole. Phrases like "licensing of contracts" conflates benefits a government can grant, with the power to change a societal ideal that must be usurped to be used.

Still since courts are deciding upon grounds of unequal treatment isn't making constitutional amendments to prevent equal treatment just admitting the one of our nation's founding premises isn't valid? Sort of like being constitutionally obligated to share a pie equally and after the fact defining 'equal' as being 60:40?

Not any more than the amendment process suggests the Constitution was wrong. I don't know how else to say this, marriage is not owned by the government, so the government cannot decide how to define it. Some feel marriage is not even owned by the people itself but by God, but since you probably won't go there, I'm trying to meet you halfway. The benefits associated with marriage that the government confers can be argued as unfairly withheld from gays. The status of 'a married couple' cannot. I can lend you my car Bob, but I cannot lend you my neighbor's car. I'd have to steal it first.

I understand many will disagree with that assessment, but please understand that's how many on this side of the debate view things.
6.2.2006 5:04pm
Perseus:
I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.

Long live the Confederacy! Repeal the 13th amendment now!
6.2.2006 5:05pm
percuriam:
I think Wilson's bottom line argument is that it is not good to make social policy in the context of a lawsuit, where important rights (the parameters of which is still up to debate) are dictated by the preferences of 5 judges (who are presumably not gay--well, except may be one of them) and the attorney on both sides. It is much better and acceptable to all citizens (even if they do not agree with the result) if they debate the issue and vote on it.

Frankly, I care not what two consenting adults do in their own home. I do not care if gays get "married," but I do care when judges make law through an interpretation of the constitution. Remember penumbra? What the hell is that? where is that in the Federalist papers.

Let us vote.
6.2.2006 5:05pm
Archon (mail):
Examples of unequal government treatment:

1. Welfare (based on income)
2. Affirmative Action (based on race)
3. Social Security (based on age)
4. Veteran's Benefits (based on veterans status)
5. Marriage tax penalty (based on marital status)
6. Child tax credits (based upon the number of children)

So, while we are waging war against unequal treatment, lets end all the above programs too. Let us all join together to end discrimination once and for all!
6.2.2006 5:08pm
Houston Lawyer:
SSM advocates really need to stop carrying that pretend cross around. The vast majority of people don't agree that denial of SSM equals slavery or Jim Crow. Self validation cannot be delivered to you through the courts.
6.2.2006 5:11pm
PeterH:
I know that the real point is bashing gay people and trying to get us to disappear, but really, if the point is trying to prevent "activist" judges (that is, a judge who disagrees with you) from interpreting the various constitutions to require marriage equality, rather than doing the negative "nothing shall allow judges to interpret" stuff, why not simply inumerate that the definition of marriage and who may enter it lies specifically with the legislatures?

The Constitution has plenty of places where specific duties are laid on specific branches of government.

The fact is that current polls show that the population is divided at roughly 50-50 on the issue. Majority rule is all very well and good, but what is the point of using the Constitution to permanently outlaw something that 40% or more of the population is okay with?

The US Supreme Court already defined the right to choose the (one) person you marry as a fundamental human right. Kind of says all it needs to say that people think that it is okay to deny it to anyone. Talk about defining us as subhuman.
6.2.2006 5:14pm
Archon (mail):
I beginning to think we should just let the SSM people have exactly what they want. - gay marriage for all. In fact, we should implement the whole leftist agenda -

aggressive affirmative action
welfare for all
socialized health care
jobs for life
enless environmental regulation
endless consumer "protections"
high taxes
birth control for all
free love

Oh wait, all that has been implemented in Europe. Last time I checked Europe had double digit unemployment, race riots, unstable governments, higher incidents of STDs, huge national debts, and declining birth rates.
6.2.2006 5:17pm
Archon (mail):
Oh no, Peter H figured us all out. We fight against SSM because we hate gay people. Damn! I knew we would blow our cover sooner or later. I guess since we have been exposed we might as well just stop.

Damn that crafty Peter H!
6.2.2006 5:20pm
Bob Van Burkleo (mail):
Many gay marriage proponents feel government has the right to change the basic definition of marriage

That's impossible - marriage comes from within ourselves, its a biological characteristic, the government can't 'define' it any more than it can redefine the color blue. Gay people marry all the time, I've been married for 16 years, I just don't have access to the civil contract the state licenses in support of marriage.

Phrases like "licensing of contracts" conflates benefits a government can grant, with the power to change a societal ideal that must be usurped to be used.

That boat sailed long ago - there is no functional definition of 'marriage' that same gender couples can't meet as well as opposite gender ones other other than by artificially restricting the definition. And licensing the contract is the only power the government has. Again, gay couples will still marry even with an amendment, the mental construct that is the government will just be pretending they don't.

I don't know how else to say this, marriage is not owned by the government, so the government cannot decide how to define it

I 100% agree, the only power the government has is over licensing of the contract in support of marriage. Churches are marrying same sex couples all over the place - who is the government to force a particular definition on them? The government is constructed to serve its citizens, and here in the US in most jurisdictions it is required to do so equally. We agree the government can't define marriage, then why are they restricting who can license the contract in support of it according to one group's definition?
6.2.2006 5:22pm
Cornellian (mail):
Roe was a usurption of democracy. Seven justices found a "right" written into another "right" that has placed an entire area of public policy into a branch that was never envisioned to have such a policy role.

The constitutional amendment process is the definition of democracy at its core. The people of the States ultimately decide by direct voting.


Umm, no, reread your copy of the Constitution, and particularly Article V. Amendment of the constitution requires only approval of Congress and enough state legislatures. It doesn't require any "direct voting" by the population of any state.

As an earlier poster stated, the FMA isn't about courts at all, but rather about state legislatures. The greatest fear among the Dobson crowd is that SSM will at some point be enacted by a state legislature and not vetoed by the governor. Then they won't be able to whine about activist judges and the whole country will see (as we can already see in Massachusetts, not to mention Canada and other Western countries) that civilization will not collapse when gay people are able to marry. It will be a major step towards SSM in the court of public opinion, so it must be stopped now before it can happen, through a constitutional amendment that can be enacted without the support of the people or legislature of any particular state. They know SSM will be enacted in California or New York or some other blue state at some point, unless they can gather up enough Alabamas and South Carolinas to stop it.
6.2.2006 5:24pm
Boonton (mail) (www):
I don't know how else to say this, marriage is not owned by the government, so the government cannot decide how to define it. Some feel marriage is not even owned by the people itself but by God, but since you probably won't go there, I'm trying to meet you halfway. The benefits associated with marriage that the government confers can be argued as unfairly withheld from gays. The status of 'a married couple' cannot. I can lend you my car Bob, but I cannot lend you my neighbor's car. I'd have to steal it first.


Perhaps but marriage involves a gov't. When a marriage breaks up, for example, property must be divided under rules the gov't enacts. The gov't is called upon to recognize marriage when a person dies (their property automatically passes to their spouse). So such a thing as civil marriage exists and pretty much has to exist.

It would hardly be earthshattering if the gov't recognized certain marriages civially that are not considered true by religion. For example, for quite some time now just about everyone accepts that if a person gets divorced and then marries another person they are married to that second person. The Catholic Church, though, does not recognize such marriages and remarried Catholics are considered living in a state of sin. Does the fact that the state recognizes the remarriages of divorced people infringe upon the right of Catholics not to accept divorce?

So, while we are waging war against unequal treatment, lets end all the above programs too. Let us all join together to end discrimination once and for all!


the short answer to this is that its just about impossible to have gov't rules that do not treat someone unequally. To add to your list we can include 'laws against murder'....treat murders unequally, ditto for pickpockets, flashers and so on. If someone read the Equal Protection clause literally then gov't would be just about impossible.

So judges have over the decades hammered out a system of varying degrees of scrutiny. At the highest end of the scale is strict scrutiny for when the gov't discriminates based on race (due to the historical reasons the 14th was passed) which requires the gov't to prove it has an overwhelming need to discriminate and no other way is possible and at the bottom is the weakest scrutiny where the gov't only has to show that it has a legitimate interest...not that its choosen policy is necessarily efficient or very good.

Gender isn't quite subject to the strictest scrutiny but it is pretty high, which is the basis for the legal arguments against barring gay marriage. The examples you cite (age, vetern status, income) fall under the weakest of scrutinies.
6.2.2006 5:25pm
Archon (mail):

the short answer to this is that its just about impossible to have gov't rules that do not treat someone unequally. To add to your list we can include 'laws against murder'....treat murders unequally, ditto for pickpockets, flashers and so on. If someone read the Equal Protection clause literally then gov't would be just about impossible.


You are ABSOLUTELY correct! The government has to treat a lot of people unequally. Heterosexuals and Homosexuals are no exception. Heterosexuals can reproduce whereas homosexuals cannot. So, to encourage reproduction, the government must treat heterosexuals differently then homosexuals.
6.2.2006 5:32pm
Anderson (mail) (www):
"Archon," better look up the opinions on homosexuality of those people whose language you've borrowed.
6.2.2006 5:51pm
Freethinker:
Archon,

Remind me again why:

(a) we need to "encourage reproduction"?

(b) the most prosperous countries in the world have the lowest rates of reproduction?

and most importantly

(c) allowing homosexuals to marry will negatively effect on the rate of reproduction?

If homosexuals are not allowed to marry, its very likely that most will not have children. On the contrary, if homosexuals were allowed to marry, it seems likely that many would in fact have children, thus increasing the reproduction rate that you cherish so much. Yes, gays can have children; its not hard to see how it works for a female-female couple, and male-male couples can have children through surrogate mothers.

Archon, you come off as very pompous for someone whose ideas seem to be backed only by faulty logic and baseless speculation. That's my two cents.
6.2.2006 5:53pm
Phutatorius (mail) (www):
Do we really need to "encourage" reproduction? I would have thought that the sex drive builds in that sort of encouragement. At the moment of conception, I'm not thinking about all the legal benefits that flow from marriage (just as when I proposed to The Wife, I wasn't particularly deterred by our tax laws' "marriage penalty").

I'd have to think hard about whether I'd want a government that used the law to press its agenda about reproduction, especially when, if anything, we're a bit crowded into the space we have. See, e.g., China. Wait a minute -- maybe this explains why the least densely populated states take the harshest stances against homosexuality. They're just desperate to fill out their space, maybe grab some more electoral college votes.

An interesting argument, I suppose -- but if it holds any water, maybe we should be encouraging same-sex coupling in order to avoid the impending Malthusian nightmare. Has anyone read The Wanting Seed by Anthony Burgess?
6.2.2006 5:57pm
dweeb:
All these arguments about letting the people vote, the states experiment, etc. could also be applied to the 13th, 17th,19th, 26th, or even several parts of the Bill of Rights. I think the 17th would be particularly interesting to resolve on a state by state basis - some states appointing and some directly electing their senators. how about a state by state right to bear arms? That might help debunk the "guns cause crime" mantra. How about the 26th - let each state set the voting age; California could set it at 12, and Florida at 50 - the electoral college helps protect against a state using that to gain more clout in a presidential election.

The only real question is are abortion and marriage of similar importance to these other issues?
They are to those involved in the issues, on both sides. Maybe we could reach a Missouri Compromise on gay marriage, and have a Dred Scott ruling on abortion, where a fetus conceived in Kentucky is human, but one conceived in Massachussetts, isn't, even if the mother travels to Kentucky.
6.2.2006 5:58pm
Medis:
tom,

Just to clarify, do you think governments should be recognizing any marriages at all? Or rather just something that might be called civil unions (for lack of a better word)?

Because I think a good case can be made for getting governments out of the business of recognizing marriages entirely. But once they are in this business, it seems to violate your own principles for the government to be picking and choosing which marriages it recognizes in an effort to manipulate the social meaning of marriage (whether the government is trying to prevent or promote change in the social meaning of marriage, in each case it would be trying to manipulate this social process).
6.2.2006 6:03pm
Medis:
By the way, under the 14th Amendment it is not enough for the state to assert a legitimate interest (eg, to encourage reproduction). It also has to show that its policy is rationally related to this interest.

Of course, that is generally an extremely low bar. Still, the few cases in which it has been given "teeth" are typically cases in which the Court seems to suspect that some unwarranted hostility or fear of a group (albeit a group unprotected by a higher level of scrutiny) might be involved.
6.2.2006 6:12pm
Bob Van Burkleo (mail):
Bit of replying to my own note but thought of some clarifications:

In Washington state Judge Downing ruled that the petitioners were being unfairly blocked from licensing the marriage contract. When you read his decision its starts out with the petitioners identifying themselves as married, and his determination that they did in fact meet the same functional rationales for eligibility that others who were allowed to license the contract have. So he accepted them as married and proceeded from there trying to decide why these married citizens could reasonably be denied access to the civil contract in support of marriage. So again, it was the citizens who told the government what marriage was, not the other way around.

And consider the situation: I am a law abiding citizen eligible to enter into contracts. I say I have someone I want to license a copy of the contract with. Tell me the qualities this other person could have that would disallow license and why. I can give a solid secular reason for all of the other exclusions (relation, age, one or the other has already licensed a copy) but I can't for their mere gender, or at least not one that wouldn't also exclude many who already do have license to the contract. (can you think of one?)

From looking at the court decisions no one else has a convincing argument either. I guess that's why a constitutional amendment is even being considered- the licensing restriction has no justifiable basis that can be argued successfully in a US court..
6.2.2006 6:17pm
Phutatorius (mail) (www):
Medis:

I think you're right on. Marriage by nature is a social, not a legal institution. By locating the authority to create a marriage in the state, you unleash the possibilities of interest groups using the legal process to impress their own ideas of what a marriage should be on the institution. We all make our own marriages. Britney's Vegas in-out has no bearing on the relationship I've constructed with my own wife. Why, then, should the state be given any authority to horn in with its own notions and obligations?

Oh, right. Majority rules. And a majority of people in this country are straight.

