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"The Loving analogy is complete":

Jim Chen on New Jersey:

In this instance, the Loving analogy is complete.

I take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.

And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law....

When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.

Mike BUSL07 (mail) (www):
Leaving aside, as Chen does the legal inadequacy of the NJ court's decision, and as a pure policy matter, he is damn right.
10.27.2006 11:55am
Humble Law Student (mail):
And so too is the suggestion that the familial relationship of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law....

When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of incestual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.
10.27.2006 12:01pm
Jake (Guest):
It's a good thing Chen has a direct line to the Almighty, otherwise we might have to make policy decisions for ourselves.
10.27.2006 12:06pm
court watcher:
by "tomorrow," I assume he means some time in the 22nd century.
10.27.2006 12:15pm
Brooklynite (mail) (www):
Chen is right. It's been a long time coming, but I know a change is gonna come.
10.27.2006 12:19pm
anonVCfan:
That's not an argument. I mean, clearly Prof. Chen has some strong feelings about the issue, but so what?
10.27.2006 12:24pm
John T (mail):
But surely the largest part of the reason for the laws rightly struck down in Loving was fear of miscegenation. So once again there is a difference which turns on offspring. The laws struck down in Loving were designed to discourage interracial couples from having children by making it difficult for them to form the sort of bonds necessary to raise a child properly.

One can certainly make the analogy close, by primarily focusing on homosexual couples who wish to adopt children or have them via other methods and raise them. I'm not sure the author is quite doing that here, though.
10.27.2006 12:35pm
PubliusFL:
Just to bring this thread in line with all the other SSM threads, here's a paraphrase of Chen's "argument," which seems to follow the exact same reasoning:

"The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.

And so too is the suggestion that the parentage of the members of a committed brother-sister couple should determine that couple's entitlement to full recognition and protection under the law...."

Chen's implicit argument: The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's sexuality, banning same-sex marriages is also wrong.

Parallel argument: The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's parents or siblings, banning incestuous marriages is also wrong.
10.27.2006 12:46pm
PDXLawyer (mail):
Surely Jim Chen is entitled to his divine revelation just as much as George W. Bush is. We should take Chen's statement seriously (as we should take those of people of good will on the other side) because it reflects a strong judgment, which probably contains some basis of truth at its foundation.

That said, I have a hard time seeing a very strong analogy between sex and race on the issue of discrimination. I think everyone more-or-less agrees that it would be a good thing if we could ignore race altogether in human relations, because in fact it made no difference, like eye color. The problem is not that we differ on the goal - the problem is that we differ on the means to get there.

On the other hand, I can't see how it is desirable to ignore sex altogether in human relations. It's one of the great rewards and drivers of life. Sure it causes problems, but that is mostly because it is so desirable. Even if it were *possible* to construct a society in which sex were irrelevant outside the bedroom my gut instinct is that it would not be a good thing (leaving aside the fact that enforcing a society like this would require tactics that would make the War of Drugs look like a walk in the park).

On a purely legal level, the biggest problem with analogizing race and sex is that race is in the Constitution and sex isn't. Everyone agrees that the purpose of the 14th Amendment was (at a minimum) to prohibit at least some types of government racial discrimination. No amendment analogous to the 14th exists which applies to sex. Such an amendment was proposed (the Equal Rights Amendment) and was the topic of debate several decades ago, but was never ratified. (The 19th Amendment, giving women the vote, has an analogy in the 15th Amendment). I'm not familiar with the New Jersey Constitution, but nothing I've read suggests that it has a state Equal Rights Amendment.

Can anyone tell me why they think the relationship between race and sex is more like the relationship between apples and oranges than the relationship between apples and baseballs (either legally or morally)?
10.27.2006 12:46pm
Andrew Hyman (mail) (www):
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. Paragraph 5 clearly bans discrimination based on race, and so would clearly ban anti-miscengenation laws.

The New Jersey Supreme Court instead 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.

It's an undisputed assumption that marriage is important to the welfare of children. The NJ Supreme Court decision yesterday 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." Legislatures and most individuals have been putting that general rule into practice for thousands of years. Whether they should continue to do so in the future is an interesting policy question. But the New Jersey Supreme Court just forbade the legislature from ever doing so again. And that court did so with barely a word about children.

Rip them apart in the womb, and rip them apart from their biological parents when born. That's the liberty that courts are protecting these days. It's not a pretty sight.
10.27.2006 12:48pm
Brooklynite (mail) (www):
The laws struck down in Loving were designed to discourage interracial couples from having children by making it difficult for them to form the sort of bonds necessary to raise a child properly.

I don't know where you get this.

Even a cursory reading of the history of the Jim Crow south makes it clear that public interracial socializing of any kind was regarded with deep hostility --- and in many instances criminalized. When such demonstrations of familiarity crossed gender lines as well, the response was overwhelmingly negative, and often brutal. (Miscegenation between white men and black women, on the other hand, was often tolerated.)
10.27.2006 12:51pm
therut:
Funny he speaks for God. Wonder which god? I know of one God who does not approve. He must know of one who does. I would like to know his gods name and how he knows his gods teachings. Where is the knowledge of his god kept or is it just his own muttering? Does he understand how he sounds just like a Falwell or Robertson saying his god is going to judge us unless we accept his gods teaching of the moral rightness of SSM? Really this is too cute.
10.27.2006 1:00pm
Elliot Reed:
It's an undisputed assumption that marriage is important to the welfare of children. The NJ Supreme Court decision yesterday virtually ignored the impacts on children, merely because the current executive branch officials in NJ chose to do so.
That's not true. The court did discuss the impact on children in a number of places. For example:
Significantly, the economic and financial inequities that are borne by same-sex domestic partners are borne by their children too. With fewer financial benefits and protections available, those children are disadvantaged in a way that children in married households are not. Children have the same universal needs and wants, whether they are raised in a same-sex or opposite-sex family, yet under the current system they are treated differently.
Lewis at 47.
Rip them apart in the womb, and rip them apart from their biological parents when born. That's the liberty that courts are protecting these days. It's not a pretty sight.
Are you seriously arguing that the court should have ruled against gay marriage on the grounds that sperm donation and surrogate motherhood are bad public policy? Talk about judges writing their policy preferences into the law! Not only are those different issues from gay marriage, but they're legal in New Jersey, and straight married couples take advantage of them.
10.27.2006 1:02pm
Brooklynite (mail) (www):
All of these "what about incest?" posts would be a lot more compelling if Chen had actually argued that all propositions of the form "the [blank] of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law" are of equivalent merit.

But of course he made no such argument.
10.27.2006 1:02pm
PubliusFL:
I obviously skimmed Humble Law Student's comment too quickly before I posted mine. Mea culpa. But perhaps I should point out more explicitly what appears to me to be the error in Chen's reasoning. He is begging the question by skipping over an unspoken premise. Here is how I summarized his argument:

The fact that you can't choose or control your race or ethnicity means that banning interracial marriages is wrong. Therefore, if we assume that one also cannot choose or control one's sexuality, banning same-sex marriages is also wrong.

Presumably, what he's really saying is this:

Premise 1: One's race is beyond one's control.

Premise 2: Race is irrelevant to the nature or purpose of marriage.

Premise 3: It is unjust to deny access to marriage based on a factor irrelevant to the nature or purpose of marriage (at least or especially) when that factor is beyond one's control.

Conclusion: Racial restrictions on marriage are unjust.

Once all of the premises are on the table, we can see how the analogy is imperfect. Is sexuality really irrelevant to the nature or purpose of marriage in the same way that race is?
10.27.2006 1:08pm
Brooklynite (mail) (www):
Publius et al,

Chen isn't making an argument in this piece. He's stating his position on a number of issues, and he's offering some observations and predictions, but he's not making an argument, any more than I am in the blogpost I linked above.

If you'd like an argument, though, I'm happy to give you one:

Yes. Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is.
10.27.2006 1:14pm
Elliot Reed:
Rip them apart in the womb, and rip them apart from their biological parents when born. That's the liberty that courts are protecting these days. It's not a pretty sight.
Or, now that I think of it, perhaps you mean that the court should have ruled against gay marriage on the grounds that adoption is bad public policy? Nothing like good old-fashioned family values. . .
10.27.2006 1:15pm
PubliusFL:
Brooklynite: "Chen isn't making an argument in this piece"

He says that "the Loving analogy is complete." Maybe your dictionary is different from mine, but mine says that an analogy is an "inference that if two or more things agree with one another in some respects they will probably agree in others." Sounds like an argument to me, even if he's not laying out a formal syllogism. He is reasoning from the similarity of interracial marriage and same-sex marriage in one respect to draw a conclusion.

You seem a little confused about the meaning of "argument" as well as about the meaning of "analogy." "Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is" is not an argument, it's an assertion.
10.27.2006 1:23pm
josh:
Andrew Hyman:

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

Aside from the unfortunate turn of phrase (what's an "undisputed assumption"), this is also factually wrong. I've commented several times on this blog on this subject about the thousands of children in foster care in Illinois as a result of abuse and neglect suffered primarily from so-called "traditional" families. The NJ court ignored the "impact" on children b/c there is no factual evidence that there is any negative impact on children from SSM -- most certainly no more evidence of a negative impact on children than there is from hetero families. This is but one of the rather offensive lies being told to further the discrimination.

As to the incest comparisons, I agree with Brooklynite that Chen didn't make the blanket argument. But that recognition let's the improper argument get away with too much. The easy ditinction between SSM marriage and interracial marriage in Loving, versus incest, is the progeny of incest runs a great risk of genetic deformity. [hate to site Wkpedia, but no time for in-depth research: see http://en.wikipedia.org/wiki/Inbreeding]

We could return to Andrew Hyman's factually inaccurate claim of a negative impact on children from SSM, but, again, there's no valid evidence of that.
10.27.2006 1:25pm
Kevin Murphy:
The Loving analogy fails because the political situations are very different.

If Loving had been handed down at the same stage in the debate (say, 1937), when laws preventing interracial marriage were common and well-supported, I suspect we'd still be arguing about the subject today. Instead, it was handed down well after the issue was largely decided, affecting only stragglers, and today interracial marriage barely merits mention.

Like Roe, these decisions are premature (if not more so), and, like Roe, are likely to result in ongoing controversy. Just wait for the next SC nomination battle, especially if the Dems are running the committee.
10.27.2006 1:26pm
Daniel Chapman (mail):
Lots of people disagree with you, brooklynite. Why should your beliefs trump others'?

In other words, that ain't an argument either.
10.27.2006 1:30pm
Elliot Reed:
Kevin, are you seriously trying to argue that if Brown v. Board had been brought in 1924 rather than 1954 the court should have upheld segregation because overturning it would have been too controversial?
10.27.2006 1:32pm
Brooklynite (mail) (www):
You're right, Publius, that I offered an assertion rather than a full-blown argument. I was more inviting an argument than engaging in one. You want the argument behind the assertion? Here goes...

Marriage has over time been a wildly variable institution. It has taken a huge variety of forms in different times and places. There is no such thing as a transhistorical definition of marriage, and the "nature" of marriage is a protean and changeable thing.

As far as the "purpose" of marriage goes, the only way in which gender is directly relevant there is procreative. But the ability of two people to procreate without outside assistance has never, to my knowledge, been either a necessary nor a sufficient prerequisite for the recognition of a marriage.

Couples who could not procreate have been allowed to marry throughout history, and couples who could procreate have, for various reasons, been prohibited from doing so. In the industrialized world today, the relationship between marriage and procreation is particularly attenuated.

In what way is gender relevant to the nature and purpose of marriage, to your mind?
10.27.2006 1:39pm
PubliusFL:
josh: "As to the incest comparisons, I agree with Brooklynite that Chen didn't make the blanket argument. But that recognition let's the improper argument get away with too much. The easy distinction between SSM marriage and interracial marriage in Loving, versus incest, is the progeny of incest runs a great risk of genetic deformity. [hate to site Wkpedia, but no time for in-depth research: see http://en.wikipedia.org/wiki/Inbreeding]"

Why should that make a difference if, as Brooklynite contends, sexuality is irrelevant to the nature and purpose of marriage just as race is? Sexuality is certainly not irrelevant to reproduction.
10.27.2006 1:39pm
Andrew Hyman (mail) (www):
Elliot Reed, you’re correct that the court did discuss the negative impact upon children of gay marriage NOT HAVING equal status. However, the court completely ignored any possible negative impact of gay marriage HAVING equal status. There was no balancing at all, just willful blindness ("We will not rely on policy justifications disavowed by the state").

You say that "sperm donation" and "surrogate motherhood" are "legal in New Jersey, and straight married couples take advantage of them." You miss the point. They’re legal in New Jersey by statute, not by judicial edict.

Josh, you say I was "lying" when I said: "It's an undisputed assumption that marriage is important to the welfare of children." My sentence didn’t distinguish between gay marriage and straight marriage.
10.27.2006 1:43pm
Elliot Reed:
josh, the "genetic deformity" argument, as popular as it is, actually doesn't work. The marginal risk of genetic problems from one generation of inbreeding is miniscule. Problems only show up after you have generations of it, like the royal families of Europe did after centuries of first cousin marriages. However, I think there are several reasons the incest analogy breaks down.

First, there are no incestusexuals, that is, people who are only attracted to close relatives. A ban on incestuous marriages only keeps people from marrying their first choice of partner rather than their second choice, so we're talking about a small burden on an extremely small number of people.

Second, permitting incest would have weird and unknown impacts on family dynamics. Families are already subject to all kinds of problems; adding parents hitting on their children to the mix could introduce severe psychological burdens on some people and rip apart families that would otherwise have stayed together. In other words, we're talking about a potentially large burden (again, on a small number of people).

So what we're talking about is imposing a small burden (having to marry your second-choice rather than first-choice partner) on a small number of people (the people who have a close family member they want to marry and who wants to marry them) to prevent a potentially large burden (weird changes on family dynamics; people abusing internal family power dynamics to coerce sex from family members) on a small number of people. This seems like a socially beneficial trade to me.
10.27.2006 1:47pm
Oren (mail):
ER: As a tactical matter, pushing for rights that the majority are unwilling to accept may backfire in the long run. It's not guaranteed and of course, many people take their moral cues from the law so delaying legal recognition might also slow you down.

I fully support gay marriage* but I am forced to admit that it will be a while before the deep-seated religious opposition to homosexuality will allow it. As such, I was in favor of DOMA and other such laws aimed at reassuring the middle of the country that no federal judge would force them (through the full faith and credit clause) to accept a gay marriage if they didn't want to.

Depriving the right of that wedge issue is worth the cost (although I am aware that, as a hetero, many will say that their rights are not a bargaining chip for me to play with, as such -- such is politics).






*Footnote: Actually, I support a system whereby the government give out only civil unions thus depriving conservatives of their nominal arguments about the meaning of the word "marriage". If you want to get married, that's got nothing to do with the government. It's between you and your priest/rabbi/immam (and the big guy, of course). This is just a small quibble tho.*
10.27.2006 1:49pm
David Chesler (mail) (www):
The easy ditinction between SSM marriage and interracial marriage in Loving, versus incest, is the progeny of incest runs a great risk of genetic deformity. [hate to site Wkpedia, but no time for in-depth research: see http://en.wikipedia.org/wiki/Inbreeding]

I didn't see that "great risk" there.

Either you're a carrier or you're not. Same for your mate. If we're going to practice eugenics, it would make more sense to ban marriages between carriers of undesired traits than to outright ban sibling marriages.

Otherwise the arguments against incestuous marriage tend to fall in line with most of the arguments against homosexual relations: It's icky, so therefore I'll find a noble justification for why it ought to be forbidden. (Or more simply and more honestly, "It's icky.")

There is a line of reasoning that boundaries are more likely to be crossed if we generally excrete where we eat, if we look at our family members, with whom we're in intimate (as in close) contact often, as potential sexual partners (especially as potential future sexual partners), and it does keep things simpler. As to whether this means that after-the-fact incestuous relationships should be forbidden, see Sasha's post about the Hangman's Paradox.
10.27.2006 1:49pm
Mark Field (mail):

On a purely legal level, the biggest problem with analogizing race and sex is that race is in the Constitution and sex isn't.


Perhaps you could point me to the passage in the 14A which mentions race.


Everyone agrees that the purpose of the 14th Amendment was (at a minimum) to prohibit at least some types of government racial discrimination. No amendment analogous to the 14th exists which applies to sex.


There is no "analogous" amendment because there's no need for one. The 14A expressly says that "No state shall...deny to any person the equal protection of the laws."
10.27.2006 1:53pm
Elliot Reed:
Andrew, the fact that sperm donation, surrogate motherhood, and adoption are permitted by statute is central to the argument. You contend that the court should have found no discrimination because banning gay marriage bears a substantial relation to an important public policy (ensuring that children are raised by their biological parents; same-sex couples are bad parents). However, the statute can't have such a relation because New Jersey obviously has no such policy. The state's representatives disavowed such a policy; New Jersey permits sperm donation, surrogate motherhood, and adoption, all of which involve children being removed from at least one of their biological parents; New Jersey allows gay couples to adopt. So how would it make sense for the court to rely on a public policy that New Jersey manifestly doesn't have?
10.27.2006 1:55pm
David Chesler (mail) (www):
there are no incestusexuals

Are there cross-race-osexuals? (I can think of a racially disparaging term for such, but does Elliot's reasoning apply if you can't marry your first n choices, until you get to member of your own race whom you wouldn't kick out of bed?)

Actually, I support a system whereby the government give out only civil unions

Hear, hear! (Except for the later tax benefits, and my partner's insistence, and the fact that it's illegal for clergy to perform non-civil marriages, I wouldn't have applied for that license to have sex.)
10.27.2006 1:55pm
godfodder (mail):
As much as I respect Mr. Chen's strong emotions, I don't believe that society's definition marriage needs to take "intense emotions" into account. In a fundamental sense, strong emotions are not the basis for the institution of marriage.

We are drifting closer to a situation where "marriage" means "whatever I say it means," as long as my emotions are pure and strong enough. If that becomes the standard many high school sweethearts would be "more" married than couples married 30 years.
10.27.2006 1:59pm
Elliot Reed:
David, are you trying to argue that Loving v. Virginia mandates overturning incest restrictions? But seriously, you've missed the point of the argument. The point of there being no incestusexuals is that we're banning people from marrying a miniscule number of individuals: their close relatives. So the burden on them is very small, and since you need two to tango the number of people who will want to do this and have a willing partner is going to be miniscule. And there's a potentially large burden on an (also small) number of people in terms of the impact on family dynamics.

Conversely, in the multi-race case, the burden is larger (because you're being blocked from marrying more people) and the social benefit is smaller (i.e., zero) becuase preventing racial mixing doesn't serve any legitimate public purpose.
10.27.2006 2:05pm
Daniel Chapman (mail):
"it's illegal for clergy to perform non-civil marriages"

Got a citation for that? I was under the impression that it wasn't.
10.27.2006 2:06pm
Brooklynite (mail) (www):
We are drifting closer to a situation where "marriage" means "whatever I say it means," as long as my emotions are pure and strong enough.

No, we're not. We're re-examining our laws as society evolves. Just like we've always done.

The arguments presented in support of same-sex marriage are different from the arguments (mostly hypothetically) presented in support of incestuous marriage. The only people of any prominence arguing that one will lead to another are people who oppose both.

If y'all really fear incestuous marriage --- if the slippery slope is really your concern --- why not oppose a federal constitutional amendment banning that?

Really. Why not?
10.27.2006 2:19pm
Daniel Chapman (mail):
Because there's not a dedicated movement to use the courts to impose it on us?

Seriously... you should be careful using words like "we" and "society" when you talk about "reevaluating our laws." Most people aren't. Not by choice anyway.
10.27.2006 2:25pm
Andrew Hyman (mail) (www):
Elliot, first of all, I am not contending that "a substantial relation to an important public policy" is the appropriate test here. I believe other courts have applied the rational basis test. In any event, I already explained above why I strongly suspect the New Jersey Supreme Court was not even looking at the right clause of their own state constitution.

The equal protection provision of the New Jersey Constitution is in Article I, Paragraph 5 of the New Jersey Constition, not in Paragraph 1. Paragraph 5 clearly lists the forbidden types of discrimination. In stark contrast, the word "equally" was struck out of Paragraph 1 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.

Moreover, I think it's more pertinent to ask what the New Jersey public policy was when the current marriage laws were enacted, than what the current executive branch feels about those laws now. Many states have different laws that reflect public policies that are somewhat at odds with each other.

Additionally, it's true that New Jersey law allows adoption, sperm donation, surrogate motherhood (none of which I am taking a policy position about here). At the same time, New Jersey has disincentives for adoption, sperm donation, and surrogate motherhood, and a primary disincentive is the non-recognition of gay marriage. The policy has been to allow these things but to disincentivize them. New Jersey manifestly does have this policy of disincentives, or did until yesterday.

Additionally, I would like to add that I am very leery of court orders that order legislatures to legislate. I
m not aware that the US Supreme Court has ever done any such thing. Either a statute is unconstitutional or it isn't. If the court can't stand by its convictions and take the heat, then it ought not to resort to bogus procedures like getting a legislature to do the court's heavy lifting.
10.27.2006 2:26pm
Roach (mail) (www):
I remember an old episode of Sesame Street where a guy tried to marry his shoe; I find it singularly offensive that only living people and human beings can marry one another.

What a stupid analogy. And, frankly, there are worse things than banning inter-racial marriage like, for example, tripling the black on black crime since the 1960s with judicial activism, a burgeoning welfare state, and hair-brained sexual "revolutions" that led to an explosion of black illegitimacy.
10.27.2006 2:27pm
guest (mail):
Sexuality does not equal race. Arguments to the contrary are unpersuasive. Same-sex marriage proponents would be far better served by resting their arguments on libertarian rather than equal protection grounds. No one likes to be brow-beated with inapt comparisons to Loving or Brown (implication = if you oppose same-sex marriage, you are a racist; offensive and untrue).
10.27.2006 2:34pm
Brooklynite (mail) (www):
But Daniel, if you really fear the slippery slope, wouldn't now be the time to act? Once the courts are imposing incestuous marriage on the nation, and polls show 30 or 40 percent of the nation's population supporting their efforts, it may well be too late.

And I used "we" in the same sense that the poster I was quoting did. We are re-examining our laws. The passage of civil union statutes is part of that process. The agitation for marriage rights in legislatures is part of that process. And organizing in opposition to same-sex marriage is part of that process, too.
10.27.2006 2:35pm
KMAJ (mail):
What everyone is arguing is social engineering, at its best or worst, depending on your position. Attempting to achieve through the courts what cannot be achieved through the electoral or legislative process. Is that really the role envisioned for the judicial branch by the Founding Fathers ? Is imposition of a morality judgement by judicial fiat a sign of a free society or are we tiptoeing down a path that allows government to dictate what is best for the 'common good' of society ? When government engages in attempting to impose a certain morality that is in direct conflict with the majoritarian views of a society, freedom is the loser. It leads to the ultimate question, which is the more precious commodity, freedom or equality ? Some like to pretend they are synonymous, reality is that they are anathema to each other. Equality is the foundational tenet of socialism, Marxism and communism. Equality requires a dictatorial or authoritarian government to impose rules and regulations necessary to prevent some from rising too far above and others from sinking too far below the 'equal plain', whether it be economically or socially. In this particular argument, it is in the social realm.

The siren song of 'equality doctrine' and its proposed nirvana, throughout modern history, has led to the worst abuses of power and crimes against humanity. It tears away the fabric of a free society to create a uni-global philosophy of only one world and one society that all people, regardless of nationality, race, faith or creed, must subvert to.

SSM, incest, polygamy, etc., are not really legal questions, but societal questions that are part of the mores and folkways of any society. Thus, the question is, do you believe in social engineering ? Is the law supposed to reflect society or shape society ?
10.27.2006 2:37pm
Oren Elrad (mail):
"the fact that it's illegal for clergy to perform non-civil marriages"

What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?
10.27.2006 2:39pm
PubliusFL:
Brooklynite: "The arguments presented in support of same-sex marriage are different from the arguments (mostly hypothetically) presented in support of incestuous marriage."

My point is that in this case they aren't different. The argument used here applies just as much to incest as to SSM. You can raise other arguments that are better, but that doesn't make Chen's any more valid.

"The only people of any prominence arguing that one will lead to another are people who oppose both."

That's about what I would expect. Any reasonable person of prominence who concludes that one will lead to another will naturally oppose both. And those who want to support one but not the other will naturally deny that one will lead to the other.
10.27.2006 2:41pm
Daniel Chapman (mail):
First of all, I don't "fear" the slippery slope. I am not even all that worried about gay marriage. I'm confident that this is an overreach that offends people's sensibilities to the point where it's not possible right now. The slippery slope argument is just that... an argument. Reductio ad absurdum.

Second, even if I were worried about a slippery slope from gay marriage to legalized incest, why would I allow the first step? Can't I prevent the slippage by drawing the line in front of gay marriage? The point of the argument is to convince people on the fence that this reasoning has no logical boundaries aside from our own sensibilities (which we are reapeatedly told have no place in the discussion).
10.27.2006 2:44pm
Mark Field (mail):

Equality requires a dictatorial or authoritarian government to impose rules and regulations necessary to prevent some from rising too far above and others from sinking too far below the 'equal plain', whether it be economically or socially. In this particular argument, it is in the social realm.


You mean like slavery?


It leads to the ultimate question, which is the more precious commodity, freedom or equality ? Some like to pretend they are synonymous, reality is that they are anathema to each other.


It's more that neither can exist without some measure of the other.
10.27.2006 2:48pm
Elliot Reed:
Andrew, if I read you correctly, what you're saying is that instead of doing what it did, the court should have suddenly overturned sixty years of state-law jurisprudence merely because it doesn't, in your view, have a strong enough textual foundation. Courts don't do things like that in our legal system. Ever heard of stare decisis?
10.27.2006 2:49pm
Brooklynite (mail) (www):
Any reasonable person of prominence who concludes that one will lead to another will naturally oppose both. And those who want to support one but not the other will naturally deny that one will lead to the other.

And the third category --- those who support both, is essentially non-existent.

It seems to me that if one wants to argue "we can't accept A because if we do, there'll be nothing to prevent us from getting B," one has to show two things. First, that there's no way to differentiate in principle between A and B, and second, that B has, as a practical matter, a snowball's chance in hell of coming to pass.

Given that judges have ample grounds on which to distinguish same-sex marriage from incestuous marriage, and given that no appreciable movement for legal recognition of incestuous marriage exists, the slope strikes me as pretty damn unslippery.

We can have one without the other. We can have A without B. We have A, and it hasn't created any groundswell of support for B.
10.27.2006 2:57pm
Wasbury:
What about polygamy?
10.27.2006 2:59pm
Oren Elrad (mail):
What is demanded is not absolute equality but rather equal treatment before the law. I fail to see how the notion that all human beings are entitled to the same basic treatment requires any sort of abridgement of freedom. All it requires is a basic notion of fairness.

Incidentally, we all accept that, at times, we must curtail some trivial freedoms to protect larger ones (freedoms do, after all, often conflict). For instance, we accept that we all ought to have the economic freedom to chose our business transaction freely. We also accept that everyone has the right not to be discriminated against due to race and sex. Thus we are left in a pickle when a storeowner (or landowner) decides he wants to excludes Asians from transacting with him.

Every right that we grant confers on the rest of society an obligation. That is simply the nature of rights. Rights == Obligations. Until that is understood, we are going to chase each others tails on this freedom/equality thing.
10.27.2006 3:01pm
Oren Elrad (mail):

But the court itself admitted that gay marriage was not a fundamental right, and thus was protected only by the "equal protection principle," not fundamental-rights analysis.


Gay marriage can't be either a fundamental right or not a fundamental right. Marriage is either a right or not a right.

Your argument is like saying that blacks being given equal education is a fundamental right. It doesn't make sense. Fundamental rights are what they are because they apply across the board. Otherwise, it wouldn't be a fundamental right but rather a special right granted only to a particular class of people.
10.27.2006 3:04pm
Philistine (mail):

the fact that it's illegal for clergy to perform non-civil marriages"

What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?



For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."

I'm sure this varies by State.
10.27.2006 3:06pm
Bob from Ohio (mail):
From the opinion in Loving:


Footnote 5
"After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md. Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala. Const., Art. 4, 102, Ala. Code, Tit. 14, 360 (1958); Arkansas, Ark. Stat. Ann. 55-104 (1947); Delaware, Del. Code Ann., Tit. 13, 101 (1953); Florida, Fla. Const., Art. 16, 24, Fla. Stat. 741.11 (1965); Georgia, Ga. Code Ann. 53-106 (1961); Kentucky, Ky. Rev. Stat. Ann. 402.020 (Supp. 1966); Louisiana, La. Rev. Stat. 14:79 (1950); Mississippi, Miss. Const., Art. 14, 263, Miss. Code Ann. 459 (1956); Missouri, Mo. Rev. Stat. 451.020 (Supp. 1966); North Carolina, N.C. Const., Art. XIV, 8, N.C. Gen. Stat. 14-181 (1953); Oklahoma, Okla. Stat., Tit. 43, 12 (Supp. 1965); South Carolina, S. C. Const., Art. 3, 33, S. C. Code Ann. 20-7 (1962); Tennessee, Tenn. Const., Art. 11, 14, Tenn. Code Ann. 36-402 (1955); Texas, Tex. Pen. Code, Art. 492 (1952); West Virginia, W. Va. Code Ann. 4697 (1961).
Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming."


So, only 30 of the 50 states had racial marriage laws. No northeast states, only a couple of midwest states. Only big population states were California and Texas (both much smaller 40-50 years ago).

Compare this with all 50 states recognizing only man/woman marriages. Race laws were never a common public policy, they never commanded the kind of universal adherence that "traditional" marriage laws did.

All sorts of good arguments can be made to justify gay marriage. An analogy to Loving is not one of them. Contra Chen, the analogy is incomplete and misleading.
10.27.2006 3:09pm
PDXLawyer (mail):
Mark Field:

The idea that the 14th Amendment isn't about race because it doesn't *say* race, is common, but I think wrong. Note, I'm not basing this on what the Supreme Court *has* said in past cases, but rather on what they *should* say, IMHO. They got the doctrine all tangled up in the Slaughterhouse Cases and never really bit the bullet to untangle the doctrine, even when they finally moved to undo the practical effect of those mistakes.

