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The Third Way in New Jersey:

The New Jersey court gave the state legislature 180 days to do one of two things: either (1) amend the state marriage laws to permit same-sex couples to marry or (2) create a parallel statutory system "which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples." This parallel system could be called "civil unions" (as in Vermont and Connecticut) or "domestic partnerships" (as in California) or something else. Under #1 the state will have fully met its constitutional obligation. Under #2 the state may meet its constitutional obligation but will invite further litigation on the issue. Litigants will get a second bite at the marriage apple.

The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples? The gay-marriage litigants in the case likened a parallel system to "separate-but-equal" and "second-class citizenship," terms that emphasize the dignitary harm done by a law that denies them the status of being married. They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning. Marriage works because the status of marriage is synergistic: it combines important legal rights with important cultural rites. A parallel system can capture the former but cannot fully capture the latter. Very eloquent and even moving affidavits from the couples, quoted at length in the concurrence, make the point that there is ultimately no substitute for marriage.

The court's tentative answer to this dignitary concern is this:

Raised here is the perplexing question -- "what's in a name?" -- and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself -- independent of the rights and benefits of marriage -- has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs' claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on same-sex couples.

It's hard to imagine a court saying that the question whether interracial unions will be called "marriages" or "civil unions" might not be "of constitutional magnitude" or could be dismissed as a controversy over a "name." This suggests that the answer to the question -- "what's in a name?" -- is, "Sometimes, a lot." The "sometimes" here is important because it may be that, in the context of our poisonous racial history, a difference in nomenclature would send an especially demeaning and corrosive message about interracial couples, where a difference in nomenclature alone for gay couples would still signal a tremendous advance forward for gay families. But at least courts should recognize that "names" can matter in ways that law should take into account.

The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. "Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society," argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).

Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.

The court has not shut the door to a claim for the status of marriage. It suggests that the legislature may be able to come up with a reason to restrict the status of marriage to opposite-sex couples, even though it has failed to come up with a sufficient reason to restrict the rights of marriage to opposite-sex couples. The court doesn't tell us what this reason might be, but says that "marriage" has a "shared societal meaning" passed down through the ages as the union of one man and one woman. "To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin," says the court. Having been hard-headed positivists about legal rights for most of the opinion, here the judges become mystics in their reverence for "marriage." Perhaps the legislature can cite the unknown consequences of changing the "shared societal meaning" of an ancient social institution as reason enough to choose a parallel system for gay couples, but it is hard to see how this would be different from the tradition-based rationale the state offered and the court rejected for denying rights to gay couples.

Two courts so far have squarely confronted this question of nomenclature and have come to opposite conclusions. The Massachusetts high court could not think of any reason other than prejudice for the legislature to deny the status of marriage to gay couples even as it was required to grant them the rights. A Connecticut trial court recently held that a claim for the status of marriage, where all the rights have already been given, was beneath the constitutional radar.

At any rate, it is now clearer than ever that judges in future gay-marriage cases will see three options:

(1) Democracy-permitting decisions: Deny the gay-marriage claim and do nothing more, leaving all decisions about status and rights to the legislature. This was the route taken recently by the state supreme courts in New York and Washington, although the Washington court left open the possibility of choosing route #2 or #3 in the future.

(2) Status-forcing decisions: Mandate the status of marriage, and all of its rights, for gay couples. This was the route taken by the Massachusetts high court in Goodridge.

(3) Rights-forcing decisions: Mandate the rights of marriage, but not the status, for gay couples. This was the route taken by the Vermont supreme court, and now by the New Jersey supreme court.

Rights-forcing decisions are the "Third Way" in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option. The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision -- specifically, whether to grant the status of marriage to gay couples. And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run. On the other hand, rights-forcing decisions may be may prove unstable if they lead to subsequent status-forcing decisions.

Note that the number of states where courts can be expected to be somewhat sympathetic to gay-marriage claims has dwindled to a handful. New Jersey was probably the last, best hope for a full gay marriage victory in a state court for some time to come. California, where gay-marriage litigation is pending, seems more doubtful. In that state, full rights recognition (#3) has already been achieved legislatively so the only real question will be whether the state supreme court is willing to recognize the dignitary concerns that might push it into a status-forcing decision (#2). In a growing list of states, where status-forcing or even rights-forcing judicial decisions were already very unlikely, all three options have been taken off the table by sweeping state constitutional amendments that prevent even ordinary legislative action to protect gay families.

Nevertheless, by the end of next April, New Jersey will join four other states -- Massachusetts, Vermont, California, and Connecticut -- in giving gay couples access to all of the rights of marriage under state law. All by itself this is a significant development. Of the 300 million people who live in the United States, about 54 million (over 1/6 of the nation's total population) will live in a state where gay couples have access to the same rights and obligations as married straight couples. Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut). All of that has happened in just the last six years. The experience we gain and the lessons we learn from protecting gay families under the law in those states will be difficult to ignore in the years to come.

Truth Seeker:
Just about every thread on gay marriage here seems to follow the same path:

A. Someone say homosexuality is exactly like race and the case Loving v. Virginia means gays must get all marriage rights.

B. Someone answers that homosexuality is nothing like race and that marriage has always and should require a man and a woman.

C. Someone answers that marriage isn't about a man and a woman, it is about being allowed to fulfilled in the relationship you want.

D. Someone answers what about people who need 3 wives to be fulfilled.

E. Someone says marriage is about finding one person, not three

F. Someone counters, if you want to limit it to one person, why can't society limit it to one person of the opposite sex.

G. Someone else says, okay, what if I want to marry my sister or my daughter. What if that is the only person who brings me fulfillment.

Then posters start calling each other names and the discussion ends.

How about adding other aspects to the debate?

What about the issue of if our society embraces gay marriage, is there any hope to convince the world's 1.3 billion Muslims that democracy and freedom are the way to go? These guys are 14th century barbarians who want to stone gays to death. Wouldn't a Western society that tolerates gays be more likely to appeal to them than one that celebrates gay marriage? It seems clear that if we don't convince the Muslims to be more tolerant, we are going to end up in a hundred year clash of civilizations that may end up as nuclear war.
10.26.2006 11:39am
MartinM:
Judging by the respose to the Mohammed cartoons, getting rid of that pesky first amendment would probably help your relationship with fundamentalist Muslims. Sound like a good idea? We're trying to avoid nuclear war, after all.
10.26.2006 11:42am
Public Agenda (mail) (www):
Surveys indicate that public attitude toward gay marriage changes based on question wording and whether the word "marriage" is used. Results like these suggest that many people are still wrestling with the implications of same-sex marriage, so surveys on this issue should be interpreted cautiously. Want to know more about what the public thinks about same-sex marriage and other issues surrounding gay rights? Check out Public Agenda's Issue Guide on Gay Rights.

Public Agenda (http://publicagenda.org/index.cfm) is a nonprofit, nonpartisan group devoted to public opinion and public policy.
10.26.2006 11:55am
Houston Lawyer:
I'm confused as to why the court didn't draft the statutory language themselves, since they clearly feel that they have the power to do so. Abolishing the legislature would be the next step.
10.26.2006 11:57am
James Blakey (mail):
Did the court really only give the legislature two options? Couldn't the NJ Senate and Assembly do the "libertarian" thing and separate marriage and state by repealing all the state laws recgninzing marriage? And if the court didn't give them that option and they went ahead and repealed all marriage laws anyway (I know it's not going to happen, just an interesting hypothetical) could the courts go back and order them to reinstate/repass those laws?
10.26.2006 11:59am
Colin (mail):
Houston Lawyer,

I'm confused as to why the court didn't draft the statutory language themselves, since they clearly feel that they have the power to do so. Abolishing the legislature would be the next step.

Not to hold you to the facts or anything, but what in the opinion justifies this comment? The Court found that the current statutory regime is unconstitutional, and provided a grace period so the legislature could draft its own remedy. The only difference between this and the typical instance is that the Court provided a grace period.
10.26.2006 12:08pm
A.S.:
Nevertheless, by the end of next April, New Jersey will join four other states -- Massachusetts, Vermont, California, and Connecticut -- in giving gay couples all of the rights of marriage under state law. ... Of those 54 million [people in such states], about 40 million will live in a state where this result was achieved legislatively.

Huh?

This seems to me to be patently false. It is the COURTS that gave gay people "all of the rights of marriage under state law" in NJ (as well as Vermont). The legislature is confined to deciding what to call the arrangement - but it is the COURT that decided that gay people have "all of the rights of marriage under state law" in NJ.
10.26.2006 12:11pm
JosephSlater (mail):
I quite liked Truth Seeker's summary of the debates, although one could add a few other staples:

H. Debates over whether homosexuality is a "choice" or at least mainly genetic;

I. Debates over how children raised in households with single sex parents do.

J. Some hardcore libertarian arguing that the state should "get out of the marriage business entirely."

K. Clayton Cramer describing all the Gross Things he's seen gay men do, and concluding that this means gays and lesbians are disproportionately the result of abuse as children and/or mentally damaged.

L. Debates over whether "homophobe" is a proper and appropriate term for certain people/statements/positions.

As to the merits, to the extent that Truth Seeker is suggesting that by granting gays and lesbians various legal rights and forms of equality, we can differentiate our society in a positive way from Islamist (or other types of) theocracy, I agree that we should do it. In the short term, I doubt that will convince potential Al-Qaida members to lay down their arms. But you know, there must be a pretty large number of gays and lesbians in the Islamic world; life must be pretty miserable for them; and it would be nice to show them a better way.

Beyond that, I thought Dale's post was excellent.
10.26.2006 12:14pm
godfodder (mail):
As a traditionalist, I say that it is odd that the word "family" and "children" are largely absent from this debate. The traditional role of marriage has been two-fold: produce children, and civilize them. The nuclear family has traditionally been the workshop wherein the future of our culture and our society is forged.

Yes, of course, the nuclear family has been disintegrating for several generations. To me, this is cause for alarm, and a genuine apprehension about who is going to be raising the children of the future. What does society become when the majority of children have no idea what "family" means?

I have no beef with gay people, and I am largely sympathetic to their struggles. But, marriage has always been about family and children, not social acceptance. The social esteem/benefit that attaches to marriage is an tacit acknowledgement of it's central importance to the lifecycle of our culture. Say what you will, but gay marriage will never be primarily about children and their rearing. Find another way to "equalize" gay relationships! Find another way to help homosexuals find the social acceptance that they surely deserve.

There needs to be a way for society to acknowledge the hardships and sacrifice that attend parenthood and the raising of children. There needs to be an easy way for society to identify and support families. It is too important to ignore or denigrate. If marriage ceases to do this, then a different social institution will rise up that does. Or not... at which point we will have spun out into a social experiment that leads who knows where.

Now, go ahead. Everyone can scald with their oh-so-witty suggestions that I am nothing more than a homophobe and a creep. Fine; I can take it, but what I am saying contains an fundamental truth. You are not half as smart as you think you are if you fail to see it.
10.26.2006 12:18pm
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx:
NY decision was proper. judical activism like this is very dangerous. it may help the GOP if they play it right.
10.26.2006 12:22pm
Omar Bradley (mail):
Imagine in 1954 if Earl Warren had said that the Board must create a parallel structure that will "provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by white students". They dont have to call it integration, they can call it "civil schooling". Come on.

Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.

At least the 3 dissenters had the courage of teir convictions. The majority took a cop out. I have n orespect for them.
10.26.2006 12:23pm
MEZ:
Truth Seeker:

A. Someone say homosexuality is exactly like race and the case Loving v. Virginia means gays must get all marriage rights.

Omar Bradley:

Imagine in 1954 if Earl Warren had said that the Board must create a parallel structure that will "provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by white students". They dont have to call it integration, they can call it "civil schooling". Come on.

Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.


Not quite, but very close. Who's going to step up and recite item B?
10.26.2006 12:27pm
logicnazi (mail) (www):
Dale,

As I remarked in the previous threads I also find these third way results utterly unjustified. I think precedent compels full marriage rights but I can see at least a plausible case that this precedent ought to be overturned. Going the third way seems pretty clearly to reflect public pressure or hesitancy rather than a good legal deciscion.

--

Truth Seeker,

You missed

M: Someone whining about Turner v. Safley and Zeblocki v. Redhail and complaining that no one else is even paying attention to the relevant precedent.

Of course no one does pay attention but I think the cases on the fundamental right of marriage are a lot more relevant than Loving v. Virginia that was specifically about a protected class. This just gets us into the morass of what triggers 14th ammendment protected class.
10.26.2006 12:28pm
godfodder (mail):
LogicNazi:
As your name suggests, you seem to think that because there is a legal logic to some outcome, it must be so. I look at the broader picture. The law is nothing more than an attempt to codify our collective moral sense. What "the governed" think and feel matters very much. More, in fact, than an abstract legal argument.

We are not slaves of the law. We are consentually governed by it. Logic alone leads to tyranny. I believe that it was Emerson who said something about "a foolish consistency...."
10.26.2006 12:37pm
Stephen F. (mail) (www):
They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning.

Marriage is a status rich in cultural and historical meaning. Now let's buck the prevailing culture and all of human history and redefine marriage to include gays.

That anybody could argue that is baffling.
10.26.2006 12:39pm
Elliot Reed:
I find the way the court ordered the legislature to pass certain legislation pretty weird. What will the court do if they don't? They already seem to have decided that ordering the county clerks to start handing out marriage licenses to same-sex couples is not the appropriate remedy, and I doubt they want to strike down the marriage law as unconstitutional.

It would make more sense to order the county clerks to hand out the marriage licenses but use language that makes it clear that if the legislature wanted to pass a separate civil unions statute, that would be A-OK with the court.
10.26.2006 12:41pm
Alex R:
godfodder -- Families and children have frequently been mentioned in this debate. I don't know all that many open committed same-sex couples, but it's interesting that every one of those that I do have children. Anyone who is enough of a traditionalist to believe that children are better off if their parents are married should want same-sex couples to have full marriage rights.
10.26.2006 12:48pm
Bart (mail):
Mr. Carpenter:

The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. "Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society," argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).

This is probably the only correct portion of this decision.

The objective of the movement for homosexual "marriage" begins and ends with changing the law. This movement does not attempt to convince homosexuals to in fact enter into the civil marriages allowed by law and indeed only a tiny percentage of homosexuals do so. Rather, this movement is an attempt to equate homosexual unions with marriage under the law in an attempt to gain equal social status which society has not itself granted.

Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.

I disagree.

To borrow a metaphor, there are a rainbow of different social and sexual human relationships but the state is choosing to elevate only one - marriage - above all others. Homosexual unions are not being singled out as the only human relationship which does not gain the benefits of marriage.

Conversely, when a court arbitrarily rewrites the law to make homosexual unions the legal equivalent of marriage, it elevates homosexual unions above all other human relationships.

Rights-forcing decisions are the "Third Way" in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option.

This "third way" is perhaps the worst of the judicial legislations in this area of the law. When these courts correctly find that there is no fundamental right to homosexual "marriage," they are then forced to hold that there is no rational reason to hold marriage above other human relationships because marriage is only a civil contract awarding benefits and not the cornerstone of procreation and the raising of civilized children. In sum, to equate homosexual unions with marriage, these courts have to denigrate the importance of marriage to the equivalent of irrationality.