The problem is historical momentum. States have been issuing marriage "licenses" for a long time, and just as we'd agree that we'd be better off without a federal postal system, we're kind of stuck with it -- simply because setting the system right would seem even more drastic an "experiment" to people than the Goodridge decision.

But I'm all for break down/rebuild. Let's get cracking.
6.2.2006 6:20pm
Bob Van Burkleo (mail):
As far as abortion, why is everyone fixated on the potential 'humanity' of the fetus? This is a self-autonomy issue - if I can't be forced to donate a pint of blood even if doing so would save uncle henry's life, how can I be required to be an incubator to an unwanted parasitic growth human or not? (a bit harshly stated but a reasonable possible view of the condition).
6.2.2006 6:21pm
Medis:
Phutatorius,

I agree that there is a real historical momentum problem here (and don't even get me started on the FCC). I actually wonder, though, if the gay marriage issue may well eventually push people to reconsider the role of governments in marriage in general (particularly if a good number of states do start adopting gay marriages). At the very least, a lot more people are thinking about that issue.
6.2.2006 6:31pm
Christopher Cooke (mail):
Well, I am not sure I agree with your analogy, Bob.

A pint of blood will never become a person, even through the most advance cloning techniques. A fetus, after a certain point, is a viable person. The fetus doesn't have to be "parasitic" in the sense of only sustaining its life through the mother. For example, the mother could have a C-section in the 7th or 8th month, and place her now newly-born "child" in a hospital, for later adoption, in theory (assuming the hospital would agree).

That is what makes the abortion debate more complicated, and, I would posit, gives everyone a good argument: the humanity of the fetus vs. the woman's right to control her body.
6.2.2006 6:35pm
Bob Van Burkleo (mail):
A pint of blood will never become a person, even through the most advance cloning techniques.

I would of course retort that in both situations my decision to be a nonparticipant caused something to die. Uncle Henry's 'humanity' wasn't even debatable - if its ok to off him, how can it not be for the fetus?

As to someone taking over responsibility, I 100% agree. I've always said that those who don't want abortions to develop the tech so they can take the fetus and raise it. The only choice the mother really has is to be a participant or not, if someone else wants to take responsibility of the fetus then they should be able to do so (just as we don't allow parents to kill deformed full term babies). Once someone else CAN take responsibility then they have that option to do so.
6.2.2006 6:44pm
Closet Libertarian (www):
I think Achon list was a joke but it made me laugh because I hate every one of those programs. Discrimination is a primary component of those programs. On top of that they have questionable value.

Criminalizing murder on the ohter hand does have a value and treats people differently based on their behavior.
6.2.2006 7:01pm
Christopher Cooke (mail):

Uncle Henry's 'humanity' wasn't even debatable - if its ok to off him, how can it not be for the fetus?


Presumably, you weren't responsible for creating Uncle Henry, you just decided not to help him.

That makes the situation different. Under the law, if someone, such as a minor child or someone I have kidnapped, is wholly dependent upon me for care, I have a legal obligation to provide that care. The fetus is wholly dependent on the mother (as you note with your parasite remark) and, the mother voluntarily helped create the fetus and thus the dependency (except in cases of rape). So, she has some moral responsibility towards the fetus that you do not have for Uncle Henry. Of course, you may burn in Hell for your selfishness towards Uncle Henry (maybe not, maybe he deserved it), but that is for other posters (those who think they are God) to decide.

The anti-Gay Marriage Amendment situation is similar to the abortion debate only in the passions that are stirred up, and the fact that most pro-Life (or anti-Choice) people are also in favor of the anti-Gay Marriage Amendment, or at least are opposed to same sex marriages.
6.2.2006 7:08pm
Perseus:
In an earlier article, James Q. Wilson also wrote the following, which questions a view of marriage commonly held by lawyers and judges that contributes to decisions like Roe v. Wade and Baehr v. Miike:

THE courts in Hawaii and in the nation's capital must struggle with all these issues under the added encumbrance of a contemporary outlook that makes law the search for rights, and responsibility the recognition of rights. Indeed, thinking of laws about marriage as documents that confer or withhold rights is itself an error of fundamental importance--one that the highest court in Hawaii has already committed. "Marriage," it wrote, "is a state-conferred legal-partnership status, the existence of which gives rise to a multiplicity of rights and benefits. . ." A state-conferred legal partnership? To lawyers, perhaps; to mankind, I think not. The Hawaiian court has thus set itself on the same course of action as the misguided Supreme Court in 1973 when it thought that laws about abortion were merely an assertion of the rights of a living mother and an unborn fetus.
6.2.2006 7:46pm
Roger Schlafly (www):
C'mon. When's the last time you've heard any of those hardline FMA advocates draft a constitutional amendment overturning Roe v. Wade and move for its vote on the floor of the House. Demagoguery.
The answer is many times:
Since 1973, more than 330 Human Life Amendment proposals have been introduced in Congress. Several sets of extensive hearings have been held. An unsuccessful Senate vote on an amendment occurred in 1983. Reversing Roe and Doe and passing a Human Life Amendment remain long-term goals of the pro-life movement.
6.2.2006 7:50pm
strategichamlet (mail):
Medis, do you have a blog of your own?
6.2.2006 7:53pm
Michelle Dulak Thomson (mail):
Bob Van Burkleo,

[I]f someone else wants to take responsibility of the fetus then they should be able to do so (just as we don't allow parents to kill deformed full term babies).

Well, depends who we call "we." The "Infant Doe" case early in Reagan's first term (short summary: Down Syndrome infant had a gastrointestinal blockage common with that chromosonal abnormality, one basically making it impossible for the baby to receive food, but easily correctible by surgery; parents refused surgery; baby starved to death) was essentially infanticide. Meanwhile, across the pond, the Dutch euthanasia system that supposedly demands the consent of the patient is apparently used all the time on newborns that obviously are in no position to consent.
6.2.2006 8:38pm
Robert West (mail) (www):
Medis, I think you're right that one should be careful about how one drafts such measures. However, that also requires that people signing petitions and/or voting be careful about only endorsing and voting for well-drafted measures, which is difficult to do.

I'm in favor of initiatives as a policy matter, but this is one of the unfortunate side effects: poorly crafted initiatives get adopted into law all of the time.
6.2.2006 10:11pm
Robert West (mail) (www):
om@office: most gay people I know would be perfectly content to be granted every benefit and responsibility of marriage, without the name. Most opponents of gay marriage I know would not be content with that. Which is why it is hard for me to avoid concluding that part of the point to such opposition is to enforce unequal treatment.

Note also that the change in definition you are afraid of is happening anyway: gay couples get married, even in churches, all of the time, and their marriages are accepted as such by their friends and their family. Fundamentally I think this is a debate between a group of people for whom the definition has already changed (and who wonder why the government can't just recognize that change) and people for whom it hasn't.
6.2.2006 10:11pm
Ken Arromdee:
I've always said that those who don't want abortions to develop the tech so they can take the fetus and raise it.

I've always found this sentiment to be a sound bite, not a believable argument. If the proper response is "if you don't like abortion, raise the fetus yourself", then the proper response to infaticide can equally well be "if you don't like infanticide, raise the infant yourself". We don't consider this a good argument for allowing infanticide.

Pro-lifers consider abortion to be murder. One who stops a murder is under no obligation to pay the cost that the murderer incurs for not murdering.
6.2.2006 10:41pm
logicnazi (mail) (www):
First of all I want to make a general call for more preciscion in this discussion. Many words, marriage amoung them, have several different meanings depending on the context. Just for starters there is the notion of marriage as a societal convention (you are married if the culture deems you to be even if you live in a primitive tribe without laws or judges), there are also personal and religious notions of marriage. In addition there is a legal notion of marriage which entitles one to certain rights and comes with certain legal responsibilities. It is important in a discussion like this to keep the notions seperate. For instance those who want to support the FMA on the grounds that gay marriage will dillute or destroy straight marriage need to explain why these harms won't occur simply from gay marriage cerimonies or the significant portion of the population that regards gay people as married after such a ceremony regardless of their legal status.

On a more specific point the argument that the FMA is different from Roe v. Wade because it is an elected legislature who is making the deciscion just doesn't carry any water. Either

1) You believe that the current will of the people should be given great weight and should not be frustrated by governmental/legal machinery.

2) You believe that if is perfectly acceptable for a country to create legal/constitutional/procedural barriers that will frustrate the will of the majority.

If you accept 1 then you simply can't justify an ammendment which prevents future majorities from recognizing gay marriage. You are explicitly advocating a system where judges are going to be telling the majority their votes to recognize gay marriage are to be ignored on constitutional grounds. If you don't wish to frustrate the majorities (either in states or at the national level) you should only support an ammendment which prevents judicial recognition of same sex marriage but allows congress or the state legislators to recognize it if they so choose.

If you accept 2 then you recognize that it is okay for institutions created via public acceptance and democratic procedures to frustrate the will of the majority. Whatever your views on the original intent of the constitution the supreme court and its institutional power certainly came about because of public support and acceptance. Thus on this theory it is perfectly valid for nine judges to frustrate the will of the majority because past majorities set up this system.
6.2.2006 10:59pm
Ken Arromdee:
how about a state by state right to bear arms?

We already have a state by state right to bear arms. The due process clause of the 14th Amendment has been ruled to make most of the Bill of Rights apply to the states, but *not* the right to bear arms. Which means that states and cities can and do pass laws that restrict the right to bear arms even if Federal laws to that effect would be unconstitutional.
6.2.2006 10:59pm
Bob Van Burkleo (mail):
[b]"I've always found this sentiment to be a sound bite, not a believable argument. If the proper response is "if you don't like abortion, raise the fetus yourself", then the proper response to infaticide can equally well be "if you don't like infanticide, raise the infant yourself". We don't consider this a good argument for allowing infanticide. "[/b]

Because they are two different situations - anyone can take care of the rejected infant - the parents have a right to reject the child, once rejected their options are gone. The first example WOULD be identical if the tech were developed to make the fetus viable outside the womb.

The death of the fetus is really incidental, the right is the right of personal autonomy. I can refuse to donate to Uncle Harry but I can't prevent someone else from doing so. I can refuse my born infant but I can't prevent someone else taking care of it. I can refuse to donate my womb but I can't prevent someone else from continuing the gestation IF THAT IS POSSIBLE. So make it possible.

(of course I'd really like a legal eagle here to explain how restricting a citizen's access to the civil contract of marriage based on the gender of their spouse can successfully be argued - I honestly can't think of a way but the people here are way smarter than me ;)
6.2.2006 11:43pm
Michelle Dulak Thomson (mail):
Bob Van Burkleo,

I can refuse my born infant but I can't prevent someone else taking care of it.

The parents in the Infant Doe case I mentioned earlier refused numerous offers of adoption; they preferred to retain custody and let the baby die. I think legislation Reagan encouraged on the basis of this case makes that situation now impossible; in any case, I imagine the Americans with Disabilities Act must ban a guardian's refusing necessary surgery on grounds that an infant is mentally handicapped.

I can refuse to donate my womb but I can't prevent someone else from continuing the gestation IF THAT IS POSSIBLE. So make it possible.

Unless you can not only sustain a fetus outside the womb but teleport it out of there painlessly, removing it will impose a hardship on the pregnant woman that some will think an unjustifiable imposition. And some women don't want living biological children whoever bears the responsibility of raising them, especially if they are damaged in some way. This is why there is such a thing as a "wrongful-birth suit."
6.3.2006 12:04am
Freethinker:
Prof. Carpenter,

Do you oppose the right of two consenting adults, of the same sex, to be married? If so, why? I'm wondering, because I fail to see how any libertarian could oppose the right of homosexuals to marry. If you are in favor of allowing gays to marry, maybe you can help me shed light on the reasons why other (so-called) libertarians feel obligated to prevent this exercise of personal liberty.

It seems obvious that SSM ought not be legislated at the federal level, but I don't see any reason as to why it should be legislated at the state level either. If two gay adults of the same sex would like to marry each other, they ought to be able to do so. The concerns about gay marriage seem to stem from ignorance, bigotry, religious convictions, or some mix of those three. None of those should be taken seriously when public policy is the topic.
6.3.2006 12:09am
PeterH:
The real fundamental difference between the abortion debate and just about every other discussion, most especially gay marriage, is that there are very few if any major issues where the two sides don't agree on what is actually happening.

For good or ill, essentially, one side of the abortion debate believes that a human life is being unconsensually ended -- that a murder is occurring, and just like any other murder, it must be prevented by any person of good conscience. It doesn't fly to say "She is my grandmother, not yours, so it is none of your business whether I choose to kill her or not."
The other side does not recognize that there is a human life present, whether one will eventually develop or not, and so other issues, like the right to decide what happens to and within one's body, take precedence.

But the gay marriage issue is a whole different thing. There is no disagreement about what would actually happen if two people of the same gender were allowed access to the civil marriage contract. We have a very clear picture of what rights, responsibilities, and benefits stem from that, and a huge range of examples of how it works in all its variety.
The disagreement over gay marriage is NOT in any meaningful way about WHAT is happening, but rather about who should be allowed to do it. Comparisons to abortion are completely false, and tend to come down to "people feel really strongly about it" or "it is a religious thing" -- but neither of those have any place in a free society.

The marriage contract is between the two individuals involved, and how they choose to use it is pretty much up to them. They can have a lifelong monogamy dedicated to raising all the children God sees fit to give them, or an open, non-monogamous relationship dedicated to the prevention of any children. It can be about love, or power, or security, or convenience, and they are still just as married.

There is a lot of talk about the "institution of marriage" but nobody who gets married joins an institution -- they marry one other person, and the two of them are only responsible to each other for how they conduct it. There are, to my knowledge, no situations in which a validly contracted marriage is voided or annulled by society or the government without the consent of at least one of the two involved.

Seriously, where is the harm to anyone else's marriage by two people of the same gender marrying? What is it that is being "defended?" People toss around this BS that "the definition of marriage is being changed" but it isn't, not for a single one of the people who is currently allowed to marry. What is the exact nature of the threat?