All laws are, in some sense, about discriminating against somebody. Laws criminalizing murder "discriminate" against people who kill people. In order for the concept of "equal protection" to mean something other than "anarchy", you need to limit it to equal protection for people who are similarly situated in every legally relevant sense. This in turn requires deciding which distinctions are OK (killers/non-killers, employees/independent contractors, citizens/aliens) and which distinctions are not OK (race, religion, sex?).

The question under discussion is whether race and sex are good analogies. Saying that 14th Amendment equal protection applies to sex classifications like it does to race classifications assumes that they are good analogies, but does not demonstrate it. Neither the drafters/ratifiers of the 14th Amendment nor the drafters/nonratifiers of the unsuccessful ERA appear to have thought that they were good analogies. Obviously you and Jim Chen think they are. Why?
10.27.2006 3:22pm
David Chesler (mail) (www):
Thanks Philistine, also similarly (and operative in our case)
Massachusetts General Statutes, Chapter 207, section 49:

Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not complied with the laws relative to procuring certificates of notice of intention of marriage shall be punished by a fine of not more than five hundred dollars.
10.27.2006 3:25pm
whit:
The arguments for incest (i can't believe i am saying this) are spot on.

what right does the state have to say johnny can't marry his BROTHER? certainly, in the case of same sex incestuous marriage, there are no genetics issues like in opposite (complementary sex?) sex marriages.

so, under his "logic", what right does the state have to prevent a man from marrying his brother, or his son?

is it ***bigotry***

i also find the miscenegation argument NOT compelling for another reason. there are very very big differences between men and women. the differences among men of different race, and women of different race, are orders of magnitude smaller than the fundamental, immutable and just basic differences between the genders. all "gender is a social construct" rubbish aside, men are different creatures, so to speak, than women. and thank (insert whatever non-specific deity or lack thereof you worship) for that.

miscenegation laws were created for very specific reasons - and interracial marriage has a long successful history, LONG prior to our miscenegation laws. the same cannot be said about gay marriage, if one even accepts that a same sex union can even be called a marriage.

miscenegation laws imposed political and bigoted views into the realm of marriage. anti-gay marriage laws do not, since they merely reaffirm what marriage has ALWAYS been. iow, the burden should have been on the miscenegation people to justify their CHANGE of marriage.

since gay "marriage' fundamentally CHANGES marriage, the way it has been for centuries, the burden should be on the implementers of change vs. the miscenegation people.

contrary to how it may appear, i am not against gay marriage. it is one of the few topics :) i do not yet have a formed opinion on. but, i find the miscenegation analogies Extremely weak.

so do most blacks, btw. who were the target of miscenegation laws.
10.27.2006 3:26pm
Oren Elrad (mail):
Phillistine - Excellent citation.

I am shocked though, since this would clearly implicate the clergy's religious and expressive freedoms. Any actual prosecution on this?

I've been at a number of wedding where formal recognition was either impossible or undesirable and all of them were officiated by clergymen (clergypeople?) - none of them seemed to think that they would be prosecuted for a purely religious act (e.g. so long as they don't say or imply that they are acting by the power vested in them by the state).

Incidentally, this worry would be totally obviated in my scheme.
10.27.2006 3:28pm
PubliusFL:
Brooklynite: "Given that judges have ample grounds on which to distinguish same-sex marriage from incestuous marriage, and given that no appreciable movement for legal recognition of incestuous marriage exists, the slope strikes me as pretty damn unslippery."

Yeah, it also seems to me that we have ample grounds to distinguish interracial marriage from same-sex marriage, but Chen obviously disagrees, which does not inspire confidence for the future in the slippery slope crowd. And not that long ago no appreciable movement for legal recognition of same-sex marriage existed, either. So no one should worry about a slippery slope from A to B as long as we can be reasonably confident of delaying B by at least a couple of decades?
10.27.2006 3:28pm
Guest2 (mail):
Is there any traction to the argument that "marriage" means a relationship (with certain legal trappings) between partners of the opposite sex, so that "marriage" by definition cannot occur between partners of the same sex, just as a "non-stock corporation" cannot have stockholders?
10.27.2006 3:28pm
Brooklynite (mail) (www):
So, only 30 of the 50 states had racial marriage laws. No northeast states, only a couple of midwest states. [...] Race laws were never a common public policy, they never commanded the kind of universal adherence that "traditional" marriage laws did.

According to www.lovingday.org, interracial marriage was illegal at one time or another in every state but Minnesota, New York, New Jersey, Connecticut, New Hampshire, Alaska, and Hawaii. That's 43 out of 50, and I think it counts as "common public policy."

In 1965, about half of all Americans supported laws against inter-racial marriage. That's a bit lower than the proportion that oppose same-sex marriage now, but not so much lower. And I suspect that polling in 1955 would have been even closer to the current numbers.
10.27.2006 3:29pm
Kevin Murphy:

Kevin, are you seriously trying to argue that if Brown v. Board had been brought in 1924 rather than 1954 the court should have upheld segregation because overturning it would have been too controversial?

Well, what is your objective? Is it to accomplish something, or to be right?

I support gay marriage, but think that the recent legal efforts have been incredibly counter-productive. A Brown decision in 1924 would have resulted in impeachments, been shortly overturned, and the issue would not have been raised again anytime as soon as 1954.

So, from a political point of view, yes, I do. Emphatically. I also believe that only a fool would have brought the case in 1924, and the SC would have declined to hear it in any event.

As it stands, a movement that had been gaining political support, that would have achieved its goals democratically in not too much time, has been set back in most places by 20-50 years. Nice going.
10.27.2006 3:30pm
Andrew Hyman (mail) (www):
Elliot, I assume you believe that SCOTUS shouldn't have overturned Plessy. Courts overturn clearly wrong precedents all the time, especially in constitutional cases.

In any event, the NJ Supreme Court's precedents surely didn't dictate what they did this week, as we've already discussed.
10.27.2006 3:31pm
Oren Elrad (mail):

Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not complied with the laws relative to procuring certificates of notice of intention of marriage shall be punished by a fine of not more than five hundred dollars.


Since IANAL, can someone kindly explain the legislative meaning of "joins in marriage"? Assuming arguendo that Mass didn't allow for gay marraiges, at what point does a clergy that officiates a function wherein two men commit to each other commit the crime in question?

What if he has a lisp and instead officiates over a 'mawwiage'? What if he never uses the word marriage but instead, pauses and winks everytime the words marriage, husband, matrimony etc. . would commonly be used?

As i said before, I'm quite shocked at these laws. It's one thing to say that the state does not have to regonize gay unions but it's quite another to make it a crime to pantomime those same actions with the understanding that the state will not recognize it.
10.27.2006 3:34pm
Oren Elrad (mail):
Guest:


Is there any traction to the argument that "marriage" means a relationship (with certain legal trappings) between partners of the opposite sex, so that "marriage" by definition cannot occur between partners of the same sex, just as a "non-stock corporation" cannot have stockholders?


See my earlier post about my "solution" to the problem. It's true that nominally, marriage means union between partners of the opposite sex. Nevertheless, it's not generally a crime go around espousing a defintion of a word that is contrary to the dictionary definition. It is in the spirit that separating the personal and civil components of marriage would be useful.
10.27.2006 3:39pm
David Chesler (mail) (www):
David, are you trying to argue that Loving v. Virginia mandates overturning incest restrictions?

While not disagreeing with that statement, I'm arguing that if Loving requires legalizing SSM then it also requires legalizing SFM, and I'm further asking what's wrong with SFM?

(Note, SFM does not mean parents can have sex with their children any more than traditional marriage means men can have sex with little girls or than SSM means men can have sex with little boys.)

"It's icky (to me)" or "It's often a bad idea" aren't strong enough reasons.

The point of there being no incestusexuals is that we're banning people from marrying a miniscule number of individuals: their close relatives. So the burden on them is very small, and since you need two to tango the number of people who will want to do this and have a willing partner is going to be miniscule.

If one believes that folks have One True Love, the burden on that effected couple is pretty big. (cf. the story of the kid tossing starfish back into the ocean.)

And there's a potentially large burden on an (also small) number of people in terms of the impact on family dynamics.

So this really would be defending marriage?

I wholeheartedly agree it's often a bad idea, but DRM is certainly sometimes a bad idea (for that matter, DSM presents "why can't a woman be more like a man?" issues) and I'm not convinced that if the right to marry the willing and able and not otherwise obligated individual of one's choice is a fundamental right then "it's probably a bad idea" is enough to trump that right.

Conversely, in the multi-race case ... the social benefit is smaller (i.e., zero) because preventing racial mixing doesn't serve any legitimate public purpose.

Again, that's not a strong enough reason (is it?) to interfere with a fundamental right.

(What standard is "legitimate" here? -- avoiding mixed-race individuals certainly makes it easier on those who would classify people by race, which seems to be an accepted function of parts of the government.)
10.27.2006 3:59pm
jrose:
PubliusFL: Is sexuality really irrelevant to the nature or purpose of marriage in the same way that race is?

IMO, yes. A sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate.
10.27.2006 4:14pm
Mark Field (mail):

The idea that the 14th Amendment isn't about race because it doesn't *say* race, is common, but I think wrong.


You're on good historical ground here if you're referring to what was in the minds of the drafters. I highlighted the lack of textual support for this conclusion because much of this thread is focused on the alleged lack of textual support for the NJ decision. Of course, once we account for history and precedent, then the argument about the NJ court collapses.


All laws are, in some sense, about discriminating against somebody.


Agreed.


In order for the concept of "equal protection" to mean something other than "anarchy", you need to limit it to equal protection for people who are similarly situated in every legally relevant sense. This in turn requires deciding which distinctions are OK (killers/non-killers, employees/independent contractors, citizens/aliens) and which distinctions are not OK (race, religion, sex?).


Agreed.


Saying that 14th Amendment equal protection applies to sex classifications like it does to race classifications assumes that they are good analogies, but does not demonstrate it. Neither the drafters/ratifiers of the 14th Amendment nor the drafters/nonratifiers of the unsuccessful ERA appear to have thought that they were good analogies. Obviously you and Jim Chen think they are. Why?


I'm not sure whether you're asking a general question here or one specific to the NJ decision. If your question is a general one, then the answer I'd give would be based on history and precedent, plus the axiom that gender is, in general, unchangeable.

If you are asking why gender and race should be similarly treated for the purpose of marriage, it's for exactly the reason you gave above: the discrimination penalizes people who are "similarly situated" for no relevant reason (or, alternatively, for no reason substantial enough to meet the existing standards for race or gender discrimination).
10.27.2006 4:18pm
A. Zarkov (mail):
If you think sexual orientation is analogous to race, then you must believe that homosexuality is a heritable as opposed to an acquired personality trait. (Of course there is always the possibility that the trait is acquired during embryonic development, and has no genetic component.) Carrying the analogy further, you should also believe that like race this trait is immutable. Now once you abandon the blank slate, you should be open to the likelihood that other personality traits are also inherited and immutable. Why not a propensity for crime or other antisocial behavior? How about intelligence? How about the ability to acquire income? In my experience I have found that people who accept the notion that homosexuality is inherited generally reject the notion that anything else is inherited—especially intelligence. They simply don’t want to abandon the blank slate except where convenient.
10.27.2006 4:25pm
Isaiah Kalinowski (mail) (www):
I await with anticipation the chorus of voices who championed the doctrine of "Separation of Powers" when Hamdan v. Rumsfeld came down. They should be just as protective of the doctrine now, as it was abused without apology by New Jersey's Supreme Court on Wednesday.

For some commentary and citations, please see my October 27 post on http://irksome.townhall.com/ .

IRK
10.27.2006 4:29pm
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx:
gay marriage has never been a part of any civilization until now. Interracial marriage has happened for all of human history. Antony and Cleapatra anyone? No relation between the two.
10.27.2006 4:42pm
Toby:

IMO, yes. A sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate.

Now here is a concept found nowhere in society or literature. Is is consistent with any couple found in Shakespeare, except possibly Brutus? No. Is it consistent with any formulation of the troubadors of Provencal, generally considered to have invented romantic love. No. Is it consitent with the best kbnown marriages form European history, who were known to schedule dynastic marriages at birth? No. Is it consistent with Islamic girls who leave Britain at 15 and return with a husband 3 months later? No. Is it consistent with any depiction of marriage you can cite in popular culture, say on television. No. Is it consistent with any writings of the leading feminist authors? No.

So where do you get this notion...
10.27.2006 4:46pm
whit:
"SFM does not mean parents can have sex with their children "

with the qualifier, MINOR children, i am assuming.

If incest is ok by the slipper slope loving extension "logic", then that should apply to parent-offspring, as well as brother-brother, etc. just that the laws against having sex with minors would still apply of course.
10.27.2006 4:50pm
jvarisco (www):
Race is not real, it is a social creation.

Unfortunately, sex is quite real - there are differences both biologically and mentally. It's hard to win rights when both scientific evidence and religion are against them.
10.27.2006 4:55pm
Shawn-non-anonymous:
Maybe being a non-lawyer I'm missing something huge here, but it seems to me there is one oft-repeated anti-gay-marriage argument that Loving v. Virginia is the perfect response to.

Loving applies a very simple logic to the question of whether miscenegation laws are discrimination. That logic is directly applicable to the argument that gays and lesbians are not discriminated in marrriage, they can marry any opposite sex partner they wish.

Using the Loving logic, which essentially says anti-miscenegation laws say that "John" is the wrong race to marry "Jane", anti-gay-marriage laws say that "Adam" is the wrong gender to marry "Steve". Basically, anti-gay-marriage laws discriminate based on gender.

And that's pretty much as far as the analogy carries us. Once you reach that point, race and gender go their own direction with one having its own US Constitutional Ammendment and the other (ERA) only exists in various state Constitutions. At a minimum, most agree that gender discrimination is wrong in many situations, like employement, housing, and credit.
10.27.2006 4:55pm
Jon Rowe (mail) (www):

If you think sexual orientation is analogous to race, then you must believe that homosexuality is a heritable as opposed to an acquired personality trait. (Of course there is always the possibility that the trait is acquired during embryonic development, and has no genetic component.) Carrying the analogy further, you should also believe that like race this trait is immutable. Now once you abandon the blank slate, you should be open to the likelihood that other personality traits are also inherited and immutable. Why not a propensity for crime or other antisocial behavior? How about intelligence? How about the ability to acquire income? In my experience I have found that people who accept the notion that homosexuality is inherited generally reject the notion that anything else is inherited—especially intelligence. They simply don’t want to abandon the blank slate except where convenient.


I think this shoots way too broadly. Yes, most social liberals (and conservatives) reject, at least publicly the notion that racial differences in IQ are genetically determined.

But most social scientists of whatever political orientation have given up on the notion that man's personality is a blank slate and they agree that many things, including intelligence are heritable. They just don't believe that racial differences in intelligence are heritable. But ask most informed liberals if they believe that smart folks tend to have smart kids based, at least in large part on genetics, and I think most would agree.

Unless subject to a genetic or environmental defect, I'd personally bet, and I'd imagine most folks on this thread would bet that Eugene Volokh's little ones will turn out to test significantly higher than 100 points on an IQ test, due, largely but not exclusively, to genetics.
10.27.2006 4:57pm
Mark Field (mail):

Maybe being a non-lawyer I'm missing something huge here, but it seems to me there is one oft-repeated anti-gay-marriage argument that Loving v. Virginia is the perfect response to.


You're not missing anything; you got the argument exactly right.
10.27.2006 5:06pm
lucia (mail) (www):
A Zarchov> Why not a propensity for crime or other antisocial behavior? How about intelligence? How about the ability to acquire income? In my experience I have found that people who accept the notion that homosexuality is inherited generally reject the notion that anything else is inherited—especially intelligence.


My answers? Why couldn't at least some of these, including intelligence, be affected by genetics? If you expand this to include possibility these traits could be affected by general conditions in the womb, infant nutrition, childhood illness, head blows or other irreversible events, I'd say, "Why of course these traits, including intelligence, are affected by those!"

These factors can have an immutable effect on an individual's basic intelligence, and the effects often can't be reversed in adulthood. They can affect height and a number of other physical traits. Why would I think they couldn't affect sexual orientation?

So, I think you can count my as a person who thinks it's possible sexual attraction to one's one gender is probably impossible to change in adulthood, who also thinks some other personality traits and/ or inclinations may be impossible to change in adulthood.
10.27.2006 5:07pm
jrose:
Toby: where do you get this [that a sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate] notion.

The empirical evidence of how our society celebrates and encourages marriages that produce no offspring.
10.27.2006 5:18pm
BobNSF (mail):
John T

But surely the largest part of the reason for the laws rightly struck down in Loving was fear of miscegenation.


The purpose of anti-miscegenation may have been to prevent the birth of mixed-race couples (one could argue that point). The reason for the law and so many others, however, was white racism.
10.27.2006 5:21pm
Guest2 (mail):

Interracial marriage has happened for all of human history. Antony and Cleapatra anyone?



Antony and Cleopatra were evidently married but they were not an interracial couple. Cleopatra was a member of the Ptolemaic dynasty, which was of Greek origin. Antony was of course a Roman from Italy.
10.27.2006 5:22pm
Daniel Chapman (mail):
Can I toss the idea out there that we don't "celebrate" childless marriages? I can offer anecdotal evidence that won't convince anyone who doesn't agree with me already, but why bother?

The best evidence I can offer is that until the advent of "no fault divorce" infertility was considered cause for divorce.
10.27.2006 5:25pm
Bob from Ohio (mail):
Brooklynite:

Still not 100%. The extra 13 abolished it on their own without court action, some before the Consitution was adopted. So did all the non-southern states that abolished it in the two decades before Loving. The democratic process worked.

The use of Courts to bring on the change will drag it out and make the process much more painful. Look at the abortion debate. The courts stepped in when the country was not ready but was moving that way. (Governor Reagan signed a liberal legalization law.) An issue that should have disappeared 20 years ago as a national issue still remains sucking up way too much energy. When courts short circuit democracy, it is not good for democracy or the courts.
10.27.2006 5:27pm
On Lawn (mail) (www):
> Jim Chen: I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling.

An interesting thing to say. Does anyone know if Jim Chen is african-american? Because one of the real deal-breakers for anti-miscegenation laws for the Supremes in the Loving decision was that only two races were not allowed to mix. A marriage between a pacific islander and chinese person would, IIRC, have been legal. It was only white supremacy that was mentioned in the decision.

> Elliot Reed: First, there are no incestusexuals, that is, people who are only attracted to close relatives. A ban on incestuous marriages only keeps people from marrying their first choice of partner rather than their second choice, so we're talking about a small burden on an extremely small number of people.

Perhaps you will like the term "homo-consanguine" relationships. People who practice them are "homo-consanguals"?

It is interesting that you rely on the inability to love, honor, and cherish a group of society as a distinguishing quality to justify altering marriage laws for one group and not for another. Especially in the context of racial conflicts and prejudice that the Loving decision was set against.

But look at Goodridge, where the inability to love honor and cherish a segment of society was not brought up. There the decision rested on the ability to make the choice of your spouse unfettered by definitional conflicts.

In the NJ decision, where is the language that says if someone is unable to integrate with a segment of society, they should be given a free pass? Where is this explicit exception written? Seeing how they use equal protection, I can't really see how they could get it in there.

In fact, if my history serves me correctly, the arguments made in Loving were that races were set up to not be integrated in marital terms. It is a historic racial argument that genetic pre-dispositions exist which justify their inability to integrate with another segment of society. And the parallels of those discredited arguments strike strongly with yours.

If they don't I'd appreciate your explanation of why.
10.27.2006 5:28pm
Q:

What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?



For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."

I'm sure this varies by State.


That law is a blatant violation of the First Amendment. Nobody needs a *#@*%%* piece of paper to perform a religious ceremony! That's *#&%)##*#$* outrageous!!!!!!
10.27.2006 5:29pm
BobNSF (mail):
LOL... I really need to learn to re-read before hitting that "post comment" button.
10.27.2006 5:30pm
David Chesler (mail) (www):
Using the Loving logic, which essentially says anti-miscenegation laws say that "John" is the wrong race to marry "Jane", anti-gay-marriage laws say that "Adam" is the wrong gender to marry "Steve". Basically, anti-gay-marriage laws discriminate based on gender.

That would be appealingly clean, but as I understand especially Goodridge, they're not going down that road, but going down a road that says Richard may make the personal, fundamental choice to marry the person of his choice, even if Mildred is of a different race, and Hillary may make the personal, fundamental choice to marry the person of her choice, even if Julie is of the same sex.

By the way, what if Chen had not made the analogy, but had said:

The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from riding in the front of the bus is singularly offensive.

And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law....


A lot more of us here would be agreeing with him, since that's what a lot of these postings have been saying.
10.27.2006 5:32pm
On Lawn (mail) (www):
> Shawn-non-anonymous: (And Mark Field via a "Me too" argument") Basically, anti-gay-marriage laws discriminate based on gender.

Isn't that the rub. Is it the law that is discriminating against gender? Or is the the person?

Marriage requires integration of genders, it explicitly sets up for equal gender representation in establishing a household. Yet to both of you it seems integration is the new segregation as it requires you to choose who is in the mix.

You started the logic with Loving, extended from race to gender, and now lets extend it back to race to see if your logic holds up. When we do the reversal we see that, for instance, a school which integrates based on race is actually discriminating against race. It requires a certain racial quota, and thus enacts prejudice in what people can choose. Substitute school for golf course, business club, fraternity, etc...

If you can support both statements, in race and gender, then you have sufficient continuity. If you don't then something in your argument is wrong, and you should correct it.
10.27.2006 5:35pm
PDXLawyer (mail):
Mark Field:

Thanks for your answer. I was more focused on the general question of whether race and sex are comparable categories, which I think is the main driver in the specific context of same sex marriages and this thread.

The only specific reason I got was that they are both unchangeable. I wonder if that is really a complete answer. Age, for example is unchangeable, but is nevertheless a basis for a wide range of privileges and disabilities, a situation which is properly uncontroversial.

I suspect the more general background may be the idea that society (or at least large swaths thereof) discriminates against women on the basis of their sex due to animus, ignorance or a desire to monopolize power, similarly to discrimination faced by some racial minorities on account of their race (particualrly under Jim Crow). Although there is some truth to this view, I think it confuses more than it clarifies, because the vast majority of us know well and love individuals of the opposite sex (beginning with our parents). And, even if some aspects of sex difference are socially constructed (hair styles, for example) some are indisputably inherent.

Thus, to me race calls out more than sex for an inflexible "no discrimination" rule because there is less incentive for us to all just get along, and less *real* difference (I'd argue none) which would justify different treatment. Race is a construct, but sex is real.
10.27.2006 5:36pm
Mark Field (mail):

The use of Courts to bring on the change will drag it out and make the process much more painful.


Like happened with Loving?
10.27.2006 5:40pm
jrose:
On Lawn: Isn't that the rub. Is it the law that is discriminating against gender? [...] Marriage requires integration of genders

Although I agree current marriage law does not discriminate on the basis of gender (it discriminates on the basis of sexualiy), your reasoning towards that conclusion is circular.
10.27.2006 5:40pm
David Chesler (mail) (www):
When courts short circuit democracy, it is not good for democracy or the courts.

"A man convinced against his will, is of the same opinion still."

But it's not democracy as much as public opinion that needs changing. I'm not sure why folks have the notion that in our republic that the legislators and executives, elected by a majority of the people who voted, are "democracy" while the judges, appointed by those same elected legislators and executives are completely not democracy.

(There is a call in Massachusetts to put the state DOM amendment on the ballot -- it's being held up in the legislature procedurally as much as they can. An author of a letter in today's Herald argues against that call, writing "Does anyone think that women or African-Americans would have the civil rights that they have if at the time a popular vote had been held? Would interracial marriage be legal if it had been put to a referendum? I highly doubt it.")
10.27.2006 5:42pm
A. Zarkov (mail):
I think this shoots way too broadly. Yes, most social liberals (and conservatives) reject, at least publicly the notion that racial differences in IQ are genetically determined.

The opposition to inherited personally traits goes way beyond racial differences in IQ test scores. Even within a given race many social liberals are profoundly uncomfortable with the idea that someone could become (say) a criminal because he was born that way, and that criminality could run in families. Social liberalism needs to assume that human nature is basically plastic. I would say this notion lies at the heart of what separates liberals and conservatives.

They just don't believe that racial differences in intelligence are heritable.

Many social liberals don’t even believe there exists a biological basis for race itself. They say it’s a “social construct.” However the evidence for heritability and racial differences with regard to IQ test scores has become overwhelming. The intelligent opposition focuses on the meaning and implications of IQ test scores themselves. They deny the existence of a general “g,” and they deny that IQ score correlates with either individual income or the wealth of nations.

If you expand this to include possibility these traits could be affected by general conditions in the womb, infant nutrition, childhood illness, head blows or other irreversible events,…


Everyone agrees that your environment both inside and outside the womb affects you both physically and mentally. We know that poor nutrition depresses measured IQ. And we know you can be hurt in an irreversible way. That’s not where the controversy lies. The controversy lies in the extent to which pure genetics limits or enhances your potential skills and abilities or determines immutable aspects of personality irrespective of your environment.
10.27.2006 5:47pm
Dan Hamilton:
The one point that is being missed is that ONCE you redefine Marriage it becomes ever easier to redefine it again. The arguments against redefining Marriage the second time are much weaker. This is not really a slippery slope arguement. It is just a fact. And there ARE people out there that want to redefine Marriage. The main case is polygamy. I am NOT talking about Mormans. I am talking about Moslems. Given the Multicultrural BS and the fact that polygamy IS COMMON in many places in the world. Once you redefine Marriage in the US you will NOT be able to stop the redefination to include polygamy. It has far better arguements then does SSM.

What is the age of consent with parental approval in your state?

I am waiting for the reactions the first time a 35 year old Man marries a 14 year old boy while the boys parents say "Our son loves him very much, an after all he is marrying a RICH man. Look at this car he bought us!". Just imagine this could bring back the IDEA of a BRIDE PRICE. A woman and a girl would be the same.

If you don't think that this will happen or if you think that there is anything that can keep it from happening, you are living in a fantasy world.

A fight for SSM is a fight for NAMBLA. If you think other wise you really should think again.
10.27.2006 5:48pm
Q:
Everyone here is missing the real issue. The real outrage is that we allow the various governments to discriminate between single and married people. Marriage is a religious commitment. The government has no business discriminating against people on the basis of religion. That's the real problem here folks.
10.27.2006 5:54pm
Tony2 (mail):
I wonder how many inter-racial marriages existed before the state recognized them in Loving vs. Virginia. There are certainly a lot of gay marriages out there right now - I'm in one of them.

The failure of the state and federal government to recognize my marriage is mostly just an annoyance without too much practical import. At least, not in the state of California. However, it may be a more dramatic oversight than it was in the case of interracial marriage. In Loving vs. Virginia, I'm not sure that there were all that many pre-existing interracial marriages because the threat of violence was so great. In that case, the courts took something of a leading role, paving the way for interracial marriage to be socially sustainable, i.e. in cutting down on the number of lynchings. (I may be wrong on this, but that's my impression.)

With gay marriage, in contrast, there's lots and lots of married gay couples out there, and the courts and governments are not trailblazers so much as playing catch-up, or alternately engaging in simple denial of reality in cases where they refuse to acknowledge those marriages.

In either case, gay couples are free to marry today in ways that interracial couples were not, possibly even after the Loving case was won. State recognition is merely the icing on the (wedding) cake.
10.27.2006 5:56pm
Mark Field (mail):

The only specific reason I got was that they are both unchangeable.


I didn't make it as explicit as I should have, but there is also the judgment that the characteristic fails to meet a particular standard -- strict scrutiny, rational basis, etc. -- for relevance to the classification.

In general, I would say that we need to guard most against classifications based upon things which are either immutable (race, ethnic origin) or which we know from historical experience are so integrally related to a person's sense of self that they won't be changed (religion, gender, sexual orientation).


Thus, to me race calls out more than sex for an inflexible "no discrimination" rule because there is less incentive for us to all just get along, and less *real* difference (I'd argue none) which would justify different treatment. Race is a construct, but sex is real.


I generally agree with this and don't have a problem with a test which applies different standards based on such classifications. Be careful, though -- the same arguments made for gender were used in the past against religion.


where do you get this [that a sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate] notion.


From this thread:

"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." Credit: lucia.

"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." Credit: On Lawn.
10.27.2006 5:56pm
whit:
There is a total misunderstanding of what "heritable" and genetics actually means - not surprising among lawyers. IT's science, not law.

The scientific evidence does not support the genetic component of homosexuality as DETERMINISTIC, merely probabilistic. This is in line with MOST genetic factors of behavior.

Iow, there is an exclusion of the middle. it is not "either/or".

Given certain genetics, some people will be more likely to end up homosexual. It does not follow that there are not environmental factors AS well, and even (lord forbid) some choice/volition.

The exact same people who claim 'race is a social construct' (which is absurd post-modern rubbish), and wanted us to believe for DECADES that most gender differentiated behavior were socially constructed (which is also absurd) have done a 180 degree about face, and want to believe that homosexuality is the ONE personality trait that is 100% genetically determined.

The irony, and the double standard is absurd.

the evidence (and common sense) show that there is a genetic factor in whether or not somebody ends up homosexual. it is MORE likely with some than others, but it is rarely, if ever, a 100% determined outcome based on genetics.

Just like pretty much ALL human behavioral tendencie
10.27.2006 6:08pm
David Chesler (mail) (www):
I am waiting for the reactions the first time a 35 year old Man marries a 14 year old boy while the boys parents say "Our son loves him very much, an after all he is marrying a RICH man. Look at this car he bought us!". Just imagine this could bring back the IDEA of a BRIDE PRICE.

I suspect that this will happen about as often as 35-year-old men marry 14-year-old girls now.
10.27.2006 6:14pm
David Chesler (mail) (www):
Mark: we need to guard most against classifications based upon things which are ... immutable

Q: The real outrage is that we allow the various governments to discriminate between single and married people.
10.27.2006 6:16pm
Guest2 (mail):

The one point that is being missed is that ONCE you redefine Marriage it becomes ever easier to redefine it again. . . . And there ARE people out there that want to redefine Marriage. The main case is polygamy.