The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision -- specifically, whether to grant the status of marriage to gay couples.

Color me underwhelmed. The outlaw NJ court arbitrarily rewrote a massive section of state law and then barred the democratic process from doing anything about this power grab except to decide whether to call this new category "marriage" or "civil union."

And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run.

As my state votes to join several others to constitutionally define marriage to block our courts from legislating in this area, I have a hard time accepting that argument. Indeed, the NJ decision made a mockery of the argument of gay marriage advocates here that such an amendment was not necessary.
10.26.2006 12:55pm
Tim (mail):
The Ohio Supreme Court tried to do same type of legislating fron the bench over the topic of school funding. The legislature punted and did nothing. The court can call existing laws unconstitutional all it wants, but it cannot force the legislature to act.

What happens if the legislature does not act, does marriage go away in New Jersey?
10.26.2006 1:08pm
Julian Morrison (mail):
godfodder: how does your marriage/children analysis change if (as currently seems scientifically very likely quite soon, say inside a decade), science finds a way to transform adult stem cells into other-sex gametes in humans and enables a same sex couple to have a mutual biological child?
10.26.2006 1:08pm
AppSocRes (mail):
The NJ court decided the case with absolutely no legal justification: Just like the VT court, and the MA court, and the CN court, and the HI court they used meaningless verbiage to obfuscate judicial tyranny. The NJ court's apparent concession to the legislature is a purely political ploy, futilely intended to prevent electoral repercussions from this decision in November.

The good news is that the picture is becoming ever clearer that a federal defense of marriage amendment is needed to stop this anti-democratic process from continuing. A fraction of 1% of a society's population should not and does not have the right to impose its vision of fundamental social institutions on the rest of that society.
10.26.2006 1:09pm
Bart (mail):
Alex R:

Anyone who is enough of a traditionalist to believe that children are better off if their parents are married should want same-sex couples to have full marriage rights.

Homosexual unions and marriage are not remotely comparable concerning children.

Marriages can procreate children, homosexual unions cannot. Homosexual unions gain children when a lesbian conceives with a man outside of the union or when the state grants one or both in the homosexual union custody of a child conceived by a heterosexual couple.

Moreover, homosexual unions have the same limitations raising children as do single parent heterosexual homes - the absence of a parent of the opposite gender. Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.

Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children. Moreover, marriage provides mental and physical health benefits for each spouse. While these concepts are denigrated in many elite quarters such as our courts, they are scientifically indisputable.
10.26.2006 1:10pm
J. L.:
>> What a court can do is remove any role the law might play in reinforcing social inequality. >>

I'm just waiting for the day a guy sues to get "equal rights" for reproduction. I mean, after all, the law allows a woman to chose to get pregnant, or not get pregnant, or terminate a pregnancy once she is pregnant. How come men don't get the same choice?

It couldn't possibly be that men and women are actually different, or that the courts should recognize those differences. Nah. All men and women should be given the exactly same identical rights regardless of the laws of nature (or common sense).
10.26.2006 1:22pm
Elliot Reed:
Moreover, homosexual unions have the same limitations raising children as do single parent heterosexual homes - the absence of a parent of the opposite gender. Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.
The thing is, there's no shortage of reputable studies on this issue, and all of them find no significant differences between kids raised by gay parents and those raised by comparable heterosexual parents. Like all social science research, these studies have problems, but based on the failure to find differences it's extremely likely that any differences that do exist are very small. If they exist (and they be in either direction: nothing prevents gay parents from being better than het parents), they're miniscule compared to differences like income that have enormous impact on kids, but don't affect whether people are allowed to marry.
10.26.2006 1:22pm
Kenvee:
Bart,

If marriage truly existed for the sole purpose of procreation, we would have to return to the old custom of handfasting to ensure fertility before a marriage. Under that argument, couples where one or both halves are infertile should not be permitted to marry because they cannot procreate. Should women be forbidden to marry after they pass menopause and can no longer biologically have a child? Should all couples be required to promise they intend to have children, to avoid all the "childfree" married couples currently in the world?

There are many reasons for marriage other than biologically having and raising children, as evidenced by the many marriages in this country (and world) where the couple either does not have biological children or does not have children at all. If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?

I'm of two minds about the issue of gay marriage, but I don't believe the "procreation" argument is a sound one.
10.26.2006 1:29pm
Alex R:
Bart sez: Homosexual unions and marriage are not remotely comparable concerning children. Marriages can procreate children, homosexual unions cannot.

Well, you've just spit in the face of every adoptive parent and adopted child, and of every infertile couple in the country. If that's "family values", I'll have none of it.
10.26.2006 1:31pm
Sigivald (mail):
Nitpicking: ... will live in a state where gay couples have the same rights and obligations as married straight couples ... really ought to strike "married", or "obligations", or add "married" in front of "Gay couples".

Because gay couples in those states who are not married have none of the obligations that a married straight couple has (vis-a-vis being married), right?
10.26.2006 1:35pm
Truth Seeker:
MartinM:
Judging by the respose to the Mohammed cartoons, getting rid of that pesky first amendment would probably help your relationship with fundamentalist Muslims. Sound like a good idea? We're trying to avoid nuclear war, after all.

You did notice that the New York Times, Washington Post, Time, Newsweek, CNN, etc., etc. all avoided showing the Mohammed cartoons. Why didn't any of them stand up for the First Amendment?
10.26.2006 1:45pm
Bruce Hayden (mail) (www):
I liked the distinction that the author made between the three options. My basic problem with gay marriage is that it is usually treated as status-forcing, and that really means shoving that definition down the throats of the majority in these states. I can much more easily accept a rights-forcing decision, though I would prefer a democracy-forcing one.

The difference here is that the court can, I think, legitimately force society to accept rights. But status is really a function of societal acceptance, and by status-forcing, courts would be acting to override societal norms.

Of course, it is likely that if the courts force rights, then ultimately they will become accepted, and that may indeed ultimately result in the status that is being sought. And, I think that is just fine with me. My big problem is with the anti-democratic nature of the status-forcing.
10.26.2006 1:50pm
Elliot Reed:
Kenvee - exactly. Marriage serves many purposes, of which 'procreation' is only one, and hardly the most important one.

If you go back to, say, the early 1990's, before gay marriage became a serious item of public debate, and look at the literature put out by 'family values' organizations, you'll see them listing a variety of purposes served by marriage. What's interesting is that procreation doesn't even make it on the lists. This idea that procreation is the principal function of marriage is an invention of anti-gay activists, adopted for purely strategic reasons.
10.26.2006 1:51pm
Bart (mail):
Elliot Reed:

Bart: Moreover, homosexual unions have the same limitations raising children as do single parent heterosexual homes - the absence of a parent of the opposite gender. Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.

The thing is, there's no shortage of reputable studies on this issue, and all of them find no significant differences between kids raised by gay parents and those raised by comparable heterosexual parents.


Actually, there are a shortage of rigorous studies in this area. The studied populations of homosexuals with children are tiny, the variables examined are not rigorous and the examinations do not occur over significant periods of time.

Indeed, many appear to be politically motivated to find a certain outcome or lack of outcome. Doing rigorous science on homosexuality appears to be virtually radioactive in academia.

If you have any particular studies you would like to discuss, provide a link to the methodology and data used. I am a civil and criminal defense attorney used to cross examining paid whores posing as scientific experts for plaintiffs. Merely pointing to a study means nothing to me. You have to demonstrate the methodology and data are sound.
10.26.2006 1:52pm
Sigivald (mail):
Alan: Adoption ain't procreation, and regardless of your desire to denigrate Bart's point about the purpose of the instiution of marriage, the fact that some couples are infertile doesn't affect that (nor does the existence of adoption).

That people adopt children has no bearing at all on the role of procreation in marriage as an institution.

(If you think procreation is irrelevant to marriage as an instiution, just say so. There's an argument to be made there, and it might even be a strong one.

Inventing an insult to the infertile or to adoption doesn't help.

Remember that he was praising the effect of two different-sex parents on raising children. That's at worst neutral to adoption in the vast majority of cases, and more likely for it in the case of children with no available parents.)

But seriously, if he's so wrong, do better, and show us how he's wrong, rather than saying he's insulted people he hasn't.

Kenvee: Same thing. He said "Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children".

That explicitly does not say marriage is justified only by childbearing, does it? Primary justification is not sole justification.

Nuance, people.

(And to say "marriage has other justifications" by bringing up adoption and artificial insemination, well... that seems rather contradictory, no? Especially since he already said "for civilizing men" as one of the other justifications?

I repeat, the fact that some people are infertile has no bearing on the institution of marriage as a whole, any more than the fact of the conviction of innocent people and failure to convict the guilty would prove that the justice system is not about punishing the guilty and protecting the innocent.

There have to be better arguments against his case than, to paraphrase, "some people are infertile so marriage can't be about raising kids", right?)

Full disclosure: I vacillate between neutral not-caring-much-either-way, being lukewarm pro-civil-unions, and "get the state out of the marriage business entirely", so I don't really have a dog in this fight.

But I prefer a higher level of argument that involves addressing what someone else actually said rather than what appears to be a cardboard cutout stereotype of "The Other Side" (which applies in both directions; I just happened to see these two comments at the end going in the same direction and making points I can't help but see as non-sequiturs).
10.26.2006 1:53pm
Bart (mail):
Alex R:

Bart sez: Homosexual unions and marriage are not remotely comparable concerning children. Marriages can procreate children, homosexual unions cannot.

Well, you've just spit in the face of every adoptive parent and adopted child, and of every infertile couple in the country. If that's "family values", I'll have none of it.


Nonsense.

1) This discussion has nothing to do with "family values," which is a meaningless term.

2) The fact that marriages can procreate and homosexual unions cannot has nothing to do with the issue of adoption. That is a red herring.
10.26.2006 1:57pm
Ramza:
Godfather in post number 9

As a traditionalist, I say that it is odd that the word "family" and "children" are largely absent from this debate. The traditional role of marriage has been two-fold: produce children, and civilize them. The nuclear family has traditionally been the workshop wherein the future of our culture and our society is forged.

Yes, of course, the nuclear family has been disintegrating for several generations. To me, this is cause for alarm, and a genuine apprehension about who is going to be raising the children of the future. What does society become when the majority of children have no idea what "family" means?

I have no beef with gay people, and I am largely sympathetic to their struggles. But, marriage has always been about family and children, not social acceptance. The social esteem/benefit that attaches to marriage is an tacit acknowledgement of it's central importance to the lifecycle of our culture. Say what you will, but gay marriage will never be primarily about children and their rearing. Find another way to "equalize" gay relationships! Find another way to help homosexuals find the social acceptance that they surely deserve.

There needs to be a way for society to acknowledge the hardships and sacrifice that attend parenthood and the raising of children. There needs to be an easy way for society to identify and support families. It is too important to ignore or denigrate. If marriage ceases to do this, then a different social institution will rise up that does. Or not... at which point we will have spun out into a social experiment that leads who knows where.

Now, go ahead. Everyone can scald with their oh-so-witty suggestions that I am nothing more than a homophobe and a creep. Fine; I can take it, but what I am saying contains an fundamental truth. You are not half as smart as you think you are if you fail to see it.


Godfather this is position that is very understandable and one I am sympathetic to even though I disagree with it. I understand wanting to preserve the nuclear family for the nuclear family is an ideal situation (maybe not the perfect ideal but an ideal situation) for the raising of children. It creates stability economically and psychologically for the children and if some unforeseen circumstance happens to one parent there is always another one for the children to rely on during crucial development years.

This thought process though misses an important part of the debate. The part whether the state have the power to create this discrimination. Does the state have the power to try to enforce the idea of a nuclear family. Our Federal and States constitutions set the bounds for the power of our government, and it limits on the ways a state can go about pursuing its interests (and even what legitimate governmental interests are). Creating nuclear families isn't a legitimate state interest though creating stability for these families by giving benefits to marriage is. If a state is to give benefits to one group of society and not another it must have a rational reason why it does so, and that reason must be one that is pursuing a legitimate state interest.

This position can't be argued in court, for because tradition says this is a good thing isn't a legitimate state interest, or we want to create an ideal world with more traditional nuclear families isn't a legitimate state interest. Our world would be better with more successful nuclear families, but it isn't in the government's power to try to create that vision if to do so the government must step outside its bounds.
10.26.2006 1:57pm
godfodder (mail):
Kenvee:
I think Bart's argument is more general than you recognize. He is saying that marriage is a centuries old, bedrock institution of all societies because it provides a mechanism for the safe, effective raising and civilizing of most children. Like any human creation, it is not absolute-- not like the law of gravity or something. Marriage is a practical "work around" that solves a number of pressing social issue in one swoop. Issues like "who raises children?" "who is responsible for children?" "how is property inherited?" "how do we civilize, and control the behavior of young men?" "how do we provide for the protection of women?" "who protects pregnant women?" "how do we codify sexual behavior so that we don't have abandoned children?" The list is nearly endless.

Marriage is a universal institution because it satisfies a multitude of basic individual and societal needs. Gay marriage is not a universal institution because it satisfies the individual needs of a very small fragment of society. As far as I can see, gay marriage is meant exclusively to sprinkle "social acceptance" on a small number of gay relationships. I am skeptical that this is compelling enough of a reason to mess with a vital social institution like marriage.

Perhaps many of you disagree. That's fine; I am open to persuasion. I am not by nature a "rock the boat" kinda guy. I just would prefer that basic decisions like this one be made after an open and public debate (ie. in the legislature), rather than coming from on high with little warning and even less public discussion.
10.26.2006 1:59pm
PersonFromPorlock:
On the subject of gay marriage: there is simply no evidence about it because it's never been tried. All the horrors and all the benefits ascribed to it are merely the vaporings of interested parties. If anything that's not known to be bad should be legal, it should be legal -- but with an eye kept on it to see what happens.

As far as courts ordering legislatures to do things, I await the legislative body that impeaches and removes such courts for usurping power. Not, however, with bated breath.
10.26.2006 2:03pm
Bart (mail):
Kenvee:

If marriage truly existed for the sole purpose of procreation...

So many straw men...

I never argued this. Procreation is but one benefit marriage provides to society which homosexual unions cannot. See my posts above.

Because marriage provides many social benefits beyond procreation, I also never argued that marriage should be limited to men and women capable of procreating.

If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?

The vast majority of married couples can procreate when they enter marriage. The fact that the definition of marriage includes a minority of those who cannot procreate does not elevate homosexual unions to the equivalent of marriage nor does it create an equal protection problem. The law does not require a perfect relationship between the governmental purpose and the statutory definition. That argument was resolved back during the New Deal.
10.26.2006 2:08pm
Duffy Pratt (mail):
Bart wrote:


Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.

Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children. Moreover, marriage provides mental and physical health benefits for each spouse. While these concepts are denigrated in many elite quarters such as our courts, they are scientifically indisputable.


and:


Actually, there are a shortage of rigorous studies in this area. The studied populations of homosexuals with children are tiny, the variables examined are not rigorous and the examinations do not occur over significant periods of time.


Which is it? Has science indisputably proved the superiority of heterosexual marriage to homosexual marriage? Or is there a shortage of studies and data from which one can draw a conclusion?