Conversely, and again, seriously, given that gay people exist and are coupling up (and can we please accept that as a given?) which SPECIFIC benefits, privileges or responsibilities of marriage are they that are so threatening to straight marriages? Why is it so critical to deny the marriage benefits to gay people to protect society? Which specific ones? The right to visit in the hospital? To inherit each other's property? To not have to testify against one's spouse? Community property? Social security?

You are telling a not insignificant number of tax-paying citizens that our having access to something that the rest of you not only take for granted but spend most of your lives relying on is a direct and dire threat to our very way of life, the "foundations" of our society, and in fact, the future of the human race. It seems to me that you have a pretty solid moral obligation to be pretty damn specific about just what you think the problem is.
How is granting any gay couple all the benefits of marriage going to make this happen? Nobody is proposing that anyone who wants to marry a person of the opposite sex can't continue to do so under the current rules. What EXACTLY changes for straight people by letting gay people marry? Precisely HOW does this even affect straight marriages, much less threaten or damage them?

None of this fatuous "But we don't know what might happen, so we don't dare risk it" baloney. You have to have some idea. What is it you are afraid of?

This "debate" has been going in full speed for over a decade now, and nobody has EVER bothered to answer those questions. If this isn't pure bigotry and anti-gay animus, there have to be at least a few specific answers that aren't pure BS or bad science.

So, to the anti-marriage folks here in this thread -- what is it, specifically, that YOU are convinced will negatively affect straight marriages if gay people get the civil marriage contract? (Please don't bring up things that aren't related to marriage, like our very existence, our our coupling up, or our loving each other, because we do all that now, and marriage hasn't self-destructed.)

Which SPECIFIC rights, benefits, or responsibilities of civil marriage are they that you are so dead set on making sure we never get? This amendment says we can never get ANY of them. Which ones are the ones YOU are so convinced we can not be allowed to have?

(And for the record, I expect all these questions to get conveniently ignored, just as they always are. Grow a pair and stand up for what you believe, or shut the hell up.)
6.3.2006 12:17am
Bob Van Burkleo (mail):
Unless you can not only sustain a fetus outside the womb but teleport it out of there painlessly, removing it will impose a hardship on the pregnant woman that some will think an unjustifiable imposition.

True but that's why we have compromises - I view the allowable 'trimesters' decision of the SCOTUS that way - in an absolute sense the person has a right to vacate their womb at any time, but the balance would be to say 'you stuck with it this long you're going to finish it now...

Same with a fetus sparing removal method - as long as it isn't any more life threatening or discomforting than what would be an old style abortion, the court could say that the other people's right to get a viable fetus out ways your right to get to chose its removal method.

Of course the real solution is to prevent all unwanted pregnancies preemptively, or cajole the mother to carry to term. But mandating it? Sorry can't make that kind of decision for someone else. I am definitely pro-choice, not pro-abortion.
6.3.2006 12:59am
Medis:
strategichamlet,

Do you mean besides this one?

More seriously, no. I've thought about it, and may start one up some day, but right now I merely post comments on various blogs and bulletin boards.

PeterH,

I'm not sure it is true that people do not disagree about what is happening, or could happen, in gay marriages. For one thing, I think some people view marriage as involving a spiritual/religious bond, and some people apparently do not believe that this bond can exist between gay people. Somewhat similarly, I think some people believe that gay people are not capable of having healthy, normal, natural, loving, etc., romantic relationships with each other. In short, these people would deny that what can happen between gay couples could ever be the same sort of thing as what can happen between straight couples.

I think another difference gets to your other questions. As I suggested elsewhere, I think some people intuitively believe that gayness has an essentially magical ability to corrupt anything with which it comes into contact. I'm sure they would object to the term "essentially magical", but my point is that they intuitively believe this corruption will occur, and this intuition arises independent of their awareness of any proven mechanism. Accordingly, their subsequent efforts to identify possible mechanisms are simply attempts to flesh out and/or rationalize this intuitive belief.
6.3.2006 1:01am
Bob Van Burkleo (mail):
PeterH, we know the 'anti' arguments are weak - they don't convince judges. This is particularly true if you make the case that marriage comes from beyond government, all it has done is react to it. This takes it from a 'gay marriage' issue to a 'why are only some married citizens allowed to license this purely secular civil contract that supports marriages?' one.

As to the 'dire consequences' that just really doesn't stand much examination - 2% of the population are self-declared gay or lesbians - even if they were married at the same rate as heterosexuals, that would mean 1 out of 100 contracts licensed would be to same gender couples. When has a 1% change really been something genuinely damaging to anything?

With the 'marriage comes from beyond government' tact about the only counters you hear are 'tradition', vague and unlikely 'dire consequences', and simple old 'we don't like it' - none of which should convince any court in the US. There is a reason they want to pass constitutional amendments - it really does seem to be the only way they can limit the access to this civil contract and still maintain it.

Of course once they do at least they can never yell 'special rights' again without a needle jamming the top of the old 'iirony and hypocrisy' meters. ;)
6.3.2006 1:17am
Hans Gruber (www):
"I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low."

Why don't you just come out and say it--you want the Court, at a later date, to find a right to gay marriage, perhaps after some fruitful "experimentation" in half a dozen or so states. You want gay marriage from coast to coast, in each and every state from California to Mississippi. Why pretend otherwise, Mr. Carpenter? I think you're a thoughtful person on this and other issues, but I just can't buy the phony federalism you're selling. How can you praise Lawrence in one breath and then assure us of the safety of the federalist solution to gay marriage in another?
6.3.2006 1:30am
Hans Gruber (www):
"If two gay adults of the same sex would like to marry each other, they ought to be able to do so."

They CAN do so. Any two gay women or men can have a wedding and be "married" as far as they are personally concerned. But they don't want to just get married and live happily ever after, they want society to support their marriage, to recognize it equally; they want society to pretend that there is absolutely no difference between traditional and gay marriage. They want the health insurance and all other other benefits. It's not about getting "married" it's about marriage equality. It's not about the right to marry but the right to demand society view one as married. They are two very different things.

I can understand the rhetorical preference, but it's just dishonest to speak about the gay marriage debate as merely the right to get married; as if society has criminalized gay weddings and cohabitation. The gay marriage debate, then, is not about freedom, it's about clamoring for government regulation and subsidization. Hardly libertarian at all.
6.3.2006 1:41am
Medis:
Hans,

Again, though, states will refuse to enforce contracts too close to marriage--ie, where romantic love and/or sexual relations are essential terms. Preventing that freedom of contract is not exactly libertarian either.
6.3.2006 1:57am
Bob Van Burkleo (mail):
They want the health insurance and all other other benefits

Well most gay couples both work and have their own health benefits so that just seems a silly and cynical point of view.

What's wanted is the legal trappings that allow two people building a life together to be viewed as one by hundreds of civic statutes and situations many of them not duplicatable by any other means.

And you make it sound like they would be stealing or something - gay married people pay taxes too or are you saying that its their role to subsidize the straight ones and just shut up?

This is a civic contract - if the state is going to support marriage than they really do have to give reasonable access to all married citizens. Having adult citizens married benefits them, benefits the state, and even society and this happens regardless of their gender combinations.

I really admire Canada that when they came to this crossroads they stayed true to their principles and didn't try to figure a way to weasel out of giving equal treatment to everyone.
6.3.2006 2:39am
Cornellian (mail):
I really admire Canada that when they came to this crossroads they stayed true to their principles and didn't try to figure a way to weasel out of giving equal treatment to everyone.

There was a story recently about how members of Parliament opposed to same sex marriage in Canada are now getting cold feet about re-opening the issue. SSM has been the law in Canada for a couple of years ago and life has carried on, unchanged for everyone other than gay people who want to get married.
6.3.2006 4:00am
Cornellian (mail):
I can understand the rhetorical preference, but it's just dishonest to speak about the gay marriage debate as merely the right to get married; as if society has criminalized gay weddings and cohabitation. The gay marriage debate, then, is not about freedom, it's about clamoring for government regulation and subsidization. Hardly libertarian at all.

The libertarian position is to question why the government is regulating and subsidizing all those straight people. But if the government is, nevertheless, going to continue to do so, there's nothing un-libertarian about expecting those benefits to be provided to gay people as well.
6.3.2006 4:03am
dweeb:
Bob Van Burkleo said

If someone else wants to take responsibility of the
fetus then they should be able to do so


Bob, that sets you apart from most of the pro-choice movement. Years ago, when advances were announced toward such tech as you describe, columnist Eric Zorn (who is pro choice) wrote of a poll that asked pro-choice people if that would suffice. Most responded no, the common explanation being similar to those against adoption as an alternative to abortion - the "emotional torment" of a woman knowing a child of hers that she didn't want was out there in the world. Zorn found it illogical and regretably damaging to the pro-choice movement's credibility, but I think it's part of the have your cake and eat it too mentality of the entire Left.
6.3.2006 4:54am
dweeb:
What I find interesting are all the comments about denying something to one segment of society that is available to others. That's simply not happening here. A gay man has the same right I do to marry any available woman, and, as a straight man, I have no more right than he does to marry a man. A group is not being denied a right - this is a limitation on an action that is equally applied to all people. No one, straight or gay, is allowed to marry a member of their own gender. Of course, only one segment of society WANTS to do what is prohibited, but then, there are any number of actions prohibited that only one segment of society WANTS to take.
There exists far more evidence of a genetic link for alcoholism than for homosexuality - are the numerous laws related to alcohol use discriminatory?
6.3.2006 5:03am
Bob Van Burkleo (mail):
That's simply not happening here. A gay man has the same right I do to marry any available woman, and, as a straight man, I have no more right than he does to marry a man.

But the purpose of the contract is to support couples who are going to 'build a life together'. To say a gay man can do so with a woman is like saying a fish has a right to a bicycle.

You can't have an limitation that makes a civil contract useful to one kind of citizen and virtually useless to another when there is no justification for that limitation. Be like saying only left handed people could license it, or they were only allowed to license it with someone of the same race.

And your alcoholism analogy doesn't work. All our laws related to alcohol usage are regulation, not proscriptions. No law abiding adult is told they are legally not allowed to drink EtOH because of some other factor. There exists even 'more evidence' that sexual orientation is virtually impossible to change except for a very small percentage. So to have an arbitrary licensing restriction that effectively turns regulation into proscription is contrived unequal treatment. Such legal gerrymandering isn't allowed.
6.3.2006 5:44am
Cornellian (mail):
A gay man has the same right I do to marry any available woman, and, as a straight man, I have no more right than he does to marry a man. A group is not being denied a right - this is a limitation on an action that is equally applied to all people. No one, straight or gay, is allowed to marry a member of their own gender.

Geez, how often is this hopelessly weak argument going to be trotted out on this blog? By that logic, bans on interracial marriage are OK too, observe how I substitute race for sexual orientation in the above language:

A black man has the same right I do to marry any available woman of the same race, and, as a white man, I have no more right than he does to marry a woman of a different race. A group is not being denied a right - this is a limitation on an action that is equally applied to all people. No one, black or white, is allowed to marry a member of another race.

See how that works? In fact, this argument can justify all kinds of things, such as "no person, whatever their religion, may build a synagogue within the city limits of any city in this state." The possibilities are endless.
6.3.2006 10:06am
PeterH:
A gay man has the same right I do to marry any available woman, and, as a straight man, I have no more right than he does to marry a man. A group is not being denied a right - this is a limitation on an action that is equally applied to all people.


Let's take it somewhere else. Pass a law that says everyone has the right to choose which Christian church they want to be a member of, and that such membership is a requirement for civil benefits. Since that law applies equally to all citizens, it must be freedom of religion, right?

Someone put it very well, and I will no doubt misquote it, when they said that the problem with your argument is that it leaves straight people with the ability to marry any one eligible person of their choice, but leaves gay people without the ability to marry anybody of their choice.
6.3.2006 10:34am
Public_Defender (mail):
One conservative argument that many miss is that marriage encourages stability in a long-term relationship. That stability is particularly useful for the kids being raised in that relationship. And yes, many gay couples are raising kids.

Marriage does this in part by giving the economically more powerful partner disincentives to leaving the relationship (marital property laws, alimony, child support, etc.). Marriage also makes it easier for the more powerful partner to support the less powerful partner and the kids (health insurance and inheritance rules, for example). Marriage also takes significant burden's off of society's shoulders. For example, a surviving non-married partner generally has no duty to pay for the possibly sky-high medical bills of the deceased partner, but a spouse does.

Isn't it a good thing to encourage gay people to settle down with one person? Don't we want to decrease promiscuity?

Oh, I forgot. It's not about the children. It's not about the family. It's about hurting gays. And why do social conservatives want to hurt gays? Well, it's always easier to fret about the speck in your neighbor's eye than the beam in your own.
6.3.2006 10:56am
Randy R. (mail):
By bringing up this amendment for vote, the current administration is cementing in people's minds that Republicans = anti-gay.

This is hurt the party for a long time.
6.3.2006 12:35pm
Randy R. (mail):
You know, I am amazed at the rhetoric of people who like to state that gay people are not denied the right to marriage -- we can marry whomever we want, as long as the person is opposite sex.

These are the people who are doing more to destroy marriage than other gay person ever could. Why? Because their attitude is clearly that marriage is simply about hooking up with whomever. Love never enters in to the equation. They are stating that it's perfectly fine with them for anyone to marry any ole person, even a person for whom you have no love. But when a gay person wants ot marry the love of his life, the person with whom he wants to spend the rest of eternity with? Oh no -- can't do that.

So for these people, they have a very warped view of marriage, in my opinion. They have no idea that marriage is, or should be, about loving another person.

I feel sorry for them, and any spouse who is unlucky enough to be married to them.
6.3.2006 12:39pm
Jon Rowe (mail) (www):

A black man has the same right I do to marry any available woman of the same race, and, as a white man, I have no more right than he does to marry a woman of a different race. A group is not being denied a right - this is a limitation on an action that is equally applied to all people. No one, black or white, is allowed to marry a member of another race.