I don't think making polygamy legal would require a redefinition of "marriage." No one maintains that Abraham, or Brigham Young, was not "married" to each of his many "wives." Polygamy is just an illegal form of "marriage," like "marriage" between an adult man and an underage girl.
10.27.2006 6:18pm
Guest2 (mail):

In either case, gay couples are free to marry today in ways that interracial couples were not, possibly even after the Loving case was won. State recognition is merely the icing on the (wedding) cake.



I would add that state recognition also greatly reduces transaction costs. A man and a woman simply have to take a blood test, pay a fee, and go through a simple proceeding in front of a magistrate in order to place their property and other relations under a massive network of well-established legal rules (bringing with them both rights and obligations). A man and a man, or a woman and a woman, currently have to go through a lot of hoops to set up a comparable scheme for themselves, and at present have no assurance that such a scheme will ultimately accomplish what they want.
10.27.2006 6:26pm
Bob Van Burkleo (mail):
I know this never seems to make an impression with those steeped in the 'Law as if it were something real' mindset but we as biological beings marry naturally. Its a biological drive mediated by vasopressin and oxytocin and this pairbonding can occur between opposite gendered and same gendered couples. The government merely acknowledges marriages, it merely licenses a contract in support of marriages - it can't marry you in an real sense.

As such the question always is, why are only the married citizens with opposite gendered spouses allowed to license the contract in support of marriage? Which is what New Jersey recognized - each married citizen has a right to the same access to government as the other, even if they want to have one contract named 'marriage' and the other something else.

And as to the 'incest' mentioners, that is again taking the law as if it were merely a set of rules. We prohibit incest because of the social dynamics it can cause having a family unit also be a sexual partner hunting ground. What chance would a family member have if it could be groomed for eventual wedding to a sibling or other household relative since childhood?

The genetic arguments are bogus - we allow people at far greater risk of passing on genetic abnormalities license to the contract of marriage all the time. You would deny two brother's the right to marry for the same reason you would an infertile sister with a brother - the social dynamics are the reason for the proscription.
10.27.2006 6:26pm
Aaron:
Can I be the first to say that On Lawn is arguing like a grasshole?

(OK, it was gratuitous, and ungentlemanly, and I apologize.) But still. Marriage is "an equal gender representation"?!!! Sure, if we ignore that for thousands of years, women were chattel, could not hold proerty in their own right, and were able to be beaten, raped, and otherwise brutalized AT LAW, without recourse. That sounds like an relationship between equals.

Of course, what Lawn meant to say is that each gender had nominal representation. However, in most cultures, marriage was a way for FATHERS to control wealth transfer, and to create power relationships, using children (usually daughters) as bargaining chips. The romantic and the spiritual, even the raising of children, was secondary to that goal. Note that, particularly in European nobility, often times, children weren't raised by their own parents, but rather, were fostered out to other nobles, either to cement alliances, or as hostages to fortune. It was not until very recently that people could select their own mates.

Into this historical backdrop, Lawn makes his arguments about the purpose of marriage, using an incredibly shallow, modern perception of the institution. Marriage is not the static, bedrock foundation of our culture; it is a constantly evolving relationship, between clans, then families, finally to individuals. This change is just another evolution of the institution, no more, and no less.
10.27.2006 6:27pm
Guest2 (mail):
Heard you the first time.
10.27.2006 6:45pm
PubliusFL:
jrose:

"PubliusFL: Is sexuality really irrelevant to the nature or purpose of marriage in the same way that race is?

"IMO, yes. A sufficient purpose of marriage is to encourage single people to settle down with their romantic, loving, lifemate."


Romance and love have nothing to do with sexuality, then? The consequences to society resulting from whether single people do or do not settle down with a lifemate have nothing to do with sexuality? As for why "our society celebrates and encourages marriages that produce no offspring," it's an incidental effect of marriage's mild overinclusiveness (it's almost comparable to the "fertile octogenarian" rule from trusts &estates). Why do you think lack of consummation is practically always a ground for annulment of a marriage, if sexuality is irrelevant and warm fuzzy feelings for each other is all society cares about?

Guest2:

"Antony and Cleopatra were evidently married but they were not an interracial couple. Cleopatra was a member of the Ptolemaic dynasty, which was of Greek origin. Antony was of course a Roman from Italy."

Fine, then. Instead of Antony and Cleopatra, take her daughter Cleopatra Selene and Juba of Numidia. In the context of the debate over which comparison is more valid, we might as well mention the fact that the Cleopatras' *other* marriages where incestuous and not same-sex. ;-)
10.27.2006 6:46pm
jrose:
Romance and love have nothing to do with sexuality, then? The consequences to society resulting from whether single people do or do not settle down with a lifemate have nothing to do with sexuality?

Romance and love happen to gay and straight alike. The consequences to society have having single people settle down with a lifemate apply to gay and straight alike.

it's [childless marriages] an incidental effect of marriage's mild overinclusiveness

Which implies a state could prohibit the infertile from marrying. Do you think such a law would be found to be constitutional?

Why do you think lack of consummation is practically always a ground for annulment of a marriage

Because sex is a crucial part of the romantic, loving, lifetime relationship. Not only does consummation not distinguish same-sex couples from opposite-sex couples, it does distinguish same-sex couples from close friends, parent-siblings (some argue that if same-sex couples can get married why not other relationships).
10.27.2006 7:00pm
BobNSF (mail):
Some people seem quite confused about the difference between consummation and conception. While inability to conceive has sometimes been accepted as grounds for divorce (being all the woman's fault, of course), a man doing so today would be looked at quite callous.
10.27.2006 7:07pm
Kovarsky (mail):
A Zarkov,

The opposition to inherited personally traits goes way beyond racial differences in IQ test scores. Even within a given race many social liberals are profoundly uncomfortable with the idea that someone could become (say) a criminal because he was born that way, and that criminality could run in families. Social liberalism needs to assume that human nature is basically plastic. I would say this notion lies at the heart of what separates liberals and conservatives.

You have it exactly backwards. What separates social liberals from conservatives is that conservatives think that yoru lot in life is a product of uncoerced autonomous choices.
10.27.2006 7:43pm
Kovarsky (mail):
Whit.

The exact same people who claim 'race is a social construct' (which is absurd post-modern rubbish), and wanted us to believe for DECADES that most gender differentiated behavior were socially constructed (which is also absurd) have done a 180 degree about face, and want to believe that homosexuality is the ONE personality trait that is 100% genetically determined.

I'm guessing you're not an anthropologist. the "race is a social construct" argument merely says that the manner in which we define and classify based on the cluster of attributes we call "race" is nonsensical, because hte genetic variation observed wtihin races dwarfs that observed between races. you make it sound like those making the "social construction" argument deny that someone's skin is black.
10.27.2006 7:48pm
Kovarsky (mail):
publius,

Why do you think lack of consummation is practically always a ground for annulment of a marriage, if sexuality is irrelevant and warm fuzzy feelings for each other is all society cares about?

in many jurisdictions it's not grounds for annulment if the parties knew of the infertile status going into it.
10.27.2006 7:51pm
Public_Defender (mail):
What separates social liberals from conservatives is that conservatives think that yoru lot in life is a product of uncoerced autonomous choices.

Which is why social conservatives believe that the state should not interfere with people making the uncoerced choice to marry someone of the same sex or a different race.
10.27.2006 8:15pm
Bart (mail):
There is no comparison between the anti miscegenation law overturned by Loving v. Virginia and the recent attempts to change the definition of marriage to include homosexual unions.

The operative portion of the Virginia anti miscegenation law stated:

"Punishment for marriage. -- If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

There was never any dispute that "whites" and "coloreds" could in fact marry under the definition of that term. Rather, anti miscegenation law punished the act of interracial marriage.

There is no law aimed at homosexuals which is remotely similar to the old anti miscegenation statutes. It is not a felony for homosexuals to proclaim that they are "married." Rather, the purpose of todays legal actions is to redefine marriage itself to include homosexual unions by judicial fiat.
10.27.2006 8:22pm
Greg S. :
Aaron wrote:

Marriage is not the static, bedrock foundation of our culture; it is a constantly evolving relationship, between clans, then families, finally to individuals. This change is just another evolution of the institution, no more, and no less.

No doubt.

Stretching Volokh’s slippery slope post from earlier this week, I point to the demise of coverture in particular as the key enabling change. As the mutual rights and responsibilities of the participants in the contract approached the indistinguishable, sustaining the gender requirements for entrance into the contract also withered.

Obviously, there were critical steps before (e.g., a Constitutional guarantee of equal protection) and after (in the case of N.J. a public policy encouraging the support of stable same-sex families, which is where Volokh focused). But this step strikes me as rather unremarkable evolution in ordered pursuit of happiness.
10.27.2006 8:32pm
thedaddy (mail):
"No, we're not. We're re-examining our laws as society evolves."

I think you mean deteriorates.

Moynihan was right as usual -- "Defining Deviancy Down" -- see "evolves" above.

thedaddy
10.27.2006 8:33pm
On Lawn (mail) (www):
> jrose: your reasoning towards that conclusion is circular.

Definitional, not circular. Marriage being between a man and a woman is not the proof of what gender integration is, it is gender integration by definition.

> Aaron: Can I be the first to say that On Lawn is arguing like a grasshole?

While you are the first person I've seen make that cute allusion to grass, you are not the first person to try to make personal aspersions because of arguments I present. It seems rather common (as debased as it is).

> Aaron: I apologize.

Accepted with a sincere thanks.

> Aaron: if we ignore that for thousands of years, women were chattel, could not hold proerty in their own right

That would be unequal gender representation in real-estate ownership. Which is a different, though related topic, to equal gender representation in marriage. I wouldn't call it ignored as much as struggling for relevance, especially in your offense at my use of phrases.

> Aaron: Of course, what Lawn meant to say is that each gender had nominal representation.

I'm not sure, since sir-names are still transfered by the father in most cases, that your statement would be accurate in and of itself. As a re-statement of what I said, even less so.

> Aaron: However, in most cultures, marriage was a way for FATHERS to control wealth transfer, and to create power relationships, using children (usually daughters) as bargaining chips.

There are many reasons people have gotten married, and not all of them were based on love. I'm once again left to struggle to find relevance in that and the fact that marriage has one woman and one man, or equal gender representation.

Or would it ease you to know that the roles each gender play are not always equal, and that is true for just about any place where there is a simple quota enforced.

For me the history of marriage is a real success story, because it is an institution of integration the roles have naturally become *more* equal over time. That is a direct outcome of the requirement for integration.

> Aaron: children weren't raised by their own parents

Somewhere I'm convinced you forgot what you were replying to and started just ranting on about what you don't like in the history of marriage. It seems to have happened in your post before this point, but this point convinced me of it.

Children being sold, etc... is a tragedy. There are aspects of the neutered marriage debate which resonate with my distaste for that practice, but they are orthogonal to this point here. As it is, I'm not sure what this has to do with the subject of equal gender representation in the home.

> Aaron: Into this historical backdrop, Lawn makes his arguments about the purpose of marriage, using an incredibly shallow, modern perception of the institution.

Hmm. I'm not sure what you are replying to here. I do note this contradiction in your argument,

It was not until very recently that people could select their own mates.


First, I'm not sure that a large portion of people have ever been betrothed, usually that was for the upper class of highly regulated societies (not always feudal). And that is a small fraction of the history of human society.

But I never argued that marriage was a romantic choice of love. I'm not sure what about "equal gender representation" gave you that impression. I don't see where that is required or not.

Second, I'm not sure where I am arguing from a statist point of view. Because history has marriage as equal gender representation, doesn't mean it has to be that way. But the benefits of doing it that way remain constant, and are true as they ever were. If not even more true as today we have a better appreciation for the humanity of diversity than we ever have. Which is why neutering marriage for the sake of homosexuality, especially arguments as made above that homosexuality is an excuse to not integrate with a segment of society, would be a step backwards.
10.27.2006 8:33pm
Kovarsky (mail):
Public Defender,

Which is why social conservatives believe that the state should not interfere with people making the uncoerced choice to marry someone of the same sex or a different race.

I think you're missing my point although the blame for that might be on me.

My point is that, in an absolute sense, no "uncoerced" choice. Our choices are always made subject to the influene of various stimuli. The question is really, then, what sorts of stimuli are insufficiently coercive to justify imposing restrictions on "choice." I think we all intuit that loving falls on the "insufficient" side. But my point is that libertarians have much too narrow a sense of that insufficiency, and therefore oppose government imposed rules that correct for sufficient coercion. The idea that taxes should not flow to katrina victims is a good example - people speak of people "choosing" to live there as if that choice were not a product of economic constraints over which those people had absolutely no control.

My comment was a response to Zarkov, and was not meant to bear directly on the SSM discussion. Although I think that the degree to which homosexuality is nature versus nurture (coercion) is actually irrelevant to the SSM debate.
10.27.2006 8:52pm
Kovarsky (mail):
On Lawn,

> jrose: your reasoning towards that conclusion is circular.

Definitional, not circular. Marriage being between a man and a woman is not the proof of what gender integration is, it is gender integration by definition.


Given the amount of time it takes to parse what the hell you're saying, an exercise which often yields the answer "nothing," you could at least extend the same courtesy to other people.

While this person used the word "reasoning," and you said, "no, definition," what the person obviously meant to say was that your definition was circular. Which it is. You start from the premise that marriage is between a man and a woman and reason from there, ultimately in an attempt to prove that marriage "should be" between a man and a woman. Although your relentlessly vague argumentation leaves other commenters speculating as to how it is precisely that you get there analytically.
10.27.2006 8:57pm
Loren (mail) (www):
Did Chen miss the fact that the majority of the New Jersey Supreme Court rejected the Loving analogy? Whereas Loving concluded that there was a fundamental right to marriage that Virginia's miscegenation laws violated, the NJ majority declared outright "we cannot find support for plaintiffs' claim that there is a fundamental right to same-sex marriage." (page 34-35). Only the three dissenter-concurrers found a fundamental right.

Besides, if the analogy were so straightforward, why would it take the NJ majority 60 pages to reach its conclusion (with a 20-page dissent)? Loving was a mere 5-page decision (with a 2-sentence concurrence).
10.27.2006 9:02pm
Kovarsky (mail):
Loren,

Did Chen miss the fact that the majority of the New Jersey Supreme Court rejected the Loving analogy? Whereas Loving concluded that there was a fundamental right to marriage that Virginia's miscegenation laws violated, the NJ majority declared outright "we cannot find support for plaintiffs' claim that there is a fundamental right to same-sex marriage." (page 34-35). Only the three dissenter-concurrers found a fundamental right.

Actually, Loving contained an equal protection ruling. The NJ supremes rejected a fundamental right ruling. So no, Chen did not miss that.
10.27.2006 9:10pm
jrose:
Definitional, not circular.

Your reasoning: Marriage is defined to be only between a man a woman, therefore marriage is only between a man and a woman. I'm lost as to the distinction between definitional and circular in this case.
10.27.2006 9:15pm
jrose:
Bart, There is no law aimed at homosexuals which is remotely similar to the old anti miscegenation statutes.

Are you suggesting Loving would have been decided differently had Virginia only denied civil marriage licenses to inter-racial couples?
10.27.2006 9:18pm
On Lawn (mail) (www):
> Kovarsky: what the person obviously meant to say was that your definition was circular. Which it is.

Hmm, a circular definition. Such things exist, but I'm not sure how it is happening here. Perhaps you could illustrate what you mean there.

> Kovarsky: While this person used the word "reasoning," and you said, "no, definition,"

The person used the word "circular reasoning". Its not reasoning, it is not a proof formal or informal. It is a definition.

That doesn't justify assuming they meant definition instead of reasoning. That was my explanation not theirs.

Pending your explanation, I just don't see anything in your comment that supports your position.

> Kovarsky: You start from the premise that marriage is between a man and a woman and reason from there, ultimately in an attempt to prove that marriage "should be" between a man and a woman.

That sounds more like a tour guide than an explanation. Yes, there was a starting point, a journey of reasoning and an ending point. In reasoning, starting at the same place you finish is not a bad thing. In fact, in every direct proof that is where you want to end up. But that is more a philosophical aside to your comment, just another point where I feel you are wrong.

But your problem is more in your designated start and end point. You said, my goal was to "prove that marriage 'should be' between a man and a woman." Which is in direct contradiction to how I explained it, "Marriage being between a man and a woman is not the proof of what gender integration is, it is gender integration by definition." Both are the starting points, really.

The question then becomes the value of integration vs segregation. I leave it as an open-question especially in this debate where homosexuality (gender segregation) is being touted as the completion of the Loving analogy which removed barriers of racial segregation.

One thing I am an authority on, is what I said and why.

> Kovarsky: Although your relentlessly vague argumentation leaves other commenters speculating as to how it is precisely that you get there analytically.

But I do note that once again you came up with a very wild and off-base interpretation and tried to blame me for your confusion. I don't find you will gain friends or influence people with appealing to your own confusion as a relevant point in a argument.
10.27.2006 9:31pm
Loren (mail) (www):
Kovarsky, Actually, Loving contained an equal protection ruling. The NJ supremes rejected a fundamental right ruling.

Actually, Loving had both. But the NJ majority rejects the fundamental right aspect, and doesn't even cite Loving as persuasive authority for its equal protection argument, despite citing Romer and Lawrence. So while it may be more accurate to say that NJ both rejected and ignored Loving, the court sure didn't think much of the analogy itself.
10.27.2006 9:44pm
On Lawn (mail) (www):
> jrose: Your reasoning: Marriage is defined to be only between a man a woman, therefore marriage is only between a man and a woman. I'm lost as to the distinction between definitional and circular in this case.

Funny, Kovarsky just tried to say the definition was circular. And now you cross-posted saying it was the reasoning.

You two really do seem confused.

But that is no matter. Perhaps you should read what I wrote Kovarsky, and see if it helps. Then, if that doesn't help please quote what I said that gave you the impression my reasoning (or definition as the case may be) is circular.
10.27.2006 9:53pm
Evan (mail) (www):
Taken from my post at www.spiraloflies.com:

I don't think the decision is radical enough. If the NJ Supreme Court really wanted to shake things up, they would have found that the state's involvement in marriage, heterosexual and homosexual, violated the US Constitution.

Specifically, every American's First Amendment right to freedom of religion, since if a man and woman (or any other combination of men and women) are married before their god, who is the government to say otherwise; either by law or with a marriage license requirement?
10.27.2006 10:33pm
A. Zarkov (mail):
Kovarsky:

the "race is a social construct" argument merely says that the manner in which we define and classify based on the cluster of attributes we call "race" is nonsensical, because hte genetic variation observed wtihin races dwarfs that observed between races.

That argument is now completely discredited. Race is not merely a social construct— it has firm foundation in evolutionary biology. First we can tell a person’s race from his DNA if we use enough markers (about 100). Obviously a mere social construct cannot affect DNA. The DNA determination of race exactly matches how people self identify as to their race. The gene variation argument was originally due to Lewontin in 1972. However he made a serious mistake by assuming statistical independence of gene frequencies. Essentially his approach ignores the correlation structure of gene frequencies when doing classification and clustering.

We also have medications whose effects are race dependent. While this “race as a social construction” position is popular in the MSM and in some parts of academia it’s has become buried in an avalanche of data.
10.27.2006 10:37pm
Chimaxx (mail):
Even within a given race many social liberals are profoundly uncomfortable with the idea that someone could become (say) a criminal because he was born that way, and that criminality could run in families. Social liberalism needs to assume that human nature is basically plastic.


And I thought it was social conservatism that needed to assume that human nature is basically plastic, that everyone is able to pull him or herself up by the bootstraps and so therefore no one truly needs the support of a welfare state.
10.27.2006 11:06pm
SP:
A few more blog posts like that, and Chen will be at Harvard in no time!
10.27.2006 11:14pm
Chimaxx (mail):
Marriage requires integration of genders, it explicitly sets up for equal gender representation in establishing a household. Yet to both of you it seems integration is the new segregation as it requires you to choose who is in the mix.

You started the logic with Loving, extended from race to gender, and now lets extend it back to race to see if your logic holds up. When we do the reversal we see that, for instance, a school which integrates based on race is actually discriminating against race. It requires a certain racial quota, and thus enacts prejudice in what people can choose. Substitute school for golf course, business club, fraternity, etc...


Your analogy is wrong. Given the way you carry your analogy through, a school would be analogous to *A* marriage, whereas *marriage* as an institution might be analogous to a national educational system.

And, yes, an educational system that decreed that every school in the nation must have precisely the same racial mix would be discriminating on the basis of race.

And it was YOU who introduced the word segregation into this particular thread of the argument. Both people you refer back to use only the word discrimination, so your "integration is the new segregation" claim is apropos of precisely nothing. Neither of them said that, neither of them argued that, and neither of them implied that, despite your claim to the contrary.
10.27.2006 11:26pm
Chimaxx (mail):
The question then becomes the value of integration vs segregation. I leave it as an open-question especially in this debate where homosexuality (gender segregation) is being touted as the completion of the Loving analogy which removed barriers of racial segregation.


That's because it's not a question of integration vs segregation, but one of the arbitrary external imposition of those factors in both cases. Both cases remove arbitrary barriers.

The Loving ruling merely *permitted* racial integration within indivudal marriages; it did not madate it. Couples are allowed to be as recially integrated or segregated within their individual marriages as they wish, even after Loving.

Within 180 days after the NJ decision, couples in NJ are to be allowed to be as gender integrated or segregated within their individual marriages (or civil unions, depending on the legislative result) as they wish.

Same-same.
10.28.2006 12:14am
On Lawn (mail) (www):
Chimaxx,

Good to see you. I was wondering when the smart people would arrive :)

(I mean that sincerely about Chimaxx, though I think the others here are smart too).

> Chimaxx: Your analogy is wrong. Given the way you carry your analogy through, a school would be analogous to *A* marriage, whereas *marriage* as an institution might be analogous to a national educational system.

You are right, a school would be the analogue of a marriage in this instance. But as a national education system I'm unsure of why that large a scale would be required to represent marriage.

I'm also unsure, since that isn't too far off how the analogy was designed, how that would make the analogy wrong.

> Chimaxx: yes, an educational system that decreed that every school in the nation must have precisely the same racial mix would be discriminating on the basis of race.

Here is where your scope seems to have de-railed the analogy, and since I'm unsure of why the national scope was important to you in the first place I'm unsure if it is truely applicable here.

However, if I have it right, racial integration is mandated in schools that are publically funded. Although I'm not even sure a racially segregated private school is allowed anywhere in the USA. But lets say it is, for discussion's sake.

Now, please continue with how I was wrong.

And it was YOU who introduced the word segregation into this particular thread of the argument.

Guilty as charged. I'm not sure why that is significant. Loving dealt with racial segregation, homosexuality is gender segregation. The analogy between them two is advertised as complete by Chen and the Goodridge decision. I'm unsure that pointing out their simularities in this analogy is at all wrong.

And discrimination is the mechanism of segregation. It is the function, people are the domain, and the segregated set is the range. While I never put words in their mouths, and I appreciate you pointing out what they said, a circumspect look at the analogy and simularities points to the conclusion I provided. It is inherent to the discussion. This is all under the same penumbra.

> Chimaxx: That's because it's not a question of integration vs segregation, but one of the arbitrary external imposition of those factors in both cases. Both cases remove arbitrary barriers.

Ah, but segregation is an external imposition of arbitrary barriers. So it can be (and is) a question of integration vs segregation, and what you present is a false dilemma.

However, I just might see your point. Integration can be an external imposition also, so the analogy could be along the lines of authoritarianism while creating a contradiction along the lines of segregation.

I can think of two problems with that.

1) The segregation contradiction remains. I've long argued that one of the key differences between the civil rights movement and the neutered marriage movement, is that the civil rights leaders showed how it was the government keeping them from things they naturally had access too. They drank from the same water supplies, had written languages, and freedom until the white-government came along and took it away. In a more fundamental way that does not hold true in the analogy:

The attempt to set up marriage in the image of sexual preference will create three separate and not-equal classes of unions, man-man, woman-woman, and man-woman. Each with different capabilities, goals and needs. In order to try to make man-man or woman-woman as advantaged as a man-woman relationship the state will be unequally burdened in providing third party assistance for child bearing, and various social enforcement. And since the social norm of raising your own children is at odds with a marriage of sexual preference, it too will have to be marginalized actively by government social programs.

Hence those that want sex marriage as a conduit to government privileges without the requirement of equal gender participation wish to have extra entitlement to the state's resources. Extra entitlement since that would be the requirement to be fully homogenized with traditional marriages. Some look at this and see attack on the civil rights movement, but it is not. In fact, equalizing the entitlement from government to blacks and whites so there was no privileged advantage to race was and is the very goal of civil rights.


2) What this sets up is a priveleged minority, even if it is equated with marriage it is not a removal of barriers it is an active assignement of resources. Goodridge commanded the state resources be used to bridge every gap, procreation included, that was accessed by heterosexuality and not homosexuality.

What also makes it a privileged minority is how it only deals with homosexual couples, which are a small minority of households that are raising children outside of the access to marriage. The narrow focus is authoritarian and arbitrary in its conception. It is very targeted in its enforcement.

What is so contradictory in this case is how the privelege of this select minority is not held to any review or scrutiny. One could just as easily asked why DP's had such a focus in the first place and outlawed them. But instead the court took the efforts of the legislature to help out homosexuality as enough to work its judgement on. The way it selectively ignored some unequal treatment while decrying a requirement for equal gender representation as exclusionary is like something straight out of the court in Alice in Wonderland.
10.28.2006 1:41am
Elliot Reed:
That argument is now completely discredited. Race is not merely a social construct— it has firm foundation in evolutionary biology. First we can tell a person’s race from his DNA if we use enough markers (about 100). Obviously a mere social construct cannot affect DNA.
I think you are misunderstanding the notion of a 'social construct' as used by these people. The point is that there's nothing about science, biology, or any other socially-independent fact of the world that makes the way we divide people up into races the right or correct way to do it.

As an example, consider the one-drop rule that says someone with any degree of black ancestry is 100% black. That's how blackness has historically been understood in this country (though it's less true today). What fact of biology mandates that blackness is dominant and whiteness is recessive? Obviously, nothing. That's a completely arbitrary, socially-imposed rule.

Similarly, Jews, Eastern Europeans, Italians, and the Irish, were not considered "white" for a long time. No fact of biology makes the way we do it today correct and the way people in the past did things wrong. The fact that race matches up with a set of biological markers (assuming you're right that it does) doesn't prove that there's no social construct if the biological markers in question are arbitrary ways of classifying things.
10.28.2006 1:58am
Elliot Reed:
On Lawn:
Loving dealt with racial segregation, homosexuality is gender segregation. The analogy between them two is advertised as complete by Chen and the Goodridge decision. I'm unsure that pointing out their simularities in this analogy is at all wrong.

And discrimination is the mechanism of segregation. It is the function, people are the domain, and the segregated set is the range. While I never put words in their mouths, and I appreciate you pointing out what they said, a circumspect look at the analogy and simularities points to the conclusion I provided. It is inherent to the discussion. This is all under the same penumbra.
What the hell is your point? Is it that our current marriage laws are like mandatory miscegenation? That would be a pro-SSM argument.
10.28.2006 2:20am
On Lawn (mail) (www):
> Chimaxx: Within 180 days after the NJ decision, couples in NJ are to be allowed to be as gender integrated or segregated within their individual marriages (or civil unions, depending on the legislative result) as they wish.

Same-same.


What you bring up is simply another point showing the removal of arbitrary barriers theory of neutered marriage as false. While above I note how instead of a removal of arbitrary barriers is false because it is far much more than removal of barriers, it is the creation of a new priveleged class.

But to claim that equal gender representation in marriage is arbitrary is simply to show a gross misunderstanding of what marriage is.

It is not a barrier but a definition. As such marriage is being re-defined as an institution. It is being neutered of all reference to gender, as if to imagine it does not play any role in marital matters. Matters such as procreation, promoting childrens rights to their heritage. Because one thing is inaccessible to the homosexual relationship, the complete consanguinity. So that is diminished, even marginalized.

And while that is okay for the parents who are claiming to be vulnerable, unable to to be bothered with decisions of their romantic decisions. But for the child, it is only their price to pay. In other words, it doesn't make a difference to the adult, but children (and we see this in voices the number of donor children coming to adulthood) feel a real need to be connected with their heritage. But it is the adults who in the request to neuter marriage that are painted as the victims, and the children the resilient champions ready and able to take it on the chin.

Instead of barriers being removed to enter a house, the whole house is torn down and a new one is created for these victim adults. And the changes are most disconcerting.

So to sum up, to say that equal gender representation in marriage is an arbitrary barrier is wrong on three accounts. It is not arbitrary, it has purpose and definition. And it isn't a barrier set legaly, it is a barrier set by the participants themselves, portraying themselves as victims of their own orientation. The barriers are natural, and defined, not arbitrary. And it really isn't a barrier, it is a elevation of a class of individuals. But to elevate them to the same level comes on the backs of many innocent bystanders, and by tearing down what marriage has that they cannot have access to naturally.

While every class of individuals would love to use the logic of equality to gain ground, when it comes at the expense of others it turns into oppression. Anti-miscegenation laws enforced a racial caste on people, and kept a segment of society in a state of enforced inferiority to what they were naturally. Neutering marriage removes from children their rights to their heritage and to be born and raised by the parents who gave them life. They have a right to consanguinity sealed in marriage. And the heterosexual couples now have their ideal of marriage replaced by the homosexual version of the same. The escelation of a class of self-identity at the expense of others who are left to carry the burden.

Same-same.
10.28.2006 2:24am
Elliot Reed:
Neutering marriage removes from children their rights to their heritage and to be born and raised by the parents who gave them life.
I've said it before and I will say it again: in our legal system, children have no such right and as far as I know they never have. If Dad is always at the office or away on business trips and never interacts with his kid K, K cannot sue to force Dad to spend more time with him. If Dad impregnates Mom and moves across the country, Mom can force Dad to pay child support, but K can't force Dad to be actively involved in raising him. If Mom and Dad put K up for adoption at birth, K cannot sue to force Mom and Dad to raise him. If K is conceived by anonymous donor insemination so that K is raised by Mom and her husband, K cannot sue to force his biological father to be involved in raising him. And so forth and so on.