I may be wrong, but these two statements look a wee bit inconsistent.
10.26.2006 2:11pm
Kenvee:
Sigivald,
I repeat, the fact that some people are infertile has no bearing on the institution of marriage as a whole, any more than the fact of the conviction of innocent people and failure to convict the guilty would prove that the justice system is not about punishing the guilty and protecting the innocent.

But the requirement for entry into the justice system, so to speak, is being found guilty and in need of punishment. Therefore, even if the system by which you ARE found guilty is flawed, that's still the underlying premise. By contrast, there is no sort of requirement whatsoever that to enter into the institution of marriage, you need to have any ability or desire to have children. Until there is a requirement that people getting married must be physically able and intending to have children, then I don't believe we can say the underlying purpose of the institution of marriage is procreation.

Please note that my comment was directed specifically toward Bart's more limiting (in my view) comment of marriage being a special institution because it is the best vehicle for procreation, not godfodder's more general description of the many societal benefits of marriage. As I said, I'm still of two minds about the subject. It's just the procreation argument I disagree with.
10.26.2006 2:15pm
Brooklynite (mail) (www):
Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.

They didn't say that. They explicitly declined to address that issue.

They said that lesbian and gay couples are entitled to the rights and benefits of marriage. Period. They left open the question of whether marriage by another name would pass constitutional muster with them. If the NJ legislature passes a civil union statute, expect further litigation.

But it really doesn't matter. As I say here, the legislature can call it whatever it wants. In the long run, it won't make any difference.
10.26.2006 2:15pm
Bruce Hayden (mail) (www):
BTW, I loved the great summary of the gay marriage arguments. How true.
10.26.2006 2:16pm
Robert West (mail) (www):
Please note that in California, gay couples already are entitled to domestic partnerships which qualify them for all of the rights and responsibilities of marriage, save the name.

This has been relatively uncontroversial. Governor Davis signed the original bills, and Governor Schwarzenegger has signed others extending the rights; and attempts to qualify a referendum on the bills and/or an initiative outlawing it have all failed.
10.26.2006 2:19pm
Robert West (mail) (www):
AppSocRes: every federal defense of marriage amendment I have seen would also prevent the laws enacted by the legislature of California, without judicial interference, from having force.

This leads me to believe that those supporting them don't just want the decisions made at the legislative level; they want the decision to always be 'no gay marriage', and are willing to force states that choose differently not to do so.
10.26.2006 2:22pm
A.S.:
Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut).

Ah, I see Dale has clarified that the 40 million referred to Cal. and Conn. My prior comment was wrong (the numbers should have tipped me off). Sorry.
10.26.2006 2:27pm
Houston Lawyer:
I'm curious as to what happens if the Legislature doesn't act. Does that mean that the same-sex couples will be allowed to marry notwithstanding the law? If the marriage law is unconstitutional is it void? If the statute is void, can anyone be legally married in NJ? Were purported marriages in NJ all a sham? Is everyone born to a couple purported to be married in NJ now a bastard?
10.26.2006 2:31pm
Andrew Hyman (mail) (www):
Is it generally a good idea for children to have a Mom and Dad while growing up? And if so, then why can't a legislature promote that idea? Does a child have a right to preferably be nurtured by the two people who brought him or her into this world?

These are legitimate issues, but none of them were addressed by the New Jersey Supreme Court. That was shameful.

The court blamed that oversight on the fact that the executive branch conceded limiting marriage to heterosexual couples is not necessary for providing the optimal environment for raising children. How convenient for the judges.

This is another judicial decision treating children (born and unborn) as a form of property inferior to adults. Children barely merit mention in this opinion. Of course, if children had nothing to do with it, then I too might agree with the court's decision.

The opinion was based on a constitutional provision adopted way back in 1844. In 1845, the New Jersey Supreme Court held that the provision was declaratory rather than restrictive, and thus did not ban slavery. So now we're supposed to believe that the provision bans the New Jersey marriage laws, even though the provision didn't ban slavery. Right.
10.26.2006 2:34pm
thedaddy (mail):
Nice move deleting my comments
non insulting non personal .
All still true though.

truth hurts sometimes.
I understand.

thedaddy
10.26.2006 2:37pm
Roger Schlafly (www):
There are some other choices: (3) amend the state constitution; (4) impeach the judges; (5) defy the order and follow their own interpretation of the constitution.
10.26.2006 2:38pm
Soldats (mail):
I'm curious as to why a child of a same-sex couple cannot take a state to court to argue that he/she (the child) is being denied the benefits of 2 parents of the same sex and the resulting familial legal infrastructure that is available to 2 parents of the opposite sex?
10.26.2006 2:38pm
Mark Field (mail):

In 1845, the New Jersey Supreme Court held that the provision was declaratory rather than restrictive, and thus did not ban slavery. So now we're supposed to believe that the provision bans the New Jersey marriage laws, even though the provision didn't ban slavery. Right.


I find it pretty impressive that NJ could go 161 years with no intervening precedent on equal protection issues.

Citing pro-slavery precedents in support of your position certainly is an interesting public relations strategy.
10.26.2006 2:43pm
Brooklynite (mail) (www):
Is it generally a good idea for children to have a Mom and Dad while growing up? And if so, then why can't a legislature promote that idea?

How do you figure that denying lesbians and gays the protection of same-sex unions makes it significantly more likely that kids will grow up in opposite-sex families?
10.26.2006 2:45pm
KMAJ (mail):
In the simplest terms, the NJ Supreme Court is engaging in social engineering, interpeting a law in a social/cultural vacuum. The law, in any society, is meant to reflect the societal norms, mores and folkways, of that society/culture. When judges step outside the societal construct in interpreting the law, and create status forcing interpretations, they are employing an end run around society to impose, upon that society, rulings that do not adhere to its constructs, i.e. social engineering. Whatever one's position on the issue, this is clearly an authoritarian tactic one would expect to see in a Stalinist type society, not in a free one. Societies evolve, but forcing change is never in the best interests of a society. It is trying to shape how a society will evolve without any regard to the possibility it may evolve in a different direction.

If one wishes to make changes in society, the courts are not the avenue such changes should be made. The Founding Fathers never envisioned the courts to be used for social engineering against the will of the people, and make rulings in a social/cultural vacuum. Let those who want to champion change do so within the proper venues, the court of public opinion and the legislatures, and not through trying to impose judicial tyranny with rulings that do not have the support of the people/society. Marriage is originally a societal construct, some may say religious, not a legal one. The legal recognition came about because of recognition of that societal norm. A government of the people, through legislative acts or referendums, has the right to make such recognition and confer upon that societal institution the rights and benefits that society is willing to accept. Government, under the Constitution, DOES NOT have the right to impose rulings upon the people/society which they DO NOT support.

This ruling takes a step in the direction of a Marxist type society, one where governmental institutions, in this case the judicial branch, wants to dictate to society what they must accept.
10.26.2006 2:46pm
Elliot Reed:
Does a child have a right to preferably be nurtured by the two people who brought him or her into this world?
As a legal matter, no. Absolutely nothing prevents the kid's biological parents from jointly terminating their parental rights and putting the child up for adoption. If one parent is not involved in the child's life, the child has a right to child support, but not to parenting. A kid can't bring an action to force a parent who's always out of town on business, or lives in another state and never sees them, to rearrange their life so they can be involved with the kid. So from a legal point of view this argument is completely meritless.
10.26.2006 2:47pm
Ramza:
Andrew Hyman:Is it generally a good idea for children to have a Mom and Dad while growing up? And if so, then why can't a legislature promote that idea? Does a child have a right to preferably be nurtured by the two people who brought him or her into this world?

Children and marriage are not connected, maybe they should be (in your vison) but they currently they are not connected in reality. Children raised by single parents, they are raised by two parents who may be together but are not married. Additionally marriages occur with people later don't have children.

Until the reality of the situation, or the law reflects your view, the idea of marriage and children being intimately connected is not a thing the court has to deal with. Instead it should deal with the law as currently written, and the state and federal consitution.
10.26.2006 2:48pm
On Lawn (mail) (www):
Omar Bradley, Kenvee,

> Omar Bradley:
Imagine in 1954 if Earl Warren had said that the Board must create a parallel structure that will "provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by white students". They dont have to call it integration, they can call it "civil schooling". Come on.


Interesting. I look at this correlation strongly through the lens of segregation and integration. It is always interesting to me how people such as yourself take a case of integration as being more equal and valuable than segregation, and apply that to demanding gender segregated marriages. Or at least that those gender segregated arrangements be equalized with the existing integration standard.

> Omar Bradley: Its interesting that 50 years on , another court now says that separate but equal is ok when it comes to gay marriage.

Indeed. Prof. Volokh and Dale made an interesting case yesterday how this decision was a slippery slope. Since the DP's were established to privleledge homosexual relationships, the court wondered why they got different sets of benefits. When the future court looks at this decision, they might wonder why if they have the same benefits they are called a separate name at all. And no doubt wonder why other alternate family setups are not given the same treatment.

Then, when everything is marriage we may find that nothing is.

> Kenvee: If marriage truly existed for the sole purpose of procreation, we would have to return to the old custom of handfasting to ensure fertility before a marriage.

A purpose of a law does not justify any means of ultimate enforcement. Law is often debated in a context of appropriate and limited enforcement along with the purpose. The Bill of Rights, I could argue, is a means to limit enforcement of any purpose written into law.

Boiled down, your argument is one that is simply fallacious.

> Kenvee: Under that argument, couples where one or both halves are infertile should not be permitted to marry because they cannot procreate.

The problem with this correlary argument is that it undermines the specific recognition we give to disabilities, and the people who have them. In the case of infertility, that is a handicap or disability. In law we can demonstrate that the handicapped are special protected class. One that we give exception for, and give extra resources to based on their handicap.

For you to suggest that homosexuality deserves the same status, you would have to explain where you feel homosexuality is also a handicap. I for one think homosexuality is not a handicap.

> Kenvee: Should women be forbidden to marry after they pass menopause and can no longer biologically have a child?

An interesting note, at least in California (though I believe this is true in other states) elderly couples are give the option for DP's and CU's along side homosexuals.

> Kenvee: Should all couples be required to promise they intend to have children, to avoid all the "childfree" married couples currently in the world?

This requirement is debunked further in this article.

> Kenvee: There are many reasons for marriage other than biologically having and raising children, as evidenced by the many marriages in this country (and world) where the couple either does not have biological children or does not have children at all.

Technically this would be an argument to recognize arrangements outside of marriage. There are other reasons other than procreative responsibility to recognize a relationship, but that is not a reason to remove that purpose from marriage.

> Kenvee: If we allow artificial insemination, adoption, or childfree status for heterosexual married couples, why should gays be prohibited from marrying simply because they cannot procreate?

At some point, especially when granted as a right to any relationship, procreation looks more like a commercial enterprise than a responsible relationship. When parents are paid to abandon their children, as much as have them, or when they are simply constructs of purchased genetics, their rights to their heritage are infringed. I'm putting this rather shortly, a better, longer explanation is provided by Prof Velleman of NYU.

> Kenvee: I'm of two minds about the issue of gay marriage, but I don't believe the "procreation" argument is a sound one.

For the reasons I have given, I believe you dismissed it far too quickly.
10.26.2006 2:57pm
Andrew Hyman (mail) (www):
Mark, if a constitutional provision in 1844 said that "lollipops taste good" and then a slave sued for his freedom under this provision, would you call it a pro-slavery decision if the court decides against the slaveholder? I wouldn't. I'd call it sanity. I'd also do everything in my power to get the legislature to ban slavery.

The clause upon which the NJ Supreme Court relied yesterday says nothing about "equality." A draft did say that, "all men are born equally free and independent," but the word "equally" was struck out. And, the provision does not include the word "shall" or any similar indicia of a judicially enforceable command.

Fortunately, the Equal Protection Clause of the US Constitution applies to New Jersey, and the NJ Supreme Court were free to apply that Clause yesterday. The only reason they didn't is becaujse they knew they'd be overruled by the federal courts.

The court required yesterday that gay couples must receive equal prefernce in adoption cases as other couples. The court also required that gay couples are entitled to equal state-funded incentives to stay together and raise children, as other couples are entitled to. Whether these momentous decisions are correct is one issue. A second issue is whether these decisions were mandated by the constitutional provision at issue. And, a third issue is whether the court should have addressed these issues squarely, instead of basically blowing off the issue of child-rearing.
10.26.2006 3:08pm
Andrew Hyman (mail) (www):
Oops, in the first sentence, "decides against" should have been "decides for."
10.26.2006 3:09pm
Shawn-non-anonymous:
Robert West:

Please note that in California, gay couples already are entitled to domestic partnerships which qualify them for all of the rights and responsibilities of marriage, save the name.


Just a nit... it is my understanding that California law prevents anything from being "equal" to marriage between one man and one woman. As a result, the Domestic Partnership law in California withholds exactly one right--the right to file joint tax returns. This has exactly zero impact on Domestic Partnerships as the IRS refuses to accept same-gender joint tax returns.

A.S., there are roughly 36 million Californians. That might help make the "40 million" figure easier to understand.
10.26.2006 3:10pm
Brooklynite (mail) (www):
In the simplest terms, the NJ Supreme Court is engaging in social engineering, interpeting a law in a social/cultural vacuum. The law, in any society, is meant to reflect the societal norms, mores and folkways, of that society/culture.

Have you actually read the decision? The people and government of New Jersey have taken numerous steps in recent years to demonstrate that they regard discrimination against lesbians and gays to be socially, culturally, and legally objectionable. The court yesterday drew on that history in its decision, and the remedy it mandated is one that polls show New Jerseyans support by wide margins.

You can say that the court usurped the role of the legislature. But you can't say that it did so "in a social/cultural vacuum."
10.26.2006 3:18pm
Truth Seeker:
Does anyone know whether the various civil union and gay mariage schemes allow brothers to marry each other or grandmother/granddaughter, etc.? It does not seem there would be any rational basis for denying them the same rights.

Then I wonder if equal protetion will allow brother/sister and faher/daughter marriages.

But the biggest questions will be when multi-millionaires marry their grandkids to avoid the estate tax (if it is not abolished). The IRS will claim sham marriages so how will the participants prove otherwise? Will a grandmother/granddaughter marriage need to be consumated? Then, dare I ask how exactly would such a marriage be consumated?
10.26.2006 3:18pm
Bart (mail):
Duffy Pratt:

Science is debunking idea that mothers and fathers are interchangeable or that friends outside of the family can fill the role of a father or mother.

Marriage is held above all other human relationships because it is the best vehicle for procreating and raising civilized children, for civilizing men and for protecting and providing for women raising children. Moreover, marriage provides mental and physical health benefits for each spouse. While these concepts are denigrated in many elite quarters such as our courts, they are scientifically indisputable.


and:


Actually, there are a shortage of rigorous studies in this area. The studied populations of homosexuals with children are tiny, the variables examined are not rigorous and the examinations do not occur over significant periods of time.

Which is it? Has science indisputably proved the superiority of heterosexual marriage to homosexual marriage?


Perhaps I did not make myself clear.

My first to statement referred to the science concerning the problems children have when they grow up without a father or a mother in a single parent household.