And that's also exactly what Lyman Trumbell one of the key Framers of the 14th Amendment said. See my post here.
6.3.2006 1:03pm
Christopher Cooke (mail):
Mr. Rowe, the point you make is one of the main reasons why I, for one, do not believe that we should automatically be beholden to a framer's original intentions regarding any portion of our constitution, as they are not necessarily right for our society, now, one hundred and forty years later. I think a case can be made that the ratifiers' intentions should be binding for the first generation, but less so, over time.
6.3.2006 1:39pm
Jon Rowe (mail) (www):
I agree. My own preference is somewhere between what Akhil Amar, Randy Barnett, and Jack Balkin have advocated. The specific "original expectations" or "original intentions" shouldn't be binding precisely because Brown is questionable and Loving is wrong under this test.

But, rather 1) the text, and 2) the general principles in the vaguely worded text should be our guide. If the text is not vaguely worded, then there is no dispute. Both Loving and Lawrence are consistent with the original meaning of the text and the general principles announced therein.
6.3.2006 1:46pm
Wince and Nod (mail) (www):
Well, I'm late to the party, but, as a conservative my favorite position would be outlawed by the wrong Constitutional Amendment. I favor a compromise: if we strengthen marriage back to it's traditional strength then we can weaken it by allowing same sex marriage. What do I mean? Get rid of no fault divorce. Make people get up in court and dish dirt on their spouses - adultery, felonies, insanity. If they lie, tag them with perjury. And bring back "alienation of affection".

That is, you get something you really want and I get something I really want. And that sort of political horsetrading goes out the window with the wrong Amendment.

Oh, and don't get distracted jumping on me about my particular definition of strengthening marriage. Isn't that also part of political horsetrading? Ask for a lot settle for what you can get.

Yours,
Wince
6.3.2006 2:37pm
Cornellian (mail):
These are the people who are doing more to destroy marriage than other gay person ever could. Why? Because their attitude is clearly that marriage is simply about hooking up with whomever. Love never enters in to the equation. They are stating that it's perfectly fine with them for anyone to marry any ole person, even a person for whom you have no love. But when a gay person wants ot marry the love of his life, the person with whom he wants to spend the rest of eternity with? Oh no -- can't do that.

Apparently, the religious right expects you to lie. If you're a gay man and feel no sexual attraction towards any woman, then you're supposed to lie to one, pretend that you are attracted to her, marry her and simply hope and pray (literally pray) that somehow you'll magically become straight.

Same sex marriage will foster successful child rearing, not just because same sex couples raise children, but because there will be fewer opposite sex marriages doomed to failure because one partner entered it under false pretenses, thinking that's what society told him he had to do.
6.3.2006 4:59pm
Perseus:
What does love have to do with the state's interest in marriage? Arranged marriages, which were the norm in many times and places, denigrate--and rightly so--this mawkish notion. Indeed, the state's interest in marriage is precisely to regulate the erotic drive at the expense of the individual's desires.
6.3.2006 5:39pm
alessandra (mail) (www):
Oh wait, all that has been implemented in Europe. Last time I checked Europe had double digit unemployment, race riots, unstable governments, higher incidents of STDs, huge national debts, and declining birth rates.
========================
And don't forget that the whole pro-homo shtick is flying in Europe too, so homos and bisexuals are now always making unwanted and unwelcome advances on heterosexuals, including in work and academic environments, just as bigoted or adulterous heterosexuals have always done, and the child sexual abuse scandals are increasing, thanks to how liberal societies are so non-violent. Pornography and prostitution are being normalized too. Such a dandy moment in history, so much sexual exploitation and denigration in so many ways, all in the name of freedom.

Oh, incidentally I've just described the problems in the US that pro-homos hate to admit to as well.
6.3.2006 6:32pm
alessandra (mail) (www):
The marriage contract is between the two individuals involved, and how they choose to use it is pretty much up to them. They can have a lifelong monogamy dedicated to raising all the children God sees fit to give them, or an open, non-monogamous relationship dedicated to the prevention of any children. It can be about love, or power, or security, or convenience, and they are still just as married.
================================
One could argue that this should be applied to marrying foreigners and that foreigners should be allowed automatic green cards if not citizenship. Otherwise it is sheer discrimination and the government interfering with an adult's right to whatever they want to do with their life.
6.3.2006 6:50pm
Bob Van Burkleo (mail):
alessandra, he was describing the way it currently is in the US. As to your suggestions about automatic green cards and citizenship for foreign born spouses I have no idea how that connects to his statement. All the things he mentions are between the married couple, you are talking about extra-marital governmental things.
6.3.2006 7:02pm
Medis:
Perseus,

Well, for one thing, "regulating the erotic drive" by encouraging monogamy is likely to work better if the people in question love each other.
6.4.2006 12:37am
Waldensian (mail):

One conservative argument that many miss is that marriage encourages stability in a long-term relationship. * * * Marriage does this in part by giving the economically more powerful partner disincentives to leaving the relationship (marital property laws, alimony, child support, etc.).

Jeez, tell me about it.

I fully support same-sex marriage, both on standard libertarian grounds, and so that I can have the perverse pleasure of watching others experience the "disincentives."

Of course, sometimes the disincentives are worth every freakin' penny.
6.4.2006 10:15am
PeterH:
allessandra: Otherwise it is sheer discrimination and the government interfering with an adult's right to whatever they want to do with their life.


I don't hear anyone arguing that people have a right to do "whatever they want to do with their life," although with some reasonable limits, that sounds like a good definition of "life, liberty, and happiness."

What we are asking for is to be allowed to live our lives under the same rules that the other 97% of the population do, to have access to the same benefits and responsibilities, to be allowed the same freedoms under the same constraints.

Straight people now, today, get married without any regard to the effect that it will have on their neighbors, and don't have to discuss, much less defend, their intentions regarding monogamy, children, religious beliefs, sexual activities, or anything else internal to their marriage with anyone else unless they choose to. (Interfering mothers and mothers-in-law don't have legal standing and don't count for purposes of this discussion.)

Yet gay people, who are asking for nothing other than being allowed to do the same thing under EXACTLY the same rules that apply to our neighbors, find ourselves defending our very existence and facing claims that we are in the process of destroying the foundations of civilization and must be stopped by all legal means necessary.

The same conservatives who moan and wail about how necessary and central marriage is to healthy relationships, healthy society, responsible adult behavior, and the continuation of Life As We Know It are the first to leap in and claim that we must be denied it. How is that a conservative position. All my life, I have heard the claim that the biggest thing wrong with gay people is our irresponsibility, our inability to form lasting relationships, and our unwillingness to make the same sorts of committments that straight people (supposedly) do. Now that we are asking for the same support to do exactly that that straight people take for granted, we have to be legally permanently thrown back into that place where we CAN"T create legally supported permanence and responsibility.

Agree or disagree, but at least understand why we see this as yet more proof that it has never been anything other than pure anti-gay sentiment. Anything to put down the gays. How else could we take it? And why should we have to? Remember, we aren't some new group asking for citizenship. We are already citizens, taxpayers, and participants in this country.
6.4.2006 10:46am
Elais:
alessandra,

Wow, things must be bad for gays in Europe if they have to hit up heterosexual people.

You are really self-absorbed if you think you're in danger of being felt up by a lesbian. You're also pretty unsure about your own sexuality if you think you can be 'converted' into a homosexual because a gal lays goo-goo eyes on you.
6.4.2006 1:27pm
Archon (mail):
Let me start with some absolute truths:

1. Homosexual couples are not capable of reproducing by natural means.
2. Without children, a society will not continue to thrive and will simply die out.
3. In prosperous, advanced countries the birth rates are already dangerously low
4. The government is forced to treat everyone in an unequal fashion in almost any policy realm. Poor people get welfare, veterans get veteran's benefits, minorities get preferential treatment via affirmative action programs, women even have their own protection from violence act. It would be impossible for a government to ever establish policy if it had to apply equally to everyone across the board.

Now, apply these truths to marriage. Marriage is an age old institution where a man and a woman select each other to be life long partners and, except in vast minority of cases, reproduce.

The most effective means of reproduction and child rearing is through such a relationship. Yes, there are other ways of having children such as suggorates and in vitro fertilization, etc, but these are costly methods of reproduction. Overall, the most effective and cheapest form of reproduction, from a societal standpoint, is to throw the wife down on the bed and give her a good rogering (as the British would say.) It doesn't cost $20,000 an attempt and, except in rare cases, usually works in a month or two.

In short, unnatural conception is extraordinarily costly to individuals and society as a whole. When society is forced to allocate its resources to these areas it is doing itself a major disserve by promoting costly inefficency.

Society, through the government and other means, confers special priveleges and benefits upon married couples to promote the most effective means of reproduction. Allowing homosexuals to access this pool of benefits will increase the cost drastically without any necessary payout (in increased efficient reproduction) to society. If homosexual marraige is allowed, society will find it increasingly harder to afford to confer benefits upon married couples. It will have to continue to do so at a rising cost while the benefit of doing so declines (the number of married couples not having children will drastically increase). This will probably bring about a deduction in benefits offered to married people, and will promote a societal attitude that overall cheapens marriage.

So, in order to encourage the most effective means of reproduction, the government has an interest (and a compelling one at that) to protect the institution of marriage.

So Freethinker -


Remind me again why:

(a) we need to "encourage reproduction"?


For someone with the name "freethinker" you really don't do a lot of it. Humans have a limited lifespan and without reproduction we would die out. With the low birthrates (which you readily point out below), society has more of a need then ever to encourage reproduction.


(b) the most prosperous countries in the world have the lowest rates of reproduction?


You are correct that the most advanced societies have the lowest rates of reproduction. This is in no way a good thing. We will find within the next 100 years that advanced cultures will simply die out because of it.

This is no time to be implementing costly inefficencies and cheapening the only institution society has to promote reproduction.



and most importantly

(c) allowing homosexuals to marry will negatively effect on the rate of reproduction?


I explained this above. But to summarize, society will find it increasingly more and more costly to give married couples the same benefits and will either have to absord this cost or discontinue offering such benefits. If there is no benefit to marry, a lot of people will just stop doing it.



If homosexuals are not allowed to marry, its very likely that most will not have children. On the contrary, if homosexuals were allowed to marry, it seems likely that many would in fact have children, thus increasing the reproduction rate that you cherish so much. Yes, gays can have children; its not hard to see how it works for a female-female couple, and male-male couples can have children through surrogate mothers.


This is true to some point. Not all homosexual couples will choose to remain childless. But, the means of reproduction avaiable to them, as a class, are expensive and can take years to produce a child. Heterosexual couples that are forced to use these means tend to have fewer children then normally fertile couples because these methods are expensive, emotionally and physically taxing, and can take years. (I am assuming that a homosexual is not turning straight for a night to become/make pregnant by using natural means)

The overall reproduction rates compared to the number of married couples (assuming the addition of homosexual couples) would in fact be much lower then what they are now while the cost and inefficency would rise drastically.


Archon, you come off as very pompous for someone whose ideas seem to be backed only by faulty logic and baseless speculation. That's my two cents.


I'm sorry you think that truths applied logically to produce a coherent argument against your campaign for "equality" seem to be "faulty logic" and "baseless speculation" and make me seem "pompous".

Try dumping the buzz words, slogans, red herrings, and straw men that always come out of same sex marriage proponents and look critically at the issue. Then you would truely be a freethinker.
6.4.2006 2:52pm
Bob Van Burkleo (mail):
Archon

I think you are being pretty selective with your absolute truths, here are some more:

5. the civil contract of marriage has nothing really to do with reproduction.
6. Those citizens who marry people of the same gender are a small percentage of the population.
7. licensing restrictions on civic contracts have to have a rationale behind them, they can't be arbitrary.

Will allowing licensing of the civic contract to a citizen wanting a same gender spouse have any significant or any effect on the number of children bred? No.

Will allowing licensing of the civic contract to same gender couples provide additional stable home environments for children to be raised? Yes.

Will allowing the licensing of the civic contract to same gender married couples provide addtional stability to the home environments for children that would be being raised in them anyway? Yes.

Will allowing all citizens reasonable license to the exisitng civic contract support the founding contentions that all citizens are created equal and should have equal access to government. yes.

The 'breeding' tangent doesn't hold water - 14% of American adults for one reason or another don't pass on their genetic material already. The civil contract is not for breeding purposes (recent gallup poll 65% think marriage is very important for those planning to spend their lives together, only 37% thought it very important for couples having a child). And finally there are more children than families willing to raise them now, having more families that specifically are prone to accepting these surplus children could only be considered a 'good thing'.

Urban low birthrates you need look no further than two factors:

People have other interest than breeding,
Children in agrarian cultures are a work force, in an urban one they are a financial liability.

Norway is having success in raising their birthrate by making most features and expenses related to child rearing a government expense from cradle to graduation. That's the way to solve sagging birthrates, excluding a particular configuration of married couple that will amount to 1% the licenses issued will not.
6.4.2006 5:45pm
Freethinker:
Archon,

1. Maybe its just that I don't have access to the "absolute truth" like you, but I don't think that the benefits the government gives out for being married are large enough to have any significant incentive effect on having children. Some people would actually be better off (from a tax burden point of view) if they did not get married. Do you have any evidence that suggests that there is an incentive effect with regard to marriage benefits &childbirth? Another way to phrase the question, do you think there would be a significant drop in the birthrate if we got rid of all the marriage benefits we currently confer upon married couples?

2. I am hardly on a "campaign for equality"; I support same sex marriage for two reasons: 1. because I don't believe that people should be discriminated against on the basis of arbitrary characteristics (skin color, religion, sexual preference, etc.) 2. I think that the threats SSM poses are more in the heads of bigots then based in reality.