It sounds like your real objection is to adoption and other procedures that permit children to be raised by someone other than their two biological parents. That's a position you can take, but what you're asking for is not the statue quo ante: it's a complete overhaul of American family law. In any case, gay marriage has no impact on the legality or availability of any of those procedures.
10.28.2006 2:37am
On Lawn (mail) (www):
> Elliot Reid: What the hell is your point? Is it that our current marriage laws are like mandatory miscegenation?

Are they? From 30,000ft my point is that the analogy forwarded by Chen is not only flawed, it is contradictory. The movement from segregation to integration of Loving is in direct contrast to the movement from integration to segregation, which is the drive of neutering marriage. To move from the race analogy of Loving, to the neutered marriage argument, back to race does not produce consistent results. What you wind up with is exhonerating segregation on one hand, and denouncing it with the other.

Chimaxx pointed out that in the end they wind up in a same place, in that the liberty to do either and be given the same status of the state. That liberty is not extended to schools, or other institutions where racial segregation can be charge for a lawsuit. Perhaps there is a good reason for that, and perhaps Chimaxx or yourself could provide that.

What I pointed out to Chimaxx is that it is only the same place when taken from the ego-centric position of the adults. Its their their ability to make the choices they want to make and have the same consequences as the other person. In this case their choice of segregation is equalized by the state with the choice of the person who reaches across gender lines to form a new family.

Miscegenation and gender integration are not, in my mind, very good analogies. Mixing genders does not yeild children of mixed gender. Mixing races does. Empires have commited entire genocides by forcing miscegenation -- they killed all the males. That does not maintain diversity, that destroys it.

Truth be told, because integration on the marital level removes diversity and cultures, one can't on a humanitarian basis mandate it. And you can't demand it either.

But on a humanitarian level, one cannot condone neutered marriage. It encourages a class of people who claim, like the state did in Loving, that they were meant to never be integrated or have to deal with another class of people in a marital relationship. It attacks integration as the moral equivelant of white supremacy (that is the Loving Analogy, anything that people find of value that distinguishes a heterosexual relationship is considered the same as Loving considered white supremacists). It turns the whole principles of the civil rights movement upside down.
10.28.2006 2:42am
On Lawn (mail) (www):
> Elliot Reed: I've said it before and I will say it again: in our legal system, children have no such right and as far as I know they never have.

Finding exceptions does not negate the existance of a right. No one doubts that affirming marriage, lowering divorce, would be the best way to not have the problem of a dead-beat dad. And affirming the child's needs over the parents is a good way to encourage parents to be home more often.

I other words, your exceptions break down because it is by moving away from the marriage ideal that creates them, not moving towards it. That people are allowed to move away from that ideal is not suprising. Its not a matter of legal enforcement. Nor do I think it should be when education and encouragement would do the job nicely.

And in the end you are doing exactly what I said the marriage neuterist does, it steps on the children and their rights for their own gains. In your case outright denying them. You can say that children are just chattel, to be moved from one household to another without any regard to their heritage. You can say that purchasing children is no problem if the parents concent because the children have no rights in the matter. You can say all of those things which make the neutered marriage arrangement possible are fair to the children.

But then that is why neutered marriage is probably the most oppressive thing one segment of society has done to another since slavery and abortion.

As for me, I'll stick up for marriage as a mechanism to encourage people give creedence to children's rights. That marriage is by definition tied to the conditions that makes children is no accident, it is no coincedence. And it is not arbitrary.
10.28.2006 2:53am
On Lawn (mail) (www):
> Eliot Reed: It sounds like your real objection is to adoption and other procedures that permit children to be raised by someone other than their two biological parents.

Why would I be against that? Parents die, and no government enforcement of rights is going to change that. Young girls get pregnant because of hormonal indescretions. I believe giving them the opportunity to give the child to a home prepared to have the child should be an option. Not always would a boy be able to marry, nor should such a decision every be coerced.

What adoption does is restore, as best as the state can, the child's rights. It may not be their parents, but it is as close as the state can get. If I am for children's rights, I would naturally be for a program that attempts to honor those rights as best as it can under the circumstances.

But beyond that, there is a dark side. There is a growing medical industry that is based on paying people to leave their children as much as have them. As a person who endeavors to be homosexual-agnostic, I would agree that this is just as wrong for a heterosexual couple to engage in as homosexuals. But homosexuals do not have any other choice but extra-marital parents leaving their children. To do so at all is onerous. To do so because a segment of society is demanding they are pre-wired to not be integrable with another segment of society is reprehensible. Add to that the loss of one gender in the representation of the household governance, and you have a situation where you aren't really doing a good job of restoring what the child lost at all.
10.28.2006 3:04am
Elliot Reed:
Finding exceptions does not negate the existance of a right. No one doubts that affirming marriage, lowering divorce, would be the best way to not have the problem of a dead-beat dad. And affirming the child's needs over the parents is a good way to encourage parents to be home more often.
The thing is, we are not talking about exceptions to a general rule: there is no rule at all. In our system, a child has no right whatsoever to be raised by their biological parents. You seem to be saying that the court should have invoked, not a legal principle with exceptions, but a legal principle that doesn't exist at all.

I don't know where you get the rest of your argument. I tell you (correctly) that in our legal system children don't have a certain legal right, and suddenly I'm in favor of selling babies to the highest bidder?

And, as I've said before, none of this is about gay marriage. You are free to be opposed to the fact that parents can put their kids up for adoption; the non-custodial parent can move thousands of miles away from the custodial parent and never see the kid; a heterosexual couple of whom the male is infertile can have a kid by anonymous sperm donation; etc., but that's not what we're talking about: we're talking about gay marriage. And you have yet to offer a scintilla of evidence that the children of gay parents will be made worse off by having married gay parents rather than unmarried ones.
10.28.2006 3:08am
PubliusFL:
jrose:

"Romance and love happen to gay and straight alike. The consequences to society have having single people settle down with a lifemate apply to gay and straight alike.

. . . .

Because sex is a crucial part of the romantic, loving, lifetime relationship. Not only does consummation not distinguish same-sex couples from opposite-sex couples, it does distinguish same-sex couples from close friends, parent-siblings (some argue that if same-sex couples can get married why not other relationships)."


Let's take a little trip down memory lane: Chen's point was that interracial marriage and same-sex marriage are analogous, and in each case prohibiting such relationships is unjust. I argued that the analogy was weak because sexuality is an integral part of marriage in a way that race never has been. You claimed that race and sexuality are comparably irrelevant to marriage. But look at what you've written above. You can't reasonably say "race is a crucial part of the romantic, loving, lifetime relationship." Looks like you're singing to my tune now, eh?
10.28.2006 3:22am
On Lawn (mail) (www):
> Elliot: The thing is, we are not talking about exceptions to a general rule: there is no rule at all.

If that is your tack then I'm sorry but contrarianism is not an argument. Do you say you don't accept children being raised by their parents as a right they have? Do you say that people should not see such a right?

I can see why, it is terribly inconvenient for the marriage neuterist. While society maintains a norm of responsibility and caring for your own children, that remains a barrier (arbitrary?) to complete equalization of homosexuality and heterosexuality.

But that is something entirely different than discrediting that such a right exists. Even the lack of being written in law (if that is true) or in legislative debates, or jurisprudence, is not validation of a right not existing. The constitution, seeing that people like you might demand every right be explicitely noted in law, wrote into the bill explicit enumeration of rights that such a requirement was not neccissary.

It is why marriage is seen as a right, but not written into law. It is why abortion is seen as a right, even when the law was against it. Etc...

All I'm noting is the very fact you want to trample on children's rights, and items of their benefit, because it is inconvenient to your agenda is egregious.

> Elliot Reed: suddenly I'm in favor of selling babies to the highest bidder?

I'd be happy to hear that you are not. And it makes me curious and interested. What justification do you have against that practice? It happens today, people can carry babies, have babies, and be paid off to leave the baby with a couple who commissioned the baby.

> Elliot Reed: You are free to be opposed to the fact that parents can put their kids up for adoption

Perhaps you didn't read my comment before posting that statement. No matter I'm sure you probably will by the time you read this and will realize that assumption is innacurate.

> Elliot Reed: but that's not what we're talking about: we're talking about gay marriage.

As Chimaxx said in aother post, you were the one who brought those conditions up, not myself. You can't claim I'm the one who talked about business trips, adoption, etc... when you were the one bringing it up.

But its relevance to the discussion of neutering marriage none-the-less remains fast. Enough that discussing neutered marriage and its problems in the area of procreation brought it to your mind.

> Elliot Reed: And you have yet to offer a scintilla of evidence that the children of gay parents will be made worse off by having married gay parents rather than unmarried ones.

Funny, I don't remember you offering that children being raised by couples would be better off they were gay or married. Because you seem to only be talking about gays gaining access to marriage in order to benefit children they might be raising.
10.28.2006 3:25am
Tom Walker:
I wonder what this decision might imply for school vouchers, given this analogy:

Suppose all of New Jersey's public high schools are co-ed (as I imagine they all are). Suppose that there are private single-sex schools in the state, but that the state does not support them and does not provide assistance to students who attend them. Suppose that approximately 5% of students state-wide would strongly prefer to attend a single-sex school, or at least be taught in single-sex classes. Now suppose that some of these students want to sue the state to require it to either provide equally funded and supported single-sex public schools for them to attend or at least provide them vouchers to help pay for the tuition at private single-sex schools. Is there anything to this, in light of this same-sex marriage decision by the NJ court?

If this could get to trial, suppose that the evidence would show that the 5% of students who would prefer a single-sex school would do better there than at the co-ed school, by just about any measure. Assume that the state could show that a substantially higher percentage of students that attend the co-ed public schools go on to college than do students at private all-boys and all-girls schools. The state could also show that, of those students from private single-sex schools who do go on to college, the nearly all needed the assistance of private tutors to do it. Only a small minority of students going on to college from the public co-ed schools needed help from private tutors. The students from both the private single-sex schools and the public co-ed schools who do go on to college do about equally well there. Also, students from both types of school who don't go on to college do about equally well by any common measure.

Is there any kind of equal-protection claim here? Does it founder on the difficulty of defining the class that's being discriminated against, or are there other serious problems with this analogy?
10.28.2006 6:35am
Owen Hutchins (mail):


If Loving had been handed down at the same stage in the debate (say, 1937), when laws preventing interracial marriage were common and well-supported, I suspect we'd still be arguing about the subject today. Instead, it was handed down well after the issue was largely decided, affecting only stragglers, and today interracial marriage barely merits mention.


In 1965, approximately 80% of the US still thought inter-racial marriage was wrong and should be illegal. IIRC, some 17 states still had such laws on the books. Hardly "stragglers".
10.28.2006 7:39am
Owen Hutchins (mail):

the fact that it's illegal for clergy to perform non-civil marriages"

What the hell are you talking about? Can there seriously be a law that forbids a priest (or anyone for that matter) from uttering the words 'I pronounce you husband and wife' without getting a permit?



For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."

I'm sure this varies by State.


Such laws do not forbid the performance of Union ceremonies, and such ceremonies are quite commen (been to several myself). They forbid the attempted creation of "legal" marriages that aren't. They can still perform ceremonies. "Free exercise", remember?
10.28.2006 7:45am
Hans Gruber:
"Both cases remove arbitrary barriers."

Is the requirement that marriage must be between a man and a woman really arbitrary? I mean, you don't really believe this, do you?
10.28.2006 9:37am
markm (mail):
PubliusFL and jrose: Your arguments keep going in circles because you are using one word, "sex", for two meanings, "making love" and "gender" and seem to be utterly unaware of the shift in meanings.

Making love is critical to a long term romantic relationship. I don't see how the gender of the participants affects this.
10.28.2006 10:22am
Bart (mail):
jrose:

Bart, There is no law aimed at homosexuals which is remotely similar to the old anti miscegenation statutes.

Are you suggesting Loving would have been decided differently had Virginia only denied civil marriage licenses to inter-racial couples?


No. That would only eliminate the criminal penalty and leave a civil penalty.

The other differences which I noted above would still remain.
10.28.2006 10:28am
David Maquera (mail) (www):
As a follow up to legalization of gay marriages, what is the harm in legalizing incestuous marriages between two consenting adults???
10.28.2006 11:01am
Jon Rowe (mail) (www):
As a follow up to legalization of interracial marriages, what is the harm in legalizing incestuous marriages between two consenting adults???
10.28.2006 11:06am
Cornellian (mail):
As a follow up to legalization of interracial marriages, what is the harm in legalizing incestuous marriages between two consenting adults???

The harm is that a parent will have 18 years to manipulate his/her child pending their "consensual" relationship when the kid turns 18 and there is no way to police that problem.

One can imagine a hypothetical case at the other extreme - a man and a woman meet, marry and have children. Five years into their marriage they discover that they are brother and sister. One had been given up for adoption at birth and no one realized they were related until that chance discovery ten years into their marriage. Maybe they'll freak out and get divorced, but what if they don't? Should they have to get divorced? Is that in the best interests of their children? It's not obvious to me that this marriage should be invalid. I think the stronger argument against marriage even in this type of case is that it's too difficult to police the pre-18 manipulation problem.
10.28.2006 1:01pm
jrose:
Plubius: I argued that the analogy was weak because sexuality is an integral part of marriage in a way that race never has been. You claimed that race and sexuality are comparably irrelevant to marriage.

Of course sexuality is integral and distinguished from race in that gay [straight] people virtually always marry someone of the same [opposite] sex while the same does not apply to race. However, I did not claim that race and sexuality are comparably irrelevant in all aspects of marriage. I claimed that they are comparably irrelevant with regards to the purpose of civil marriage (the integral distinction above has no relevance to the purpose of marriage) - and hence the decision to offer inter-racial should be made on the same basis as offering same-sex marriage.

You can't reasonably say "race [as opposed to sex] is a crucial part of the romantic, loving, lifetime relationship."

See markm's 10/28, 9:22 AM comment.
10.28.2006 1:02pm
jrose:
Bart: The other differences which I noted above would still remain.

I think you acknowledged that Loving mandates Virginia to issue civil marriage licenses to inter-racial couples even if Virginia had no criminal penalties. That is exactly what faces same-sex couples today. So, what other differences lead to the conclusion that same-sex couples are not similarly situated as inter-racial couples used to be?
10.28.2006 1:19pm
andy (mail) (www):
"The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive."

Okay....so who decides what to do about offensive things? Hmm, I think we have this thing called a 'legislature', no?
10.28.2006 1:24pm
Ken Arromdee:
The movement from segregation to integration of Loving is in direct contrast to the movement from integration to segregation, which is the drive of neutering marriage.

Loving is a movement from all segregation to a choice between segregation and integration.

Gay marriage is a movement from all integration to a choice between segregation and integration.

So even though you're right in a way, from this angle they're pretty similar. They're moving in different "directions" but towards the same outcome.
10.28.2006 2:17pm
Elliot Reed:
On Lawn: you claim that gay marriage violates children's right to be raised by their biological parents. I counter that:

1) In our legal system, we don't recognize such a right. The points about business trips, sperm donation, and so on are examples designed to show that we could enforce such a right, but don't. Of course, you are free to claim that children have a moral right to be raised by their biological parents, but that's irrelevant to this legal decision because no such legal right exists.

In fact, such a right would be detrimental to the interests of children, because biological parents are not always the best caretakers.

2) Gay marriage does not involve taking children away from their biological parents. So even if children had a right to be raised by their biological parents, gay marriage wouldn't violate it. The only way in which gay marriage implicates the welfare of children is that the children of gay couples would be able to benefit from their parents' marriage. That is, gay marriage benefits some children and harms no children.
10.28.2006 2:20pm
Mark Field (mail):

Race is not merely a social construct— it has firm foundation in evolutionary biology. First we can tell a person’s race from his DNA if we use enough markers (about 100). Obviously a mere social construct cannot affect DNA.


Elliott Reed has already mentioned the flaw in this, but I want to reinforce it. The quoted statement misses the point by light years.

The "social construction" of race is not just related to how people identify themselves (though it does mean that in part), but to how others identify them.

Let me give a purely hypothetical example. A particularly stupid and thuggish racist could easily take a word -- I'll just pick one at random here.... say, "macaca" -- which is usually used to insult sub-Saharan Africans, and used it instead to insult someone of Indian heritage who happens to have relatively dark skin. Sounds wild, I know, but it could happen. And that has nothing to do with biology.
10.28.2006 2:47pm
Chairm (mail):


No analogy is perfect (or it wouldn't be an analogy) but the analogy with race is fatally flawed.

Objectively, there is one human race. It is two-sexed. Human generativity is both-sexed and concepts of race do not change that fact. Marriage combines sex integration with responsible procreation. The required participation of both sexes is not unequal treatment.

The NJ Court wrote into the state constitution a new protected class based on the subjective identity of homosexual. That is not merited, least of all on the basis of the marriage case before it. Rendering marriage gender-neutral, i.e. neutering marriage, may be best for society by some people's opinions, but it is not required by the constitution of New Jersey.

The analogy is flawed in the claim of equivalence between racial segregation and supposed segregation by orientation, or gay identity. Chen's use of the analogy contradicts itself.

The one-sex twosome is selectively sex segregative. Outside of marriage, that's tolerable, and also lawful, but within it would turn conjugal union upside down and shake all the coins of worth out of its pockets.

The old racist system used the filter of White Identity to segregate the sexes via the marriage law. Pressing racism into marriage is mistaken because there are no sub-species of humankind objectively classified. Human beings do not produce hybrids of subspecies neither of race nor of sex.

Likewise the Gay Identity filter would introduce sex segregation into a social institution that is founded on sex integration; and responsible procreation is extrinsic to the one-sexed arrangement.

>> "The thing is, we are not talking about exceptions to a general rule: there is no rule at all. In our system, a child has no right whatsoever to be raised by their biological parents."

All double-dad or double-mom scenarios rely on parental relinquishment. That runs contrary to the long-established norm (both in societal practice and in family law) that each of us is responsible for the children we create and only under dire circumstances, on a case-by-case basis, can this principle be set aside by the state authority in favor of the principle of directly protecting the child. That presumption is intrinsic to the social institution of marriage.

But that principle is trivialized in treating the one-sexed arrangement as if it was marital. This has already been demonstrated in Canada and in Massachusetts where Party A and Party B are accompanied by the highy abstract notion of Parent A and Parent B.

In sum: the analogy with race is not as Chen proposed; rather, it is that the racist identity filter is as irrelevant to marriage as is the gay identity filter.

* * *

>> "thousands of children in foster care in Illinois as a result of abuse and neglect suffered primarily from so-called "traditional" families"

You will have to back that up. First are you speaking of traditional families as those in which the mother and father of the children were present but were also abusive and neglectful or would you step back and narrow your generalization?

* * *

>> "The easy ditinction between SSM marriage and interracial marriage in Loving, versus incest, is the progeny of incest runs a great risk of genetic deformity."

Easy but irrelevant. Two too-closely related people could render themselves as sterile as a one-sexed twosome. Besides, if that is the basis for barring incestuous marriage, then, one-sexed twosomes too-closely related would be exempted.

And if that is the case, then, the SSM equality claim kicks in and both-sexed too-closely related twosomes must not be treated differently. Is there evidence that adopted children raised by incestuous pairs -- such as first cousins -- are any less worthy of benefiting from the marriage of their parents than one-sex pairs? Blah-blah-blah.

In our society, a pair of siblings, for example, would commit incest without even touching each other, if they held themselves out to be a married couple -- i.e. acquired marital status somehow. No jurisdiction allows joint adoption by such pairs. Blah-blah-blah.

The laws of incest and the laws of marriage intersect for good reason. And this has everything to do with the societal interest in sex integration combined with responsible procreation. Society selectively segregates the sexes outside of marriage, not within it, as SSM would do under the auspices of marital status.

* * *

>> The 14A expressly says that "No state shall...deny to any person the equal protection of the laws."

That that individualized protection can only indirectly apply to the entity, "couple".
10.28.2006 3:06pm
Chumund:
I think the strength of the Loving analogy ultimately depends on the answer to the following question:

Is the relevant state's failure to provide equal legal recognition to gay marriages motivated by prejudice with respect to gay people?

That was the Court's ultimate conclusion in Loving: the laws in question were motivated by prejudice with respect to minority races. And by analogy the most pressing question is whether the public policy arguments offered in favor of withholding state recognition from gay marriages are in fact explicitly or implicitly dependent on prejudice against gay people.
10.28.2006 3:21pm
Elliot Reed:
All double-dad or double-mom scenarios rely on parental relinquishment. That runs contrary to the long-established norm (both in societal practice and in family law) that each of us is responsible for the children we create and only under dire circumstances, on a case-by-case basis, can this principle be set aside by the state authority in favor of the principle of directly protecting the child. That presumption is intrinsic to the social institution of marriage.
1) Gay parenting doesn't always depends on (biological) parental relinquishment, unless you think dying constitutes "relinquishment."

2) I've said it before and I'll say it again: this idea that parents can relinquish their parental rights only in "dire circumstances" is a myth. Parents are free to put their kids up for adoption without a showing of "dire circumstances." Straight couples (whether fertile or infertile) are free to conceive via donor insemination or surrogate motherhood without a showing of "dire circumstances," whether by them or by the other biological parent. You can object to the legality of these practices, but in that case your objection is not just to gay marriage, but to huge chunks of American family law. Even if people should be required to show "dire circumstances" to use alternative fertility techniques or put their kids up for adoption, that wouldn't mean gay couples couldn't raise children, since there would still be kids who needed adoptive parents.
10.28.2006 3:22pm
Chumund:
To back up Eliot, that seems to be an articulation of the standard for the state terminating parental rights against the wishes of the parent. Incidentally, that standard does not depend on the parents being married, and I am not sure I understand the claim that marriage somehow depends on the possibility of such parental rights arising.
10.28.2006 4:06pm
Chumund:
ElLiot. Sorry.
10.28.2006 4:07pm
Jon Rowe (mail) (www):
Re: Incest.

I think the natural impulse for the incest taboo may originally have been to prevent the genetic defects which result from too much inbreeding, but our cultural taboo largely relies on other reasons. We allow retarted people and folks with other serious genetic defects to breed, and to do otherwise would raise the specter of eugenics, no longer allowed in respectable civilized societies. The main reasons for our anti-incest norm is to protect children from abuse, and to otherwise put a damper on the problems that certainly would arise if we allowed for sexual passions to be consummated in the nuclear family.

I remember reading an anti-homosexual article by Harry Jaffa where he tried to connect homosexuality to incest (as unnatural), but when it came time to actually talking about incest, he noted the terrible effects that may occur if a mother had to compete with her daughter for the sexual attention of her husband. And I thought, okay, this makes sense, but what does this have to do with homosexuality? Or even a “naturalistic” case against incest? Even if the daughter were adopted and not at all genetically related to either the father or the mother, the rationale for prohibiting incest would still fully apply to that circumstance.
10.28.2006 4:21pm
Hans Gruber:
"The harm is that a parent will have 18 years to manipulate his/her child pending their "consensual" relationship when the kid turns 18 and there is no way to police that problem."

What's scary is that you seem to think absent manipulation before adulthood that this sort of relationship would be perfectly acceptable.
10.28.2006 4:34pm
Hans Gruber:
"Is the relevant state's failure to provide equal legal recognition to gay marriages motivated by prejudice with respect to gay people?"

Really? I doubt we will see this sort of standard applied to polygamists or incestuous marriages, where "prejudice" is perfectly acceptable--even expected.
10.28.2006 4:35pm
Jon Rowe (mail) (www):

What's scary is that you seem to think absent manipulation before adulthood that this sort of relationship would be perfectly acceptable.


Incest is often done in the context of child-abuse; that's why they have incest survivor groups. Even if no abuse is done to the children, there still is harm that is done to the nuclear family that has nothing to do with homosexuality. What if it were a daughter who seduced her father, where the daughter clearly wasn't the victim. Well, the mother would greatly be harmed. And if that broke up an intact family, the whole family would be harmed.

Even though he technically wasn't married to her and Soon Yi was Mia Farrow's adopted daughter, (thus we are two steps removed from real biological incest), Woody Allen's quasi incest with his now adult wife (who by the way, doesn't seem to have been "abused" at all by Allen; and indeed she may have initiated the relationship) is precisely the kind of harm that our incest laws and norms are supposed to protect against. It destroyed Allen's and Farrow's what arguably could be called common law marriage (even though they technically were not married), destroyed Farrow's relationship with her daughter and Allen's relationship with his son.
10.28.2006 5:06pm
Chumund:
Hans,

I actually think we will--and do--see the same standard applied to polygamy and incest. The basic idea is that the state would have to explain WHY recognizing polygamous and incestuous marriages would be bad, not merely assert it. Personally, I think the case can be made against state recognition for both of those forms of marriage, but I would expect the state to have to make that case.

In general, this is a point which gets lost in the "laws should/should not be about morality" debate. Many laws are indeed about morality, but we also require the relevant moral propositions to be rationally justified, and not be the result of something like bare intuition, prejudice, religious ipse dixit, or so on. So, for example, one can explain why murder or stealing should be unlawful with reference to the basic needs of civil societies. But if all we had to go on was the Ten Commandments, then I think it would be a very different situation.

And of course, we see people here attempting to meet that burden with respect to gay marriage (namely, attempting to give reasons why state recognition of gay marriage would be bad). As I noted, though, it is not enough to simply offer an argument of that form--we must still examine the argument to determine whether or not it depends at some crucial step on prejudice. And again, I would expect arguments with respect to polygamy and incest to be subject to the same requirement.

In short, one must distinguish rational moral conclusions from prejudice. If one can rationally show why the state recognizing any particular form of marriage would be bad, then that conclusion may justify that policy. But if one cannot rationally demonstrate that conclusion, then one is left without a legitimate justification.
10.28.2006 5:20pm
Chairm (mail):
>> Is the relevant state's failure to provide equal legal recognition to gay marriages motivated by prejudice with respect to gay people?

Maybe, if you could establish that the one-sexed arrangement is "marriage", which you cannot do except through an axiomatic statement.

The white supremicist system recognized the marriages as marriages but penalized them.

* * *

The marriage law in NJ does not test people for gay identity the way that the old racist system purportedly tested people for impurity of whiteness.

If you want to use the race analogy, then, you need to declare that there is a white race apart from other human races. But you can't make that claim with objective criteria. Try to draw the line if you wish. Even before Loving the system was creaking under the weight of its own contradictions and lack of objective criteria.

The racist system was based on the social reality of racism, not the objective reality of human subspecies.

Motivation was clear, but even without going to motivation, the effect was unmistakably to prop-up a caste system that advantaged and disadvantaged contrary to specific provisions in the amended Constitution.

This provides no analogue with the marriage case that was before the NJ Supreme Court.
10.28.2006 5:22pm
Jon Rowe (mail) (www):
This discussion should remind us that bans on incestuous marriages are, from a logical standpoint, more analogous to bans on interracial marriages than they are to bans on same-sex marriages. In other words, one could more easily argue, "recognize interracial marriages today, and you'll have to recognize incestuous ones tomorrow" than, "recognize same-sex marriages today, and you'll have to recognize incestuous ones tomorrow."

With interracial marriages, we are talking about people who are too distantly related, with incestuous marriages, people too closely related.

"The racist system was based on the social reality of racism, not the objective reality of human subspecies."

You sound like a social constructionist lefty liberal arguing from Margaret Meadland here.

Race, like degree of relatedness, is an objective reality. In fact, as I said, race simply is degree of relatedness.

"Try to draw the line if you wish. Even before Loving the system was creaking under the weight of its own contradictions and lack of objective criteria."

You can just as easily draw racial lines as you can draw consanguinity lines. They both exist on a continuum. And with our sexual norms, you have to draw the line somewhere on that continuum. Should someone who is 1/4 or 1/8 or 1/16 black be able to marry a white person? Should I be able to marry my first cousin? My second cousin? My third cousin? Even FDR was in a "one-drop" (if you will) incest marriage to Eleanor?

There are sound reasons (as I outlined above) for keeping the anti-incest norm, and were no sound reasons for keeping the anti-misceg. norm. I also think that the reasons against same-same relationsips or marriages are likewise not rational. But it is utterly false to say that incest and homosexuality are somehow logically related to one another, but neither of them to miscegenation.
10.28.2006 5:37pm
Chumund:
Chairm,

Actually, I don't think this is really an "axiomatic" issue, as in fact I suggest to Hans. Rather, I think it is one subject to rational inquiry.

For example, consider the following hypothetical: a person believes that competent adults who honestly enter a covenant to devote themselves to an exclusive romantic partnership with each other for life, and who announce this covenant to their families and community requesting their recognition of this covenant, thereby form a marriage.

But this person claims gay marriages are impossible because he believes that people who claim to be gay are simply mentally ill, and their occasional claim to love each other is a product of their mental illness. Accordingly, he argues, they are incapable of forming a marriage because they simply are not mentally competent to do so. In this case, the person's conclusion that gay marriage is impossible is not axiomatic, but rather a conclusion.

I think the claim that marriages require a man and a woman, if it is to have any weight in rational discourse, must be treated in the same way. In other words, one must be able to justify this claim as a conclusion, not simply as ipse dixit. And so to for those who claim gay marriages are marriages--they must justify that claim as a conclusion.

And as I noted, we see people doing that in these discussions--they offer various claims about marriage as an institution and attempt to reason to a conclusion about whether or not a man and a woman are or are not needed to form a marriage. And that is the sort of discussion we need to have.
10.28.2006 5:46pm
Mr_Thorne (mail) (www):
What I'm wondering about is this. As I understand it, the NJ Court basically told the legislature to change the law within six months.

Now . . . what if the legislature doesn't feel like changing the law, or doesn't like having a court to tell it it must.

What happens when a year goes by and the legislature fails to act. Is the court going to have the legislators thrown into jail for defying a court order?
10.28.2006 5:50pm
Mr_Thorne (mail) (www):
Another thought comes to mind, perhaps inspired by the Supreme Court's 1990 decision in the Employment Division of Oregon v. Smith.