My second statement referred to the science concerning the many benefits of marriage to the spouses and children

My third statement was a response to the claim that there is equivalent science allegedly establishing that homosexual unions can provide the same benefits to children they gain from outside the union. There is very little science concerning this issue therefore the issue open.

The first two statements are independent of my third.
10.26.2006 3:21pm
MEZ:

Mark, if a constitutional provision in 1844 said that "lollipops taste good" and then a slave sued for his freedom under this provision, would you call it a pro-slavery decision if the court decides against the slaveholder? I wouldn't. I'd call it sanity. I'd also do everything in my power to get the legislature to ban slavery.


I don't know about gay marriage, but I think we can all get behind a constitutional provision about lollipops. But then again, some blowpop loving a-hole would probably make a stink about how his views weren't being represented and blowpops are just as good as plain lollipops even if they're not quite "lollipops" in the traditional sense of the word, but hey, this is America, the land of innovation and who is the government to intervene in my choice of candy anyway?!?

On second thought, that lollipop amendment might not be such a good idea...
10.26.2006 3:24pm
KMAJ (mail):
Brooklynite,

There is no record for the NJ Supreme Court to act upon in regards to marriage, hence the vacuum. They simply try to extend other actions, unrelated to marriage, to the societal construct of marriage, hence they are engaging in social engineering. There has been no movement within the people of New Jersey that implies that the majority of society in that state wishes to change that social construct to include 'gay marriage'.

The law must, and is intended to, represent the societal norms or it becomes tyranny. I am all for society evolving and accepting change, I am against forcing or dictating change through judicial fiat that does not represent the society's mores and folkways.
10.26.2006 3:45pm
raich's boggarted joint (mail):

But, marriage has always been about family and children, not social acceptance.


i realize this was posted a while ago, but if anyone really thinks this, then they really need to do some research. it's demonstrably false, in a multitude of ways (current unions of non-child bearing het couples, historical basis of marriage, etc). so please, stop making this argument. it's not a strong one in the panopoly available to opponents of SSM.
10.26.2006 4:15pm
On Lawn (mail) (www):
i realize this was posted a while ago, but if anyone really thinks this, then they really need to do some research. it's demonstrably false, in a multitude of ways (current unions of non-child bearing het couples, historical basis of marriage, etc). so please, stop making this argument. it's not a strong one in the panopoly available to opponents of SSM.

The appeal to stop using an argument is noted. The rational presented seems vacant.

Marriage's link to family and procreation is inherent even in gay-advocacy that same-sex marriage should be about family and procreation, too.
10.26.2006 4:32pm
Mark Field (mail):

The clause upon which the NJ Supreme Court relied yesterday says nothing about "equality." A draft did say that, "all men are born equally free and independent," but the word "equally" was struck out. And, the provision does not include the word "shall" or any similar indicia of a judicially enforceable command.

Fortunately, the Equal Protection Clause of the US Constitution applies to New Jersey, and the NJ Supreme Court were free to apply that Clause yesterday. The only reason they didn't is becaujse they knew they'd be overruled by the federal courts.


The problem with this argument is in the first part of my post above: an Amazon of legal water has flowed under the bridge since that 1845 case you cite. The current NJ court was not the first court to read Art. I, para. 1 as establishing an equal protection right. Previous courts had already done this, and had also established the standards to apply under that interpretation.

The current court simply relied on those existing precedents for the standard to apply. You're free to criticize those precedents, but unless you're arguing that the current court should have overruled them, it had little choice but to apply existing law.
10.26.2006 4:33pm
Daniel Chapman (mail):
I disagree, Joint.
10.26.2006 4:34pm
Henri LeCompte (mail):
Mr. Bogarted Joints:
What are you saying then? Marriage is largely a social institution for "social acceptance"? Acceptance of what? Obviously there are other settings in which people may have children, but what does that have to do with marriage? Nothing?

The fact that children are raised outside of marriage says literally nothing about the topic of marriage. The fact that some married people don't have children says nothing about the fundamental social function of marriage. What about the "historical basis of marriage" convinces you that marriage is not an social institution concerned with "family and children"?

I am afraid I don't get your point at all.
10.26.2006 4:36pm
Andrew Hyman (mail) (www):
Not having examined the "Amazon of legal water" to which you refer, all I can say is that I'm very skeptical that there is a judicially enforceable equal protection guarantee (or anything about equality at all) in the first section of the New Jersey Constitution. But even if there is, that does not excuse the NJ Supreme Court for blithely ignoring the interest of children in having a mother and father.
10.26.2006 4:40pm
BobNSF (mail):
Shawn-non-anonymous:

Just a nit... it is my understanding that California law prevents anything from being "equal" to marriage between one man and one woman. As a result, the Domestic Partnership law in California withholds exactly one right—the right to file joint tax returns. This has exactly zero impact on Domestic Partnerships as the IRS refuses to accept same-gender joint tax returns.


It's not at all clear what California's restriction on same-sex marriage does and doesn't do — we'll find out more sometime next year. BUT that "one right" that doesn't apply to same-sex couples that you mention (there are actually dozens) has just been fixed.

The average savings in state income tax for a same-sex couple is around $2000, as I recall.
10.26.2006 4:43pm
Elliot Reed:
that does not excuse the NJ Supreme Court for blithely ignoring the interest of children in having a mother and father.
First, the state disavowed that argument. Second, there was no showing that gay marriage would deprive any children of having a mother and father. Third, there has been no showing that children do better with a mother and father than with two married gay parents; the scientific evidence, though hardly a source of infallible truth, is to the contrary. Fourth, children do not have a legally enforceable right to a mother and father. If my parents put me up for adoption, and I'm adopted by a single woman, I cannot sue my bio-dad and demand that he be a father to me. If my father has custody and Mom is uninvolved in my life except for paying child support, I cannot sue Mom and demand that she be a parent to me. And so forth and so on.
10.26.2006 4:45pm
BobNSF (mail):
Andrew Hyman:

Is it generally a good idea for children to have a Mom and Dad while growing up? And if so, then why can't a legislature promote that idea? Does a child have a right to preferably be nurtured by the two people who brought him or her into this world?


The state does promote child-rearing by the biological parents. It also promotes child-rearing by adoptive parents. Turns out, the latter requires more incentives because there aren't enough people willing to adopt kids in need.

Surely you were aware of this.
10.26.2006 4:46pm
Duffy Pratt (mail):
Bart:

OK, one set of studies, you say, show that hetero marriage is the best way to raise kids. One of the alternative ways to raise kids is with homosexual couples. Surely, the first study must have considered this alternative and found it wanting. Yet, you say there is no significant, reliable research on this alternative. So how does the first study conclude that the hetero marriage option is preferable to the unstudied option?
10.26.2006 4:46pm
BobNSF (mail):
Truth Seeker:

What about the issue of if our society embraces gay marriage, is there any hope to convince the world's 1.3 billion Muslims that democracy and freedom are the way to go? These guys are 14th century barbarians who want to stone gays to death. Wouldn't a Western society that tolerates gays be more likely to appeal to them than one that celebrates gay marriage?


You make a good point. Maybe we should cloister our women (well, your women. I'm a gay man, I don't have any women).

More seriously, it's pretty odd to promote freedom by restricting it. Who do you think is at the vanguard of the forces of liberalization in authoritarian cultures? People who don't fit in, that's who. Sometimes those people are gay.
10.26.2006 4:52pm
raich's boggarted joint (mail):

Marriage's link to family and procreation is inherent even in gay-advocacy that same-sex marriage should be about family and procreation, too.


that wasn't the original posters argument. the original argument was that, historically, marriage has always been primarily about procreation. that's simply not true, regardless of the evolving standards of society that have pushed procreation to the forefront in terms of what marriage represents.


What are you saying then? Marriage is largely a social institution for "social acceptance"? Acceptance of what? Obviously there are other settings in which people may have children, but what does that have to do with marriage? Nothing?


actually, i was just saying to stop using the "well, marriage has always been primarily about procreation!" argument. i make no claim one way or another as to the status of marriage regarding acceptance, or of the existance of bastard children.

i'm not going to say there aren't arguments against same sex unions, or that the NJ supremes didn't overstep their bounds in declaring that there will be some level of legal equality between SSC's who choose to enter a binding agreement (be it civil union or marriage) and heterosexual couples who do the same. i'm merely saying that the historical argument that is espoused by opponents of SSM is often flawed. if you want to make the argument about procreation, that's fine. but be careful, because you're probably using the same sort of evolving definition of marriage that you might accuse those who are looking to use the "societal acceptance" argument.

on a different topic, and in an effort to find some empirical data on the topic: i believe i once heard Professor Carpenter list that the current figures have 770,000 same sex couples existing in the US. of those, 250,000 have children. these numbers, small on the national scale, are hardly insignificant. i also believe that if Bart has any study that shows that same sex couples negatively affect a child's development, he should cite it. as such all he's done is called foul on the allegedly politically motivated studies that have been done.
10.26.2006 4:59pm
Toby:
Great first post, but it leaves out one other meme

The thing is, there's no shortage of reputable studies on this issue,

Reputable Studies, of course, has two definitions:

A) "studies that agree with me"

B) "studies cited by authorities that I agree with"
10.26.2006 5:10pm
raich's boggarted joint (mail):

Reputable Studies, of course, has two definitions:

A) "studies that agree with me"

B) "studies cited by authorities that I agree with"


exactly. it's how i know that global warming isn't real.
10.26.2006 5:15pm
Toby:
Ahh reading down brings me to the example of the California "secret" marriage. In particular, my recollection of the history of the secret marriage (which may be wrong, I learned of it in 5th grade, which was, well, some time ago)

In California, one can opt to have ones marriage withheld from the public record. The witnesses are not on record and the license is not available for inspection as a public document, although it must be duly filed. I recently presided over a California marriage (first and probably last time I will do so) and noted that the certificate I completed still had all the check boxes and procedures to declare the marriage secret.

As I recall the history, in the 1870's(?), the legislature wanted to clean up some of social issues left over from the gold rush, including tidying up inheritance and families. It was considered that people who had been living together for 20 years, and who has daughters of marriagable age, and other complexities would be reluctant to go get married, and thus inform one and all that they had not previously been married. So the secret marriage was created, allowing you to go downtown and do the deed with no one being the wiser as to the timing of the deed.

It strikes me that many like to cite some politically charged missive from the 70's or from the 90's as depositive as to the long-term purposes of marriage. Is anyone knowledgable as to the reasons in debate in California in the [1870's] If so, those debates might be more interesting, as well as supporting more diversity by citing anyone from outside the current cultural/political much, a rubrick that describes both sides to my mind.
10.26.2006 5:28pm
Andrew Hyman (mail) (www):
When a state or federal executive branch decides that it doesn't feel like advancing a credible argument to defend the constitutionality of a statute, courts often appoint others to do so. For example, in the Dickerson case (regarding Miranda warnings), the Supreme Court appointed Paul Cassell on behalf of the Washington Legal Foundation to defend the federal law, which is a position typically represented by the Justice Department. In any event, there were amici who were making the argument about children's welfare, but the NJ Court just decided to ignore all that.

The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children, and that has been the primary motivation for the states' favored treatment of marriage over single poeple and over other conglomerations of people. There have been other factors involved in state support of marriage, but that's been the primary one. And instead of recognizing that yesterday, the New Jersey Court basically decided to join the current occupants of the NJ executive branch in dismissing it, and instead dictating to the NJ legislature.

I don't see any dispute about the fact that the court required yesterday that gay couples must receive equal state-funded incentives to stay together and raise children as other couples are entitled to. So, the state is being required to subsidize arrangements where, for example, one of two women partners opts to become impregnated so that she and her partner can raise children. In cases where scarce funds are used to encourage couples to adopt unwanted children, those funds will have to be distributed without any preference for traditional households as compared to gay households. The decision yesterday will have a million other implications for the raising of children in New Jersey, all of which the court basically chose to ignore.

I'm not taking a position about whether any of those implications are good policy or bad policy. What I am saying is that this small group of unelected lawyers had no business issuing a fiat like this. That's all.
10.26.2006 5:42pm
Elliot Reed:
The state defended the law, and New Jersey applies heightened scrutiny in these kinds of cases. Upholding a law, under heightened scrutiny, on the basis of a public-policy justification the state explicitly disavows is crazy. In any case, the absence of any factual showing, by amici or otherwise, that allowing gay marriage would result in fewer children having a mother and father makes this point irrelevant.
The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children, and that has been the primary motivation for the states' favored treatment of marriage over single poeple and over other conglomerations of people.
Who "designed" marriage, and how do you know that was their purpose? In any case, this argument supports the plaintiffs: gay couples are allowed to raise children in New Jersey, and some of the plaintiffs do so. Why give the children of het couples the benefits of parental marriage but not the children of gay couples?
10.26.2006 5:57pm
Andrew Hyman (mail) (www):
Why give the children of rich couples the benefits of rich parents, but not give those benefits to the children of poor couples? Look, we could go on and on about this. As for me, I've said my piece, and must go do other things. Thanks.
10.26.2006 6:04pm
Ramza:
You see giving extra marriage benefits to poor couples but not rich couples would have a legimate rational state interest behind it.

Not giving marriage benefits just because the document says Steve and Adam, instead of Sara and Adam does not have a legimate rational state interest behind it.
10.26.2006 6:15pm
On Lawn (mail) (www):
that's simply not true, regardless of the evolving standards of society that have pushed procreation to the forefront in terms of what marriage represents.

I can't for the life of me see where you say that with a straight face.

For instance, marriage, conjugal, and gamos are words to describe the life-long mating we find in the human species. Those describe, literally and etymologically both an act of procreation down to the gamete level and the marriage institution that act takes part in. The link is so intrinsic it is unalterably embedded in language.

The historic evidence is there, I've not seen you actually refute the historic evidence.

So what is your purpose for marriage? What is your purpose for specifically targeting homosexuality for privilege and status, even to the cost of human rights for children and undermining the assistance we give the handicapped?
10.26.2006 6:22pm
Elliot Reed:
On Lawn, what the hell has gay marriage got to do with the rights of the disabled?
10.26.2006 6:30pm
Ramza:
Don't you know its those damn gay taxpayers who are supporting the welfare of the wheelchair bound and other people who are handicap *wink*

Those gay taxpayers will contribute less taxes if they were suddenly married.
10.26.2006 7:07pm
PubliusFL:
Seems to me that we should be able to call things that are the same by the same name, and things that are different by different names. Should your sister sue for the right to be called your "brother" if she prefers that term? After all, "brother," "brotherly," "brotherhood" etc. are terms "rich in cultural and historical meaning."
10.26.2006 7:11pm
Revonna LaSchatze:
The nuclear family has traditionally been the workshop wherein the future of our culture and our society is forged.
It still is.
It includes many gay parents now too.

There needs to be an easy way for society to identify and support families.
That is exactly what the families of many gay people are saying
10.26.2006 7:12pm
On Lawn (mail) (www):
> Elliot Reed: On Lawn, what the hell has gay marriage got to do with the rights of the disabled?

Probably nothing to do with rights, per se. But that isn't important right now.