In your defense, you seem be against SSM for a non-arbitrary reason--you seem to think it will cause tangible harm to society, and you have a (I assume) non-bigoted reason for this belief. I disagree with you on the issue of SSM because I don't think that your incentive argument against SSM is persuasive; nor do I find the "cost/harm to society" argument peruasive.
6.4.2006 6:33pm
Archon (mail):
Bob -

First I think your numbers are off. In an attempt to show that the impact will in some way be de minimus you convinently understate the number of homosexuals in this country. Although I have heard academics peg the number anywhere between 7 to 12 percent, 10 percent seems to be the most widely accepted number. To somehow suggest that 10% of the population will only represent 1% of marriage licenses issued is disingenuous.

On the poll numbers - what people think and what people do are completely different things. I think buying a new BMW would be a great idea, but in reality, my bank accounts says it is a bad idea. Just because I think something doesn't mean that is necessarily what I am going to do. The reality is that the vast majority of married couples, sometime in their relationship, will choose to reproduce.

Will allowing same sex couples to wed have any effect on birth rates?

Yes! As I explained above it will put a strain on society's resources because benefits are bestowed upon married couples chiefly because almost all choose to reproduce. This system would be strained or become unworkable if more married couples with no intention of reproducing are introduced into society.

Will allowing same sex couples to wed somehow create more homes for "unwanted" children or make better homes for same sex couples already living together?

The "unwanted" children argument as related to same sex marriage is usually based upon incorrect factual information. There is not an "unwanted" children crisis in the United States. In fact, there is a shortage of children in some age groups (making families that adopt go abroad). The "unwanted" children are usually 14-18 yr olds problem children that have criminal and social problems. If straight couples don't want these children what makes people think gay couples will want them? I doubt that gay couples will want them anymore then most straight couples do. Thus, this argument has any merit. (I'm not trying to say that there isn't a problem with unwanted children in this country, but gay marriage is not going to magically solve the problem).

As for living together already with children - I really don't see how the addition of a marriage license on the wall will make it a more stable home. Also, there are studys that show that children of same sex couples have more social and "gender identity" problems (I realize these studies are a completely different subject and by mentioning them I really don't want to get into a whole separate debate about them). One thing is for sure, the best way to raise children has been shown, time and time again, to be in a two parent, man and woman, household.

On the birthrate issues - I really don't think a Brave New World type of system to encourage reproduction is a good idea. In fact, it makes me shutter. The idea of the government raising and caring for all children is one of the worst ideas in the world. I certainly don't think it is the answer just so some liberals can pat themselves on the back because they won one for "equality".
6.4.2006 6:42pm
Archon (mail):
Freethinker -

If any of the "absolute truths" I mentioned in my previous post are incorrect, please address it. But, last time I checked two men or two women cannot naturally reproduce and society needs new members (children) avoid dying out.

I do believe that the costs of allowing gay marriage will be great. I am very wary to essentially throw out an institution that has kept society going strong since the beginning of time.

One thing is for sure, when the time comes to put aside the techincal argument of how/where/when gay marriage should be decided, it should be decided by the people either through their representatives or by direct vote. I fear what a judicial implementation might do to our country.

Some of us are old enough to still remember what happened when Brown v. Board of Education was handed down and the intervening 20 years. Historians make those years seem "cool" by concentrating on the counter-culture, but in reality the judicial implementation of race equality took this country to its knees and nearly ripped it apart. I don't believe the same result would have come about if the issue was decided in the legislative branches. Judges are not good at making or implementing policy. (I am not trying to say that this country will experience what happened in the 50's and 60's if same sex marriage is allowed)
6.4.2006 7:06pm
Elais:
Archon,

This world has billions of people, this country has what? 300 million? We're not exactly in danger of dying out as a society or as a species are we because a couple of thousand gay people want to get married.

Did the white population nose-dive because there are more intteracial marriages? No.

This 'fall of civilization' rhetoric is nonsense.
6.4.2006 7:50pm
Bob Van Burkleo (mail):
First I think your numbers are off. In an attempt to show that the impact will in some way be de minimus you convinently understate the number of homosexuals in this country. Although I have heard academics peg the number anywhere between 7 to 12 percent, 10 percent seems to be the most widely accepted number. To somehow suggest that 10% of the population will only represent 1% of marriage licenses issued is disingenuous.

I think you are mistaken. Although 10.1% of men have had some same gender sexuality as adults only 2.8% of them are self-identified homosexuals. It would be unrealistic to think that people who didn't even think they were gay would be licensing same gender spouses. In women only 1.4% are self-identified lesbians with 8.6% having had some same gender sexuality. So that means about 2.1% or so of the population is self-identified homosexuals and likely to license the contract. Since even heterosexuals only have about a 50% marriage rate at any particular moment in time I'd figure 1% or so of the population at any one time will be licensing the contract with their same gender spouse. (all data from the NHSLS done but the University of Chicago and acknowledged by most to be the largest well done sex survey ever done)

The reality is that the vast majority of married couples, sometime in their relationship, will choose to reproduce.

Not the issue I was even concerned about - was presenting what people think marriage is for, and the thing they most think it is for is something that same gender couples do as much as opposite gender ones.

As I explained above it will put a strain on society's resources because benefits are bestowed upon married couples chiefly because almost all choose to reproduce. This system would be strained or become unworkable if more married couples with no intention of reproducing are introduced into society.

Considering that 14% of married people now don't pass on their genes, adding 1% more to the mix would not break any system I can think of. Also I would like to know what these expensive benefits bestowed by the licensing of the marriage contract actually are. Seems to me it primarily just defines rights and responsibilities and factors designed to promote family stability.

If straight couples don't want these children what makes people think gay couples will want them? I doubt that gay couples will want them anymore then most straight couples do. Thus, this argument has any merit.

Just because you doubt an argument doesn't make it without merit. Do a google search to find out just how many resources are geared to help gay and lesbian people in their special needs adoption quest. Anecdotally I know a a same gender married couple that has adopted 3 non-infant special needs children, the oldest just graduating high school. And of course regardless even if the rate of adoption is identical to opposite gender married couples it is still more homes.

As for living together already with children - I really don't see how the addition of a marriage license on the wall will make it a more stable home.

I am amazed you can even type that without getting finger cramps. The statutes that deliniate and define responsibilities and obligations for the married couple is one of the primary stablizing influnences on a home.

Also, there are studys that show that children of same sex couples have more social and "gender identity" problems (I realize these studies are a completely different subject and by mentioning them I really don't want to get into a whole separate debate about them).

Actually they found no such thing - they found they were more likely to explore their options and only slightly so. That's a good thing - we need fewer people waking up at 30 with 2 kids and a spouse and finally figuring out they are gay.

One thing is for sure, the best way to raise children has been shown, time and time again, to be in a two parent, man and woman, household.

Actually the experts in the field say the primary overridding factor is the stability of the home, all other factors are distant seconds. There is no statistically significant difference between children raised by same gender couples and opposite gender ones and considering the same gender ones don't have the benefit of the civil contract any small variance is easily justified.

On the birthrate issues - I really don't think a Brave New World type of system to encourage reproduction is a good idea.

Good neither do I. But of course Norway's government merely footing the bills is worlds away from that situation.
6.4.2006 8:03pm
Archon (mail):
Elais,

No the fall of civilization will not occur because of gay marriage. It is only one piece in a large mosaic. Low birthrates in some areas of the world will ensure the death of whole cultures. For instance, look at Spain. The birthrate there is hardly 1 and nothing near the replacement rate of 2.1. If this trend continue, the population of Spain will half itself about every 40-50 years (of course other cultures with higher birthrates will move into Spain to replace the loss of Spainards, but with the death of more and more Spaniard will go the larger culture of Spain.) The corruption of marriage as an institution will only continue this trend.

As for only a few thousand gay people - you know more then that will get married. There have been upwards of 8000 gay marriage in the little state of Mass. Imagine how many will get married in larger states. Homosexuals are about 10% of the population and that segment will produce more then a few thousand marriages.
6.4.2006 8:06pm
The Voice of Reason (mail):

Medis: Should we be passing federal amendments barring "liberal activist judges" from finding that state statutes and constitutions provide any other rights or entitlements?



Actually, Congress does this all the time by statute. One recent example is the Protection of Lawful Commerce in Arms Act. It is called federal preemption.


Medis: Is there a general civil right to not live in a state with "liberal activist judges"?



Yes, while it is not judicially enforceable, it is called the Republican Government Clause, and the federal political branches, not the courts, safeguard it.
6.4.2006 8:09pm
Archon (mail):
Bob -

Your numbers and reasoning are still flawed. Self identified as opposed to actually gay are two completely different things. I have heard of both studies and have read that the methodology in both are questionable. The fact of the matter is that it is widely regarded, by people on both sides of the argument, that about 10% of the population is homosexual. Even if I go by your numbers 2.8% and 1.4% add up to 4.1% and not 2.1%. And, yes, 4.1% of society accessing a system of benefits can put undue strain on it. It would hardly be a drop in the bucket.

Also, your marriage rate numbers are flawed. The amount of people who will marry at least once in their lifetime, I believe is upwards of 80%. Sorry I don't have the time to research the numbers tonight, but if you do have them readily available please post them. Considering this number did not include about 10% of society who could not marry, it will have a considerable impact.

On the child rearing question...children need a man and a woman influence in their lives, period. Again, I don't have time to dig up the studies on this fact, but I am sure if someone had the time, they would find that this is true. I don't like using anacedotal examples - but I have seen some pretty screwed up kids in my lifetime that were raised in same sex households.

I don't like social experiments - especially when children are used as test tubes. Marriage and opposite sex child rearing has worked well for the last 2000 years and will continue to do its job for the next 2000 years.
6.4.2006 8:25pm
Bob Van Burkleo (mail):
Archon,

Its pretty obviously you are arguing to get the answer you want so too much effort wasted on correcting you probably isn't worth while so just the quick corrections:

10.1% of MEN having same sex experience is 5.05% of the entire population. [light dawns I hope] Re figure your numbers from there. (and you still haven't given me an illustration of an 'expensive' benefit of the civil contract anyway)

How many people marry through their lifetime is unimportant - this is about how many licenses are being issued. At any one time about 50% of the heterosexual adult population is married, they rest are not. You can't look at life-time marriage and compare to gay people at all - they have no history of marriage to compare to.

On the child rearing question...children need a man and a woman influence in their lives, period.

Yes your religious belief is obvious but unfortunately it doesn't jive with the empirical data. Yes I know that those who are trying to spin this issue talk about how it is so much better but they are comparing studies with 2 parent households with single parent households. Read their little blurbs they deceive you with again - you will find they are cleverly worded to obscure this fact. The studies comparing same sex and opposite sex couple parents all show virtually no difference and that's with the opposite sex ones having the advantage of the civil contract.

Again, the leading child rearing experts (even the ones misquoted by those trying to spin) say the most important factor in a child turning out well is a stable two parent home. What gender combination they are, if they are fat, have funny laughs or whatever other traits are secondary to this. There is only so far you can micro manage other people's families. I mean the two top characteristics of homes where incest occurs are a father with a drug or alcohol problem and the family practices a fundamentalist religion with strict sexual roles and mores. Should we say that alcoholics and evangelicals shouldn't be allowed to license the contract?

I don't like social experiments - especially when children are used as test tubes. Marriage and opposite sex child rearing has worked well for the last 2000 years and will continue to do its job for the next 2000 years.

And then we get the vague feeling that you are saying that denying the civil license to same gender couples will some how keep children out of same gender parented homes. Not on this planet - most children being raised by gay couples are from previous heterosexual marriages, not adoption or assisted reproductive technology (and gay people can still adopt and get reproductive assistance if they don't have the contract). These children will be being raised by their same gender parents regardless - shouldn't they have all the family nurturing aspects that the civil contract provides too? Children are one of the strongest reasons FOR allowing same gender parents access to the civil contract!
6.4.2006 8:50pm
The Voice of Reason (mail):

10.1% of MEN having same sex experience



Does this include prison/juvie rape, molestation, pre-pubescent "confusion", predatory "robbing the cradle" of troubled kids, and fraudulent prostitution ("I thought it was a girl.")? Your figures aren't accurate, either.
6.4.2006 9:03pm
The Voice of Reason (mail):

These children will be being raised by their same gender parents regardless - shouldn't they have all the family nurturing aspects that the civil contract provides too?



Dictators are belligerent no matter what; why deter them from having nukes? (Yes, gays are no likelier to be evil dictators than anyone else; I am attacking the form of your argument, not a bigot.)
6.4.2006 9:12pm
The Voice of Reason (mail):

The studies comparing same sex and opposite sex couple parents all show virtually no difference and that's with the opposite sex ones having the advantage of the civil contract.



Perhaps such studies show no difference because such studies do not exist?
6.4.2006 9:15pm
The Voice of Reason (mail):

You can't look at life-time marriage and compare to gay people at all - they have no history of marriage to compare to.



This is untrue. There are studies that show women who identify as lesbians generally do not consistently engage in lesbian behavior over their entire lifetime, i.e., she says she is a lesbian today, but ten years from now she might be married with kids.
6.4.2006 9:19pm
The Voice of Reason (mail):
That is, married in the traditional sense.
6.4.2006 9:20pm
Bob Van Burkleo (mail):
Yes it does include those features that happened as an adult (as I mentioned) Those are 18 and older experiences. And again, only self-identified gay people are going to get contracts so they are the only ones of interest.

Dictators and give them nukes - bad example. Letting couples marry has a positive effect on the family so lets say:

Dictators are belligerent no matter what; why deter them from having antibiotics?

And the answer is, we shouldn't. Even if something is 'bad' if you can't change it and you have a chance to make it better you do so. (I am attacking the form of your analogy)

Perhaps such studies show no difference because such studies do not exist?

Well considering Archon referenced one I'll just run with the idea that they have. ;)
6.4.2006 9:26pm
The Voice of Reason (mail):

Did the white population nose-dive because there are more intteracial marriages?