A law banning same-sex marriage, it could be argued, is not discriminatory since it applies equally to all -- heterosexuals as well as homosexuals are barred from marrying someone of the same sex.

Hence, there is no equal protection argument to advance.
10.28.2006 6:21pm
Chairm (mail):
Elliot Reed, your comment is welcomed, but your objections are trivial.

The death of dad means he is no longer able to enjoy the responsiblities and rights of parental status. The status has been lost via death. The child has lost his dad, a dire circumstance, surely. He now has a shortfall that adoption might makeup for him.

But you claimed a significant "death" distinction in the context of the double-dad and double-mom scenarios that would contradict the comment I have made about parental relinquishment. Please elaborate.

>> "Parents are free to put their kids up for adoption without a showing of "dire circumstances."

Sure, but the state authority cannot do so, as I said.

Also, relinquishing for adoption is not one and the same as relinquishment of parental status; the former is a process that concludes with a certification of another adult's new parental status vis-a-vis the child. The latter has various components that are sorted on a case-by-case basis during the interim between relinquishment for adoption and relinquishment of parental status.

Parental status is not an on-off switch. Some components are not relinquished: the incest provisions continue to apply, for example. But others can continue prior to certification of adoption. For example, in Massachusetts a father who gave-up his daughter to state fostercare was required to continue to provide support until she was adopted or had reached adulthood. He could be excused from this continued obligation only under dire circumstances.

I think your points about third party procreation do not contradict the point I have made about the double-dad and double-mom scenarios.

That mom-dad couples also use third party procreation is trivial in this context. Lone individuals can also use it.

But keep in mind that almost all married couples who use IVF/ARTs depend on their own material and do not use third parties. As I said, third party procreation is extramarital procreation.

Do you say that relinquishment (one way or another) and extramarital procreation are the basis for state recognition of marriage? That the laws on adoption and on the IVF/ART should lead, if not dictate, marriage law?
10.28.2006 6:27pm
Jon Rowe (mail) (www):
Mr. Thorne,

We could have a constitutional crisis at the state level in that case. The legislature and executive would be wise to obey the court, if for no other reason than the shoe may be on the other foot sometime in the future.

I remember Robbie George asked Justice Breyer a similar question, when I saw them speak in Princeton, about the executive enforcing say, the Dred Scott decision. Breyer's response was something along the lines of, let's say executives were free to ignore judicial decisions in which they disagreed; what would have happened when Brown v. Board came down and it came time for the executive to send in the federal troops to enforce that decision?

Now, Eisenhower, though not a big liberal, may have been somewhat sympathetic to the Court's ruling. And indeed the force of that ruling, commanded by the Supreme Court, could have tipped his hand.

We've also got something similar in NJ. The legislature and executive are, as far as I know, not gung ho pro-gay marriage, but fairly socially liberal. If Roy Moore were in charge in NJ, indeed, he would try to subvert the Court's decision. But it's almost certain that the NJ legislature and executive, being who they are, will listen to the court. After all if Mitt Romney acquiesed in Mass, I can't imagine Corzine refusing.
10.28.2006 6:27pm
jrose:
A law banning same-sex marriage, it could be argued, is not discriminatory since it applies equally to all -- heterosexuals as well as homosexuals are barred from marrying someone of the same sex.

Sure, you can make that argument. But it is pathetically weak. Of course current marriage law discriminates against gays because only they are forbidden from marrying their lover.
10.28.2006 6:28pm
Chairm (mail):
Chumund, your question presupposes that there are some marriages that go unrecognized.

Rather, your question could be asked more precisely by referring to the one-sexed relationship, rather than "gay marriage", and compare recognition or non-recognition with the both-sexed relationship.

Romance is an aspect of marriage, but should THAT move the state's hand? State support for mutual caretaking does not depend on romance, or sexual relations, or any other of various things that SSM argumentation places at the center of marriage. No romance test need be passed for a license to marry.

So you really do need to go back to what the state recognizes and the purpose of that recognition. The state did not create marriage but it did establish a legal shadow of marriage.

The answer to your question, I think, is that the institution has gained secial status not due to the specialness of the participants (i.e. they are Heterosexuals!) nor due to the specialness claimed by some unmarriageable combos (i.e they are Homosexuals!). Rather it is the ordinariness of the combo of man and woman which extraordinarily (yes it is an apparent contradicition) arises from both the nature of humankindand the nature of human generativity. Rational inquiry leads to acknowledgement that the marriage idea , the social institution, integrates the sexes and combines that with responsible procreation; the one-sexed arrangement may have a newly articulated ideal for adult homosexual people, but whatever its merits it lacks the core of marriage.

To treat nonmarriage as marriage would undermine the special status accorded the social institution of marriage. And it would not treat the presumptively homosexed arrangement as special, as benefitial to society, on its own terms, whatever those terms might be claimed to be.

What is the societal purpose in elevating the new homosexed ideal for domestic partnership? This purpose should be based on a claim independant of marriage. In fact, given SSM argumentation, such an independant claim should be relatively straightforward.

With marriage and the homosexed ideal articulated, the question you raise becomes not about treating this or that sort of person equally, but treating the two arrangements and ideals as fits societal interests.
10.28.2006 6:45pm
Elliot Reed:
A law banning same-sex marriage, it could be argued, is not discriminatory since it applies equally to all -- heterosexuals as well as homosexuals are barred from marrying someone of the same sex.

Hence, there is no equal protection argument to advance.
A law banning different-race marriage, it could be argued, is not discriminatory since it applies equally to all -- whites as well as blacks are barred from marrying someone of a different race.

Hence, there is no equal protection argument to advance.

Of course that doesn't exactly describe the law at issue in Loving (e.g. blacks could marry Asians), but that was irrelevant - an "equal application" anti-misceganation law would have been equally unconstitutional.
10.28.2006 6:47pm
Mr_Thorne (mail) (www):
Sure, you can make that argument. But it is pathetically weak. Of course current marriage law discriminates against gays because only they are forbidden from marrying their lover.

Well . . . there are some married people who also have lovers (not their spouses), and the law forbids them from marrying their lovers. Is a law against polygamy discriminatory because it effects married men more than others?
10.28.2006 6:47pm
Chumund:
That, of course, is the trivial argument eliminated by Loving (where it was also the case that everyone was treated "equally" because they could all marry someone of their own race). And, of course, it simply isn't true: if you are a man you can marry a woman, but not if you are a woman, and similarly if you are a woman you can marry a man, but not if you are a man. So, there isn't equality, but rather a combination of two different discriminatory practices (one for men and one for woman).

But this is indeed the trivial part of the Loving analogy (in the sense that it is obviously flawed as an argument anyway). Again, I think the more important part of the analogy is the sense in which bare prejudice cannot be the grounds for public policy (which in turn connects Loving with cases like Cleburne and Lawrence).
10.28.2006 6:50pm
Mark Field (mail):

A law banning same-sex marriage, it could be argued, is not discriminatory since it applies equally to all -- heterosexuals as well as homosexuals are barred from marrying someone of the same sex.

Hence, there is no equal protection argument to advance.


This doesn't work; it's the same argument that the state made in Loving. In Loving, the state said, in effect, "the law is not discriminatory since it applies equally to all -- whites as well as blacks are barred from marrying someone of the opposite race."

The obvious flaw is that the person who wants to choose a spouse is, in each case, barred from choosing someone he/she wants. In Loving the bar was race, here it's sex.
10.28.2006 6:53pm
Elliot Reed:
Romance is an aspect of marriage, but should THAT move the state's hand? State support for mutual caretaking does not depend on romance, or sexual relations, or any other of various things that SSM argumentation places at the center of marriage. No romance test need be passed for a license to marry.
Exactly. Marriage is a relation that serves many purposes, no one of which is individually necessary or sufficient.
10.28.2006 6:54pm
FMS:
What is critical to recognize is that marriage is becoming less and less a necessary component of bearing and raising children. The family unit is not nearly the cohesive, rock solid foundation of the modern community and this is not the result of homosexuality but of divorce and single parenthood. It is these issues that must be addressed in order to strengthen the family and not homosexuality.

I cannot perceive how two people of the same sex being involved in a state sanctioned relationship would interfere with or weaken the family unit of a heterosexual couple. However, the perceptions that divorce is trivial or that a single mother is a strong woman may. The concern, when it comes to broken homes and single parenthood should not be on the parent, but on the child, and it is certainly not.

This, and not homosexuality, is the threat to the family unit that society should be more interested in addressing.
10.28.2006 7:03pm
Chumund:
I don't think the state can enforce it, but I do think marriage is linked to romantic love (I would suggest that romantic love is often an important, and sometimes a necessary, aid to marital success). Basically, romantic love is tied to things like intimacy and preferential treatment, and these things in turn are usually important aspects of the marital relationship. Moreover, a lack of romantic love between the spouses can open the way for romantic relationships with others, and any resulting intimacy/preferential-treatment with these others could undermine the marriage.

I note this because I think it is one of the many reasons why the state should recognize gay marriages. Gay people can and do get married to members of the opposite sex, but I think their lack of romantic love for their spouses makes those marriages far less likely to be successful. Accordingly, the state would benefit from eliminating practical barriers to gay people marrying people with whom they have a romantic relationship.
10.28.2006 7:14pm
Chumund:
Chairm,

I'm not sure I understand your claim that the state gives marriage a "special status". Indeed, I absolutely agree that the state did not create marriage. Rather, as with many other relationships, the state has regulated marriage. And marriage does not need to be "special" or "extraordinary" in order for the state to justify regulating marriage, because as noted the state regulates all sorts of relationships.

Morover, clearly the state makes no attempt to regulate only "ideal" marriages. Rather, it regulates them pretty much as they come, barring extraordinary circumstances. So, while gay marriages may or may not measure up to your conception of the "ideal" marriage, that isn't really the issue, because there is no requirement that every state-regulated marriage be ideal.
10.28.2006 7:22pm
Chumund:
By the way, this would be a good line of inquiry into possible prejudice--are gay marriages being required to meet some ideal which straight marriages are not? If so, what is the justification for holding gay marriages to this higher standard?
10.28.2006 7:23pm
jrose:
Mark Field: The obvious flaw [in the argument that equal application implies no discrimination] is that the person who wants to choose a spouse is, in each case, barred from choosing someone he/she wants. In Loving the bar was race, here it's sex.

Loving did not argue Virginia marriage law was discriminatory because there was a racial bar, but rather argued it was discriminatory because it fostered White Supremacy. Similarly, the New Jersey supreme court did not find that the law was discriminatory because there was a gender bar, but rather because gay people were disadvantaged.
10.28.2006 7:38pm
PubliusFL:
markm:

"PubliusFL and jrose: Your arguments keep going in circles because you are using one word, "sex", for two meanings, "making love" and "gender" and seem to be utterly unaware of the shift in meanings.

"Making love is critical to a long term romantic relationship. I don't see how the gender of the participants affects this."


I've been using the word "sex" the same throughout - to refer to sexuality. Marriage is inseparable from the sexual aspect of human nature, no matter where or when you look it. That cannot be said about marriage and race. That's why Chen's analogy is flawed, as I argued above.
10.28.2006 7:38pm
A. Zarkov (mail):
Elliot Reed:

I think you are misunderstanding the notion of a 'social construct' as used by these people. The point is that there's nothing about science, biology, or any other socially-independent fact of the world that makes the way we divide people up into races the right or correct way to do it.

Not true. The way most people self identify their race corresponds to their continental ancestry as revealed by DNA analysis. The existence of admixtures means some individuals do not sharply classify, but most everyone does. The lack of sharp classification boundaries does not invalidate the biological concept of race. According to the current theory of human evolution a single band of about 150 left East Africa about 50,000 years ago and migrated to all the continents in about 10,000 years forming isolated communities with very little admixture. The set of sub-species we call races evolved over the next 35,000 years from the processes of genetic drift, mutation and selection. Given an individuals DNA, we can with high probability determine his continental ancestry. Where is the social construct? We can use the term “genetic cluster” instead of race, but what difference does that make? Of course with enough mixing the whole world will eventually become genetically homogeneous.
10.28.2006 7:50pm
A. Zarkov (mail):
Mark Field:

The "social construction" of race is not just related to how people identify themselves (though it does mean that in part), but to how others identify them.

Most can people identify a given person’s race reliably in the sense that they can identify the person’s continental ancestry as indicated by his DNA. The people who say race is merely a social construction assert there is no significant genetic distance between the races, and that’s just not true. See the 1994 book by Cavalli-Sforza and his genetic distance chart. Neil Risch discusses these issues here. Risch reviews the arguments and presents his own research. BTW Cavalli-Sforza puts in some protective political boilerplate in his book to the effect that there is no biological basis for race. Then he proceeds to contradict this statement in the rest of the book, which is a grand summation of his life’s work. In fact the cover of his book contradicts this statement. A good book at a general level is “Before the Dawn” by Nicolas Wade. See especially chapter 9 which provides a good summary of why race is a valid biological concept independent of social construction.
10.28.2006 8:21pm
On Lawn (mail) (www):
> Elliot Reed: On Lawn: you claim that gay marriage violates children's right to be raised by their biological parents.

There's quite a bit more to it. Gay marriage removes from marriage the aspect of responsible procreation, which mutes the force marriage has as an institution to ensure children's rights and well-being. Both marriage, foster-parenting, and orphanages try to help children out, ensure rights and well being. But only marriage is poised to keep all of those rights intact from the beginning. Removing what marriage does best, because it is inconvenient to people grabbing for government benfits is a source of real dissapointment in the few people advocating neutered marriage.

> Elliot Reed: In our legal system, we don't recognize such a right.

That is an excellent restatement of your position on this. I would appreciate it even more if it were needed. You've already stated your opinion on the matter, which I already refuted. Restatement as a way to salvage your argument is not a very useful means to constructive discourse. It is simply plugging your ears and chanting to yourself over and over.

> Elliot Reed: In fact, such a right would be detrimental to the interests of children, because biological parents are not always the best caretakers.

What you are pointing out here is valid. Not all rights are absolute, and no one is saying this one is. All I'm saying that is to throw away marriage as a way to encourage recognition of this right for the sake of homosexuality is frivolous, calous, and makes marriage completely contrary to one of its most valuable purposes.

> Elliot Reed: Gay marriage does not involve taking children away from their biological parents.

On paper, that might be true. In practice, I fear the motivations behind neutering marriage do in fact create that outcome. In your assertion, you simply become one of the many promise makers, like Volokh mentioned in his review of this decision, who are ignored in the name of progress. People we knew better than to listen to, but did so any way and got burned. To me you have no way to back that assurance, and belief in your promises is fool-hardy. When you have a real way to back that promise up, then we can listen.

In Massachusetts the state was ordered by the supreme court to set its resources to the equalization of the homosexual couple to the heterosexual couple. This has included rewriting birth certificates into being simple reciepts. One can happen upon a child naturally and register it with a birth certificate, or it can be a completion of a transaction where one parent is paid as much to leave a child as have one.

There is no natural alternative for same-sex couples. And because of that, natural parentage is completely written out of the system. Children do not even have the right to their heritage, as heritage is something a homosexual couple cannot provide naturally.

> Elliot Reed: The only way in which gay marriage implicates the welfare of children is that the children of gay couples would be able to benefit from their parents' marriage.

And to add insult to the injury, how can you be trusted to your promises when such basic facts elude you so easily. You say "children of gay couples", but it is more accurate to say "children raised by gay couples". In fact, the statement "children of gay couples" is not accurate at all, and I find it less than intellectually honest.

Children do not come from homosexual relationships, they are not "of" that relationship. There is no sence of being from them that can justify that use of the term.

And that logic would apply even stronger to polygamous relationships, where the children would be benefitted of their parents were married. Using marriage as some bandage to try to keep a family in tact does not work. Step-marriages fail at a much sharper rate than first marriages. First marriages where the couples were living together first fail at a much sharper rate. When marriage is a bandage, it doesn't do that much good at all.

But if there must be something, call it "bandage" and leave marriage to mean the union of two different things into a new whole. As Chairm points out, the human race is two-sexed. A marriage is gender-complete.
10.28.2006 9:24pm
On Lawn (mail) (www):
> Chumund: are gay marriages being required to meet some ideal which straight marriages are not? If so, what is the justification for holding gay marriages to this higher standard?

I don't see homosexual unions being held to a standard that the gender-complete unions are. If anything, they are given a purposefully weakened standard, and given resources to try to meet the gender-complete arrangement. In that way the equal protection clause is undermined, they get extra priveledge in their arrangement that is afforded to handicapped gender-complete arrangements. They are equalized with the handicapped, much in the same way you or I might want a disability check for simply not wanting to work.

As I look into the future, the prejudice and bias shown towards homosexuality in these rulings will be what makes people shake their heads in the future. For now these rulings are not giving the homosexual privelege and bias any scrutiny, and that might continue but will not continue forever.
10.28.2006 9:33pm
Mark Field (mail):

See the 1994 book by Cavalli-Sforza and his genetic distance chart.


I've read it.


Most can people identify a given person’s race reliably in the sense that they can identify the person’s continental ancestry as indicated by his DNA.


This misses the point of the example I gave -- racism doesn't work that way. It instead lumps people together based on skin color (or other features) without regard for the actual details of origin.


Neil Risch discusses these issues here. Risch reviews the arguments and presents his own research.


Risch's position was debated in Science a year or two ago. At least for now, his appears to remain a minority position. In any case, his position is pretty far removed from the issues of racism which cause people to refer to race as a social construct.


A good book at a general level is “Before the Dawn” by Nicolas Wade.


It's on my reading list, but I'll push it up a few levels.
10.28.2006 9:34pm
On Lawn (mail) (www):
> Chumund: I'm not sure I understand your [Chairm's] claim that the state gives marriage a "special status".

You might be missing the meaning that marriage has a special status because it is so obvious. The GLBT released 1000+ incidents of marriage in federal law, priveleges, rights, benefits that are extended to those with that status.
10.28.2006 9:36pm
Loren (www):
Mark Field, In Loving, the state said, in effect, "the law is not discriminatory since it applies equally to all -- whites as well as blacks are barred from marrying someone of the opposite race."

Technically, that's not what the law did. Black people could marry Indians or Asians or any race other than whites; white people, on the other hand, were forbidden from marrying anyone other than whites. So basically, the law only prohibited whites from intermarrying. And as such, the law was blatantly an effort in white supremacy and white "purity," and the Court raked Virginia over the coals for it.
10.28.2006 9:38pm
whit:
"The obvious flaw is that the person who wants to choose a spouse is, in each case, barred from choosing someone he/she wants"

sure. they can't choose their brother, sister, father, mother, 1st cousin, anybody within the bounds of consanguinity...

they can't choose a SECOND spouse, they can't choose a spouse who is already married, etc.

clearly, the law is discriminatory ... :l
10.28.2006 10:16pm
A. Zarkov (mail):
“This misses the point of the example I gave -- racism doesn't work that way. It instead lumps people together based on skin color (or other features) without regard for the actual details of origin.”

That might be true, but it’s not relevant to the discussion here, which has to do with the biological reality behind the concept of race. Racism has to do with invidious stereotyping, and (as you point out) misidentification. If someone can’t tell an East African from an Indian (as in Indian sub-continent), he is not very observant, careless, or just plain stupid.

The PBS series “Race the Power of Illusion” amply demonstrates the kind of misinformation published about this subject. Let’s look at a few assertions from their website.

* “Not one characteristic trait or gene distinguishes all members of one so-called race from all members of another so-called race.”

That statement might be true in a very narrow and strict sense because of the word “all,” but it’s patently false on an operational level. I can send a tissue sample to DNA Print Genomics and they will tell me the continental ancestry (thus his race) of the person with high probability. You won’t get an unambiguous result every single time, but enough to be useful. Enough to solve crimes by identifying the race of a serial murderer.

* ”Unlike many animals modern humans have not been around long enough, nor have populations been isolated enough to evolve into separate subspecies or races.”

See Bowcock et al: Drift, admixture, and selection in human evolution: a study with DNA polymorphisms. Proc Natl Acad Sci USA 1991, 88:839-843. (available for download)

But if you’ve read The History and Geography of Human Genes, you know this statement is flat out wrong. BTW a lot of new research has come in since 1994.


Risch's position was debated in Science a year or two ago. At least for now, his appears to remain a minority position.

I don’t know if that’s true, I can give many other researchers who agree with him. In any case, being a minority position doesn’t matter because we don’t vote on the truth of scientific facts. It’s the science that counts; besides we all know that many people are afraid to agree with Risch.
10.28.2006 10:29pm
Mr_Thorne (mail) (www):
Mark:

RE: This doesn't work; it's the same argument that the state made in Loving. In Loving, the state said, in effect, "the law is not discriminatory since it applies equally to all -- whites as well as blacks are barred from marrying someone of the opposite race."

In Loving, the state made that argument, but the court found something else. The law was discriminatory because it treated people according to their race. If you were White, you couldn't marry outside your race. If you were Black, you could. It discriminated according to race, not according to sexual preference.

The Constitution now says the state cannot discriminate according to race. But does it say that the state cannot discriminate according to sex or according to sexual preference?

From the ruling:

"There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race."

"The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."
10.28.2006 10:40pm
Chumund:
Mr_Thorne,

You say that "The Constitution now says the state cannot discriminate according to race."

Can you point us to the exact language you have in mind?
10.28.2006 10:44pm
Mark Field (mail):

Technically, that's not what the law did.


I know, but that's what the state argued (which is what I said).


sure. they can't choose their brother, sister, father, mother, 1st cousin, anybody within the bounds of consanguinity...

they can't choose a SECOND spouse, they can't choose a spouse who is already married, etc.

clearly, the law is discriminatory ... :l


You left off the rest of my quote, which made it clear that it was the purpose of the classification regarding choice, not the mere lack of choice itself, which caused the Court to strike down the VA statute.


That might be true, but it’s not relevant to the discussion here, which has to do with the biological reality behind the concept of race.


The discussion here hasn't been quite that narrow. The social construction of race has a lot to do with the way racists act.


In any case, being a minority position doesn’t matter because we don’t vote on the truth of scientific facts.


I agree up to a point, but being in the minority doesn't guarantee someone is right either.


But does it say that the state cannot discriminate according to sex or according to sexual preference?


The EPC mentions sex in exactly the same place it mentions race -- Supreme Court precedent.
10.28.2006 10:58pm
Mr_Thorne (mail) (www):

Zarkov:

RE: Racism has to do with invidious stereotyping, and (as you point out) misidentification.


The original post invoked Loving, Massachusetts, and New Jersey, and portended some change down the road by the high court.

The issue here isn't racism, or bigotry. Neither's a crime.

If someone wants to go downtown and handout flyers at Union Square proclaiming NIGGERS ARE MORONS, that person can lean on the First Amendment -- can be dragged all the way before the U.S. Supreme Court, and then go back to handing out flyers! Any one of us can be as racist and as bigoted as we could wish -- perhaps more so.

The question is whether the Constitution says that two men, or two women, have a legal right to marry one another. Right now, that's as against the law as was interracial marriage prior to the Loving decision. But will it stay that way?

Even so, bigotry will remain, and on both sides of this issue.
10.28.2006 11:01pm
Mr_Thorne (mail) (www):
Chumund:

RE: Can you point us to the exact language you have in mind?

The exact language is found in the Constitution, and in the Supreme Court rulings that tell us what is allowed and prohibited by the Constitution.

That's my understanding of it.
10.28.2006 11:05pm
Chumund:
Mr_Thorne,

But, of course, the Fourteenth Amendment puts special restrictions on state actions, as opposed to private parties' actions.
10.28.2006 11:06pm
Chumund:
Mr_Thorne,

Sorry, we cross-posted.

Anyway, it may be helpful if you identified the exact language in the Constitution that you have in mind.
10.28.2006 11:08pm
Owen Hutchins (mail):

I actually think we will--and do--see the same standard applied to polygamy and incest. The basic idea is that the state would have to explain WHY recognizing polygamous and incestuous marriages would be bad, not merely assert it. Personally, I think the case can be made against state recognition for both of those forms of marriage, but I would expect the state to have to make that case.



I'm a supporter of polyamorous marriage, but even so it is a very different issue from SSM. SSM does not require changing the structure of marriage (or civil unions or whatever you want to call it) at all; it is still two-partner union. Multiple spouses introduces other issues which would have to be addressed, such as durable medical power of attorney; spouses are generally held to have that even absent written directives, but how do you reconcile if there are two spouses asserting the power? Multiple partners simply cannot be dropped into a two-partner structure.
10.28.2006 11:18pm
whit:
"* ”Unlike many animals modern humans have not been around long enough, nor have populations been isolated enough to evolve into separate subspecies or races.”

if yer gonna use the animals thang, lets look at dogs. different breeds can (obviously) reproduce with each other. looking at their DNA, they are not greatly distinguished from each other (much like human races), however CLEARLY the difference between a doberman and a shepherd and a daschund are clearly not "social constructs".

jon entine, a liberal journalist, wrote a GREAT book on race differences in sports called "taboo".

the stats are really amazing.

in terms of running, a "universal sport" if there ever was one, it is true that the terms "black and white" aren't useful for distinguishing between running abilities.

in the entire WORLD, not a single man who was not of west african ancestry has broken the 100 meter 10 second barrier.

friggin' china can't field ONE.

west african origin blacks have done it many many times. note: note "blacks", but west african blacks.

east african blacks, on the whole - SUCK at sprinting, but make up the elite of long distance running.

middle distance running has a more even mix of racial participants, and many mixed race/north african etc. people do really well.

at the time, 484/500 of the top 100 meter times, and ALL of the sub 10 second times were done by west african origin blacks, despite the fact they make up a relatively small %age of the world''s population.

the reason the book is called "taboo" is the fact that among many, supposedly scientific minded "liberal" thinkers, it is taboo to even study these differences, lest one be accused of "racism". clearly, it is not social construction that is preventing china, japan, etc. from fielding ONE elite sprinter (not a lot of west african blacks live in china), and that even in majority non-west african black countries, like the US, the UK, etc. all our elite 100 m sprinters are west african black origin - lewis, christie, jonson, etc.

but it is correct - this isn't a black vs. white, it's a WEST AFRICAN black vs. white, a subset of the racial distinction of 'black'.

to quote sam mussobini, sprinters are born, but distance runners can be (to an extent) made. that's cause (among other things), it is basically impossible to do training based fiber conversion into IIb fibers. it aint gonna happen. otoh, you can train, to an extent your faster twitch fibers (through various metabolic processes) to act more like slow twitch.

when it comes to disease, there are some diseases that pretty much come down on racial lines - see Sickle cell.

anyways, enough prattling about that. aspects of how we treat race is OF COURSE a social construction. races would exist, though, regardless of whether we choose to recognize them.
10.28.2006 11:43pm
Lee J. Yatlee (mail) (www):
At the time of Loving v. Virginia, marriage was understood, even by the US Supreme Court, as a union between a man and a woman, and it was this relationship to which everyone had a right regardless of race. But at the time of Loving v. Virginia, not only were mixed-race couples not allowed in some states to obtain a license to marry, they were not even legally permitted to marry in a private ceremony independent of the state, nor to live together, engage in sexual relations or start a family.

If we accept the premise that the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations, then homosexual couples do not find themselves in the same situation as at the time of Loving v. Virginia. They are legally permitted to do this today, and are even permitted to start families through the adoption of children or by resorting to artificial insemination in most states. They can do this without even the necessity of ceremony or license whatsoever. So invoking the fundamental right to marry that was obtaining the state’s permission to cohabit and engage in sexual relations that was at the core of Loving v. Virginia can no longer be valid or relevant when making the comparison of homosexual relationships to inter-racial relationships, as that motive is utterly vacated in the present legal circumstances of today. Marriage as an issue of the right to legally cohabit and engage in sexual relations is entirely moot.

It is now a question of state support of any domestic relationship in which couples may want to situate themselves that is at issue. The deliverance of a marriage license no longer serves to permit couples the legal entitlement to cohabit and have sexual relations together as it does to open up the way for them to receive the benefits and privileges that the state confers as inducements to help stabilize their relationships.

The right of any and all relationships between persons to receive state support in the form of the benefits and privileges that marriage confers, however, enjoys no particular constitutional protection. The sole obligation upon the state is the equal application of the law to the constitutionally valid classifications deemed pertinent to a governmental objective. Therefore, the state may confer these inducements to certain types of relationships but not to others where a legitimate governmental purpose is seen. This is entirely at its option.

The state then, may elect not to offer inducements for other types of unions when there is simply no perceived need to do so, or because these sorts of unions may even need to be discouraged. Thus, the state will not offer these inducements to the unions of brothers and sisters; the state will not offer these inducements whenever there is a prepubescent partner or legal minor involved, or whenever there is someone already receiving state marriage benefits because of a still valid marriage, or when the partners are of the same sex.

As the only rational classifications that are the concerns of marriage are presently men and women and not heterosexual couples, there is no violation of any fundamental right as it concerns classifications based on sexual practices or orientations, because these are not considered legally pertinent classifications as it concerns the marriage statutes. As there is no constitutional right of persons to receive state support for any and all relationships, to arbitrarily confer the rights and benefits of marriage to homosexual couples when there is no legitimate governmental purpose to do so, while not doing this for other types of human relationships also, would constitute a privilege to this class only and be a flagrant violation of equal treatment to the others.
10.28.2006 11:51pm
Chumund:
Lee Yatlee,

I question your implied assumption that marital law is a set of inducements. I'd say marital law is more properly characterized as a set of regulations, with the "inducement" to enter marriage being provided primarily by the inherent benefits of being in such a relationship, not by the state.
10.29.2006 12:10am
Mr_Thorne (mail) (www):
Chumund:

The exact language is found in the Constitution, and in the Supreme Court rulings that tell us what is allowed and prohibited by the Constitution.

That's a substantial body of copy!
10.29.2006 12:13am
Chumund:
Mr_Thorne,

I think we can start with just the language in the Constitution itself. What part do you have in mind?
10.29.2006 12:20am
jrose:
Yatlee: If we accept the premise that the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations, then homosexual couples do not find themselves in the same situation as at the time of Loving v. Virginia.