As I understand it, for the handicapped special privileges are not so much rights as a status of being a protected class. We actively support and give aid to overcome handicaps. I've explained this elsewhere in the recent posts on this issue. But the explanation of how the argumentation of neutered marriage abuses this assistance for others is here.
10.26.2006 7:54pm
SG:
Truth Seeker asked:

But the biggest questions will be when multi-millionaires marry their grandkids to avoid the estate tax (if it is not abolished). The IRS will claim sham marriages so how will the participants prove otherwise?


On what grounds would they be sham marriages?

Do the grandparent/grandkid love each other? Check.
Does the couple want to allow the other to make medical decisions on their behalf? Check.
Do they want to be able to pass their property on to the survivor in the event of death? Check.


As near as I can tell, they've met all the requirements put forth for a state sanctioned marriage as per SSM proponents. Where's the compelling reason to disallow it?
10.26.2006 9:21pm
Anon. Lib.:
"The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children . . . "

Really? Care to share your source for these world historical truths? Did the ancient Egyptians and Chinese convene a grand counsel to establish the parameters of heterosexual marriage? Was it the mesopotamians? Maybe there was some kind of Jungian mindmeld among our hunter gatherer ancestors. But we know it couldn't have been the ancient hebrews, seeing as they were polygamists. Please enlighten us.

" . . . [A]nd that has been the primary motivation for the states' favored treatment of marriage over single poeple and over other conglomerations of people."

Its really amazing how ancient mesopotamian institutions have been maintained and nurtured by state legislatures. Your doctoral advisors must have been blown away by these kinds of insights. Really, first rate work.
10.26.2006 9:37pm
Toby:
Like Teenagers who have beleive that they are the first generation to have discovered sex, Lawyers w/o any further defense assume Rawlsian blinders of "Nothing happened unless the original person who did it left a memo for me.

Too bad ancient pre-literate people, or even folks before the 20th century spent so little time explaining culture and why they developed it to post modernists...
10.26.2006 11:24pm
Andrew Hyman (mail) (www):
Various websites say the obvious:

Marriage is usually understood as a male-female relationship designed to produce children and successfully socialize them.


Of course, if you want to think that I'm just making stuff up, feel free.
10.27.2006 12:07am
Mark Field (mail):

Marriage is usually understood as a male-female relationship designed to produce children and successfully socialize them.


Putting aside the dubious accuracy of this claim today, it DOES use the present tense verb. Your previous post made a historical claim.


Like Teenagers who have beleive that they are the first generation to have discovered sex, Lawyers w/o any further defense assume Rawlsian blinders of "Nothing happened unless the original person who did it left a memo for me.


And some lawyers seem to believe that ipse dixit constitutes a legitimate argument.
10.27.2006 1:24am
jgshapiro (mail):
The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples?

You could also ask the question: why didn't they just mandate civil unions and leave it at that?

The answer to both questions is that it was essential for the court to send the case back to the legislature. If the court just mandated the result, it would be subject to all sorts of charges of judicial activism. Instead, by laundering the decision through some sort of stunted democratic process, the court erects a defense to charges of judicial activism.

Yes, it will still get those charges, but they are blunted by the fact that it can now point to the legislature as having enacted whatever law carries out the court's choice, even if the legislature's only real choice is what to call the court's choice. This is really very clever.

Or have I just become too cynical?
10.27.2006 1:36am
godfodder (mail):
jgshapiro:

Nope. You got it just about right.

Gay marriage is going to end up just like abortion-- unsettled and unsettling for decades to come. And in no small degree because the NJ SC short-circuited the normal deliberative process for introducing social change. And what is worse, they couched the gay marriage issue as a constitutional right-- guaranteed to invite inflexibility and extremism on all sides.

(clap, clap) Beautiful, just beautiful.
10.27.2006 2:24am
Hans Gruber:
Truth Seeker wonderfully outlines how these debates go at the top of this thread. If I may jump to the end of that progression and ask the gay marriage proponents a simple question. If one should be entitled to the benefits of marriage merely because of love and commitment, why can't two friends or two relatives take full advantage of those benefits?

If this isn't about sex or rearing children, but if it's really just about two people loving one another, committing to one another, then why can't ANY two (or three or four?) people get "married"? Plenty of people would like to give their friend or their relative their health insurance, or save a couple of bucks on taxes, or qualify for extra time off to care for their loved ones.

The whole idea of gay marriage (or maybe more accurately, the arguments forwarded in its defense) really does dilute the concept of marriage, doesn't it?

If we should do the compassionate thing, if we should do the "equal" thing, if we should do the generous thing concerning gay marriage, shouldn't we just go all out? If two bachelors want to live together in a committed, loving friendship, shouldn't they enjoy all those great benefits couples do! Come on, they just want all the basic protections everybody else does! Don't be a bachelor hater now! What about two brothers? Dare I suggest that the reason the conversation usually ends about here is that the gay marriage cheerleaders don't have an adequate answer to this question. Or maybe I just haven't heard it yet.
10.27.2006 5:01am
K (mail):
There are two interesting points in the decision. As some have pointed out the court told the legislature what to do and how fast. And they didn't authorize gay marriage.

What is the enforcement mechanism? I don't think the nation is ready for courts to jail elected officials for not passing a law. Will they jail the governor for a veto?

In Arizona a federal judge recently began fining the atate a million a day for not appropriating enough money for a school program - I think it was special funding for children who didn't speak English, but the exact program doesn't matter. The fines were to escalate to two million a day, then four, etc.

Anyway the state legislature finally blinked and increased the funding of the program. I was interested in what would happen if they did not.

It is all fine and good for the judge to confiscate the state treasury but what then? Would he issue state bonds for more fines? Would he sell state lands and parks? Would he let the schools close because the fines had taken all the money? Would he levy a sales tax or stop federal funds for highways, etc? At what point would he jail the legislature?

The NJ case was not a conflict between the state and federal levels. And their court did not issue a direct order. And if the legislature will not act the courts can just bypass them with direct orders to county clerks.

My advice to the legislature would be to do nothing. If the court wants to operate the marriage/civil union franchise let them.

Which brings me to the second point. Marriage is not Civil Union. And Civil Union is not Marriage. The two may have the same standing in law but will not in the public mind. So how have gays been made equal to heteros in the matter? And if they are not to be equal why was the ruling made at all?
10.27.2006 5:09am
Hans Gruber:
"i realize this was posted a while ago, but if anyone really thinks this, then they really need to do some research. it's demonstrably false, in a multitude of ways (current unions of non-child bearing the couples, historical basis of marriage, etc). so please, stop making this argument. it's not a strong one in the panopoly available to opponents of SSM."

Yes and the "the state regulated marriage just because it felt like it" argument is a superb argument. Name any aspect of the state's involvement and regulation of marriage and then think if it makes much sense in the absence of children or unequal gender spouses. It doesn't. The fact that the state did not require married couples to have children proves nothing, especially given the facts of nature.
10.27.2006 5:17am
Chumund:
Hans,

I'm game. I'll start by naming state laws for the equitable division of property acquired during marriage during a divorce.

How in your view do the existence of such laws not make sense in the absence of children or unequal gender spouses?
10.27.2006 5:38am
Ship Erect (mail) (www):
Name any aspect of the state's involvement and regulation of marriage and then think if it makes much sense in the absence of children or unequal gender spouses.

OK: joint tax returns. Both spouses are equal (they have jobs, thus necessitating filing a tax return), and children aren't necessarily involved.
10.27.2006 5:58am
Hans Gruber:
Chumund,

I don't see any compelling reason for the state to provide for equitable distribution of property acquired while "married" for two childless gay men. It makes absolutely no sense. Why should the state care how two gay men manage their finances within their relationship?

Ship,

I don't get the benefit of filing jointly, presumably what is coveted here is the ability to garner some sort of tax deduction (which used to be a penalty ironically enough). I'll be waiting for the moment when somebody says they're for gay marriage so that they can file a joint tax return. Yay!
10.27.2006 6:55am
Anon. Lib.:
Andrew, its obvious that you are making stuff up. As Mark notes, you made a very specific series of historical claim, that marriage was "designed" (not evolved or came into being, mind you) "millenia" ago to create a beneficial environment for raising children and that this design has been of continuing importance to state legislators. Now, ordinarily the burden lies on the person making historical claim to produce evidence in support of those claims---so produce the evidence. Why do you think this is true? And I am thinking of real evidence---references to historical documents, artifacts, secondary historians, etc. Not multiple unnamed websites that don't support what you've said at all.
10.27.2006 9:00am
Chumund:
Hans,

Well, why does the state provide that service for, say, a childless man and woman when they get divorced? Why should the state care how a man and a woman manage their finances within their relationship? Or, more precisely, why should the state get involved in the division of a formerly married man and woman's property when their marriage has come to an end?

Of course, a little reflection should suggest a simple answer to your question. Settling property disputes is one of the ancient duties of the state in a civil society (you can go back and read the likes of Hobbes, Locke, and so on to get an explanation of why the state takes on that role; see also the Code of Hammurabi). The dissolution of a marriage regrettably usually creates many such property disputes, and thus the state gets involved.

But quite obviously, these explanations do not depend on the presence of children, nor do they depend on the gender of the disputants. Rather, all that really matters is that the disputants acquired property under one set of conditions (those arising from their marriage), and now must settle their property interests under a new set of conditions (those arising from their divorce). That is a traditional role of the state, and again it has no necessary relation to children, gender, or so on.
10.27.2006 10:26am
Shawn-non-anonymous:
Andrew Hyman:


"The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children..."



I've seen this assertion posted over and over and over in not just this thread but hundreds others, some right here on Volokh.com. Is there a legal historian in the house?

In modern America, we have marriage by choice and for love, contraception, women cannot be raped by their husbands (that's new), no-fault divorce, abortion, etc. These change the way marriage fits into our society and how we view marriage. It makes it hard for us to really understand how marriage was viewed in 1300A.D. and easy for us to project our own view of it back through millenia.

If procreation is a major purpose of marriage, then it should be easy to find examples of this in our laws. Yet we see no connection between laws relating to child welfare and the marital status of their parents. If this is the binding that holds our society together, why is it not plainly evident in our laws? Minor social values like not being drunk at church prevent me from buying alcohol before noon in Florida. Blue laws are all over the US expressing majority morality in our laws. Surely something as vital as procreation as a basis for marriage would be even more evident? There isn't even social stigma for being born outside of a marriage anymore.

There are far better arguments against marriage for same-gender couples than "procreation".
10.27.2006 10:30am
Chumund:
To tie together two ongoing conversations:

Of course, marriage as a civil institution has always been as much about the spouses involved as it has been about about any children who might be involved. As I suggested above, one of the reasons for that is simply the fact that marriages, at all of their stages, inevitably involve a variety of property issues. More broadly, marriage has typically been treated within the broad category of relationships for which the state typically imposes at least some rights and duties as a matter of law (other modern examples would include things like doctor-patient, attorney-client, business partnerships, and so on).

Since people are asking for historical evidence, as I noted above one can look to the Code of Hammurabi, which contains numerous provisions relating to marriages, including some dealing with property issues arising in the marital context. Some of these provisions address issues involving children, but many address other issues involving the relationships between husbands and wives and their various rights and duties.

Finally, I would once again just note Genesis 2:18 ("And the LORD God said, It is not good that the man should be alone; I will make him an help meet for him.") I offer this just as another early historical example of marriage being based, at least in part, on the relationship between the spouses.
10.27.2006 11:01am
Chumund:
By the way, here are a few of the provisions in the Code of Hammurabi to which I was referring:

"If a man is taken prisoner in war, and there is a sustenance in his house, but his wife leave house and court, and go to another house: because this wife did not keep her court, and went to another house, she shall be judicially condemned and thrown into the water.

If any one be captured in war and there is not sustenance in his house, if then his wife go to another house this woman shall be held blameless.

...

If a man wishes to separate from his wife who has borne him no children, he shall give her the amount of her purchase money and the dowry which she brought from her father's house, and let her go.

If there was no purchase price he shall give her one mina of gold as a gift of release.

If he be a freed man he shall give her one-third of a mina of gold.

If a man's wife, who lives in his house, wishes to leave it, plunges into debt, tries to ruin her house, neglects her husband, and is judicially convicted: if her husband offer her release, she may go on her way, and he gives her nothing as a gift of release. If her husband does not wish to release her, and if he take another wife, she shall remain as servant in her husband's house.

If a woman quarrel with her husband, and say: "You are not congenial to me," the reasons for her prejudice must be presented. If she is guiltless, and there is no fault on her part, but he leaves and neglects her, then no guilt attaches to this woman, she shall take her dowry and go back to her father's house.

If she is not innocent, but leaves her husband, and ruins her house, neglecting her husband, this woman shall be cast into the water."

Fun stuff.
10.27.2006 11:10am
Elliot Reed:
Yes and the "the state regulated marriage just because it felt like it" argument is a superb argument. Name any aspect of the state's involvement and regulation of marriage and then think if it makes much sense in the absence of children or unequal gender spouses. It doesn't. The fact that the state did not require married couples to have children proves nothing, especially given the facts of nature.
You seem to be making the bizarre assumption that state action always has a purpose that makes sense. I'm hardly an expert in the social or legal history of marriage, but I know enough about government to know that this assumption is bogus. In any case, it's not clear marriage has to have had a purpose at all: marriage laws could, in principle, have been imposed centuries or millenia to do something that makes no sense today. They could have stuck around only because some people have an interest in keeping them around and no interest group with much political strength has an interest in seeing them repealed.

Just to be clear, I'm not saying this is likely, or that I believe it. But we can't take proclamations about marriage being good for children, or what-have-you, at face value. Legislation is always justified with rhetoric about how it's good for society, even if it's the most banal special-interest wealth transfer. In other words, just because government officials and advocates for legislation employ reason X, doesn't mean X is the real reason for the legislation.
10.27.2006 11:49am
Andrew Hyman (mail) (www):
I'm not a marriage historian, and never claimed to be one. If one were to say that laws against theft were traditionally developed in order to promote production, acquisition, and happiness then that's just common sense. You don't need to be a historian to understand that.

It's an undisputed assumption that marriage is important to the welfare of children. One of my (many) criticisms of the NJ Supreme Court decision yesterday is that it virtually ignored the impacts on children, merely because the current executive branch officials in NJ chose to do so.

Legislatures have traditionally believed that, other things being equal, it is best for children to grow up with both a mother and a father. As New York's top court put it, "Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule...but the Legislature could find that the general rule will usually hold." All I was suggesting is that that's in fact what legislatures and most individuals have been doing for thousands of years. Whether they should continue to do so in the future is an interesting policy question. It's also what the New Jersey Supreme Court just forbade the legislature from ever doing again. That court did so with barely a word about children.

It also seems relevant that the Equal Protection provision of the New Jersey Constitution is in Article I, Paragraph 5 of the New Jersey Constition, but that Paragraph was never mentioned once by the New Jersey Supreme Court. Instead, they relied upon Article I, Paragraph 1, from which the word "equally" was struck out when the language was originally drafted in 1844. I'm not aware that the New Jersey Supreme Court ever identified an equal protection principle in Article I, Paragraph 1 until AFTER the New Jersey Constitution was most recently readopted, in 1947.
10.27.2006 12:12pm
Toby:

Name any aspect of the state's involvement and regulation of marriage and then think if it makes much sense in the absence of children or unequal gender spouses.