Bans on interracial marriage sought to promote white supremacy and black inferiority by stigmatizing the idea of social and civil equality and discouraging the inheritance of "white" fortune by "black" heirs. It had nothing to do with population control or promoting procreation in stable families. The contexts and arguments are simply unrelated.
6.4.2006 9:27pm
Bob Van Burkleo (mail):
There are studies that show women who identify as lesbians generally do not consistently engage in lesbian behavior over their entire lifetime, i.e., she says she is a lesbian today, but ten years from now she might be married with kids.

Even if true how does that give you any useful data for all gay people?

Please, be reasonable Voice of Reason (couldn't resist)
6.4.2006 9:29pm
The Voice of Reason (mail):
1. I am not Archon. You are not excused from making up scientific studies that do not exist. Even worse, if you simply assumed that nonexistent studies existed because someone else said they did, then you couldn't have checked to see what they said by reading them!

2. "Dictators and give them nukes - bad example." No, it is the question presented. You presume that legitimizing gay marriage will improve society. Except legitimizing gay marriage might harm society. If gay marriage is good, supporting it is good. If gay marriage is bad, supporting it is bad. Dictators are bad and giving them nukes is a badness multiplier. You cannot make your argument without presuming gay marriage is good. That is begging the question.
6.4.2006 9:33pm
The Voice of Reason (mail):
BVB: You can't look at life-time marriage and compare to gay people at all - they have no history of marriage to compare to.

Me: There are studies that show women who identify as lesbians generally do not consistently engage in lesbian behavior over their entire lifetime, i.e., she says she is a lesbian today, but ten years from now she might be married with kids.


Either you are deliberately missing the point or just not as sophisticated a thinker as you pretend. The point is that self-identified gay people do have a "history of marriage" that can be measured. You want comparisons? Take a representative sample. It's called sampling theory.
6.4.2006 9:37pm
The Voice of Reason (mail):
Dictators are belligerent no matter what; why deter them from having antibiotics?

Because they are likely to reverse engineer them into bioweapons.
6.4.2006 9:39pm
The Voice of Reason (mail):
Yes it does include those features that happened as an adult (as I mentioned) Those are 18 and older experiences. And again, only self-identified gay people are going to get contracts so they are the only ones of interest.

This only proves my point. People who have nonconsensual same-sex experience do not count for your purposes, yet you include them in your figures. Have you ever heard of grade inflation?
6.4.2006 9:47pm
Perseus:
Medis:

Erotic desire--both sex and love--is fickle. Civil marriage seeks to regulate that desire, but unfortunately, reforms like no-fault divorce have left the state with too few sticks, which all too often leaves children with the short end of the stick (bad pun).
6.4.2006 10:04pm
Bob Van Burkleo (mail):
this only proves my point. People who have nonconsensual same-sex experience do not count for your purposes, yet you include them in your figures. Have you ever heard of grade inflation?

Hmmm what point is that? the only figure that was of any importance was the % of self-identified gay people. Shoot 4.5% of the male total are men who have had same sex desires but never done anything about it. (same sex sexuality includes self-identification, behavior and desire)

I get the feeling you aren't really reading the posts for context.
6.4.2006 10:21pm
Bob Van Burkleo (mail):
Either you are deliberately missing the point or just not as sophisticated a thinker as you pretend. The point is that self-identified gay people do have a "history of marriage" that can be measured. You want comparisons? Take a representative sample. It's called sampling theory.

missed this one, yeah its pretty much confirmed - you aren't reading the messages for context.

The point you are missing is it was pointing out that even though you can say 80% of the heterosexual population has licensed the marriage contract at some time in their life, there is no way to tell (without some undone study) how many gay people have been married since they don't have the marker of a civil contract. That's why a point in time value compared with relative representations in the population is the only useful comparison, e.g. in june we licensed 3333 contracts, 33 of them were to same gender couples.

How many lesbians are switch hitters is of importance only to those sorting out their porn collections, not the discussion Archon and I were having.
6.4.2006 10:28pm
The Voice of Reason (mail):
there is no way to tell (without some undone study) how many gay people have been married since they don't have the marker of a civil contract.

Actually, that wasn't your original point. Your original point was that there was no way to tell. You were assuming that self-identifying gays do not get married to opposite sex partners and thus they would need same-sex marriage in order to suffice the desire to be married and raise kids.
6.4.2006 10:47pm
The Voice of Reason (mail):
[Gays] don't have the marker of a civil contract

Not always true. See above for the discussion of lesbians.
6.4.2006 10:49pm
The Voice of Reason (mail):

That's why a point in time value compared with relative representations in the population is the only useful comparison



That depends what you mean by "useful". If your "use" is to advocate for gay marriage, which you presume is good without any supporting evidence, then I suppose you might be right. But I'd imagine there is a gay activist scholar out there would would disagree with you.
6.4.2006 10:55pm
The Voice of Reason (mail):
Shoot 4.5% of the male total are men who have had same sex desires but never done anything about it.

I doubt this is true. Show me the study.
6.4.2006 10:57pm
The Voice of Reason (mail):
Hmmm what point is that? the only figure that was of any importance was the % of self-identified gay people.

Yet you include irrelevant data (or, as you might put it, data not "of any importance") as "support" for your gay advocacy. My original claim was that your figures were inaccurate. You still do not seem to realize that you have since agreed with me.
6.4.2006 11:01pm
Bob Van Burkleo (mail):
Actually, that wasn't your original point. Your original point was that there was no way to tell. You were assuming that self-identifying gays do not get married to opposite sex partners and thus they would need same-sex marriage in order to suffice the desire to be married and raise kids.

Sorry VOR but you are so out of what's being talked about there isn't much point in continuing. The discussion was about if marriage equality occurs what is the likely % would be same gender licenses. So your bringing up heterosexual licenses of prior lesbians is merely titillating, not relevant.

So hopefully now you can see what the 80% is irrelevant - there is no way to know what the same gender marriage % under similar situations would be because those situations have not yet existed for any significant length of time, let alone anything comparable to a 'life long' study of heterosexuals. That is why the only tool we have reasonable access to is a point in time study - if 50% of eligible heterosexual adults are married at any point in time, what relative % of self-identified homosexual ones will be if given the opportunity? 50% of them (which would be about 1% of the general population)? Less, more? What influence will marriage equality have on the married population as a whole?

I contend it will be quite small, and if non-procreation is the issue it will be a tiny addition to the 10% of married couples that currently do not produce children (if you take the entire country from marrying age til death it is 95% but if you pull back to the menopausal years to discount the breeding habits of the very old, only 90% have had children and there are those to say it is actually 14% and moving up to 20%).

As such marriage equality will have only a small influence the over all stats, are actually in addition to the current situation, and why in the world are people worried about the gnat of a problem when the elephant is 'why are the breeders not doing their job?'
6.4.2006 11:14pm
The Voice of Reason (mail):
The discussion was about if marriage equality occurs what is the likely % would be same gender licenses. So your bringing up heterosexual licenses of prior lesbians is merely titillating, not relevant.

They are not "heterosexual license of prior lesbians". They are self-identifying gays who wouldn't take advantage of "marriage equality." If "marriage equality" is unnecessary and will be taken advantage of by practically nobody, then why are you advocating for it?
6.4.2006 11:17pm
Bob Van Burkleo (mail):
They are not "heterosexual license of prior lesbians". They are self-identifying gays who wouldn't take advantage of "marriage equality." If "marriage equality" is unnecessary and will be taken advantage of by practically nobody, then why are you advocating for it?

Silly, marriage equality isn't unnecessary - its ethically necessary by our very dedication as a nation to equal access to government for all citizens. And 1% of the populations is millions of people - not nobody no way.
6.4.2006 11:43pm
The Voice of Reason (mail):
its ethically necessary by our very dedication as a nation to equal access to government for all citizens. And 1% of the populations is millions of people - not nobody no way.

You missed the point. Those self-identifed gays who get married to opposite sex partners are self-identified gays who wouldn't avail themselves of same-sex marriage. Not to mention that most kids go with their mothers. Meaning your advocacy seems to apply primarily or exclusively to gay males without kids. Assuming, like our tax code does, that marriage serves to promote the welfare of kids, how is homosexual MARRIAGE an "ethical necessity," OTHER THAN IN YOUR HEAD? Treating childless gay males like single people for the purpose of federal tax code is perfectly rational.

"Equal access to government" could also be used to argue that all felons must be able to vote while in prison. Or to justify randomly populated slave labor camps. Or that all criminals should receive the death penalty. Or that every citizen has an inalienable right to $5 million. You are blowing rhetoric out of your ass.
6.5.2006 12:13am
Archon (mail):
Bob -

1. The studies I mention above I am aware of their existence, but have never read page for page. As for the study you mention, I take your statement at face value and assume that you are not making it up.

2. If you must know, I am not religious. If you were to ask me to "self identify" I would probably do so as a protestant. But, I really can't remember the last time I went to church.

3. Bob on one hand you are arguing that there are so few gay people who would want a license to marry that it would have no effect on the system and on the other hand you make the point that we must allow gay marriage for the sake of equality and that still millions of people will have access to it. So a million people is so few people that there will be no adverse effect on a benefits system, but it is enough to warrant changing a 4000 year old institution?

I don't like fads, especially when they tinker with the foundation of society. Gay marriage is nothing but a fad, and unfortunately, the best way to show the damage it will have on society will be to allow it. Other fads that had to die in such a way were communism, socialism, and bell bottoms. At least bell bottoms didn't bring about the murder of a few hundred million people.
6.5.2006 12:15am
PeterH:
I don't like fads, especially when they tinker with the foundation of society. Gay marriage is nothing but a fad, and unfortunately, the best way to show the damage it will have on society will be to allow it. Other fads that had to die in such a way were communism, socialism, and bell bottoms. At least bell bottoms didn't bring about the murder of a few hundred million people.


A fad? You speak of that as though it were a certainty, which is ridiculous. Gay people have been around for a very, very long time, and we are raised in a society that values marriage highly. Once a generation or two is raised considering marriage to be a very real option, all the social forces that encourage straight people to marry (and yes, including family pressure) are going to apply to gay people from birth like they do to straight people. Rather than being a fad, if people would stop fighting it, it would very rapidly become self-perpetuating.

Again, as I have asked before, just what specific damage do you imagine is going to happen? Gay people marrying is not going to turn straight people gay, so any effects you imagine on the overall rate of reproduction seem a bit hysterical. What else do you imagine might come about?
6.5.2006 12:50am
Bob Van Burkleo (mail):
Bob on one hand you are arguing that there are so few gay people who would want a license to marry that it would have no effect on the system and on the other hand you make the point that we must allow gay marriage for the sake of equality and that still millions of people will have access to it. So a million people is so few people that there will be no adverse effect on a benefits system.

Of course not - a 1 or even 2% change in anything is never a deal-breaker. AND you have yet to give a single example of anything with any real cost associated with licensing the contract. Is the paper that expensive? :)

but it is enough to warrant changing a 4000 year old institution?

Red Herring, this isn't about 'changing an institution' that happened long ago, there are lots of gay married couples - marriage is not confired by the state only recognized and a contract licensed in its support.

This is only about reasonable equal access to an existing civic contract that has a licensing restriction with no rational basis other than "that's the way its always been before". Seems the US was formed in a way nothing else had been before and it seems to have worked out ok. And this isn't about 'gay marriage' with some protected group rhetoric attached. This is about a particular citizen being allowed to license a civic contract that is for those 'building a life together' with a person they would reasonably be expected to be able to. All other restrictions on the licensing can be supported with clear secular arguments, denying them license of this totally functional contract merely because of the gender of their cosignee can not.

Allowing women equal rights in the marriage, allowing interracial marriage, allowing easy divorce have all been far more radical changes that influenced 100% of marriages. People getting up in arms about this small addition to those eligible for licensing makes me wonder if their reasons are more just excuses for unspoken motives that they know really are unsupportable in a US court of law.
6.5.2006 1:29am
The Anti-Medis (mail):

Gay people marrying is not going to turn straight people gay, so any effects you imagine on the overall rate of reproduction seem a bit hysterical. What else do you imagine might come about?



1.
2.

I'm not sure why you assume that social conditions have no impact on how sexuality develops. The point is clearly that changing the social conditions will change how sexuality develops in the future, not that there will be a retroactive impact that will convert fully developed heterosexual adults. No one other than a gay activist condescending to a straw-man has every made such an argument.
6.5.2006 1:30am
The Anti-Medis (mail):
This is about a particular citizen being allowed to license a civic contract that is for those 'building a life together' with a person they would reasonably be expected to be able to.

Marriage is not an individual right, it is a joint right shared by two potential parents. This is the problem. You have some individualist conception of marriage that, gay rights aside, has nothing to do with parenthood or what the vast majority of people in our society, gay or straight, think marriage means. You're like the atheist who wants "In God We trust" off the money. Take a chill pill. Seriously.
6.5.2006 1:33am
Bob Van Burkleo (mail):
Oh The Voice of Reason, I tried to email you the information you wanted but you seem to have used an invalid email address. If you can't be honest about an email address I really can't be wasting any more time with you. Let me say I find your reasoning to be skewed and off topic much of the time. If you want to continue discussion email me at my valid email address and we can try to get on the same page as far as what is being discussed.
6.5.2006 1:35am
The Anti-Medis (mail):
This is only about reasonable equal access to an existing civic contract that has a licensing restriction with no rational basis other than "that's the way its always been before".

Subsidizing with taxpayer dollars those people likeliest to breed is a rational basis. I mean, get a clue.
6.5.2006 1:37am
The Anti-Medis (mail):

Oh The Voice of Reason, I tried to email you the information you wanted but you seem to have used an invalid email address. If you can't be honest about an email address I really can't be wasting any more time with you.



1. Sorry, but you don't have a right to access my e-mail. Sue me.

2. Post the link right here, so everyone can see your proof. Otherwise, I suspect it doesn't exist. More than once I have provided links to articles. For example, a few minutes ago! Try the "Link" button.
6.5.2006 1:39am
Bob Van Burkleo (mail):
This is about a particular citizen being allowed to license a civic contract that is for those 'building a life together' with a person they would reasonably be expected to be able to.