I don't accept the premise. Of course, Loving would have been decided against Virginia even if they had only denied the Lovings a marriage license. Moreover, Zablocki was a case of only denying the license.
10.29.2006 12:33am
jrose:
Yatlee: The sole obligation upon the state is the equal application of the law to the constitutionally valid classifications deemed pertinent to a governmental objective. Therefore, the state may confer these inducements to certain types of relationships but not to others where a legitimate governmental purpose is seen.

Assuming you agree that it would be unconstitutional for a state to deny a marriage license to the infertile, what legitimate governmental purpose justifies leaving same-sex couples on the outside and infertile opposite-sex couples on the inside?
10.29.2006 12:36am
jrose:
Mr Thorne: The Constitution now says the state cannot discriminate according to race. But does it say that the state cannot discriminate according to sex or according to sexual preference?

Precedent says gender discrimination is subject to intermediate scrutiny and sexual orientation discrimination is prohibited when it can only be explained by animus (but the state must meet a higher standard in New Jersey).
10.29.2006 12:41am
Chumund:
I'd be interested in Yatlee's analysis of this hypothetical:

A state creates a "patient's bill of rights", except it doesn't apply to Jewish patients. Is this constitutional?
10.29.2006 12:42am
Mark Field (mail):

jon entine, a liberal journalist, wrote a GREAT book on race differences in sports called "taboo".


Actually, Entine's book was rejected as absurd by scientists expert in that area. A number of critiques are available.

Here, for example, is the review that appeared in Nature. Here's another review. And another. One last one.

By the way, I'm not at all sure Entine is a "liberal". He's at AEI. Of course, people can characterize their politics however they want....
10.29.2006 12:45am
Mr_Thorne (mail) (www):
Chumund:

RE
I think we can start with just the language in the Constitution itself. What part do you have in mind?
Bd. of Ed. v. Barnette and Minserville v. Gobitas and the First and Fourteenth Amendments, etc.
10.29.2006 12:55am
whit:
i read the links

neither offers one SCIENTIFIC piece of evidence to refute the genetic component of sprinting claim

do you have any actual evidence, or only pieces that rely on "sociology", not science?

the last one , for example, misrepresents entine's claim. he does not claim blacks are better sprinters. he claims (and the evidence proves) that WEST AFRICAN blacks are better.

the US imported most of its slaves from west africa, but west african black =/= black, even though west african blacks make up the majority of blacks in this country.

do you have any scientific refutation of the genetic component of sprint superiority?

book reviews don't count. these articles basically come down to this 'racial differences are icky. we have no science to refute entine's claims, but it is just icky"

seriously. the nature one is the worst
10.29.2006 1:01am
On Lawn (mail) (www):
> Owen Hutchins: I'm a supporter of polyamorous marriage, but even so it is a very different issue from SSM. SSM does not require changing the structure of marriage

The definition is neutered, and Massachusetts is still struggling to change all the laws to remove any reference to gender on all forms and documents. I believe your statement here is very naive.

That might be harsh news, but since you support polyamory there is probably good news. Its probably just as easy (within an order of magnitude) to neuter marriage as it is to strip it of all reference to numbers of spouses.
10.29.2006 1:09am
ReaderY:
But why should the state prohibit two people who want to work together from doing so merely because they prefer to work with people of the same race. Now that we no longer believe the the claptrap about marriage being some sort of special institution "older than the bill of rights" etc., and now that we now longer believe the Rev. King's faith-based views that sexual or racial preference in any of life's activities is some sort of sin against the Bible, why discriminate against other equally valid, equally meaningful, equally fulfulling, equally modern kinds of partnerships and associations?

Ia there any reason other than the class prejudice of the judicial class?
10.29.2006 1:42am
jim:

Yes. Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is.


That statement seems to turn on one's conception of the nature and purpose of marriage. I tend to agree with your conception, but I do not believe it represents the traditional conception of marriage. Changing that conception does seem like a matter of public policy rather than one of judicial review.
10.29.2006 1:04am
jim:

A fight for SSM is a fight for NAMBLA. If you think other wise you really should think again.


I think there is a pretty fundamental difference between same-sex marriage and adult-child marriages. That difference is that lots of people think that there is real social utility to same-sex marriage and that the social benefits outweigh the social costs substantially. Very very few people think that is true of adult-child marriage, and for good reason.

Gay marriage arguments have relevance to pederasty only if they are supported by a moral argument that one has the right to marry anyone one loves. There are plenty of real-world consequentialist arguments for same-sex marriage that don't rely on such arguments and that if properly understood do not create a slippery slope.
10.29.2006 1:22am
Hans Gruber:
"In general, this is a point which gets lost in the "laws should/should not be about morality" debate. Many laws are indeed about morality, but we also require the relevant moral propositions to be rationally justified, and not be the result of something like bare intuition, prejudice, religious ipse dixit, or so on. So, for example, one can explain why murder or stealing should be unlawful with reference to the basic needs of civil societies. But if all we had to go on was the Ten Commandments, then I think it would be a very different situation."

I disagree. A lot of moral truths are not arrived at by logic or empirical analysis. Most moral truths (stealing, murder, etc) that people accept have some sort of pragmatic reinforcement, true. But do people believe in these moral truths because of these pragmatic explanations? Rarely. In many cases the opposite is true, it is said that something is wrong even if it conflicts with utilitarian or pragmatic analysis, even if it is the "sensible" or "efficient" thing. The torture debate is one prominent example. Though I support the use of torture against terrorists in limited cases for pragmatic (and utilitarians) reasons, I do not believe those who oppose it on strictly religious or emotional grounds should be somehow excluded from the debate. Their moral intuitions, their firm belief in the immorality of torture in all circumstances are worthy of public debate and consideration.

People don't think slavery is wrong because it is inefficient, they think it is wrong for reasons of the heart and the soul. Reason can play an important role in arriving at these conclusions, but must it? Are they illegimate and worthy of scorn if they come from the heart and not the mind?
10.29.2006 1:35am
ScottS the guest (mail):
Mr. Yatlee says:

...to arbitrarily confer the rights and benefits of marriage to homosexual couples when there is no legitimate governmental purpose to do so...

Calling the extension of equality under the law to an unpopular minority group "arbitrary" is offensive. You might not agree with the conclusions, or find another line of thinking more compelling, but there is legitimate reasoning behind the claim and the decision. Merely asserting that it is arbitrary is more arbitrary than the decision itself.

Besides, the government's purpose in supporting hetero marriage is what exactly? To promote less personal conflict, more stable social relationships, public health, and environments for child-rearing, right?

The legitimate governmental purpose in conferring the rights and benefits of marriage to homosexual couples would be exactly the same things.

There is a governmental purpose in encouraging stable and happy homosexual relationships; to establish a norm of enduring romantic love for gay Americans serves everyone's purpose, gay and straight.

According to Mr. Lawn,

"As for me, I'll stick up for marriage as a mechanism to encourage people give credence to children's rights."

I agree that a child-centered value system is the best. That's why I'm for gay marriage. Gay marriage will be a mechanism that will encourage people to give credence to children's rights.

1 — the alternative to gay marriage is the status quo of gay cohabitation. If you want to promote monogomous, dual, legally contracted relationships (as being more stable for children), then it seems to me that you might want to encourage all cohabitating couples to tie the knot, including gay ones.

I fail to see how the existence of gay people in any form reach into a nuclear family and harm the kids.

"While society maintains a norm of responsibility and caring for your own children, that remains a barrier (arbitrary?) to complete equalization of homosexuality and heterosexuality."

What's really being said is: For society to maintain a norm of responsibility and caring for your own children there cannot be any equalization of homosexuality and heterosexuality.

This is ludicrous. First of all, "marriage" is not "complete equalization." I guess (?) that the fear is that gay marriage will normalize non-traditional family arrangements (and that such non-traditional arrangements are obviously worse for children)... but it does so less than gay people living in unmarried households of any level of commitment or promiscuity. If anything, gay marriage reinforces a norm of commitment, of monogomy, and of coupledom.

Gay people are going to exist with or without marriage. Unless Mr. Lawn wants gay people to go back in the closet on behalf of the children, under the bigoted premise that more kids will grow up to be more gay simply because society failed to shit on gay people enough to dissuade them, his argument about marriage is entirely backward. I really doubt that more kids will grow up gay because of tolerance or marriage equality. Go to Denmark or Holland... their kids turn out fine. When Spanish, German, and Canadian kids turn out great (as well as 90+% hetero) for a few generations, perhaps the paranoia here in the US will subside. Let's hope so: the status quo is outright hurtful.

2 - a society that respects gay relationships enough to have marriage equality is also a society that will have fewer gay people end up married to opposite sex partners. Thus, fewer children will have their family ripped apart because one of their parents was raised to feel ashamed of themselves, to fear being honest, who then ultimately make a choice for their own existential happiness that hurts the rest of their family. It is already true that as respect for gays goes up, the tolerance for gay adults who divorce their opposite sex partner will go down. Eventually we will expect gay people to come out of the closet — it is the morally right thing to do. Unless of course, you think children are better served by parents with unresolved psycho-sexual issues.

3 - a world where gay people are socially stigmatized and legally discriminated against is an unhealthy environment for the growth of those young people who are destined to be gay. I believe it is the right of every child to feel self-worth and dignity and that parents have a moral obligation to help their children become happy and healthy adults. A society that tolerates the practice of throwing young people out of their own family for being gay is not a society that gives credence to children's rights.

Government should not hold up discrimination against gays as morally or socially necessary on behalf of children without considering all children, and not all children are going to turn out straight... be it genetics, hormones in the womb, or whatever, this is indisputably true and has been since the dawn of recorded history. The psychogical experience of being a pubescent gay kid can be quite horrible, and there is a compelling governmental interest in mitigating that for the benefit of the kids and their future associates.

4 — If children at large are harmed by the breakdown of stable, heterosexual relationships, then the problem is with heterosexuals. How exactly are straight relationships harmed by gay marriage? It seems that your problem is with gay adoption, not gay marriage.

I'm gay and approaching my 10 year anniversary, and I have no doubt that my partner and I would make awesomely great parents, better than quite a few that we see at work (we are HS teachers).

I suppose in a perfect world there would be few kids put up for adoption and there would be surplus of loving, enlightened straight married couples for them to be matched with... but we don't live in that world. What's more important — having 2 parents of different genders, or having parents who are willing to make their children's lives the center of their moral universe? That's a no-brainer.

respectfully

Scott the guest
10.29.2006 1:37am
Hans Gruber:
"Gay marriage arguments have relevance to pederasty only if they are supported by a moral argument that one has the right to marry anyone one loves."

A lot of the gay marriage rhetoric gives that impression; that any two people who love each other, that commit to each other, should be allowed to be married and receive all the "basic rights" that "everybody else" gets. Marriage as it exists today discriminates against a lot more people than gays. When will people realize this? And if all that should be required is love and committment, why can't any two people get married and enjoy those "basic rights"? Why discriminate against other family structures? If two sisters are raising children of a deceased brother, why are they being short-changed? Where's the justice in that?
10.29.2006 1:47am
whit:
"Yes. Sexuality is really irrelevant to the nature and purpose of marriage in the same way that race is. "

except ... it is not.

for reasons explained over and over. it may be true that legalizing SSM is a good idea, from a policy standpoint. it may be true, that there is sound constitutional basis for requiring such laws.

...

regardless...

the difference between the genders is qualitatively different than racial differences.

first of all, different races can have sex and bear children. men are men - whatever their race.

women and men are fundamentally different, in a way that the races are not. the biological differences between the races PALE in comparison to the biological difference between the sexes.

trying to draw an equivalency is absurd. imo, it HURTS the argument for gay marriage, because it is so absurd.

i'm not going to give a course in biology, or psychology, but there are very distinct differences between men and women that don't exist between races. races can also merge, so to speak. the sexes can't - save some really funky surgery. blacks, asians, and whites intermarry for generations and you get merging of the (relatively small) differences between the races. however, save radical chemical and surgical intervention - men remain men and women remain women. these differences go down to the chromosonal level. EVERY man has a different "pair" than every woman (lets leave kleinfelter's syndrome out of this discussion for now).

so, on a biological, endocrinological, etc. basis- the comparison is dumb.

also, as has been pointed out - racial miscenegation laws ALTERED marriage.

marriage has existed for centuries with interracial components. heck, some societies encouraged and even MANDATED interracial marriage (for a # of reasons).

the same is not true of gay "marriage", and there is still a reasonable argument that talking about gay marriage isn't even meaningful, in that it is basically oxymoronic. regardless, race and gender - totally totally different things
10.29.2006 1:56am
jim:

what legitimate governmental purpose justifies leaving same-sex couples on the outside and infertile opposite-sex couples on the inside?


Assuming that marriage laws are an inducement for fertile opposite-sex couples to engage in a certain behavior, you could justify extending those benefits to other couples based on whether doing so will make the law more effective as an inducement for fertile opposite-sex couples. One could then argue that extending marriage to infertile opposite-sex couples does more to encourage marriage among the target group than extending marriage to same-sex couples does.

In fact, I think that is true. Making marriage about opposite-sex couples rather than fertility encourages fertile opposite-sex couples who are not planning to procreate to marry, and then already be married if procreation becomes an issue.

Extending marriage to same-sex couples probably doesn't harm that goal of getting fertile opposite-sex couples to marry, but it also doesn't help as much. (note: some people would argue it does harm that goal, but that's another post)

So it seems the question turns on whether you are asking "why deny marriage to some?" or asking "why give marriage to some?"
10.29.2006 1:59am
Cornellian (mail):
Not true. The way most people self identify their race corresponds to their continental ancestry as revealed by DNA analysis. The existence of admixtures means some individuals do not sharply classify, but most everyone does. The lack of sharp classification boundaries does not invalidate the biological concept of race.

Missing the point. All of those genetic differences existed 2000 years ago yet it did not occur to the people of the classical world to round up everyone of a similar skin color, call them a "race" and attribute to them characteristics not shared by people of other skin colors. The idea that people of a similar skin color form a "race" is a purely modern invention which has no more going for it than the notion that brown haired people constitute a race. Sure there are genetic differences between white people and black people (for example). There are genetic differences between tall and short people and blue and brown eyed people too. It's the arbitrary selection of superficial cosmetic differences and calling those differences a "race" that's the social construction.
10.29.2006 2:47am
whit:
"Sure there are genetic differences between white people and black people (for example). There are genetic differences between tall and short people and blue and brown eyed people too."

bogus analogy. short people can give birth to tall people. and vice versa. blue eyed can give birth to brown eyed, etc.

two white people are not going to have a black baby (except for mailman syndrome) and vice versa.

thus, race is something more discrete and shared among blacks and whites, and asians, etc. than eye color or height is.

there is really some tortured logic going on here, imo
10.29.2006 2:55am
Elliot Reed:
two white people are not going to have a black baby (except for mailman syndrome) and vice versa.
Thing is, this is not a fact about biology, but about the way race is defined in our culture. It's quite possible for two people who look very white to have a child who looks very black. The thing is, you can only do this if you have at least some relatively recent African ancestry, and anyone who meets that criterion is considered black regardless of skin color (they're not "white," they're "passing"). Conversely, if two black people (both with some white ancestry, as virtually all black people in the U.S. have) have a very "white" child, the child is considered to be "passing," not "white." This is less true today, though.
10.29.2006 3:29am
A. Zarkov (mail):
“Missing the point. All of those genetic differences existed 2000 years ago yet it did not occur to the people of the classical world to round up everyone of a similar skin color, call them a "race" and attribute to them characteristics not shared by people of other skin colors.”

People from 2000 years ago were aware of race. We know that from their art, and from their writings. We also know that they too engaged in invidious racial stereotyping. While all races were enslaved, the ancient Arabs referred to the African slaves as “dim witted” and fit only for the most menial of labor.

"The idea that people of a similar skin color form a "race" is a purely modern invention which has no more going for it than the notion that brown haired people constitute a race."

The ancients were well aware of the morphological differences among the races. For example sub-Saharan Africans where characterized as having dark skin, a flat noses, thickened lips and very curly hair. These features are plainly depicted on ancient Greek pottery. Moreover the genetic variation across brown haired people is much less than the variation between the different races. Even within a race you have more variation. For example the East Africans today show a great deal of within group variation because they are decedents of the original ancestral population.

"It's the arbitrary selection of superficial cosmetic differences and calling those differences a "race" that's the social construction."

The morphological differences among the races roughly correspond to their continental ancestry, which is not arbitrary. With fairly high reliability, you can tell a person’s continental ancestry from a DNA analysis. None of this is a social construct.
10.29.2006 4:03am
whit:
great post.

the races evolved in (relative) isolation, and with different environmental factors to affect this different development. this is not a social construct. this is a fact of history.

the "construction" of how some people want to classify blood quanta and other such political rubbish is irrelevant to the reality of how mankind evolved for millenia to have a different phylogeny.

none of this is a social construct. sure, races can intermarry. the result is a MIXTURE of the races. the fact that the races can mix does not make them a social construct. it just means they aren't (obviously) different species, but merely subgroups.
10.29.2006 4:31am
A. Zarkov (mail):
"Actually, Entine's book was rejected as absurd by scientists expert in that area. A number of critiques are available."

The first book review (by Malik) contains a planted axiom:

“As population geneticists never tire of telling us, 'race' has little biological validity.”

Some population geneticists might say that, but many don’t, and the ones that don’t provide plenty of evidence to refute that statement.

Here is another false statement from the first review:

“Because conventionally we use skin colour as the criterion of racial difference.”

Conventionally we use more features than skin color to identify the different races. Now of course some dumb people might do that, but as I said in another post even the ancients were well aware of the morphological differences among the races went beyond skin color.

Finally the reviewer is not really a scientist. From his cv:

* “For the past decade, I have been an independent writer, lecturer and broadcaster.”

* “I studied neurobiology (at the University of Sussex) and History and Philosophy of Science (at Imperial College, London).”

* “I am a Fellow of the Royal Society of Arts.”

* “I am currently working on a documentary on immigration, which makes the case for open borders.”

Notice the he says “studied,” not granted a degree. If fact nowhere in his cv does he tell you he was even granted a degree, from anywhere. He lists presentations at conferences, and lectures, and newspaper articles, but not a singe publication in a peer-reviewed journal. He lists several books he authored, but these are not research monographs, they look more like books for a non-technical market. These are books that are frequently not peer reviewed for content. His writings also show he has a definite social-political agenda. That’s ok, many scientists have an agenda, but it’s their technical work that make them scientists not their political opinions.

In summary the first book review offers little in the way of a scientific rebuttal to the book Taboo.
10.29.2006 4:49am
Jon Rowe (mail) (www):

the same is not true of gay "marriage", and there is still a reasonable argument that talking about gay marriage isn't even meaningful, in that it is basically oxymoronic. regardless, race and gender - totally totally different things


Obviously race and gender are different, but in todays day in age from the perspective of the feasibility of drawing legal and social lines they are not "totally totally" different. Discrimination on the basis of both race AND gender are prohibited. And re: gender roles, certainly they do, to *some* extent still exist in our society. But even they are subject to significant scrutiny. In short, while racial differences, by our laws and in the ideal, our conventions, are supposed to be entirely arbitrary, gender likewise has a high degree of arbitrariness associated with it.
10.29.2006 8:07am
Hans Gruber:
"How exactly are straight relationships harmed by gay marriage?"

Couldn't pretty much the same thing be said for anything? How do polygamists hurt monogamists? How do incest marriages hurt non-incestuous marriages? And it's wrong to focus on individual couples because it's difficult to imagine that sort of marginal effect; the focus is properly directed at what potential benefit (or cost) society as a whole would receive. The question here is whether homosexual marriage is of equal benefit to society. If it isn't, then there is a rational reason to discriminate in the amount of support the state gives.

Few people try to argue against the ideal of the mother-father dynamic. That is, other things being equal, a child is better in a home with a mother and father than in a home with a two mothers or two fathers. Given this consensus, why is it bigoted or irrational for the state to promote what it views--what society views--as the ideal environment for raising children?
10.29.2006 8:14am
jrose:
jim: Making marriage about opposite-sex couples rather than fertility encourages fertile opposite-sex couples who are not planning to procreate to marry, and then already be married if procreation becomes an issue.

On the other hand if marriage had been limited to procreative purposes, your exemplary fertile opposite-sex couples might have planned to have kids in the first place. By giving couples the legal goodies without requiring procreation could easily result in fewer kids.
10.29.2006 8:38am
jrose:
whit: the difference between the genders is qualitatively different than racial differences

Of course, that claim is true. However, depending on what the purpose of marriage is, those differences may not be relevant when deciding what couplings should be granted civil marriage.
10.29.2006 8:42am
jrose:
Hans: And if all that should be required is love and committment, why can't any two people get married and enjoy those "basic rights"? Why discriminate against other family structures? If two sisters are raising children of a deceased brother, why are they being short-changed? Where's the justice in that?

The type of love shared between those two sisters isn't the same as the romantic, sexual love shared between opposite-sex and same-sex couples alike.
10.29.2006 8:50am
Chumund:
Hans,

As an aside, I agree that when it comes to individuals, it is not necessarily important how we acquire moral notions. So, Person A may acquire the norm against stealing from the Bible, and Person B may acquire it from reading Hobbes, but as long as they both have it allows them to live together in civil society.

But we are talking about the state, not individuals. With respect to the state, I think it does need to justify its actions rationally, and not with appeals to intuition, prejudice, religious ipse dixit, and so on. Part of the reason why is that rational argument is intersubjective, and therefore there is universality to such justifications which is commensurate with a self-governing and autonomous people.

By the way, moral reasoning in this sense is not limited to utilitarian reasoning. Just to give one prominent example, Kantian reasoning is not utilitarian, but it certainly is rationally ordered.

Anyway, to a more current topic, you ask, "Given this consensus, why is it bigoted or irrational for the state to promote what it views--what society views--as the ideal environment for raising children?"

I think it is crucial to note that the state does NOT do this for the most part. We know many things about what contributes to child welfare, but generally we make no attempt to prevent people from marrying unless they would match up to some "ideal" for childrearing. Indeed, we even recognize marriages where the state has deemed the couple to be so unfit as parents that the state has terminated their parental rights and removed their children from their care. And in any event, whether or not it is true that gay couples fall short of some ideal, there are certainly factors which are far more important, and yet we do not refuse to recognize marriages on those grounds.

So, this gets back to my question: are we in fact holding gay couples seeking to get recognition of their marriage to some ideal (in this case of childrearing) to which we are not holding straight couples? If so, then why are gay couples being required to be ideal, and not straight couples?
10.29.2006 9:45am
Chumund:
To put this issue in stark terms:

The state will grant a license to a female drug addict who wants to marry a male convicted child rapist. But it won't grant a license to a female police officer who wants to marry a female pediatrician, nominally on the grounds that the latter couple would not be ideal parents.

How seriously can we take the state's claimed justification?
10.29.2006 10:06am
Mark Field (mail):

the races evolved in (relative) isolation, and with different environmental factors to affect this different development. this is not a social construct. this is a fact of history.


Actually, "this" is arrant nonsense. Take Sub-Saharan Africans, for example. True, many of them share certain superficial characteristics -- mostly skin color -- which people use to group them together as a "race". The genetic truth is, though, that those Sub-Saharan Africans are more genetically diverse from one another than they are from "whites" or "Asians". That's right -- genetically, "blacks" are less like each other than they are like "whites" or "Asians".

whit and Zarkov, you are both ignoring the way "race" actually gets used in this country and elsewhere. It's that actual, historical (mis)use which causes geneticists to agree that "race" is a social construct. Trying to change the subject isn't helping your side of the argument.
10.29.2006 10:29am
Hans Bader (mail):
One odd wrinkle about the New Jersey Supreme Court's decision is that gay couples' freedom to contract may in some respects be narrower after this decision than before.

New Jersey law places multiple, vague restrictions on agreements between married couples, deviating substantially from the Uniform Premarital Agreement Act. That makes their enforceability, and the rights of the spouses (such as a spouse's stated desire to preserve his separate assets for children from a previous marriage), subject to lingering uncertainty.

The net result is that the partner who is wealthier either at the time of the marriage, or the time of the subsequent divorce, may not be able to have the agreement enforced, because it may be deemed void. The courts are also reluctant to enforce even a sensible agreement if it was not drafted by a lawyer (which costs money).

By contrast, prior to the New Jersey Supreme Court's decision, contracts between members of gay civil unions probably were subject only to the general rule of contract law that a contract cannot be unconscionable, lending certainty and predicability to contracts between partners. Gay couples with modest incomes who could not afford a lawyer could draft their own agreement.

Now, however, that the New Jersey Supreme Court's decision expressly requires that civil unions have not only all the benefits, but also all the "burdens" of marriage.

Thus, gay civil unions will now be subject to the strictures of New Jersey's vague, restrictive, and expensive laws governing marital agreements.

They will now also be subject to the broad discretion by family court judges to award alimony, which gay civil unions, unlike marriages, were previously exempt from. Alimony is clearly a benefit or burden that applies to married couples and now must apply to gay civil unions as well under the New Jersey Supreme Court's opinion.

They will now be subject to a number of other divorce-related risks to which they were previously immune.

Divorce lawyers in New Jersey will benefit from this, but many gay partners will not.

On the other hand, it is my understanding that even under New Jersey's pre-existing civil union law, partners enjoyed many of the benefits of marriage, such as being able to inherit without being subject to state inheritance taxes.

Thus, many gay couples may not benefit at all from this decision.

Moreover, it is ironic that this decision should have been based on the New Jersey State Constitution.

Unlike the federal constitution, and most state constitutions, the New Jersey State Constitution does not even have an equal-protection clause. (It does have a separate provision specifically protecting against race discrimination). So the New Jersey Supreme Court had to essentially write an equal protection guarantee into the state constitution.

It reminds me a bit of the New Jersey Supreme Court's decision to allow Democratic party bosses to replace disgraced Senator Bob Torricelli on the ballot, well after the statutory deadline to do that had passed.

In that decision, the New Jersey Supreme Court said that the surest way to misinterpret a statute was to interpret it literally.

Most courts would disagree with that premise, and start with the text first in interpreting a statutory or constitutional provision.
10.29.2006 10:35am
Cornellian (mail):
As it stands, a movement that had been gaining political support, that would have achieved its goals democratically in not too much time, has been set back in most places by 20-50 years. Nice going

This was the argument that Jesse Helms used to use against Supreme Court decisions striking down Jim Crow laws. Heck, we Southerners were just about to repeal all those laws democratically before those arrogant, unelected Supreme Court justices subverted democracy by dictating that such laws were invalid.
10.29.2006 10:58am
Cornellian (mail):
I suspect that this will happen about as often as 35-year-old men marry 14-year-old girls now.

A scenario that used to be well within the scope of the term "traditional marriage" though you don't hear many self described defenders of traditional marriage arguing for it these days.
10.29.2006 11:05am
Cornellian (mail):
Unlike the federal constitution, and most state constitutions, the New Jersey State Constitution does not even have an equal-protection clause. (It does have a separate provision specifically protecting against race discrimination). So the New Jersey Supreme Court had to essentially write an equal protection guarantee into the state constitution.

It reminds me a bit of the New Jersey Supreme Court's decision to allow Democratic party bosses to replace disgraced Senator Bob Torricelli on the ballot, well after the statutory deadline to do that had passed.


The New Jersey Supreme Court is probably pretty far out there in terms of taking a free wheeling approach to the text of the state constitution and statutes. That's something the elected branches of the state can change, if they wish, by appointing different judges. In partial defense of the point you make about there being no explicit equal protection clause in the state constitution, interpreting the state constitution to provide equal protection is somewhat understandable. The US constitution exerts a great deal of "gravitational force" in that there are tons of cases and boatloads of scholarship on it, something that cannot be said for most state constitutions. Given a ton of federal cases, few or no state cases, and a state constitutional provision that looks somewhat like its federal counterpart, it's really really easy to just go with the federal approach, especially when the alternative is to invent a different state approach based on a historical record that may be scant or non-existent.
10.29.2006 11:38am
jim:

On the other hand if marriage had been limited to procreative purposes, your exemplary fertile opposite-sex couples might have planned to have kids in the first place. By giving couples the legal goodies without requiring procreation could easily result in fewer kids.


True. And relevant if the purpose of marriage is to produce more children. I was assuming in that argument that the hypothetical reasoning for offering the inducement of marriage was not to produce more children, but to promote the wellfare of those that are born. The premise being that an unplanned (not necessarily unwanted) child born to a married couple is in a more stable situation than a child born to an unmarried couple.

If the goal were to produce more children, it would also be necessary to ask if promoting same-sex marriage might increase the number of children raised by American families. It might.
10.29.2006 11:51am
Mark Field (mail):

Finally the reviewer is not really a scientist.


You can't be serious. Entine is a journalist with no background in biology whatsoever. He wrote a book in which he could (and did) say whatever he wanted with no peer review at all.

Whatever you think of the Nature reviewer, that review had to be approved by the editors of the first or second most prestigious biology journal in the world. Similarly, the other reviews highlighted Entine's utter ignorance of the subject, as well as his total misuse of various concepts:

"However, the strengths of Entine’s endeavor are sullied by his selective, partial, and deceptive use of “scientific evidence,”"

"a close look at Entine’s use of “science” reveals that he selectively critiques existing research, and rarely identifies the criteria he uses to assess studies. In some instances, he provides overviews of and pointed critiques of research, while other times he uncritically accepts studies that appear to confirm his point."

"Entine's version of genetics constitutes a caricature of that science."

"His account of the debate over the "out-of-Africa" hypothesis is lopsided and reflects the hastiness and sloppiness that also bedevils the proofreading, organization and argumentative structuring throughout the book."

"The flaws in this larger claim are illustrated by Entine's use of Tiger Woods as an example of the physical superiority of black athletes. Entine admits Tiger Woods's multiracial origins but then lumps him back into a mythical racial group called "blacks." Throughout, Entine plays fast and loose with categories in this fashion. He proves that a local group of Kenyans dominate middle-distance running, then uses this to make generalized statements that "blacks" are better "athletes." Sports where "blacks" do not dominate (swimming, cricket, gymnastics, polo) are quickly dismissed on grounds of nurture or environment (for instance, blacks don't have access to polo ponies), but in either case, the difference somehow is treated as support of his claim that "blacks are innately superior athletes.""
10.29.2006 12:00pm
Chumund:
Hans,

I think your observations about marital law involving both rights and burdens are crucial. They help refute the assertion that marital law is a set of inducements or rewards for marriage. Instead, as I have suggested, they are more properly identified as a set of regulations that the state imposes on civil marriages, which help define not just rights but also duties and other burdens.