OK: joint tax returns. Both spouses are equal (they have jobs, thus necessitating filing a tax return), and children aren't necessarily involved

Let's see - can anyone remember way back to the homemaker, the stay-at-home mom, who had not income bat added a deduction to her husband...what was the purpose of that stay at home mom. In the 40's, the feds actually claimed that the decution was "enough to live on", so having a spouse and children allowed one to deduct sufficient monys to pay for mimal food/clothes/housing (not that anyone believed it then, either).

Now is Suzy homemaker goes and earns some pin money, well, that trifle is added to the household income w/o affecting the overall picture very much.

The infamous marriage tax exists as an effective loss of this benefit if both He and She have similar incomes, no more, no less.

I recall a conversation on this board a couple years ago when someone suggested that an event did not occur because he could find no current newspaper accounts from the early 80s (before newspapers were put on-line). I'm wondering whther I am seeing more of this syndrome here.
10.27.2006 12:41pm
Mark Field (mail):

I'm not aware that the New Jersey Supreme Court ever identified an equal protection principle in Article I, Paragraph 1 until AFTER the New Jersey Constitution was most recently readopted, in 1947.


I'm not at all sure you're right, but so what? The NJ court has used such an interpretation for some time now, and the current court is bound by that precedent. You're chasing a horse that left the barn quite a while ago.


I'm not a marriage historian, and never claimed to be one. If one were to say that laws against theft were traditionally developed in order to promote production, acquisition, and happiness then that's just common sense. You don't need to be a historian to understand that.


In other words, you're making it up.

I'll get you started: Here is Blackstone on marriage. Point us to the passage which says that the purpose of marriage is to have children. Let us know how much of his discussion deals with children versus, say, property rights. Etc.
10.27.2006 12:47pm
Ship Erect (mail) (www):
Legislatures have traditionally believed that, other things being equal, it is best for children to grow up with both a mother and a father. As New York's top court put it

Irony?
10.27.2006 1:27pm
On Lawn (mail) (www):
> Anon lib.: As Mark notes, you made a very specific series of historical claim, that marriage was "designed" (not evolved or came into being, mind you)

If you are trying to hang your hat on design vs. evolution in this social anthropology, I would have to say you lost the argument. Because whether or not it was designed or evolved makes little difference in social trends. Especially in dealing with the argument over whether or not marriage and procreative responsibility are directly tied together. Because deciding either way neither discredits that notion or gives it credence.

As far as marriage design, leaders have shaped marriage in many ways over many millennial. Some changes were successful, others were not. One good article noting social engineering in marriage is by Kay Hymnowitz, Gay Marriage vs. American Marriage.

But in many ways you are right, no one person can be described as designing marriage. It is the most universal phenomenon of social organization in our species, and that is because it is so rooted in the universal mechanism of generation of our species. If your intent was to discredit marriage as an institution of responsible procreation, you seem to have made a deft maneuver and slammed right back into marriage as a institution of responsible procreation.

> Chumund: Why should the state care how a man and a woman manage their finances within their relationship?

I see that frunstration in your inability to make logical acrobatics stick, you've come here. And again you wind up doing more of the same.

Marriage is a foundation of a family. There is no doubt about that. It is the commitment two people make to an uncertain future to care for not only themselves but the children that naturally occur in romantic relationships.

A married couple make a unit of governance, the article by Kay Hymowitz in a link above in this post notes how this was a particularly strong concept to the people who wrote the constitution of the USA. Without the children who are naturally under the governance and guardianship of the parents, the unit is without meaning.

It is this expectation of unity in governance that promotes the government to treat families as a unit, one income tax statement, confidentiality between spouses in the court, etc... All of these point to not adult needs, but family governance needs. Needs that point once again to the commitment people make to each other and the children they naturally have in relationships of that type.

> Chumund: Settling property disputes is one of the ancient duties of the state in a civil society

Which is orthogonal to the debate at hand. This point you make holds true in either case, whether marriage was about responsible procreation or not.

> Chumund: But quite obviously, these explanations do not depend on the presence of children, nor do they depend on the gender of the disputants.

I note this somewhat as a point of redundancy. Somewhat because the way you phrase it here shows even better how you are over-reaching in your conclusion. The need for reconciliation of property disputes in a society is near universal. Married people need it, and so do others. And it happens to be accessible to others. If the marriage benefits noted by the NJ court rested on this matter alone, I doubt they would have made the decision they did, because the broad topic of legal mechanisms for dispute resolution are already accessible to homosexual couples.

> Shawn-non-anonymous: If procreation is a major purpose of marriage, then it should be easy to find examples of this in our laws. Yet we see no connection between laws relating to child welfare and the marital status of their parents.

Thats funny. I don't know if you meant it that way, but it is hilarious.

Here's where I'm coming from. The GLBT posts 1000+ incidents of marriage in federal law. People like Jon Rauch and Dale Carpenter, and the American Pediatrics Association demand that these benefits exist to directly help children by keeping their parents married and together. And that is why they feel it should extend to gay couples too.

But no, here comes Shawn who is obviously more intelligent than they all. These have nothing to do with marriage as an institution for child rearing, according to Shawn. Its plainly "not evident in our laws".

I'm sorry Shawn, but I believe plausible deniability is not going to be a very strong platform for this debate. When you can convince your fellow marriage neuterist advocates, then I might take a listen.

But then you'd have to explain away the instances of direct reference to marriage as an institution of responsible procreation already in the jurisprudence of case law.

I hate to point it out so directly to you, but you are arguing the sun is no shining on a sunny noon-time day.

> Chumund: Finally, I would once again just note Genesis 2:18 ("And the LORD God said, It is not good that the man should be alone; I will make him an help meet for him.") I offer this just as another early historical example of marriage being based, at least in part, on the relationship between the spouses.

Interesting note, and I'm glad you brought that up. Verse 24, just summing up that experience with Adam and Eve says this:

Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.


I'll point out again that becoming one flesh is the symbol of marriage, it is two things coming together to make something much beyond what was there before. Children become the physical incarnation of the relationship, the marriage of each of their DNA. Conjugal, Gamos, these words in Latin and Greek describe the physical combination of the flesh from coital relations to the fertilization of egg and sperm (which are called "gametes" after the word Gamos).

So if you are making a claim to the Bible, you should recognize immediately the intent and purpose of marriage.

And I'll add that having other uses for marriage does not at all justify removing that purpose from marriage.

Randy R early in this debate on the other posts noted that marriage neuterists such as himself are not actively trying to knock the parent-child link. Yet he, and here we have a sort of dog-pile of people trying to marginalize that link in the institution that is the anthropological incarnation of that link.

What worries me about their hap-hazard acrobatics on this issue is that they demand our trust in letting them set up this alternative neutered definition of marriage. Yet they can't seem to do so without quite a bit of egregious re-writing of history and deadly logical acrobatics.

> Mark Field: I'll get you started: Here is Blackstone on marriage. Point us to the passage which says that the purpose of marriage is to have children.

And here is the definition he was most likely working with:

Noah Webster's 1828 dictionary:

Marriage: The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God Himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children. "Marriage is honorable in all and the bed undefiled." Hebrews 13. [emphasis mine]
10.27.2006 2:11pm
Mark Field (mail):
Ok, On Lawn, you get partial credit on the merits and an A for effort. However, here was the original claim (my emphasis added):

"The institution of marriage was designed millennia ago primarily for the purpose of establishing a beneficial environment for raising and otherwise benefitting children..."

Webster is a little late in the day for "millenia", and procreation is just one of the benefits (and the last mentioned). Still, you did something besides just make it up, and I respect that.
10.27.2006 2:42pm
lucia (mail) (www):
>for promoting domestic felicity, and for securing the maintenance and education of children.

Excellent! Marriage between any two consenting adults promote theis domestic felicity. By permitting them to better pool time and resources, it helps them secure the maintenance and education of their children.
10.27.2006 2:46pm
On Lawn (mail) (www):
> Mark Field: Ok, On Lawn, you get partial credit on the merits and an A for effort.

Thanks, I take it where I can get it.

> Mark Feild: However, here was the original claim (my emphasis added):

That would be the claim you started replying to. To which I had just got done replying to as inane to hang your hat on the word "designed" vs evolved. Social design and evolution are almost indistinguishable in pre-historic anthropology. That note, provided by the person who (IIRC) made the claim, was enough to call your attempt to discredit into question.

All I added was that either way, designed or evolved, the point he raised in opposition to the claim that marriage is not about responsible procreation, is unimpaired. Your comment is fallacious on the face of it.

In short, don't mix comments. The definition I provided was in reply to your use of Blackstone in this discussion. The "origional claim" comment about design and evolution got its own comment to refute it.

And your appeal to Blackstone, like your other attempts, do not run away from marriage as a purpose of responsible procreation. It runs right into it. For something you are trying to discredit, you sure seem to be running into it an awful lot.

> lucia: Marriage between any two consenting adults promote theis domestic felicity.

So would a status like Reciprocal Beneficiaries, or a simply contract. There is no need to take away from marriage in order to assist their conditions.

> lucia: By permitting them to better pool time and resources, it helps them secure the maintenance and education of their children.

ibid.

In addition, to alter marriage for the sake of homosexuality only helps out a tiny fraction of households where children are raised by marriageable combinations.
10.27.2006 3:00pm
Duffy Pratt (mail):
I thought the primary purpose of marriage was to shore up political alliances, and to increase the wealth of the family. That's mostly what I read about in my history books.
10.27.2006 5:13pm
lucia (mail) (www):
In Casti Connubii, Pope Pius XI said this:

24. This mutual molding of husband and wife, this determined effort to perfect each other, can in a very real sense, as the Roman Catechism teaches, be said to be the chief reason and purpose of matrimony, provided matrimony be looked at not in the restricted sense as instituted for the proper conception and education of the child, but more widely as the blending of life as a whole and the mutual interchange and sharing thereof.


I don't know how others read this, but when I was in school, the nun's really emphasized that "mutual molding" bit, and seemed to take pains to emphasize that one was not to view it in the restricted sense of getting pregnant and having kids etc.

Of course, this was written in the '30s, so I guess that would make it a modern view, right?
10.27.2006 5:32pm
Hans Gruber:
"Well, why does the state provide that service for, say, a childless man and woman when they get divorced?"

Because raising children is a partnership which often involves one parent providing more economic support and one parent providing more caretaking. Equal division of assets prevents the caretaker from being used and discarded without compensation for their economic sacrifice. Moreover, given the tendency of the primary caretaker to receive primary custody, it ensures a healthier economic footing for the home the child continues to live with most of the time.

One could describe a childless marriage as a "partnership," but it's hardly one the state should be much concerned about equitable distribution of assets, especially when the marriage consists of equal gender spouses. Of course the state has an interest in peaceably settling property disputes, but the remedy needn't involve marriage.
10.27.2006 5:49pm
Shawn-non-anonymous:
Andrew Hyman:


"It's an undisputed assumption that marriage is important to the welfare of children."


I dispute this. (okay... that's snarky. I couldn't resist.)

I would agree that it is a scientifically supported theory that a two-parent household is important to the welfare of children. I would also agree, though you certainly aren't making this argument, that it is a scientifically supported theory that the gender makeup of the two parents has no bearing on the quality of care.

Your other arguments, which I do not address here, are interesting and I find some merit in them. Even though I agree with the outcome in NJ, I am disappointed in how it was reached. My point is simply that the child argument is problematic if your goal is to persuade.

I'm going to out myself here (as I have before) so you might give more weight to what I'm about to say:

The spectre of the homosexual male as a child predator is very much alive and well. It is common to see the homosexual=pedophile meme running beneath much of the recent Foley scandal. A few conservatives even stated it openly. Whenever there is controversy surrounding sexuality, especially homosexuality, people immediately hold up their children like some sort of shield. This in spite of a significant amount of evidence that homosexuals are no more or less likely to be pedophiles than their hetero counterparts. It is an undeserved stereotype that is a convenient substitute for rational discussion.

That said, if there is some peer reviewed, supported evidence for heterosexual superiority in the raising of children, please reference it for us so we might all learn. Otherwise, constantly pointing to children as a reason without any supporting evidence causes some people to wince as it evokes the homosexual=pedophile stereotype. (Maybe unintentionally... but there it is just the same.)

Luckily for children in our society, they are not raised in a vacuum and are able to see heterosexual role models everywhere. I would have had a much happier childhood if homosexual role models were out there too.
10.27.2006 5:52pm
Shawn-non-anonymous:
One other thing to consider in the procreation argument:

First cousins can marry in a few US states. The law requires that they prove sterility prior to marriage. So here we have a case where the marriage is specifically designed to prevent procreation.

If procreation were that fundamental to the concept of marriage these laws would not exist.
10.27.2006 5:56pm
Hans Gruber:
Opps, sorry about that. I answered the inverse of your question.

Why does the state provide for equitable distribution of assets for couples without children? Well, as my comments suggest, that makes much less sense than it does for couples with children. Do you disagree? Further, I think you'll find divorce settlements are often highly dependent on the presence and number of children and who gets primary custody of them (is that not often true?). To the extent that applying the rules to childless couples makes sense, I think it has something to do with simplicity and something to do with the historical inequality between male and female roles and the disparity of economic power. No such structural disparity exists in SSM.

Another interesting effect of this policy is that it probably makes people less likely to get divorced. It's often the partner with more economic power that is the initiator of divorce (he/she has more options) and stands to lose less from the dissolution of the marriage. Penalizing the more affluent partner, then, by dividing property and requiring child support/alimony is one way to encourage couples to work out their differences. Of course the less affluent partner could be said to gain from this arrangement, offsetting the decrease in the divorce rate. I still think the tendency is one which reduces, on the whole, the divorce rate.
10.27.2006 6:05pm
Hans Gruber:
Shawn,

I have never heard of such a law, could you provide a link? Still, I'm not so sure how the action of one state's legislators proves that the nation's regulation of marriage has absolutely nothing to do with procreation or the rearing of children.

The proper question is: Would regulation of marriage even exist if it weren't for the state's interest in the rearing of children within marriage? I think the answer is no. The fact that legislators didn't require marriages to produce children to receive benefits doesn't mean all that much considering children are the natural product of heterosexual unions.
10.27.2006 6:12pm
On Lawn (mail) (www):
> Shawn-non-anonymous: I would agree that it is a scientifically supported theory that a two-parent household is important to the welfare of children.

Its a theory, and a very plausible one. But not very well scientifically supported. For what I've read and scene, for instance, step parent families tend to function as well as a single parent.

> Shawn-non-anonymous: I would also agree, though you certainly aren't making this argument, that it is a scientifically supported theory that the gender makeup of the two parents has no bearing on the quality of care.

Actually, there isn't much scientific evidence of that at all. There are studies that show that same-sex couples are capable of raising children as well, but no study that finds on average that is what happens in those arrangements.

And even then, as being equated to step-parents their bar is only to be as good as a single-parent. An in-tact family is shown time and time again as the best place to raise a child.
10.27.2006 8:52pm
Duffy Pratt (mail):

An in-tact family is shown time and time again as the best place to raise a child.