Marriage is not an individual right, it is a joint right shared by two potential parents.

Wrong. Infertile people are licensed the contract all the time. 30% of lesbian households are raising minor children, 20% of gay households. The same percentage of gay households with children have a stay at home parent as licensed marriages. And there are no 'joint rights' before an agreement between individuals has been made. Every citizen has a right to equal access to the features of government, this civic contract is one them.

This is the problem. You have some individualist conception of marriage that, gay rights aside, has nothing to do with parenthood or what the vast majority of people in our society, gay or straight, think marriage means.

Forgive me if I think you are mistaken. Each person must qualify for licensing the contract it is, as all things legal, an individual right. While there will always be two in the contract each person's right to access to it stands on its own.

You're like the atheist who wants "In God We trust" off the money. Take a chill pill. Seriously.

argumentum ad hominem - seems my work here is done..
6.5.2006 1:46am
Bob Van Burkleo (mail):
Ah multiple accounts. Sorry, the information you wanted had not even tangential relevance to this thread. Please let me know any other accounts you might have so I can ignore them all.
6.5.2006 1:50am
The Anti-Medis (mail):
Nice try at a quick escape! But there is no ad hominem (much as there is no link to any of the social science studies upon which you materially rely).

The point is your argument takes for granted a controversial legal background, just as Michael Newdow's does so. Both you and an atheist seeking to erase "In God We Trust" from the dollar bill are pushing an extremely liberal political philosophy that some would say is incoherent. Both you and Michael Newdow overestimate the persuasiveness of your arguments and seem not to internalize, or respond appropriately, to rational criticism, e.g., because infertile couples can adopt and fertility clinics exist, they are potential parents.

It is very hard to accept that the State cannot put "In God We Trust" on a dollar bill for historical reasons, much as it is hard to accept that the State cannot treat childless gay males that cohabit with other males the same as single people for tax purposes and thereby limit access to a licensing regime whose purpose is subsidizing the welfare of children by targeting children in those relationships where they are most likely to start and most likely to be while they are dependents. If marriage is truly the individual right that you claim, then single people should be able to marry themselves (or their pet rock) and instantly reduce their taxes. It is easier to accept this individualistic conception of marriage, I grant you, if one takes for granted Roe v. Wade and its progeny and praises its conception of marriage is ideal. But, talk about outrageously controversial! The foundation of your argument is a quagmire.

I think your rhetorical style, like Newdow's (or, like the ACLU's in a particularly bizarre Ten Commandments case), does more harm to your cause than good, because it is fodder for the Bill O'Reilly's of the world, who will simply use it to rabblerouse. When you argue that traditional marriage laws could not conceivably have been passed by a rational legislature, or that a rational legislature could not have conceivably thought gay marriage might result in long-term adverse consequences on the family, or mere overinclusivity of a statute (barren women, elderly couples) or its underinclusivity (no first cousins or gays) is fatal under rational-basis precedents, it just makes it seem that you vastly underestimate the strength of your argument or the uphill climb you face.

Thing is, the same arguments might have much purchase in the criminal context, i.e., Lawrence. But just as the right to be free from criminal prosecution for abortion is different than the right to compel the government to subsidize your abortions, the right to be free from criminal prosecution for gay marriage (or sodomy) is different from the right to compel the government to subsidize your marriage, or to solemnize it. It just isn't very persuasive to argue that "breeders better fork over the loot".
6.5.2006 9:32am
The Anti-Medis (mail):
Whoops, vastly overestimate the strength of your argument -- vastly underestimate the uphill climb you face.
6.5.2006 9:34am
Medis:
A few brief points.

On the issue of a federal civil right not to be subject to "liberal activist judges":

It was suggested that the federal government does this whenever it preempts an area of law. Of course, when the federal government preempts an area of law, it actually preempts state and local legislators and administrators, not the courts per se. Indeed, it is possible and not uncommon for state courts to have concurrent jurisdiction over rights and duties arising under federal law. So, federal preemption isn't really relevant to the specific issue of how a state chooses to structure its own government.

It was also suggested that a federal civil right to not be subject to "liberal activist judges" is grounded in the U.S. Constitution's guarantee of a republican form of government. That is a pretty odd suggestion--for one thing, as noted before, many state judges are actually directly elected. For another, even where state judges are not directly elected, they are still selected by representatives of the people who are themselves elected. And obviously, the Framers of the United States Constitution not only thought that such an appointment system was good enough for judges, but also good enough for the President and Senators as well. So, I don't think one can argue that powerful states judges, as long as they are directly elected or appointed by the people's representatives, somehow violate the guarantee of a republican form of government.

Finally, Perseus noted:

"Erotic desire--both sex and love--is fickle. Civil marriage seeks to regulate that desire, but unfortunately, reforms like no-fault divorce have left the state with too few sticks, which all too often leaves children with the short end of the stick (bad pun)."

But that, of course, is precisely my point--civil marriage does in fact seek to "regulate erotic desire" and stabilize romantic relationships which would otherwise be subject to the somewhat "fickle" nature of erotic desire. And again, the assumption behind this analysis is that there is something there--erotic desire--to regulate in the first place. But this job is necessarily made much harder if you try to force people into marriages without any underlying "erotic desire" for the other person.

Indeed, just imagine if we tried to limit straight men to marrying only other men. What would that do to, say, adultery rates? How could such marriages possibly be as stable as marriages between straight men and women? I think the answer to these questions are obvious--and for the same reasons, one must take account of how limiting gay men to marrying women effectively does the same thing.
6.5.2006 11:50am
Boonton (mail) (www):
much as it is hard to accept that the State cannot treat childless gay males that cohabit with other males the same as single people for tax purposes and thereby limit access to a licensing regime whose purpose is subsidizing the welfare of children by targeting children in those relationships where they are most likely to start and most likely to be while they are dependents. If marriage is truly the individual right that you claim, then single people should be able to marry themselves (or their pet rock) and instantly reduce their taxes.


1. Does marriage always cut taxes? I seem to recall quite a bit of rancor over a so-called 'marriage penalty' a while back.

2. If the primary purpose of marriage is to subsidize the welfare of those caring for children then what is the purpose of...say..child tax credits or deductions for dependents which seem to serve the same function?

3. How do you explain the odd fact that civil marriage existed long before the income tax did and back when taxes were primarily tariffs there was no tax benefit based on marriage if I recall.

4. Finally, how come the 'subsidy' has no relationship to the actual prospect of whether or not a marriage can produce children? A couple too old to have kids gets the subsidy, so does a couple so dysfunctional that any kids they might have would be taken by child welfare authorities.
6.5.2006 1:51pm
Boonton (mail) (www):
Perhaps most devasting of all, how come marriage has always been defined by the states if its purpose is to subsidize childbearing? According to you the bulk of the subsidy is via tax benefits. Tax benefits created by the Federal system of taxation mostly. Can you seriously show that the entire income tax system was created to get married couples to have kids while leaving the essential part of defining marriage in the hands of the states without even the smallest of requirements that they target their definition towards childrearing?
6.5.2006 2:00pm
Perseus:
Which is why I mentioned arranged marriages, where there is little expectation of great erotic desire. In my view, it is the modern overemphasis on individual freeom of choice and love that has led to the weakening of marriage and marriage laws. So I'm not convinced that the job "is necessarily made much harder if you try to force people into marriages without any underlying 'erotic desire' for the other person." The job is made harder to the extent that people expect to be madly in love with their spouse.
6.5.2006 2:31pm
Bob Van Burkleo (mail):
Which is why I mentioned arranged marriages, where there is little expectation of great erotic desire. In my view, it is the modern overemphasis on individual freeom of choice and love that has led to the weakening of marriage and marriage laws.

'weakened' them or just made them irrelevant? Laws for 'arranged marriages' were there to trap the individuals in the relationship even though they had no real desire to stay. Now with people expecting affection to be the bonding agent unless you actually need some feature of the civil contract, why get legal entwined at all?

Just have to point to the more socialist european countries for examples: if you get all the benefits you need as an individual why bother licensing a contract that really adds nothing to the equation? People are still 'marrying', i.e. living with the person they want to build a life with, they just aren't bothering involving the state with it. (saws a foreign Dutch film a while back where a couple was telling a sister they were going to get married and she retorted "Married? I thought only the gays did that..." ' :)
6.5.2006 2:51pm
Medis:
Perseus,

I don't think the practice of arranged marriages demonstrates a complete disregard of "erotic desire". For one thing, arranged marriages as practiced often allow the child some input, or potentially even a veto, with respect to the marriage if they find the arranged mate unsuitable. Indeed, some arranged marriages work by giving at least one child (usually the male child, but not always) a choice among several possible mates that the parents have found suitable.

Moreover, people sometimes talk about "erotic desire" (AKA love) growing within the marriage. Indeed, parents may attempt to choose mates in part with a sense of who they believe will be suitable for their children. In other words, the fact that the child may not have absolute discretion over who he or she marries does not necessarily imply that the parents have completely disregarded the notion that husbands and wives will ideally come to love each other.

In short, you are lumping together "freedom of choice" and "love" as if they were the same concept. But I think arranged marriages, to the extent that they actually do limit freedom of choice, may nonetheless contain an expectation--or at least hope--that the couple will come to love each other.

And again, that just makes sense. To the extent that the spouses do in fact love each other--and simply enjoy have sex with each other--it is far more likely that the marriage will not experience things like adultery and other destablizing situations.
6.5.2006 2:59pm
Boonton (mail) (www):
Speaking of which, an unnoticed negative effect of banning gay marriage and being generally intolerant of gay relationships is to encourage gays to attempt to 'fit in' by marrying people of the opposite sex.

To the degree that these attempts to act straight cause unhappy hetrosexual marriages (leading to adultery by both parties and destablizing breakups) 'pro-marriage' advocates are ironically weakening the institution and harming children.

This too goes for the lamenting over 'easy' divorce laws. One of the consquences of making it easy to kill bad marriages is that the ones that remain are likely to be stronger and healthier. This is hardly a scientific comparision but how much literature from, say, 100 years ago revolved around people 'trapped' in unhappy marriages and generally depicted the institution as filled with hypocrites? Today it's a lot harder to pull such a claim off when anyone who is really unhappy can easily divorce with next to zero stigma.
6.5.2006 3:25pm
Perseus:
I didn't say completely disregard: I said denigrate. The hope that a couple would come to love each other in an arranged marriage was just that, a hope, not the expected norm as it is now. Nor did I lump together romantic love and freedom of choice as one concept. They are quite distinct (and related), but the much greater emphasis on both is a prominent and distinctive feature of the modern democratic view of marriage.

In any case, my basic point was that the state's primary interest in marriage is to restrain and to channel erotic desire, not to facilitate it.

So, for example, the argument that SSM might reduce promiscuity is the kind of argument that impresses me. However, when folks like Andrew Sullivan in the same breath open the door to more flexible arrangements regarding monogamy in marriage, that argument becomes far less persuasive.
6.5.2006 5:22pm
Medis:
Perseus,

But again, your own words suggest why these regulatory measures are likely to work best if it is at least possible that the couple will love each other. In particular, you use the term "channel erotic desire", which obviously implies that you are giving the person's erotic desire somewhere to "flow"--namely, you hope it will "flow" to, but only to, the spouse. And to extend the metaphor, giving gay people only the option to marry someone of the opposite sex is much like trying to channel water to flow uphill.

Incidentally, you should check out Foucault's work on this subject, if you haven't already. In a nutshell, at least with respect to women, it is far from clear that people have always believed that "erotic desires" need to be repressed or restrained. Rather, it appears that people have often thought that "erotic desires" need to be ENCOURAGED.

In that sense, people have not always agreed that "promiscuity" is a natural state for all people, and that the only regulatory function of marriage is to limit promiscuity. Rather, people have also seen marriage as encouraging greater sexual activity than would occur in its absence.
6.5.2006 5:39pm
alessandra (mail) (www):
(link)Elais:
alessandra,

Wow, things must be bad for gays in Europe if they have to hit up heterosexual people.

You are really self-absorbed if you think you're in danger of being felt up by a lesbian.
=============================
PeterH, you see the above? Actually this is much more the problem with homo marriage, it's part of so much criminal irresponsibility and ignorance that comprises pro-homo activism.

I'm copying below my response to Elais, by far the cheapest, most vile commenter on this blog. I mean, just how repugnant can you get to make fun of the reality of sexual violence? Leave it to pro-homos, no doubt.

Elais wrote:
Could you point out how non-violent heterosexuals are? And keep in mind I just came off of reading a report how a young heterosexual man killed 7 members of a multi-generational family.

In my community, I would guess that 99.9% of the violent crimes are perpetuated by heterosexuals.
===========================
You don't say! And let me guess what your last name is? God. Not even morons have the pretense that they have the telepathic x-ray ability to know precisely who commited what crime, but not you, Elais. You don't let that enormous stupidity of yours get in the way, now do you? You chat with someone and if they are nice to you, you just know they have never committed a crime. Maybe we should just abolish the Justice system and replace it with a 5 minute chat with you. Why have research and investigations and proof and facts and testimonials when we can have a stupid nut-job like you deciding whose guilty or innocent?

==================================
Elais wrote:
Gays on straight violence, harassment, etc. is non-existent.
=================================
Elais, there is unquestionable proof that non-heterosexuals commit a ton of violence towards heterosexuals and non-heterosexuals. Harmful action is not restricted to, but includes: domestic violence, rape, sexual abuse, sexual harassment, prostitution, sexual denigration, sexual exploitation, and collusion and cover up of all these types of harmful actions. This proof is comprised of research, interviews, studies, testimonials, court records, and personal experiences you are too diseased to face.

Elais' level of denial is equal to Holocaust deniers. There is no way she can stick her head further in the sand. A nice example of how pro-homos are so often extreme nut-jobs.