And as you point out, civil marriage, insofar as it is subject to this regulatory scheme, may not be a good deal for all gay couples, any more than it is a good deal for all straight couples. Presumably, though, the couples who want to participate in state-regulated marriage--gay or straight--see it as a net benefit to them.

Anyway, once we have reframed the issue in this way, I think it helps us move past arguments based on the premise that civil marriage is some sort of reward for ideal relationships.
10.29.2006 12:12pm
whit:
mark.. neither you, nor any reviewers can offer ANY alternative explanation for the data i (and entine) presented.

that is the first sign they are bogus.

i repeat.

484/500 top 100meter times - west african black males
ALL sub 10 second times (and this has been done DOZENS of times) are ALL west african black males.

there are literally BILLIONS of non-west african black males. some countries like china, etc. have hundreds and hundreds of millions of people, an incredibly strong athletics program, etc. and they cannot field even ONE asian sprinter who can break 10 seconds. not one.

ALL of them, whether they come from the UK, Namibia, the USA, etc. are of west african origin.

even if there finally is one who is white or asian, the incredible disproportionality cannot and is not explained away by any review you mentioned, or by you.

so provide an explanation OTHER than genetics that can account for this radical performance disparity.

there are 6.7 billion people in the world.

a relatively small percentage of them are west african origin black males

nearly every nation on earth has running competitions.

regardless of all that, the elite 100 m sprinters WORLDWIDE are almost entirely west african black males, and ALL of the sub 10 second times are west african black males

so, explain why entine is wrong. what alternate theory, given this statistical disparity, can u posit?

place it here --->

thanks in advance

and again, i am not claiming blacks are superior athletes. i am saying that west african black males are superior sprinters.

lets narrow the focus
10.29.2006 12:15pm
whit:
"Obviously race and gender are different, but in todays day in age from the perspective of the feasibility of drawing legal and social lines they are not "totally totally" different. ""

""really? bathrooms can be legally seperated by gender. not by race.

we can draft men into combat. but not women. and we can't differentiate combat duties by race.

"Discrimination on the basis of both race AND gender are prohibited."


not really true. but still irrelevant as to the bogus analogy between racial differences and gender differences.

"And re: gender roles, certainly they do, to *some* extent still exist in our society. But even they are subject to significant scrutiny. "

so what? we are not talking about roles. we are talking about the innate biological differences between the sexes. these differences are exponentially larger than the difference between races. there is simply not a comparison.

"In short, while racial differences, by our laws and in the ideal, our conventions, are supposed to be entirely arbitrary"

they are not entirely arbitrary, but again this is irrelevant. tell somebody with sickle cell anemia, that his racial differences that made him susceptible are "arbitrary"

the point is that men, regardless of race, have far more in common BIOLOGICALLY SPEAKING, with other men regardless of race, than they do with women. we can start with the sex organs, and move on.

different races do not have ENTIRELY different biological structures. men and women do.

different races do not have radically different hormonal milieu. men and women do.

again, the analogy is bogus.

", gender likewise has a high degree of arbitrariness associated with it."

no, it doesn't. all this social construction aside, there are very concrete differences. lets talk chromosomes. lets talk friggin BODY PARTS.

the comparison is inapt. it is pure sophistry to try to say that drawing gender distinctions is on the same level as racial distinctions.
10.29.2006 12:22pm
Elliot Reed:
I was assuming in that argument that the hypothetical reasoning for offering the inducement of marriage was not to produce more children, but to promote the wellfare of those that are born. The premise being that an unplanned (not necessarily unwanted) child born to a married couple is in a more stable situation than a child born to an unmarried couple.
Is there any historical evidence that this has ever been the purpose of marriage in our society? Maybe, but my guess is that there's not much. Is there any evidence that it was the principal purpose, or is today? Of course not. Marriage serves many purposes, of which this is at most one, and hardly the most important one.
10.29.2006 12:34pm
jrose:
I was assuming in that argument that the hypothetical reasoning for offering the inducement of marriage was [...] to promote the wellfare of those that are born.

Assuming that purpose, marriage would be offered to all fertile opposite sex couples without regard to whether they plan to - or eventually - have kids. Why then would you offer it to the infertile? I don't see how that encourages marriage for the fertile who don't plan on having kids.
10.29.2006 12:48pm
Chumund:
"different races do not have ENTIRELY different biological structures. men and women do."

And here I almost got a blood transfusion from a woman. I assume it would be like putting acid in my veins.
10.29.2006 1:31pm
BobNSF (mail):
I'm a bit perplexed about this state-sponsored "ideal marriage" thing. So, too, apparently, is the federal goverment. Under the Bush administration, we now spend upwards of $300,000,000 a year on so-called "marriage initiatives". These programs are aimed at the under-educated poor and offer them encouragements to marry. Obviously, many of these will be far from "ideal marriages", yet the state not only recognizes them, it actively promotes them.

Oops, I forgot to mention, these programs promote only heterosexual marriages, cuz they're, you know, ideal.

It's starting to make a little more sense to me know.
10.29.2006 1:55pm
A. Zarkov (mail):
Mark Field:

“You can't be serious. Entine is a journalist with no background in biology whatsoever.”

I didn’t say that Entine is a biologist, or any other kind of scientist. I said the author of your first book review (Malik) is not a scientist according to his own cv. Now if Nature published his review then so much the worse for them because as I pointed out, the review makes mistakes and is short on evidence. How do you know that book reviews appearing in Nature are necessarily peer reviewed? I doubt they are. I picked the first reference because being first, I thought it would be the most authoritative. But lets look at the others.

It’s not clear where the second review comes from as the link downloads a MS Word document. The author is says he is from Simon Fraser University, but now he is at UBC. According to his cv, he has a PhD in sociology not biology. Under the phrase “specialization” he says: “Cultural studies and sociology -- with a focus on youth, social inequality, media, social movements, qualitative methods, and sport and leisure generally.” He does have articles in peer-reviewed journals, but none of them deal with biology or genetics. The following is typical of his publications “It’s Gotta Be the Shoes”: Youth, Race, and Sneaker Commercials. Sociology of Sport Journal, 13(4), 398-427. He is clearly a man with a social-political agenda like Malik. Now lets look at what he says about Taboo.

First sentence in the review: “Critical sociological work has generally dismissed claims that natural race-based differences account for the superior performance of Black athletes in many sports.” Note “sociological” work not biological or genetic work.
Some of his critiques of Taboo might be fair, I could judge better if I had read Taboo. Nevertheless the lack of hard science in this review, his obvious agenda, and lack of expertise lead me to classify this review as a weak rebuttal at best.

The third link connects to Council for Responsible Genetics and an article by Kahn on the drug BiDil. He only refers to Taboo in passing and does not review the book.

Finally the last link connects to a book review in American Scientist by Archer and Condit both professors of speech and communication. So again we get a review by non-scientists. This review as well is weak when it comes to genetics. The authors do make the probably valid point that Taboo over generalizes failing to differentiate among African sub groups.


Actually, Entine's book was rejected as absurd by scientists expert in that area. A number of critiques are available.



As I have shown none of the book reviews you provide is by a scientific expert, or even a scientist so you have not delivered on your assertion. I am not necessarily defending Taboo as that author is no scientist either. However if you read Before the Dawn Wade does discuss the issue of the highly specific athletic ability in the some African populations and the connection to natural selection.
10.29.2006 1:59pm
Mark Field (mail):

neither you, nor any reviewers can offer ANY alternative explanation for the data i (and entine) presented.


That's where you're making your mistake. Entine has not presented any data. He just lumped people together and drew conclusions. If the example I gave above regarding his use of Tiger Woods doesn't make that clear, I'm not sure what else would. I'll try using another example, the supposed superiority of West African sprinters.

1. Entine's data are suspect. From my second link above:

"[A] close look at Entine’s use of “science” reveals that he selectively critiques existing research, and rarely identifies the criteria he uses to assess studies. In some instances, he provides overviews of and pointed critiques of research, while other times he uncritically accepts studies that appear to confirm his point. For example, in his description of Tanner’s research on the physique and body composition of athletes who participated in track and field events at the 1960 Olympics, Entine highlights the finding that “Blacks with West African ancestry had a range of anatomical characteristics that contributed to their excellence in jumping and sprinting while hindering them in endurance events such as the marathon” (p. 248). Although Entine notes that Tanner’s sample included only fifteen “Black” athletes, twelve of whom traced their ancestry to West Africa, he absolves Tanner by pointing out that these “findings have been confirmed again and again” and that Tanner’s conclusions matched “racial studies done before and since” (p. 248-249). In this example, we are left to wonder what standards guided Entine’s assessment of research methods, and how reputable these other studies are that he alludes but does not reference."

2. Including American hemisphere sprinters in his list of record holders assumes the conclusion. Entine made no effort to verify that all those sprinters actually had West African ancestry. Historically, we know that the slave ships all came from West Africa, but we have no way of knowing where the actual slaves came from. Genetic tests are now available to narrow down the probable geographic area, but Entine didn't use them.

3. Most American blacks in fact have mixed ancestry. Nobody has any idea what that mix is or how the various factors might be relevant to sprinting. From the same review:

"Entine rationalizes his tendency to talk about the genetics of the nebulous group labeled “North American Black” by pointing out that “although North American Blacks do contain a significant percentage of non-African genes, it is far less than popular estimates that range as high as 30 percent” (p. 99). He goes on to argue that two hundred years of racial interbreeding “would not be enough time to wash away all of the genes that are distinct to each population – including, for example, the genes that influence athletic performance” (p. 99). What is particularly troubling here is the suggestion that because North American Blacks contain less non-African genes than most estimates suggest, we are safe to generalize about the genetic make-up of all dark skinned North Americans who might be called “Black,” and, moreover, about the athletic ability of those who possess these unidentified genes."

4. "West African" is not a defined group. West Africa is a huge and ill-defined geographic area which includes vast genetic diversity. There is no genetic homogeneity there; it's like claiming that "West Americans" share some characteristic which makes them better athletes.
10.29.2006 2:18pm
Mark Field (mail):

How do you know that book reviews appearing in Nature are necessarily peer reviewed? I doubt they are.


I doubt they are too. They do, however, have to meet the approval of the editors of Nature. That's a far higher standard than Entine had to meet with his book.
10.29.2006 2:24pm
Jon Rowe (mail) (www):

""really? bathrooms can be legally seperated by gender. not by race.

we can draft men into combat. but not women. and we can't differentiate combat duties by race.


Some folks on the cutting edge of civil rights arguments (my old employment law professor for instance) think even those legal distinctions ought to be abolished. But your point misses. The fact is, discrimination on the basis of race and gender are both outlawed by the Civil Rights Act of 1964 (ever hear of that?) and cognate state and local laws. Gender discrimination is subject to some "outs" under the BFOQ test (whereas race and color are never BFOQs). So what you cited -- bathrooms, the military -- are simply the rare exceptions, not the rule. My original point -- that race, as a legal and social matter (and with the exception of affirmative action) is entirely arbitrary, gender is presumptively arbitrary -- stands.

"so what? we are not talking about roles. we are talking about the innate biological differences between the sexes."

Actually no, I'm talking about legal norms, and how they in turn affect social norms. Whatever the biological differences between the races or genders both racial and gender discrimination are prohibited by our laws, and any law which discriminates on the basis of gender or otherwise creates gender roles is subject to a great deal of scrutiny and likely will be struck down. This is why our public military institutions now have to accept women. I made this clear when I wrote asserted gender's arbitrariness in the context of the feasibility of drawing legal and social lines.

"these differences are exponentially larger than the difference between races."

Actually if you looked at the biology between men and women, you'd likewise conclude that our makeup is by mostly the same (see the comment about blood transfusions), with some *obvious* differences.

I will therefore buy into your "exponentially" claim when you can cite me biological research showing that the biological differences that makes up "race" are exponentially smaller than such differences that make up "gender." Simply having a penis and testes instead of a vagina and ovaries and some breast, muscle, and slight brain differences does not equate with "exponential" biological differences. Are you a biologist or a geneticist?


", gender likewise has a high degree of arbitrariness associated with it."

no, it doesn't. all this social construction aside, there are very concrete differences. lets talk chromosomes. lets talk friggin BODY PARTS.


Again, irrelevant. Whatever the biological differences, as a legal (and social) matter, there is a high degree of arbitrariness associated with gender. Just try making a distinction between a man and a women while acting as an employer or private business or club that makes "public accomodations" and wait for the lawsuits to occur.

Where your point may have a kernel of Truth is that because some meaningful gender differences exist that aren't present with race, the law allows for more exceptions to the prohibition on gender discrimination than it does for race discrimination.

"there is simply not a comparison...the comparison is inapt. it is pure sophistry to try to say that drawing gender distinctions is on the same level as racial distinctions."

Well tell that to Congress who passed the Civil Rights Act of 1964 and the Supreme Court which construes the Equal Protection Clause to forbid gender discrimination under the tier of intermediate scrutiny. Tell that to Yale Law Profess Jack Balkin who just noted that the Bush Administration Authorizes "Separate But Equal Schools" using the Plessy buzzwords (and hence making an analogy) to describe segregating schools by gender.

And I didn't say "the same." I simply said what the current law is: As a legal matter, race is supposed to be entirely arbitary and such distinctions are almost never justified (unless they are affirmative action, which I believe qualifies as racial discrimination anyway), and gender has such a high degree of arbitrariness that gender based distinctions will be struck down unless they can survive, as Balkin puts it, "an exceedingly persuasive justification."
10.29.2006 2:56pm
A. Zarkov (mail):
The genetic truth is, though, that those Sub-Saharan Africans are more genetically diverse from one another than they are from "whites" or "Asians". That's right -- genetically, "blacks" are less like each other than they are like "whites" or "Asians".

It’s true that today’s sub-Saharan Africans exhibit the greatest within group genetic diversity. This is to be expected because they are descendents of the ancestral population. Everybody else descends from the small group that left Africa about 50,000 years ago. But it’s not correct to say that blacks are less like each other than they are like whites. This assertion is false for a number of reasons. First the variance within a specific cluster can be greater than the variance within any other cluster. This does not mean the cluster centroids don’t clearly separate. Genetic diversity can also include something called neutral variation, which refers to genetic mutations that don’t affect an organism one way or another. This is the problem with Lewontin’s Fst measure of genetic variation (defined circa 1972 before DNA sequencing). Evolution doesn’t care about neutral variation. However when we look at certain specific non-neutral genetic variations, we see a significant difference between some races. For example the allele of a brain gene called microcephalin appeared about 37,000 years ago, and is now widespread among Caucasians and East Asians, but much less common among sub-Saharans. A new version of another brain gene ASPM appeared about 6,000 years ago and 44% of Caucasians carry the allele while it’s virtually non-existent in sub-Saharans. These genes contribute to brain size. See Doris et al “Accelerated Evolution of Nervous System Genes in the Origin of Homo Sapiens.” Cell 119:1027-1040 (2004).

“ … It's that actual, historical (mis)use which causes geneticists to agree that "race" is a social construct. Trying to change the subject isn't helping your side of the argument.”


It’s not so much the geneticists that push the social-construct notion; it’s the non-science types and soft-science types like sociologists, journalists, and anthropologists. The historical misuse of genetics doesn’t change the facts of biology and evolution, and that’s what’s at issue in this discussion. It’s you that keeps trying to change the subject to racism. We know racism was and is a problem. BTW racism was not something invented by Americans or Europeans, it’s been widespread throughout history and prehistory and is found in all races.
10.29.2006 3:25pm
Bob Van Burkleo (mail):
Still ignoring the real issue - marriage is biological in origin - it is a drive mediated by hormones released during sexual intercourse. Humans marry because they are designed to and some people marry those of the same gender, some of the opposite gender. Marriage comes from beyond government, it is merely government's job to acknowledge and deal with it.

This in itself invalidates all pedantic arguments of the restriction on licensing the contract of marriage is equitable because some citizens are allowed license with someone they can biologically pair-bond with and some are not. There is no reasonable equal access to government.

And yes government can regulate the license but they can't exclude a citizen from any reasonable access to it. A married polygamist CAN already license the contract with its current licensing restrictions, a married gay citizen can not other than in Massachusetts.
10.29.2006 3:32pm
A. Zarkov (mail):
I doubt they are too. They do, however, have to meet the approval of the editors of Nature. That's a far higher standard than Entine had to meet with his book.

That’s certainly possible, but you don’t really know that. We don’t know what standards Nature applies to book reviews. That’s why I covered the author, his lack of credentials, his political agenda and most importantly what he said in the review, and where I thought it counterfactual. Just appearing in Nature, especially in the non-peer reviewed part, does not anoint the author. BTW Nature has a checkered history with respect to quality. At one time they didn’t peer review and junk science articles appeared on ESP. I think they have cleaned up their act since. Moreover this is an incendiary topic, especially in Britain where you can get arrested for making comments deemed “racist.” So it’s not surprising Nature would have fished around for a “safe” reviewer. It’s unfortunate that Britain no longer has freedom of speech.
10.29.2006 3:40pm
Mark Field (mail):

It’s you that keeps trying to change the subject to racism.


No. This whole sub-thread began with the claim that "race" was a social construction, which you challenged. In order to decide if that's the case or not, we need to know how the term "race" is actually used.

What you are doing is arguing that we are starting to understand enough about genetics to say that there may be a legitimate genetic basis for dividing humans into different subgroups. I agree with you in that narrow sense, though I doubt that the eventual genetic markers will correspond to the current or past uses of the term "race". Unless biology confirms a genetic basis for the existing uses of the term "race" -- which it hasn't done and can't do because that term is so ill-defined in popular usage -- it's accurate to say that the term "race", as it has been and is being currently used in the US, is a social construct.
10.29.2006 3:49pm
Mark Field (mail):

That’s why I covered the author, his lack of credentials, his political agenda and most importantly what he said in the review


Fine, but you have to apply at least as challenging a standard to Entine.
10.29.2006 3:50pm
Cornellian (mail):
BTW racism was not something invented by Americans or Europeans, it’s been widespread throughout history and prehistory and is found in all races.

In fact racism is a quite recent European invention. The idea that my tribe is better than your tribe is found universally at all times and in all cultures, but the idea that all the tribes that have a similar skin color to my tribe collectively form a "race" that is better than all other "races" is quite a recent invention. Nothing from the classical era, for example, suggests that Greeks and Romans thought of themselves as somehow belonging to a race that included the Germans and Celts but that excluded Egyptians and Persians.
10.29.2006 3:55pm
whit:
mark, again you provide no evidence, and no alternative theories.

please give me a theory OTHER than genetics that can possibly explain west african black male superiority in sprinting.

you are dancing, but you have yet to address the issue, because you can't, and you know it.

we are talking science here, and statistics. i never claimed entine was a scientist. i did claim that his data was correct.

you have not refuted the data points IN REGARDS TO SPRINTING (which is the only topic i am addressing vis a vis sports superiority) and you have offered no alternative explanation

again :

earth : 6.7 billion people
west african black males: small proportion of earth's population
sprinting: as close to a universal sport as there is, practiced in nearly every country that has any sort of organized sports
results: not one asian sub 10 second sprinter. not one white sub 10 second sprinter. NUMEROUS west african black male sub 10 second sprinters. over 96% of the top 100 meter times performed by west african black males.

etc.

those are the data points.

if it is not GENETICS, then explain to me why asians cannot field elite sprinters, let alone elite sprinters in proportion to their population. ditto for whites.

explain why that in countries with SMALL west african black population relative to population as a whole (like the UK), that all or nearly all the elite 100 m sprinters are west african blacks.

explain that. if it is not genetics. what is "socially constructing" these incredible statistical disparities. what is holding the white and asian sprinters back? what is holding the east african sprinters back?

where are these evil social constructionists that are putting lead in the shoes of all these non-west african black sprinters.

address the data, and stop googling for negative reviews from politically correct "social scientist"

this is about data, and science. not how you want the world to be

address the data
10.29.2006 4:29pm
Elliot Reed:
whit,

I think you are missing the point. Suppose I concede, for the sake of argument, that the distribution of sprinting talent among people whose genetic heritage is mostly West African has a longer right-hand tail than it does among other people. However, this is actually evidence in favor of the theory that race is socially constructed, because nobody in our society conceives of people of mostly West African genetic heritage as a "race." Our society's conception of race has traditionally viewed people with any sub-Saharan African heritage as all being one race, without regard to whether the heritage is West African, East African, or South African, and even if their heritage is 75% non-African (the one-drop rule). So even assuming that there are nontrivial biological differences between certain human subpopulations, your evidence suggests that those differences don't track "race," but track something else.

Note, however, that enormous differences at the tail of a distribution can be the result of a miniscule difference in the mean. From a biological perspective, a miniscule difference in the mean of the distribution of innate sprinting talent does not a "race" make.
10.29.2006 5:03pm
ScottS the guest (mail):

Few people try to argue against the ideal of the mother-father dynamic. That is, other things being equal, a child is better in a home with a mother and father than in a home with a two mothers or two fathers. Given this consensus, why is it bigoted or irrational for the state to promote what it views--what society views--as the ideal environment for raising children? (emphasis added)

Other things are not equal, rarely so. The ideal environment for raising children also includes a family with 2 happy, well-adjusted, financially stable, loving parents who have a support system of friends and family, who can either afford to spend quality time with their kids or who choose to forgo some material comforts in order to do so, who have a basic level of education and who approach child-rearing with a sense of curiousity and wonder, who are patient, forgiving, and firm, and who commit to a lifetime (or at least 20+ years) of responsibility.

Few people try to argue that the character of the parents isn't paramount in establishing a healthy family for their children. So why would it be bigoted or irrational for the state to promote what it views -- what society views -- by establishing character tests for parenting?

Few people try to argue that children are not better raised by parents as opposed to television, nannies, babysitters, or daycare. So why would it be irrational for the state to promote what it views -- what society views -- by correcting the massive market failures inherent in capitalism that reward (and in some cases require) absentee parenting?

A child-centered value system that requires state support has its appeal, but I think the conservative movement was right to question the "nanny state." Once you allow a majority ("society") to dictate the environment in which other people raise their children, you've got a slippery slope problem far more problematic than the supposed path to polygamy. The reasoning against gay marriage (above) is based on promoting the supposed benefits to children not yet conceived, because they will supposedly suffer the marginally higher possibility of being raised in a non-nuclear family.

By the same reasoning, I would like to begin a campaign to persuade society that children not yet conceived should be protected from the possibility of being raised in a family that might teach them to be selfish and greedy. After society comes to consensus on this value -- which shouldn't be too hard since it was a major theme of Jesus's teachings -- we will impose it on all families, whether they include men, women, gay, straight, whomever. Because it would be too emotionally difficult to remove an already-born child from their family, we must prevent this awful, unhealthy environment by denying marriage liscenses to those people whose spending on luxury goods is 1000% as much as their charitable donations.

The "ideal environment" for children is in the eye of the beholder, my friend. Do you really want the state getting itself entangled as to who is qualified to be a parent, outside of crimimal conduct and abuse?

At least you aren't arguing that gay people can't be parents because of their sexuality, as if it was contagious or some other nonsense. You have been reduced to arguing for 2 different genders for the sake of 2 different genders.

And none of this is really about gay marriage so much as gay parenting and adoption, which you apparently assume will follow marriage automatically. If society really believes in the mother-father dynamic above all else, I suppose society could draw the line at adoption, and it might want to go back and revisit divorce laws and all sorts of other policies. But marriage is not just about child-rearing, and it makes no more sense to exclude gay people from marriage on the basis that they don't make as ideal parents (a dubious claim, but that's another post entirely) than it is to exclude from marriage all sorts of other categories of people whose personal traits and circumstances might make a child's life significantly more challenging, like low IQ or being broke or being an alcoholic.

The main reason that a child raised by a same sex couple will be challenged is, unfortunately, the prejudice that society has irrationally placed on the people that love him or her. Until the homophobic right wing is able to cure themselves of their antipathy and fear, all these other arguments about the welfare of children in families with gay parents are hypocritical. I don't know if Mr. Lawn et. al. are that far gone, but if you really care about the welfare of children, you might also be outraged at the heinous things that (too many) fundamentalist parents say and do when their kids turn out gay in addition to court decisions you object to. If you really care about the welfare of children, you might reconsider the balance and direction of economic rewards in our society. If you really care about the welfare of other people's children, then I hope you have some creative ideas on how to advance educational opportunities for all. If you really care about the welfare of other people's children, I hope your agenda isn't solely directed at stopping gay people from becoming free and equal members of society.

Otherwise, your agenda truly is bigoted, an agenda masquerading as child welfare.
10.29.2006 5:06pm
whit:
"I think you are missing the point. Suppose I concede, for the sake of argument,"

you mean for the sake of EVIDENCE, but ok

cause you still have provided no scientific or data-based rebuttal, merely screeds from social scientists.

but i'll accept your lack of evidence as acquiescence :)

" that the distribution of sprinting talent among people whose genetic heritage is mostly West African has a longer right-hand tail than it does among other people. However, this is actually evidence in favor of the theory that race is socially constructed, because nobody in our society conceives of people of mostly West African genetic heritage as a "race." "

actually, it's not. it merely says that various racial SUBGROUPINGS also have unique traits.

the fact that distinctions can be drawn between (for example) west african blacks and east african blacks (fiber typings, etc.) doesn't mean that the concept of race is a social construct.

it merely means we can make distinctions between other groupings. in fact, entine makes this very point. and i agree.

it doesn't prove that race is a social construct at all.

i am well aware of statistical tails and such. i had to suffer through college level statistics too. obviously, elite sprinters exist as EXTREME genetic outliers. again, to quote sam mussonini (lurv that chariots of fire) "you can't put in what god left out", and when it comes to speed, that is undeniably true. great sprinters can be improved upon with training, but if you were not born a sprinter, you will never be a good sprinter.

i don't like this 'concede for the sake of argument" stuff though. do you or do you not dispute the data and genetics conclusion vis a vis west african sprint superiority? if you DO dispute it, then DISPUTE it, not by googling negative book reviews, but with actual SCIENCE and data.

i have yet to see that.

i am not saying that west african black males are a distinct race. i am saying that blacks, whites, and asians DID evolve with sufficient geographical and temporal distance (we apparently all CAME from africa, but branched out from there), the resulted in enough phylogenic difference to result in different RACES.

that there are not perfect borders between the races is typical of much of the study of humans in general.
10.29.2006 5:18pm
A. Zarkov (mail):
“I agree with you in that narrow sense, though I doubt that the eventual genetic markers will correspond to the current or past uses of the term "race". Unless biology confirms a genetic basis for the existing uses of the term "race"…”

The work of Feldman (“Genetic Structure of Human Populations” Science 298:2381-2385, 2002) extends and verifies Rischs’s work by using a greater number of genetic markers. The number of markers varies according to the population group. You need only 100 markers to identify the continental ancestry of Native Americans, while you need 377 for Middle Easterners. The point being you get very good resolution. Iceland has only been populated for 1,000 years, yet we can locate ancestry to a sub-region within Iceland. This shows that human evolution actually operates quickly under some circumstances. Thus biology has already provided a genetic basis for the term “race.” No doubt some people use the term “race” in a manner that is a social construction. So what? People generally self identify their race in a way that corresponds to their continental origins. Most of the people who deny that race exists are not arguing over semantics. They literally mean that in no possible way can race ever have a biological basis. We have ample evidence now to contradict that assertion.
10.29.2006 8:04pm
Mark Field (mail):

mark, again you provide no evidence, and no alternative theories.


Strictly speaking, I don't have to provide evidence. Entine (and you) are advancing a theory. It's up to you (and him) to provide evidence.

What I have shown is that Entine has failed to provide evidence. Not just "insufficient" evidence, ANY evidence. What he has done is take isolated studies, combine them in illegitimate ways, and call it "data". It's not. I've given you reasons why it's not; Elliott Reed gave you another good one (you can't judge a population by outliers). If you want additional discussion of these issues, try this book. It includes information on Entine and his flaws.
10.29.2006 8:06pm
Mark Field (mail):

No doubt some people use the term “race” in a manner that is a social construction.


Fine, we agree here. I thought this was the original point.


The work of Feldman (“Genetic Structure of Human Populations” Science 298:2381-2385, 2002) extends and verifies Rischs’s work by using a greater number of genetic markers. The number of markers varies according to the population group. You need only 100 markers to identify the continental ancestry of Native Americans, while you need 377 for Middle Easterners. The point being you get very good resolution. Iceland has only been populated for 1,000 years, yet we can locate ancestry to a sub-region within Iceland.


I agree with all of this. It proves my point. Genetics can identify human subpopulations. Those subpopulations do NOT correspond to the way people use the term "race". The data you cite here shows exactly this -- we can identify people from Iceland, but Icelanders are not a "race". Same with other groups. We can identify Mbuti (pygmies), but they are an ethnic subpopulation, not themselves a "race" nor part of any larger "race". Subpopulations exist; "races" don't.
10.29.2006 8:13pm
donmeaker (www):
I just want to be sure we know what this is about: Married men have lower priced life and health insurance. Homosexual men would like to have that low price available to them, despite their higher rates of death and disease.

If Homosexuals are permitted to marry, and with many forms of civil union, the insurance companies would be forbidden to pass on the low costs of insuring married men to them, but rather would be forced to charge married men at higher rates that would protect the insurance companies from the risk associated with homosexuals mortality and disease rates.

That means that Married men would be less likely to carry insurance that was relatively overpriced. Homosexual men would be more likely to carry insurance that was relatively underpriced. Married women and children would be less likely to benefit from a covered spouse, and homosexual partners would be more likely to so benefit.