Where? What studies are you citing?
10.27.2006 10:37pm
Chumund:
On a general point:

From my knowledge of the history of family law, I think it is fair to say that a concern for children has usually been reflected in some aspects of marital law. It is probably also the case that most societies have assumed marriage is good for children, although I do not have a comprehensive knowledge of that subject. But in any event, the important point is just that the specific claim that providing a beneficial environment for children is THE primary purpose of the state's involvement in marriage is not well-supported, in that regulating the rights and duties of the spouses has usually been at least ONE of the primary purposes, and indeed at least some throughout history have argued that this purpose of marriage is in fact THE primary purpose.

Hans,

I'm not sure I understand what you are arguing. As an aside, I should note that phrases like "equity" and "equitable" are legal terms of art, and refer to the sorts of matters typically dealt with by "courts of equity" rather than "courts of common law" (in the federal system, district courts play both roles). Indeed, in addition to divorces and other family law matters, courts of equity typically deal with wills and probate, trusts, partnerships, and corportations. In fact, the extremely important Delaware Court of Chancery, which deals with corporations, is a court of equity.

So, there are many sorts of property disputes dealt with in an "equitable" fashion, meaning by courts of equity. And again, I just don't see why gender is particularly relevant to dealing with marital property during a divorce, any more than it would be in dealing with, say, corporate property during its dissolution.
10.28.2006 2:08pm
Chumund:
I wanted to note, by the way, that the state does not need an interest in creating gay marriages in order to have an interest in providing laws regulating gay marriages. In other words, if private gay marriages already exist--as in fact they do--then the state can acquire an interest in providing things like divorce laws for gay marriages.
10.28.2006 2:22pm
lucia (mail) (www):
The proper question is: Would regulation of marriage even exist if it weren't for the state's interest in the rearing of children within marriage?


The answer is clearly yes. Couples have a strong habit of doing things like moving in together, intertwining their finances,and working together toward some goal like gaining property, house ownership, or like caring for each other in their old age.

This is just something that happens, and the law isn't likely to change it.

Because couples do this so frequently, and they are unlikely to stop, the state has an interest in making it difficult for either party to suddenly glom on to all the assets, abandon the other and dump an impoverished, possibly elderly and now helpless individual on the streets or the public coffers.

As a taxpayer, I don't particularly want to pay taxes to support that individual -- I'd prefer the state to set up something called "marriage" with an appropriate set of rights and responsibilities.

That way, they as a couple increase their ability to take care of each other if things go well; they still safegard their ability to protect themselves should things go sour and most importantly, I, as a taxpayer, minimize my risk of having to take care of them should things go sour.
10.28.2006 3:07pm
Chairm (mail):
lucia, spousal support is not the basis for state recognition of the social institution of marriage. You are trying to reposition marriage away from its core to some secondary or tertiary aspects.

If not for the societal interest in responsible procreation combined with sex integration, there would be no basis for an elevated status at law for marriage.

Protection of co-residents and of unwed associates is a different thing as can be seen in various nonmarital alternatives that are subject to varying provisions in the law either enacted by courts or by statute-making legislators.
10.28.2006 3:23pm
Chumund:
Chairm,

I think the various state laws regulating things like cohabitation agreements and domestic partnerships show exactly why gay marriages would be--and indeed are--subject to regulation by the state.

So, it seems obvious to me that one can't rationally argue that marriages would have NO status in the law without some relation to procreation. Whether it would be the exact same status is a different question, of course, and essentially that is the core of the dispute--not whether gay marriages should have NO legal status, but rather whether they should have the SAME legal status.
10.28.2006 3:42pm
Chumund:
In fact, of course the laws applicable to straight marriages often depend in part on whether and how children are involved. To refine the question even further, then, the question is whether gay marriages should have the same legal status as straight marriages when the child situation is the same (e.g., if there are no children involved, or if the couple is raising a child, or so on).
10.28.2006 4:10pm
Chairm (mail):
Chummund, my point still stands. If you put responsible procreation on the sidelines, the recognition of marriage resembles the other alternatives. Moving from the core of marriage to the peripherary diminishes the need for state recognition.

Contract law between two adults is hardly the basis for the preferential status of marriage.
10.28.2006 5:00pm
lucia (mail) (www):

Chairm wrote>lucia, spousal support is not the basis for state recognition of the social institution of marriage.


Says who?

The state basis for recognition is what is being debated. You need to support your contention for whatever you think is the preferred basis for state recognition of marriage rather than simply saying "The basis is 'X' over and over."
10.28.2006 6:07pm
Chumund:
Chairm,

As an aside, contract law is probably the wrong area of the law to consider. Marriages are on the list of relationships where many legal rights and duties arise as a matter of equity and statute, not contract. Other such relationships include partnerships, agencies, trusts, doctor-patient, lawyer-client, and so on. State recognition of gay marriages presumably would work the same way.

Anyway, I'm not sure what you mean by the "preferential status of marriage". Straight marriages are indeed on the long list of relationships with this sort of legal status, but they are not the only sort of relationship on this list. So, the issue doesn't seem to be one of preference.

Indeed, I think it is quite obvious that the state provides this legal status to many straight marriages which society at large might not like. But that does not appear to be an issue with straight marriages.
10.28.2006 6:07pm
On Lawn (mail) (www):
> Lucia: The state basis for recognition is what is being debated.

The future state basis, but not the current basis except in some people's minds and offically in one state. The current basis is as Chairm says, as is referenced by even Goodridge (which actively acknowledged the basis of marriage for responsible procreation and promptly moved it.)

But you could make the argument that the government is supposed to regulate romance. That we need the government in our bedrooms to make sure everything is going right, and we need the government to moderate those oh-so-painful breakups. And I suppose that is the argument you are making.

It seems rather the wishful dreams of a hormone struck highschooler, and might have much to do with why teenagers and young adults favor neutering marriage.

> Chumund: Anyway, I'm not sure what you mean by the "preferential status of marriage".

I see you are appealing to your own confusion again as having weight in an argument. The question was already replied to in another by myself, and I have yet to hear your feedback on that explanation.

I'm not sure what relationships you equate with the marital status, or even consider interchangable. But if there are then perhaps all same-sex couples would be happy with them instead of the vocal few who demanding marriage and nothing else.
10.29.2006 1:20am
lucia (mail) (www):
Chumund,
I think you are correct about the contract law issue. (That said, I'm not a lawyer -- so I can be fuzzy on the terminology.) I do think civil marriage recognizes marital status precisely to take many issues out of the realm of contract law. It is simply not in the state -- or tax payer-- interest to let certain things be a matter of contract law.

On one of your other points: I also don't understand Chairm means by the "preferential status of marriage"-- for that reason, I obviously can't address that other than to say "preferred to what?". For the record, I also have no clue what Chairm means when he introduced the concept of "sex integration" as being some sort of state interest or motive in marriage. (See 2:23 pm comment.)
10.29.2006 1:59am
lucia (mail) (www):
The civil and social purpose of marriage as constituted in the past and present is being debated here in comments. Simple declarative claims need to be supported with some evidence.

There is plenty of evidence the primary civil and social purpose is not currently procreation and that -- if procreation ever was the primary purpose -- that time has long past.

In 1930, Pope Pius XI said the primary purpose of marriage is not procreation, an 1800's version of Webster's dictionary did not mention procreation, and Goodridge, says the state interest in regulating marriage is not based on procreation.

The judge in the Superior Court endorsed the first rationale, holding that "the state's interest in regulating marriage is based on the traditional concept that marriage's primary purpose is procreation." This is incorrect.
10.29.2006 1:31am
Hans Gruber:
Chairm,

I'm aware of the term of art, but I read your post to be using the colloquial meaning. Still, the difference remains. Why should the state have special rules for distributing property for childless couples? I agree that the state has an interest in peaceably resolving property disputes, no matter who they are between. But why should the rules be different than the rules that it would apply to, say, two friends who live together for 20 years and have joint property? I suppose the most powerful argument is one for efficiency, rather than taking each case by itself, a more formulaic approach is applied. But doesn't the common law itself provide enough guidance and predictability?

I don't think there is much of a case to be made in the absence of children (gay or straight), which is one of the many reasons that I firmly believe the state's involvement in marriage has a lot (not a little) to do with the children that heterosexual marriages naturally and usually produce.

To clarify my point about gender: To the extent I think it makes sense, I think it makes sense from the historical perspective of female economic inequality, helping to ensure women wouldn't be easily discarded, by placing a price on the individual with more economic power. Like it or not, marriage was the route to economic stability for women for a long, long time. Men could live comfortably single but women, unfortunately, often could not. The state's involvement in division of property, I think, acts to remedy this asymetry.

Alimony, child support, division of assets not based on (or not entirely based upon) one's contribution to their aquisition, all favored women and not men. I see them as protections rooted in gender differences (historically pronounced but continuing to this day).
10.29.2006 1:56am
Hans Gruber:
BTW, My last post should be directed to Chumund and not "Chairm."
10.29.2006 1:05am
Chumund:
Hans,

You ask, "Why should the state have special rules for distributing property for childless couples?"

Just as an aside, I'm again not sure what "special" means here. The state needs some rules for this situation because it frequently arises. They are only "special" insofar as they are going to be tailored to this kind of situation rather than some other.

Along those lines, you also ask, "But why should the rules be different than the rules that it would apply to, say, two friends who live together for 20 years and have joint property?" The simple answer would be that this appears to be a different situation--you don't, for example, have the covenant at the beginning of this friendship which marks a marriage, and obviously entering such a covenant is highly relevant to the expectations of the couple and hence the appropriate rules for division of property when the couple divorces.

Note, by the way, that this is an exceptionally rare hypothetical (mere friends do not typically live together 20 years and acquire a bunch of joint property), in contrast to marriage, which is pretty common. In fact, I'd suggest that is because marriage in part is about creating the circumstances in which it makes sense for the couple to live together indefinitely and acquire joint property, which again is why the state needs "special" (or as I would say, "tailored") rules to deal with property disputes at the dissolution of marriages.

The bottomline is this: ultimately, it is mostly society and individuals, not the state, which will determine what sorts of relationships will arise. For whatever reason, marriages, both child-rearing and childless, are common sorts of relationships (although since marriage has been proven to have beneficial effects for most people, this is not so surprising). Accordingly, it makes sense for the state to have marital laws--laws regulating these common sorts of relationships--just as it also has laws to deal with all sorts of other common relationships (again, partnerships, trusts, corporations, doctor-patient, attorney-client, and so on).
10.29.2006 8:43am
On Lawn (mail) (www):
> Lucia: The civil and social purpose of marriage as constituted in the past and present is being debated here in comments. Simple declarative claims need to be supported with some evidence.

I will wait for you to present evidence.

Denials are not evidence. They are simply the path of the ignorant.

>Lucia: In 1930, Pope Pius XI said the primary purpose of marriage is not procreation

Generativity is a social purpose in the heterosexual relationship. In fact, that is why homosexuals use contractual commercial purchases to create these heterosexual unions.

The evidence you seek is the one you keep denying, that marriage as an institution for heterosexuality to establish formations of governance for children that naturally happen in those relationships is its own evidence.

To accept your claim that marriage is a regulation of romance we need to see (at least from your arguments) two things:

1) Mention of love in the law or body of jurisprudence. Especially since you claim a lack of mention constitutes lack of evidence in the matter of procreational responsibility. However, such evidence of proceational responsibility in jurisprudence was already mentioned in this thread, and you ignored it. Which further indicates you are on a path of ignorance, not enlightenment.

2) Explanation of why marriage has always been a heterosexual endeavor, correlating strongly with the procreative combination of sexes. If that was to regulate romance, then that would mean it was a way to repress homosexual relations. However dominant cultures of the past have been entirely open to homosexual relationships, yet marriage remained in its primary purpose.

Lets take two very famous homosexually tolerant historic empires. Two that have probably had more impact on shaping western society than any others. That is Greece and Rome. There continue to be cties that exist in language, that were dealt with above. You, *ahem* simply ignored it. Well no matter, it is rather inconvenient to your claims.

You don't see it, so you hope others don't either. Even in your childish attempt to reference my comments indirectly we see that you are playing a game of ignorance.

Ah, heres another of those indirect references:

> Lucia: an 1800's version of Webster's dictionary did not mention procreation

I brought that to the table, and interestingly enough Elliot Reed and others on your side directly saw the reference of "promoting domestic felicity, and for securing the maintenance and education of children" as a reference to establishing at the fountain of generativity the responsibility for procreation. It is apparently lost on you, which says you out of your fellow marriage neuterists, are the most pervasive in trying to be ignorant. Your replies have been, radically ignorant.

> lucia" Goodridge, says the state interest in regulating marriage is not based on procreation.

Goodridge noted not only the states argument, but the predominant reference to procreative responsibility in the body of law.

A Superior Court judge ruled for the department. In a memorandum of decision and order dated May 7, 2002, ... He concluded that prohibiting same-sex marriage rationally furthers the Legislature's legitimate interest in safeguarding the "primary purpose" of marriage, "procreation." The Legislature may rationally limit marriage to opposite-sex couples, he concluded, because those couples are "theoretically . . . capable of procreation," they do not rely on "inherently more cumbersome" noncoital means of reproduction, and they are more likely than same-sex couples to have children, or more children.


The judges in Goodridge did find that they felt marriage had moved from that purpose, by applying rather selective and peculiar tests to the current law. Rarely is law ever written explicitely to state the purpose, and rarely is the purpose of the law ever determinable by their tests. Lack of enforcement is not a valid way to excuse an argument on a laws purpose.

That is why they look at legislative debates, previous decisions, etc... But Goodridge did neither. Thier analysis was intentionally obtuse and dispositive, and honestly a sham.
10.29.2006 11:08am
Hans Gruber:
"Note, by the way, that this is an exceptionally rare hypothetical (mere friends do not typically live together 20 years and acquire a bunch of joint property), in contrast to marriage, which is pretty common. In fact, I'd suggest that is because marriage in part is about creating the circumstances in which it makes sense for the couple to live together indefinitely and acquire joint property, which again is why the state needs "special" (or as I would say, "tailored") rules to deal with property disputes at the dissolution of marriages."

I don't find much to disagree with here; except I would suggest that the rules have been "tailored" in such a way that it doesn't make much sense for childless same sex couples (or, as I have said, even for childless straight couples).

Let me agree that marriage isn't only about children. But the question isn't about what marriage is or isn't, but what has motivated the state's involvement in marriage. It is clear to me that the over-riding principle behind the state's involvement and regulation of marriage has been to create stability for children. Now, one can even argue for gay marriage because of this fact (gay families need stability too, right?), but is it really in doubt upon serious reflection?

And even we do apply it to gay families, does it make sense to apply it to all gay marriages, when many more are bound to be childless? To assume (or hope) that gay marriage is the perfect analogue of traditional marriage is a mistake. And if they are in some way fundamentally different, doesn't it make sense to treat them differently? Isn't that eminently rational?
10.29.2006 6:25pm
lucia (mail) (www):
Goodridge noted not only the states argument, but the predominant reference to procreative responsibility in the body of law.