=========================
Elais wrote: I have met many gays here and they are some of the nicest, most pleasant, most non-violent citizens my community has.

What planet are you from?
==========================
Pro-homosexuality people like Elais are dangerous to society because they practice their diseased level of denial not only in blogs, but very sadly in the real world. Should an adult or child suffer harassment, exploitation, or violence from a non-heterosexual and try to report the offense to people like Elais, her reaction will be to obsessively deny the crimes, collude with the perpetrators, obstruct justice, consequently perpetuate more crimes, all in the name of their lunatic "homosexuals don't commit any type of violence in the world, ever" obsession. It is the exact carbon copy of the obsessive denials found in religious people regarding covering up clergy who perpetrate harm and crimes.

Another fine example that 99% of most people's ideas about what constitutes reality in sexuality is nothing but a product of their fickle imagination, profound ignorance, and emotional (and very egotistical) push-buttons. All of this gets warped into certain kinds of master narratives containing extremely simplistic stereotypes substituting the veritable complexity of real people. It's plain to see to just what extent Elais' brain cannot deal with complexity, nor with reality.
============================

Elais wrote: I have met many gays here and they are some of the nicest, most pleasant, most non-violent citizens my community has.
============================
You know what this reminded me of as well? So many child abusers were/are able to carry on the abuse of one or more children because exactly they were/are always so nice and friendly and seemingly trustworthy to the adults around them. Literally thousands of examples of this.

The same for batterers - before police ever got training on domestic violence, the first thing a batterer would do is bond with the police officer coming to see what the noise was about- and they, the batterers, were usually calm, friendly, and sometimes even charming. In fact, some of the most violent batterers are described by people who only see them in their professional environment as "the nicest guy around."

Putrid pro-homos obviously, in their egotistical crappy mind, see only what they like to see, and can care less about the reality of violence in society when it applies to non-heterosexuals - as long as the 2 or 3 homos they know are nice to them.

It's as cheap as you can get.

Every child, adolescent, and adult that will suffer some form of harm or violence from non-heterosexuals in the future has Elais to thank for it and for insuring their reality is denied, they can thank her for denying the destruction of their lives, the torture of their minds, the infliction of barbaric pain, for causing all kinds of trauma, for exploiting their vulnerability, for dragging their dignity in the dirt, for conducing them to suicide.

Go on Elais, continue showing how monstrous your mind is, make some more of your putrid jokes- why not about how all the kids sexually abused by Father Shanley were making it all up, self-absorbed brats, were they? and the prostituted homo adolescents - cheap liars with kooky homo fears, aren't they? don't forget the homosexual rape victims, another category of self-absorbed liars? and how much women harassed by lesbians /bisexuals are all loony - even after they lose their jobs, academic programs, and suffer great emotional violence in the process...

To deny the reality of violence can actually be a much more serious crime because of its consequences than the great majority of any of the forms of so-called "hate-speech." Which is the reasoning behind the banning of "Holocaust denial" speech in Europe. How many centuries before we will have something similar applied to the denial of reality of sexual violence, whereby someone with Elais' putrid mind would have to answer for her lies about reality and the harm she and others like her cause to real victims of sexual violence and exploitation?
6.5.2006 7:02pm
Perseus:
Medis: But I don't think that current marriage laws (as opposed to sodomy laws) amount to much of an attempt to go against that particular flow. Rather, indifference (whether viewed as benign or malign) seems to be a more accurate characterization.

As for Foucault's work, I rather liked Camille Paglia's assessment: "As a writer, Foucault was an arrogant bastard. He did not believe in truth and so never sought it. His books, clumsily researched but overconfidently argued, show language-obsessed Parisian parochialism become paranoia, delusional and obsessive-compulsive."
6.5.2006 10:18pm
Elais:
Alessandra

I really struck a nerve, didn't I. A torrent of lies, abuse and misinformation. Congratulations!!!!

I'm pro-homo and proud of it. I'm also pro-black, pro-asian, pro-hispance, pro-white, pro-American, pro-man, pro-woman, pro-child, pro-family, I'm a real pro for everything. I'm for truth, justice and the American way!

I am not making fun of sexual violence. What I object is your tunnel-vision about homosexuals. You seem to be under the impression that crimes are committed solely by homosexuals. What mind-reading device do you have that you are convinced that gays are the source of all evils?

You know, I think I would fear experiencing violence from you than I would of any gay/lesbian I meet. You are angry enought to beat me with a baseball bat, I think. You seem to have little self-control over yourself.

Give me your email address and I'll sent you some statistics how how sweet and loving and non-violent heterosexuals are here.

What is my last name? Martinson, the last time I checked my drivers license and social security card.

Where is this incontravertible 'proof' you claim to have? It seems to be all in your own diseased mind. Do you hear voices as well that tell you these things? ARe you paranoid? I would recommend that you seen a mental health physician.

Since I don't buy into your paranoid world of self-delusion, you compare me to a Holocaust denier? Tell me, then, if all Nazis were homosexual would you? And that these homosexual Nazis exterminated all those lovely Jewish heterosexuals?.

Alessandra, you are a danger to yourself and to society. I strongly recommend you turn yourself in and get help.

Quite a leap of logic there, equating homosexuality with pedophilia. I guess all those heterosexual pedophiles are in the free and clear because they are heterosexual, not homosexual. Too bad for all those vunerable little girls that are molested/raped by a heterosexual stranger. You obviously don't care about them, do you? You are fixed only on homosexuals, you leave all those poor little girls in the lurch.

Pope John Paul The Second was apparently the nicest guy around. Who knew that behind the friendliness, nicesness and trustworthiness that he was the biggest pedophle, rapist, molester on Earth.

If you find the above sentence absurd, you are a hypocrite because you yourself just claimed that nice friendly, trustworthy people are secretly pedophiles.

Keep on ranting, alessandra. Show everyone how 'sane' you are. You are a three-ring circus and many are laughing at you.

I'm also a supporter of 'Working Against Violence' a group that is working against violence perpetrated by heterosexual husbands on their heterosexual wives.

So that puts another nail on your coffin of lies.

Take a pill, it will make you happy. :)
6.6.2006 12:02am
Medis:
Perseus,

I'm not sure I understand. Suppose we assume that the institution of civil marriage is all carrot and no stick, meaning it only provides incentives to married people and no punishment of unmarried people (I don't think that is quite right, but we can assume it for the sake of argument). Even if that is true, the incentives provided by marriage will be more effective if they attempt to "channel" people towards monogamous sexual relationships with people they can actually love and will enjoy having sex with.

Incidentally, I don't see how that quip from Paglia represents a substantive response to Foucault's point. Of course, I wasn't suggesting you take Foucault at his word, but I suspect that even Paglia would agree that the sort of "repressive hypothesis" you are suggesting is at best a gross oversimplification of how institutions like marriage have attempted to influence human sexuality.
6.6.2006 12:54am
Perseus:
Medis: It may be a gross oversimplication, but I think it best conveys my view of the essence of the state's interest in marriage today.

So I don't think it's enough to argue that simply because a couple (whether same-sex or opposite-sex) is in love that they are therefore entitled to a civil marriage (which stems from the belief that marriage is about love and that civil marriage exists primarily to facilitate it). Rather, I place the onus on the advocates of SSM to show how the behavior of same-sex couples (and that of society) is likely to improve as a result of granting them access to civil marriage.
6.6.2006 3:23am
Medis:
Perseus,

I agree that is a good sort of question to ask (namely, how will marriage effect gay couples, and how will those effects contribute to social welfare in general?). As it turns out, Professor Carpenter, among others, has done some interesting work on that very issue, so if you haven't already, I suggest you check it out.

And incidentally, if you can find a quote from Camille Paglia claiming in essence that Dale is an arrogant jerk, that would be very funny.

But anyway, my point has never been that gay couples are entitled to civil marriage simply because they are in love (and, incidentally, I would say the same thing about straight couples). Rather, I have just been pointing out that whether or not the married couple loves each other, or at least is capable of loving each other, is relevant to whether the marriage in question is likely to achieve its intended purposes.
6.6.2006 11:23am
dweeb:
Boonton,

1. The "Marriage Penalty" should be more accurately be called the "working wife" penalty. When only one spouse works, marriage always cuts taxes. The tax code just hasn't kept up with the times.

2. The primary purpose is to insure that children are provided for - to set up a union in which to produce children that carries strong disincentives from abandoning one's family.

3.The tax benefits of marriage are a secondary effect - a way of compensating for the freedom given up.

4. Why are the subsidy, and other aspects of marriage not related to fertility? Simple, because of the right to privacy. The Guiness Book says women have borne children while in their 60's, and one's fertility status is a private matter. However, one's gender is on one's birth certificate and a matter of public record, so the fact that one partner is male and the other is female is all we can publicly know and thus the basis for a presumption of potential to produce children.

Which brings us to the point - marriage is an imposition by the state - it binds one such that one's freedom to leave the relationship is constrained by a system that will usurp one's property rights, among others, and dictate what rights one may have back when the process is over. This imposition is justified by a public interest in making sure those who produce children will provide for them. Now, if the state is to make this imposition on SS couples, the question is, what is the compelling state interest in promoting monogamy where reproduction is not a possibility? There are many claiming this is irrelevant, but I guarantee, the first time a wealthy member of an economically lopsided SSM in MA is dragged into divorce court and his/her assets frozen, the "can't breed" card will be played in a heartbeat.
6.6.2006 4:31pm
Medis:
dweeb,

You claim: "Why are the subsidy, and other aspects of marriage not related to fertility? Simple, because of the right to privacy."

Do you really find that answer plausible?

Hypothetically, if infertility was readily observable--say, it turned the person's skin blue--would you really support prohibiting infertile people from being married? Seriously? No end-of-life marriage for grandma or grandpa once their skin turned blue? Automatic termination of marriages after an accident or disease caused infertility?

For that matter, suppose you happen to know that someone is infertile (eg, they tell you). Would you actually tell this person that they shouldn't get married?

I really don't think that is an accurate description of how most of our society feels about marriage. Rather, I think we not only respect the privacy of infertile straight people, but we actually accept their right to be married, and we do so even when we happen to know that they are infertile.

In any event, there is a simple, noninvasive, way of instantiating such a rule. You could have a system where a couple could provisionally get married, but it would have absolutely no legal effect until they actually had a child. So, would you endorse that rule?

Incidentally, Professor Carpenter, among others, has done some interesting work on the societal benefits of marriage even when the marriage does not produce children. If you haven't already, you should check his work out.
6.6.2006 5:22pm
Duncan Frissell (mail):
eeyn524:

Duncan, are you for or against "shall issue" concealed carry laws? Do they result in more licenses, or less licenses? I think more. More licenses, according to you, is less libertarian. Therefore libertarians must oppose shall issue laws?


Thanks for your reply. I hadn't thought of the concealed carry situation. In a sense concealed carry laws are similar to SSM in that you have an existing license structure and you liberalize it so I can see the point. But there are differences between the two situations. Concealed carry liberalization involves legalizing activities which would otherwise be criminal and it is restricted to one activity (concealed carry of firearms) that all libertarians believe is a natural right.

Extension of family formation licensure to SSM on the other hand, does not involve avoidance of any risk of criminal punishment and provides access to a basket of 'rights' (1138 federal and more state and local) many of which libertarians are opposed to for everyone.

And most significantly, the libertarian push for SSM recognition seems to be motivated by left-wing, identity politics, government benefits pleading which is profoundly collectivist and statist.

The fact is that same sex couples are currently able to marry publicly, set up housekeeping, and live together without fear of prosecution and without government sanction. In the past, that was the general libertarian approach as well. In the early '70s, I attended a sham wedding of libertarian friends who sought to avoid government marriage. Now some libertarians want SS couples to do it for 'free cheese'.

Attention libertarian commentators, filling out an SS-5 form and joining the Social Security system is both voluntary* and confers a host of 'benefits' too! Are you going to advocate the establishment and use of the Social Security System as well?

As many others have pointed out upthread, you are conflating extending the category of activities that require licensing, with extending the category of people eligible to get the license.


"you are conflating extending the category of activities that are subject to imprisonment, with extending the category of people subject to being imprisoned." I don't want to imprison more people even if equality is increased.

The only benefit that libertarians want from government is forbearance.

I love it when I'm in a category of people that are exempt from a particular regulation or license and I spend a great deal of effort arranging to be in one of those groups. Thus non-residents of a state are not subject to driver licensing or vehicle registration by that state. Children not registered at government schools are completely exempt from the extensive regulation imposed by those schools. Those who have renounced their US citizenship (or never had it) and are non-residents of the US are exempt from the universe-wide taxation of income imposed by the US. Priests and ministers are completely exempt from licensing and can offer a host of therapy, counseling, and psychiatric services without asking permission of anyone. I would oppose "extending the category of people eligible to get the license" to "religious workers" and I would expect all libertarians to do so as well.

A license is permission from the sovereign to do something. If it's something that you should be able to do anyway, libertarians should oppose such license issuance.

*Read the Paperwork Reduction Act Notice on the SS-5 Form - http://www.ssa.gov/online/ss-5.
6.6.2006 5:29pm
Medis:
Duncan,

As an aside, I again note that states typically do not allow complete freedom of contract in this area (see, eg, cases and statutes involving "meretricious consideration"). And although I don't claim to speak for all libertarians, or even that I am a libertarian in good standing myself, I gather that enforcing contracts is one thing that many libertarians put on the short list of acceptable government activities.
6.6.2006 6:21pm
dweeb:
This too goes for the lamenting over 'easy' divorce laws. One of the consquences of making it easy to kill bad marriages is that the ones that remain are likely to be stronger and healthier.

Boonton, which came first, the chicken or the egg? One could just as easily say that the bad marriages are a result of the easy divorce laws, through removing the motivation for care in choosing to marry and/or through removing the motivation to make a marriage work
6.7.2006 9:31am