The fact that the Supreme Judicial Court's ruling included text describing both State's and the Superior Court's claims and arguments when rejecting them does not constitute any sort of endorsement or acceptance of those claims.

As to the rest of your response to my fairly short comment: I am of the opinion you misinterpret many things I've said and many things others have said.
10.30.2006 12:28am
On Lawn (mail) (www):
> lucia: The fact that the Supreme Judicial Court's ruling included text describing both State's and the Superior Court's claims and arguments when rejecting them does not constitute any sort of endorsement or acceptance of those claims.

Interesting, I'm not sure if you grasped what was said. No one said they accepted the claims. If they did accept the claims, it would have been impossible to rule as Marshall wanted to. So they mearly acknolwedged what was in the jurisprudence (noted strongly in the Superior Court ruling) and moved to the conclusion Marshall promised only months before.

She didn't recuse herself, and she acknowledged what was previously ruled on the matter and why, and moved on to some rather convoluted legal tests of her own design. Tests so unpersuasive that judges in NY, Washington, California and New Jersey rejected them and relied instead on what is the real body of law. The same jurisprudence you are trying to ignore.

> lucia: I am of the opinion you misinterpret many things I've said and many things others have said.

Fair enough, no one is able to be accurate on what people are talking about with impeccable precision. People mis-interpret me all the time, and I do no more or less than what I believe is right to do in that situation -- try to explain myself more clearly.

But even so, why would that keep you from discussing the evidence at hand? The evidence presented is not a high-wire act of interpreting people's comments.

If I may say, the nature of your comment, its timing, and the obtuse manner of your withdrawl looks like a thinly veiled attempt to play a slander card where you should be playing rational argumentation. I hope it is not because you have ran out of rational arguments. If so, it says volumes about your position. And it displays your death-grip on a position inspite of the wealth of evidence against it.

But all this talk of your constantly abandoning the dialog distracts from a more important note, you have not provided evidence one would rationally expect if your thesis on marriage was correct, and you have not refuted the evidence presented that shows how marriage is an institution to promote responsible procreation.
10.30.2006 12:55am
lucia (mail) (www):
On Lawn:
You seem to want me to explain why I won't respond to the arguments you address specifically to me. Let me elaborate.

Sometimes, when I read the points you address specifically to me by name, I have no clue what point you are trying to make or what you are asking me. Other times, I read things you claim people said, scroll back and read what was written and think you have grossly misinterpreted what is posted.

Worse yet, I find it impossible to engage a person in a rational debate when their so-called reasoned arguments consist of statement like this "It is apparently lost on you, which says you out of your fellow marriage neuterists, are the most pervasive in trying to be ignorant. Your replies have been, radically ignorant."

Though the fault of misunderstanding you or formulate responses is likely mine, I find I must bow out.
10.30.2006 2:24am
Chumund:
Hans,

I think a survey of marital laws, from ancient sources like the Code of Hammurabi to the contemporary laws of the United States, indicates clearly that the state's interest in marriage has always been motivated at least in part by the desire to regulate the relationship between the spouses, and not just to provide a beneficial environment for any children the spouses may (or may not) be raising. So, I think the claim that the state has NO interest in regulating marriage when the couple is not raising children simply is not supportable.

That said, I agree with you that it makes sense for marital law to depend in part on whether or not the couple is raising children. And indeed, that is also a consistent aspect of marital law throughout history: different legal rules will apply to certain situations depending on whether or not the couple has children.

But all this, as you point out, is just as true for straight marriages as for gay marriages--already, sometimes different rules apply to straight marriages depending on whether there are children involved. So, I don't see how any of this amounts to an argument for the state not just including gay marriages into a system of marital law which is already designed to take account for whether or not the married couple is raising children.

Finally, certainly none of this amounts to an argument for the state not regulating gay marriages at all. First, obviously sometimes gay couples raise children. Second, even if the state's interest in childless marriages (gay or straight) is different than its interest in child-raising marriages, that is an argument for tailoring marital law (as the state already does), not excluding those marriages entirely.

In short, none of this makes much sense as an argument for completely excluding gay marriages from marital law. At most, it amounts to an argument for treating gay marriages differently depending on whether they are raising children, but in fact that is actually an argument FOR, not AGAINST, treating gay marriages the same way the state already treats straight marriages.

And that remains the big puzzle in all these conversations--we have already dealt with all these child-raising issues within the context of straight marriages. So why treat the child-raising issues within the context of gay marriages any different than the way we have treated them within the context of straight marriages?
10.30.2006 7:20am
On Lawn (mail) (www):
> Lucia: You seem to want me to explain why I won't respond to the arguments you address specifically to me. Let me elaborate.

I'm not sure what gave you that impression. I believe I have a pretty good understanding of why you are abandoning the dialog. I am confident that should you have a point to present you would have.

At first it was you who claimed people were not presenting evidence. And that was false, not only was the evidence presented before you made your charge. And now, not only do you still ignore the evidence, you have created another sladerous charge (and now amplified it). Slander is no excuse for not making an argument.

So in short, I have no need for excuses. I'd much prefer arguments. And a charge of misunderstanding *would* be an argument, if you could explain where and how you think it has impacted this debate. But as vague handwaving it is just another miserable attempt to try to blame someone else for your inability to make an argument. And that adds a dimension of rudeness to radical ignorance.
10.30.2006 10:39am
On Lawn (mail) (www):
Chumund,

In spite of our difference in the past, I have to say your exchange with Hans is very well said. I will ask then, would your argument for regulation of romantic relationships be sufficiently answered with a program of Reciprocal Beneficiaries, as is implemented in Hawaii?

Hawaii was the first state to attempt same-sex marriages, and I believe in many ways they are the most advanced in this debate. And I believe it was an argument such as yours, compounded with others who felt that beyond romance there were practical beneficiary relationships that all could be adequately cared for with their Reciprocal Beneficiary program.
10.30.2006 10:44am
lucia (mail) (www):
Chumund said: >...So, I think the claim that the state has NO interest in regulating marriage when the couple is not raising children simply is not supportable.


I believe you are right. Moreover, I think claiming the state's interest is weak also insupportable. The state has a strong interest in regulating these marriages. As I described earlier in comments , the state's interest in creating something very like "civil marriage" to prevent individuals who enter into marriage like domestic arrangements from falling into poverty and becoming burdens to the states.

Current marriage and divorce statutes currently contain, and have always contained, provisions to protect this specific state interest.

Provisions for spousal maintenance during marriage, and equitable division of marital assets during marriage, death or divorce pre-exist the same sex marriage debate by centuries. The provisions apply to heterosexual couples who cannot procreate and always have. Some provisions cannot be modified by pre-marital contracts.

The states interest in ensuring spousal maintenance is, and has always been, sufficiently strong that, during probate, adult children of remarried spouses cannot set aside any property or inheritance rights of a widow or widower by demonstrating the married couple bore no children and/ or were jointly infertile at the time of marriage.

So it is clear the state interest in regulating marriage like domestic arrangement is now, and has always been, strong even in the absence of joint procreative ability by the couple and in the absence of actual children.

How has the state traditionally protected this interest?

Through the status of civil marriage. (The state has also protected its interest in the support and education of children this way. But that is not relevant to the question we are focusing on right now which is: Does the state have an interest in regulating relations between childless jointly sterile couples who form "marriage like" relationships.)

As to the question of whether the state can protect its interest by permitting two individuals to enter into a contract defining rights and responsibilities: I suggest the answer is no. The state cannot protect its interest unless it inserts itself into the arrangement. Creating the status of marriage does that: it involve the two adults and the state.

The next logical question: Can the state protect its interest by creating more than one type of unified couple status? For example, could it protect its interests by providing:

a)"Procreative marriage" to couples who can can jointly procreate and do so,
b) "Non-procreating marriage" to couples who can't or don't jointly procreate with each other
c)"Married with adopted or foster children" to couples where at least one of the adults acts as caretaker of children who do not share their DNA and
d) "Married with Children" for those who fit both categories (a) and (c)?

Of course the state could do this. I don't believe any of our states have chosen to do so, but other than creating a confusing mess of rules, I don't see why they couldn't.

For the record, I think creating a zillion flavors of civil marriage statuses is idiotic. Still, presumably legislature could create all three statuses, and if they became creative, they could create more.

Instead, in the United States (and most countries) states have chosen to protect their interest-- all of which are important-- by creating "civil marriage" which includes provisions to protect the state's interest when jointly sterile couples marry, when childless couples marry and when jointly fertile couples marry, intend to have children and have bring forth their own genetic children.

The state has always designed this status to protect its interest both when heterosexual couples are procreative and non-procreative. It is true the state barred homosexual couples from this status, but this has not been because civil marriage is "primarily" about children.
10.30.2006 12:33pm
Chumund:
lucia,

Obviously, I mostly agree, but I don't think it is quite right to say that states have not chosen to create more than one kind of marital "status" depending on whether children are involved. Of course, they haven't used different terms and haven't completely separated out the relevant bodies of law. But they have in fact conditioned the scope or effect of various specific legal rules on whether or not children are involved. So, for example, child support obligations arising from a divorce obviously depend on the existence of children to support. Therefore, although we may not be inclined to say that marriages involving children have a different legal "status" than marriages not involving children, it is nonetheless true that marriages are not all subject to precisely the same laws.

I note this only to emphasize again that one need not claim that the state's interest in children is irrelevant to marital law in order to deal with the argument at issue. Again, in my view the better point is simply that the existing marital laws already take the state's interest in any children that may or may not be involved into account, and therefore these contingencies built into marital laws could be simply applied to gay marriages as they come (e.g., applying the appropriate laws based on whether or not children are being raised by the couple).
10.30.2006 1:20pm
lucia (mail) (www):
Chumund> I note this only to emphasize again that one need not claim that the state's interest in children is irrelevant to marital law in order to deal with the argument at issue.

I don't believe anyone has claimed the states interest in children is irrelevant. I don't think that claim is true-- or in any way required to explain why the state's interest in marriage extends to the childless or infertile. These types of couples aren't simply getting a free ride due to some accidental over inclusiveness of laws governing civil marriage. I think the civil laws were specifically crafted to protect the state's interest in childless couples' domestic arrangements.
10.30.2006 2:15pm
lucia (mail) (www):
On Lawn: you have created another sladerous charge (and now amplified it).

Could you tell me what "slanderous charge" I made?
10.30.2006 2:42pm
On Lawn (mail) (www):
> lucia: Could you tell me what "slanderous charge" I made?

While I can appreciate your desire to settle a personal matter, I find it secondary to actually presenting arguments to the subject at hand. The answer is that I would be happy to. You have access to my email address above my comments with which to discuss my distaste for your diversionary tactics, and to provide examples of where I see it.

Many thanks,
10.30.2006 3:50pm
Chumund:
lucia,

Sorry, I didn't mean to suggest that you or anyone else had made such a claim. All I meant to do is combat a false dichotomy--that either the state's regulation of marriage is entirely dependent on the state's interest in the welfare children, or else it is entirely independent of that interest--and I fully realize that you have in fact been fighting that false dichotomy as well.
10.30.2006 3:57pm
lucia (mail) (www):
Chumund--

No apology required Chumund! I didn't think you had suggested or implied I made that claim! I agree that you were combating a false dichotomy. I apologize for my contribution to any confusion.
10.30.2006 4:26pm
On Lawn (mail) (www):
> Chumund: either the state's regulation of marriage is entirely dependent on the state's interest in the welfare children, or else it is entirely independent of that interest

Such an over-reaching and extreme statement will not find many people who accept it.

However, in this case you can't have it both ways. You can't neuter marriage of its reference to procreative potential and expect that responsible procreation is anything but marginalized.

The evidence of how the parental status is marginalized by neutering marriage is seen in the practices of nations and states which have neutered marriage for themselves. And it is seen in the discussion at length here in the advocates of neutered marriage.
10.30.2006 5:08pm
Chairm (mail):
lucia


I think the claim that the state has NO interest in regulating marriage when the couple is not raising children simply is not supportable.


That was not the claim.

This what you objected to:


spousal support is not the basis for state recognition of the social institution of marriage. You are trying to reposition marriage away from its core to some secondary or tertiary aspects.


In reading your more recent comments, I see that you look for the exceptions to make generalizations about the social institution that society, through the state authority, bestows a unique status. There is some merit in that, if one is searching for the outer paremeters, but not if one is to locate the core of the thing.

I also now think that you probably did not mean to say that the basis for marital status is government regulation of dissolution of failed marriages. Or did you?

Chumund


a false dichotomy--that either the state's regulation of marriage is entirely dependent on the state's interest in the welfare children, or else it is entirely independent of that interest


It looks like you set up that false dichotomy to shoot it down.

This is what I think you responded to:


Protection of co-residents and of unwed associates is a different thing as can be seen in various nonmarital alternatives that are subject to varying provisions in the law either enacted by courts or by statute-making legislators.


A well-ordered society is founded on the family and the family is founded on bonding men and women together; this is combined with the principle that each of us is responsible for the children we create. It is a whole.

SSM argumentation depends on the fragmentation of the social institution. The fragmented pieces, some of this and some of that, do not create a new pile of stuff that re-forms the basis of state recognition of the social institution.

The effect of SSM argumentation, as evidence in the comments above, is to replace the marriage idea with something else -- and relocate the center of marriage to the sidelines where the secondary and tertiary aspects substitute for sex integration combined with responsible procreation.

Such an endeavor can be accomplished without touching marriage; create something where the core is the secondary stuff and where responsible procreation is a lower level bit of the new thing.
10.31.2006 12:16am
Hans Gruber:
"So, I think the claim that the state has NO interest in regulating marriage when the couple is not raising children simply is not supportable."

I didn't mean to imply this; it's conceivable that childless marriages provide enough societal benefit that they would be worthy of support and regulation. One could propose having "civil unions" for any two people which would provide some and not all of the benefits of marriage, and the current basket of benefits and responsibilities for couples with children. I don't favor this because I do buy into the argument that having "marriage-lite" options does undermine the institution.

"So, I don't see how any of this amounts to an argument for the state not just including gay marriages into a system of marital law which is already designed to take account for whether or not the married couple is raising children."

Well, I don't think I went into this at all; I was just refuting what I believe to be a poor argument--that because the state does not exclude childless marriages that this means that the state's regulation of marriage has "nothing" to do with marriage.

But, to answer your question, it does follow from my reasoning that it may not be sensible to provide marriage as it exists today to any two people who desire it. As I have said, heterosexual unions naturally produce children. Homosexual unions do not. The state regulation and support of marriage, then, presumed that the vast majority of marriages would, if long-lasting, result in procreation and child rearing. That will probably not be true for gay marriages; where the majority of couples will remain childless (especially gay men). So why does it make sense to apply the same rules to gay couples when they are so obviously different? Why does applying an institution built around the presence of children make sense for a demographic which will largely choose to not have children? It plainly does not make sense.

With respect to those gay couples that do raise children, one may reasonably conclude upon the mixed evidence presently available that that gay marriage isn't the qualitative equivalent of traditional marriage; just as a legislature may reasonably conclude that polygamy is not the qualitative equivalent of monogamy. The state should be allowed to make this sort of policy judgment; the state's reluctance to radically redefine the institution of marriage is, at this time, the prudent course.
10.31.2006 6:06am