So yes, it does hurt married people to expand the definition to cover homosexuals.
10.29.2006 10:36pm
whit:
"that race, as a legal and social matter (and with the exception of affirmative action) is entirely arbitrary"

absurd. so, the U of M case, where it was ruled race CAN be ruled as a factor in admissions? how can it be ruled as a factor in admissions, if it's merely "arbitrary"?

as for the social matter, that's aburd. maybe in your social circles, gender (we were talking race and gender) is "merely arbitrary".

but in most normal social circles, people recognize that there are differences between men and women, and they are FAR from arbitrary. that's laughable
10.29.2006 11:24pm
whit:
"Subpopulations exist; "races" don't."

your argument seems to be this. because we cannot find specific genetic marker X that distinguishes black, from asian, from white, that these terms are arbitrary social constructions.

that does not follow.

fwiw, we have not idetified a specific "gay gene". i don't think it follows that homosexual orientation is an arbitrary social construction.

i don't know if we do or don't have genetic markers identified that distinguish between dog or cat breeds. regardless, the difference between a doberman and a labrador are not arbitrary.
10.29.2006 11:28pm
whit:
"Strictly speaking, I don't have to provide evidence. Entine (and you) are advancing a theory. It's up to you (and him) to provide evidence."

the evidence has already been provided.

"west african blacks are superior at 100 meter sprinting.

i provided evidence. you haven't refuted it.

i provided numerous #'s. you have not shown the #'s to be wrong (note they were compiled several years ago, so would need to be updated every year but the basic point is the same)

you have provided NOTHING

"What I have shown is that Entine has failed to provide evidence. Not just "insufficient" evidence, ANY evidence. What he has done is take isolated studies, combine them in illegitimate ways, and call it "data". It's not. I've given you reasons why it's not; Elliott Reed gave you another good one (you can't judge a population by outliers). If you want additional discussion of these issues, try this book. It includes information on Entine and his flaws."

you have no understanding of sports science at all

why does this not surprise me

let me help you

ELITE ATHLETES ARE --- BY DEFINITION - OUTLIERS

that is what makes them elite.

we are talking ONE thing here. elite 100 meter sprinting

let's focus.

i know you find this difficult.

i have provided numerous data points as to why there is a genetic component in sprinting ability. you have provided exactly ZERO contrary evidence, and not one argument to refute a genetic basis.

if there is not a genetic basis for OUTLIER outperformance, then what is the explanation

your argument is tantamount to saying i can't prove that men are better sprinters than women, cause i am only looking at elite olympic male and female sprinters, and they are outliers.

duh.

when we are talking elite sprinters, we are talking outliers.

and when 484/500 top 100 m sprint times are west african males, and when not ONE out of the DOZENS of incidents of 10 second barrier being broken was OTHER than awest african black male WHAT OTHER EXPLANATION IS THERE THAN A GENETIC ONE?

WHAT?

im still waiting, and you are still dancing like an intelligent design fanatic trying to explain away the science.

it's not going to work.

you keep dancing.
10.29.2006 11:33pm
A. Zarkov (mail):
“…but they are an ethnic subpopulation, not themselves a "race" nor part of any larger "race". Subpopulations exist; "races" don't…”

No. They are part of a larger population, the Caucasians, which is a race. Think of a tree structure and neglect admixtures. The root is the whole species of homo sapiens. There are 5 major branches each corresponding to a race or continent. Each of the branches has more branches and so on down to the individual level. With enough markers we can resolve the higher order branches; this does not mean the major five branches don’t exist. Alternatively we can think of the 5 races as major clusters. The major clusters have sub-clusters. These sub-clusters are close to one another and far from any other sub-cluster located in a different major cluster. There are many metrics you can use and clustering techniques. They all give the same result, 5 major races each associated with a continent. Races exist and the markers used do not relate to morphology.

These clusters correspond to the way people self identify as to their race. Therefore you get a testable hypothesis. Ask people to choose one of the 5 races or “none of the above.” Take a tissue sample, sequence the DNA and find the cluster it belongs to. If it doesn’t fall within a major cluster classify as an admixture. Count up the matches.

Some stupid people might try to classify other people just by skin color. That won’t work because there is too much variation with the races. That does not mean you can’t classify people as to race using their morphology. You can, and it matches the result you get from DNA sequencing.

Yikes.
10.30.2006 3:01am
Chumund:
donmeaker,

You are right that marriage is correlated with better health among straight men. What makes you think the same would not be true among gay men?
10.30.2006 7:27am
Jon Rowe (mail) (www):

absurd. so, the U of M case, where it was ruled race CAN be ruled as a factor in admissions? how can it be ruled as a factor in admissions, if it's merely "arbitrary"?


I don't think you are understanding a thing that I have said. First, I said I disagreed with affirmative action because it runs afoul of our public constitutional norm of color blindness. And such norm -- forbidding race discrimination -- is predicated on the fact that racial differences are at least, from a legal standpoint, arbitrary. If you think there's something wrong with that sentiment, fine. I don't see you arguing for repeal of the Civil Rights Act of 1964 or the 14th Amendment. And, for that matter, if racial differences are so meaningful in a social sense, then why wasn't Virginia right in the Loving case?


as for the social matter, that's aburd. maybe in your social circles, gender (we were talking race and gender) is "merely arbitrary".


Legal norms affect social norms. When the law forbids most distinctions between the races and the genders, that in turn affects society. Looking for a CEO to run your company? Gender is arbitrary. If not in your world, wait for the civil rights lawsuit to occur. If these differences are not as "arbitrary" as we'd like to think, then perhaps we should think about the disconnect between our laws and underlying reality. But none of this refutes my assertions.


but in most normal social circles, people recognize that there are differences between men and women, and they are FAR from arbitrary. that's laughable


Never said they are entirely arbitrary. Simply that a high degree of arbitrariness accompanies gender. If you want to see a social (and legal) relationship that involves entirely non-arbitary actors, see the relationship between man and beast (animal).
10.30.2006 8:38am
Mark Field (mail):
This statement:


They are part of a larger population, the Caucasians, which is a race.


and this one:


Some stupid people might try to classify other people just by skin color. That won’t work because there is too much variation with the races.


demonstrate my point. I'm talking about the way the term "race" is actually used by people. That use is a social construction, not a real, biological "thing". That was the original point which got this discussion started.

What you are doing is trying to argue that a more technical and precise definition of "race" might be possible based on genetics. I remain skeptical, but further progress may make that possible.

whit, we're going nowhere. You need to understand that this statement -- "west african blacks are superior at 100 meter sprinting" -- is not a statement of fact. It's a conclusion based upon a series of unsupported assumptions and misunderstandings of genetics that Entine used to create "data".
10.30.2006 11:34am
Deoxy (mail):
Unless one is willing to completely and utterly destroy all legal distinctions based on sex, then the Loving dos not apply at ALL.

We still have segregated bathrooms, for instance. Are you against those?

"Race" is not a definable thing, really. Example: line up 1000 people, with a "black" person at one end and a "white" person at the other. It is possible to create such a line up where no person in the line is racially distinct from the either person next to him.

Such an exercise is impossible with sex. Sex is determinable, binary, and vitally important for the future of our species.

For one stupidly obvious example, men can't bear children. Loving might conceivably apply once we have solved that particular "problem".

Sex and "race" are not analogous. Not even CLOSE to analogous.
10.30.2006 11:39am
Jon Rowe (mail) (www):

Unless one is willing to completely and utterly destroy all legal distinctions based on sex, then the Loving dos not apply at ALL.

We still have segregated bathrooms, for instance. Are you against those?


What legal distinctions based on sex? Segregated gender bathrooms are one of the few that remain. When it comes to the law, both race and gender distinctions are suspect; racial distinctions are simply more suspect than gender distinctions. That's why we can segregate bathrooms by gender and not race. But we still can't segregate the boardroom by gender. And that's why race and gender, from a legal perspective, ARE analogous.

That we subject racial distinctions to greater scrutiny may mean that gender discriminatory marriages rules forbidding same sex couples from marrying may pass the intermediate scrutiny that ought to apply (as opposed to the strict scrutiny of a racial classification). But such scrunity would still, I think, demand civil unions for same sex couples.
10.30.2006 12:17pm
A. Zarkov (mail):
“I'm talking about the way the term "race" is actually used by people.”

You are assuming that most people misuse the term somehow without offering compelling evidence for that assertion. It’s essentially an untestable hypothesis because there is an extreme variety in the way people misuse the term. I offered a testable hypothesis (which I think has actually been carried out). Besides that’s not what the “race is a social construct” folk generally mean. Read what they say (e.g. the PBS Series), and you will find they mean it literally as they make definite untrue statements about genetics and evolution. They don’t say it’s a social construct because some people use the term “race” sloppily. Your definition of “social construction” is a minority position. Can you provide one example of someone who believes that race is biologically meaningful in the sense we can cluster the population into 5 races using DNA markers, yet still says race is a social construct? If you can then do you have evidence that’s a majority position.
10.30.2006 12:59pm
Chumund:
An idle thought:

I don't actually know what the state of the law is when it comes to bathrooms. But I do know that there are co-ed/unisex bathrooms in many places that I have been. And I am not exactly sure what would happen if a state tried to outlaw co-ed/unisex bathrooms and the law was challenged--that sort of law might well raise serious constitutional issues. In other words, the state ALLOWING "bathroom segregation" is one matter, but the state REQUIRING "bathroom segregation" might be an entirely different matter.

By the way, it might be worth thinking just a bit about Craig v. Boren, the case in which the Supreme Court held that intermediate scrutiny applied to laws incorporating gender distinctions. The statute in question prohibited the sale of 3.2% beer to males but not females over 18 but under 21. The state argued that its underlying interest was traffic safety, and it offered various statistics purportedly showing that males in the relevant age group were in greater danger from drinking beer and driving. Nonetheless, the Court found that such statistics were inadequate to justify the state's gender discrimination.

What I think Craig (and similar cases that followed) demonstrates is that generalizations about anything but the purely biological characteristics of men and women, even when backed up by statistics, usually are not going to be sufficient to justify legal gender discrimination. And I think that is relevant insofar as claims like "a man would tend to be a better co-parent for a woman, and vice-versa, because of the benefits of gender diversity" are quite likely to end up being supported, at most, by statistics. Accordingly, if Supreme Court precedent were in fact rigorously applied to this part of the issue, I would not be confident in this particular kind of argument surviving the relevant level of scrutiny.
10.30.2006 1:01pm
whit:
"And that's why race and gender, from a legal perspective, ARE analogous. "

except that - they are not

in some juridictions, it is a crime for a man to be in a woman's bathroom, or vice versa.

not applicable to women

and there is the pesky draft and women in combat thing.

it is one thing to say that women and men should be equal under the law. of course they should. it is entirely another thing to say that the law, let alone society, recognizes that the differences between men and women are "arbitrary" (word used here before), minimal, etc.
10.30.2006 1:06pm
whit:
edit: sentence should read "not applicable to race" vs. "not applicable to women"
10.30.2006 1:08pm
whit:
i'm going to note no evidence or data has been presented to refute the data points i culled from entine's book.

not one contradiction, etc.

doexy hit the nail on the head, on that other issue, so i'll defer to deoxy.
10.30.2006 1:14pm
Jon Rowe (mail) (www):

except that - they are not

in some juridictions, it is a crime for a man to be in a woman's bathroom, or vice versa.

not applicable to women

and there is the pesky draft and women in combat thing.

it is one thing to say that women and men should be equal under the law. of course they should. it is entirely another thing to say that the law, let alone society, recognizes that the differences between men and women are "arbitrary" (word used here before), minimal, etc.


Do you know the difference between analogies and duplicates? Apparently not. I never said gender differences were "arbitrary," but rather that when it comes to legal distinctions (which, in turn, affect social distinctions), there is a great deal of arbitrariness associated with gender. Chumund's comment understands my point.

Again, if you wish to see a social and legal relationship illustrating complete non-arbitrariness, see that of man and beast. The races and the genders are entirely interchangeable when it comes to who may be a CEO. Would we say the same of a dog?
10.30.2006 1:26pm
David Chesler (mail) (www):
Bart at 8:22pm on 10/27:
There was never any dispute that "whites" and "coloreds" could in fact marry under the definition of that term.


Marriages void without decree. All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." Va. Code Ann. 20-57 (1960 Repl. Vol.)


Nobody doubts that two individuals of the same sex can live together, sharing a bed, commingling assets, dividing responsibilities, and so forth, same as two individuals of different sex who are married do. The question is whether this arrangement is recognized by the state. (The Lovings faced both that question and the question of whether the arrangement could be punished by the state. The second question is largely answered "no" for the same-sex question today.)
10.30.2006 1:29pm
David Chesler (mail) (www):
A Zarkov, 10/27, 10:37pm we can tell a person’s race from his DNA if we use enough markers

Deoxy, 10/30, 11:39am "Race" is not a definable thing, really. Example: line up 1000 people, with a "black" person at one end and a "white" person at the other. It is possible to create such a line up where no person in the line is racially distinct from the either person next to him.

Such an exercise is impossible with sex. Sex is determinable, binary, and vitally important for the future of our species.


There are the transgendered, and hermaphrodites and androgynes were known to the ancients, but this is much less common than those of mixed or indeterminate race.

The Virginia statutes and the like were clearly not written by computer engineers.
For the purpose of this chapter, the term `white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons.

Presumably the threshold is the offspring of a white person and a person who has 1/8 American Indian blood, but the term is not well defined. What is American Indian blood, other than the blood of an American Indian, and the person who is 1/8 American Indian is by definition American Indian. The offspring is thus 1/2 American Indian, and therefore also American Indian.
10.30.2006 1:51pm
Jon Rowe (mail) (www):
David,

Indeed this post of mine on Jamie Lee Curtis (which once got over 10,000 hits in a day) who in all probability has a male chromosomes mix, shows that these people who don't fit Deoxy's theory not only exist but marry.
10.30.2006 2:10pm
David Chesler (mail) (www):
Owen writes 10/28, 7:45am
For instance--23 Pa. C.S. § 1503(c): "Marriage license needed to officiate.--No person or religious organization qualified to perform marriages shall officiate at a marriage ceremony without the parties having obtained a marriage license issued under this part."

Such laws do not forbid the performance of Union ceremonies, and such ceremonies are quite commen .... They forbid the attempted creation of "legal" marriages that aren't.

I suppose here also it depends on somewhat circular definitions. If a clergy officiates at a religious marriage ceremony for two people who haven't gotten a marriage license, is he in violation of 23 Pa. C.S. § 1503(c) or MGL C 207 § 49 ("Whoever, being duly authorized to solemnize marriages in the commonwealth, joins in marriage persons who have not...")? Assume for the sake of argument that the two people may legally (halachically, by canon law, etc. as applicable) be married under the laws of their faith, does it make a difference if they may be married under the laws of the state?

These are old laws, dating from when the states were more theocratic, long before the First Amendment requirement of separation of church and state was understood as many understand it today. MGL C 207 § 38 gives a laundry list of the titles of clergy of various faiths (who are ex officio permitted to solemnize marriages) before adding "according to the usage of any other church or religious organization which shall have complied with the provisions of the second paragraph of this section." (Although marriage may be entered into by contract in Judaism, and nowadays would be officiated, there is no such requirement for the marriage to be valid and binding. I wonder if two Jews of different sex can take out a marriage license, go into a room together, close the door, and sign it themselves as officiants?)

Outside of marriages, I've always been amazed at how entangled the state and churches get in MGL C 67 (Parishes and Religious Societies), especially § 39 et seq.:
In religious societies belonging to the Protestant Episcopal Church or the Reformed Episcopal Church, the rector or one of the wardens may, unless otherwise provided in some by-law, preside at their meetings with all the powers of a moderator ...
§ 40: The trustees of any society of the United Methodist Church, or of the African Methodist Episcopal Church
§ 44: The Roman Catholic archbishop or bishop of the diocese in which a Roman Catholic church is erected or intended to be erected, the vicar-general of such diocese and the pastor of such church, for the time being, or a majority of them, may associate with themselves two laymen, communicants of said church, and may, with such laymen, sign a certificate in duplicate, showing the name or title by which they and their successors shall be known as a body corporate ...
§ 55: This section shall apply to all churches, congregations, parishes, committees and other religious organizations governed by jurisdictions, archdioceses and dioceses of any Orthodox Patriarchate, Synod or national church of the Orthodox Church (the One Holy Catholic and Apostolic Church) ...
10.30.2006 2:17pm
David Chesler (mail) (www):
Jon Rowe 10/28 5:06pm What if it were a daughter who seduced her father, where the daughter clearly wasn't the victim. Well, the mother would greatly be harmed. And if that broke up an intact family, the whole family would be harmed.

This seems more of an argument for anti-adultery laws than anti-incest laws. Many more marriages are broken up when fathers have affairs with unrelated women than when they have them with their daughters or with the adopted daughters from a prior marriage of their common-law wives.
10.30.2006 2:21pm
David Chesler (mail) (www):
Cornellian, 10/29, 11:05am, responding to my 10/27 6:14pm response to Dan Hamilton's 10/27, 5:48pm, that SSM will not lead to Man-Boy marriages: I suspect that this will happen about as often as 35-year-old men marry 14-year-old girls now.

A scenario that used to be well within the scope of the term "traditional marriage" though you don't hear many self described defenders of traditional marriage arguing for it these days.


Yes. It is good that this does not happen so much nowadays, and is looked at with much more suspicion. What does that change of mores have to do with SSM?
10.30.2006 2:27pm
lucia (mail) (www):
David Chesler said> Yes. It is good that this does not happen so much nowadays, and is looked at with much more suspicion. What does that change of mores have to do with SSM?


The changes in mores has nothing to do with SSM. I susped the point of the response was to illustrate the danger that a 35 year old man might marry a 14 year old boy is not a negative consequence of SSM because we already frown on the practice of 35 year olds marrying 14 year olds.

Extending marriage to include same sex couples won't change this.
10.30.2006 3:04pm
jrose:
John Rowe: That we subject racial distinctions to greater scrutiny may mean that gender discriminatory marriages rules forbidding same sex couples from marrying may pass the intermediate scrutiny that ought to apply

IMO, it is sexuality discrimination, not gender discrimination. I think only Hawaii has found that forbidding same-sex couples from marrying is gender discrimination.
10.30.2006 3:25pm
Jon Rowe (mail) (www):
David,

The fact that family members live with one another requires putting restraints on any sexual passions that might exist within a family to keep the family intact. If no incest taboo, how many more families would be broken up by incest as opposed to regular adultery?
10.30.2006 3:27pm
On Lawn (mail) (www):
ScottS,

I do this in general, but especially in your case I quote you more to reference your comments then to represent them. You made many well articulated arguments and quoting them in part does them injustice. But for space constraints I will put the partial quotes up knowing that the full context is available in your comment above.

> ScottS the Guest: Calling the extension of equality under the law to an unpopular minority group "arbitrary" is offensive.

That would be true if equalization were an end in and of itself. But it is not, the ability to draw two points and try to equalize them on any scale you develop is not an over-riding purpose. It is a means to an end, to remove prejudice, bias, and any other attempt to privilege a minority (or majority) where it is not due. Equalization, even arbitrary equalization, can in fact be oppressive if not properly scrutinized.

Besides, I am not saying there is no government purpose offered to equalize homosexuality with heterosexuality. I'm just saying none is being offered, and the scrutiny that should be applied to privileging the marital status to either set is being short-circuited.

Marriage is a privileged status, and as a special status our attention to it might be prejudiced. That is why it requires scrutiny, is there a purpose or not?

If there is no reason to give privilege the status to the gender complete combination, then the remedy is to remove the status, not to extend it. That is simply compounding the problem.

If there is a reason to give the status privilege then any group wishing the same status needs to show its purpose and be ruled on by its own merits. I've read many claims for equality in the media and in people's comments, but honestly those claims seem nothing more than a way to short-circuit past scrutinizing the relationships at all. Their condition is presented as a set of given statements, we have marriage, and they think its unfair they don't have it, so lets give it to them.

But no scrutiny is applied, why is marriage a privileged status? Should it be privileged at all? Is it unfair that gays cannot marry? If so is it their self-identity system that is denying them marriage or is it the law? If it is a real handicap that keeps them from marrying, if it is a real disadvantage to them as NJ and Mass. ruled, then we need to start treating homosexuality as a handicap.

I mean if this is really to equalize homosexual relationships with heterosexual ones, then we need to make them procreative somehow. We need to somehow instill in them the diversity that comes naturally when we have equal gender representation in the home. We need to somehow give them everything a heterosexual relationship has. Those are either impossible, or impractical in that they trample on the rights of other minorities.

Because to some degree or another something's got to give. Either we ignore what equal-gender-representation and integration means compared to males-only or females-only relationships, or we actually equalize them. It seems the only fair way is to let each be what they are.

> ScottS the guest: Besides, the government's purpose in supporting hetero marriage is what exactly? To promote less personal conflict, more stable social relationships, public health, and environments for child-rearing, right?

I'm not sure how marriage promotes *less* conflict. But if it does, it is surely through the practice of integration. The more cosmopolitan the society, the more tolerance there is for diversity. When integration is taken into heart, then felicity is promoted.

Marriage integrates the two sexes. It creates, in its own scope, a completion of humanity. A person is to love honor and cherish someone who is different in many observable and non-observable ways, because of their gender make-up.

Children raised in this condition see how to accept differences. They relate naturally with those they identify with, and gender in early development is a strong source of identification. And they learn to relate with the different gender.

I've seen arguments that homosexuality is a disadvantage, because they cannot love, honor and cherish someone of the opposite sex. The claim is laid that it is impracticle and cruel to suggest they can integrate with the opposite sex in any meaningful marital way. To me if the Loving analogy is complete, it is that the GLBT are acting mirroring strongly the arguments we saw the state of Virginia use in Loving. While other races could inter-mingle just fine, the whites needed a special exception to promote their segregation policies. And that exception needed state enforcement.

Laid at the fountain of human generatively is a standard of integration. To promote as a condition before having children, felicity securing the maintenance and education of children that would come through that relationship. Mark Field above, and others have quoted that to say there is no direct tie between procreation and promotion of child wellbeing intended in marriage. Yet the definition works from "the bed" and on as a combination of sexes.

If you wish to argue that the recognition of gender-complete relationships in the very definition of marriage almost universally through all cultures and human history is to regulate romances, then you would have to explain why it only deals with a small segment of romantic combinations. In fact, of just binary relationships possible of man-man, woman-woman, and man-woman it deals with only one of the three. Why is that?

Beyond that you've made an argument that homosexual relationships might need government regulation. Sure, if you want the government to go into the bedrooms of homosexual couples, to (as Dale Carpenter suggests as well as yourself) enforce monogamy, and to hold people's hands as they break up, then petition the government for that. Make your case as to why it is important. And many (like Dale and yourself) do.

But the equality argument does not. And it is flawed in its lack of deterministic reasoning, it is flawed in how arbitrary it is. Which is in many ways why Dale, and Jon Rauch actively have argued against the ultra-egalitarian (in Jon's words) approach to this problem.

> ScottS the guest: I agree that a child-centered value system is the best. That's why I'm for gay marriage. Gay marriage will be a mechanism that will encourage people to give credence to children's rights.

I call that system, "bandage". It says that instead of being a unification of two different pieces into a new whole, as marriage is, that we should simply be there to bandage two people together. Presumably for their sake and the sake of the children. But this is by no means a homosexual-specific argument. Many other combinations see their situation as needing recognition and benefits to bandage them together -- for the sake of the children. Marriage is one, polygamy is another, and so are instances where a single mother or father is a beneficiary of either close relatives or others whom they cannot marry.

But instead of "bandage" we can write the purpose of the relationship better into the title. Lets call them "Reciprocal Beneficiaries". Two or more people who have grown in dependence of each other for raising children, or what-not. For promoting child-welfare it would seem that homosexual couples are only a small subset of these cases, and promoting just them may just be grounds for prejudice on their part.

What I'm saying by pointing this out is very straight-forward, no subset of purposes in privileging the marital status justifies removing or reshuffling its primary focus on promoting responsible procreation. Only at the fountain of generatively do we have a chance to do so much good for children by having their parents committed in a marriage. To those that chaff at marriage's requirement for equal gender representation, I can only offer the solace that the reasoning I offer is not arbitrary, and it is not based in prejudice.

> ScottS the guest: I fail to see how the existence of gay people in any form reach into a nuclear family and harm the kids.

The existence of gay couples does not. Which is why you won't see me on any seek and destroy mission of homosexual couples.

However, the act of neutering marriage of its reference to gender-completeness does reach into the nuclear family. In attempting to equalize the homosexual and heterosexual relationships we completely ignore the importance of anything the homosexual combination cannot provide. In this case, consanguinity and the preservation it brings to heritage. It actively marginalizes the values we place in integration in general.

> ScottS the Guest: First of all, "marriage" is not "complete equalization." I guess (?) that the fear is that gay marriage will normalize non-traditional family arrangements (and that such non-traditional arrangements are obviously worse for children)... but it does so less than gay people living in unmarried households of any level of commitment or promiscuity. If anything, gay marriage reinforces a norm of commitment, of monogomy, and of coupledom.

That marriage is not complete equalization is something was well written in the dissent to the Goodridge v2.0 decision. Even with marriage there is a disparity. I can agree with that argument.

The harm comes from the act of neutering marriage for the sake of homosexuality. The institution of marriage is replaced with the homosexual version. The version that loses the rich meaning that stems from our own humanity. Both the conditions we live in as a species and culture, as well as our most liberal and humane ideals of integration and commitment to take care of the innocent and defenseless.

> ScottS the Guest: Unless Mr. Lawn wants gay people to go back in the closet on behalf of the children, under the bigoted premise that more kids will grow up to be more gay simply because society failed to shit on gay people enough to dissuade them, his argument about marriage is entirely backward.

And if I am guilty of something, it is not bigotry as much as lack of bigotry. It am guilty not of considering homosexuality too much, it is being too agnostic of its presence. I simply do not see a reason to re-orient marriage and society with the homosexual model. I am simply not biased enough, not prejudiced enough towards homosexuality to let the claim of equalization go without scrutiny.

The claim to privilege homosexuality because heterosexuality is privileged seems vain in my estimation. And explained why above.

And from here I probably would repeat myself a few more times in replying so I will let it stay at this.

But I thank you for making a very well articulated reply. I feel you have been very honest and forthright about your desires and goals with marriage. And that always makes for the kind of dialog that people can really sink their teeth into.

Thanks again,
10.30.2006 3:46pm
jrose:
On lawn: Marriage integrates the two sexes. It creates, in its own scope, a completion of humanity. A person is to love honor and cherish someone who is different in many observable and non-observable ways, because of their gender make-up.

Are you arguing that the romantic love between two people of the opposite sex is sufficiently different from the same shared between two people of the same sex to justify marriage only for the former?
10.30.2006 4:08pm
On Lawn (mail) (www):
> jrose: Are you arguing that the romantic love between two people of the opposite sex is sufficiently different from the same shared between two people of the same sex to justify marriage only for the former?

The dimension of romantic love is an important one, but that requires something from the previous that I have not seen you address. If I missed it, then my appologies:

Laid at the fountain of human generatively is a standard of integration. To promote as a condition before having children, felicity securing the maintenance and education of children that would come through that relationship. Mark Field above, and others have quoted that to say there is no direct tie between procreation and promotion of child wellbeing intended in marriage. Yet the definition works from "the bed" and on as a combination of sexes.

If you wish to argue that the recognition of gender-complete relationships in the very definition of marriage almost universally through all cultures and human history is to regulate romances, then you would have to explain why it only deals with a small segment of romantic combinations. In fact, of just binary relationships possible of man-man, woman-woman, and man-woman it deals with only one of the three. Why is that?

Beyond that you've made an argument that homosexual relationships might need government regulation. Sure, if you want the government to go into the bedrooms of homosexual couples, to (as Dale Carpenter suggests as well as yourself) enforce monogamy, and to hold people's hands as they break up, then petition the government for that. Make your case as to why it is important. And many (like Dale and yourself) do.


So to answer your question I have to say: No, I don't think the romantic differences are any reason for the government to make a distinction between them. I prefer the government remain romantically agnostic, and that marriage be so also to external observers. There are many times and many couples that have fallen out of romantic connection with each other, yet are seeing their commitment to each other and their children through. I think that is a noble effort of their own volition that shouldn't be demeaned or barred by moving the states interest to romantic regulation.
10.30.2006 4:43pm
jrose:
On Lawn: No, I don't think the romantic differences are any reason for the government to make a distinction between them

Then why shouldn't the government offer marriage to both same-sex and opposite-sex couples?
10.30.2006 5:02pm
On Lawn (mail) (www):
jrose,

It was evident from your previous question that you were attempting to slip a statement in under the radar. To you romantic love was the metric to judge whether or not marriage was applicable to different classifications of potentially romantic combinations. And you probably wanted to say that directly, but didn't have anything to support that statement with.

So instead of arguing your point, you tried to slip it in as the premise of a question. Flying in the face of attempts to get a substantive backing for that premise, you tried it again. I'm not sure what you expected, the audience here is far more intelligent than you seem to believe in such mundane chicanery.

Whether intentional or just out of poor reading comprehension (perhaps you were too focused on your own premise to see what was going on around it), it was fool hardy.

But I'm an upfront kind of guy. You did ask the question again, so I will answer it again.

Here is the re-mixed version, using only what was said in the previous post so that you can learn to spot answers to your questions better:

>> On Lawn: No, I don't think the romantic differences are any reason for the government to make a distinction between them.

> jrose: Then why shouldn't the government offer marriage to both same-sex and opposite-sex couples?

>> On Lawn: I prefer the government remain romantically agnostic, and that marriage be so also to external observers. There are many times and many couples that have fallen out of romantic connection with each other, yet are seeing their commitment to each other and their children through. I think that is a noble effort of their own volition that shouldn't be demeaned or barred by moving the states interest to romantic regulation.

>>>>> On Lawn: Laid at the fountain of human generatively is a standard of integration. To promote as a condition before having children, felicity securing the maintenance and education of children that would come through that relationship. Mark Field above, and others have quoted that to say there is no direct tie between procreation and promotion of child wellbeing intended in marriage. Yet the definition works from "the bed" and on as a combination of sexes.

>>>>> If you wish to argue that the recognition of gender-complete relationships in the very definition of marriage almost universally through all cultures and human history is to regulate romances, then you would have to explain why it only deals with a small segment of romantic combinations. In fact, of just binary relationships possible of man-man, woman-woman, and man-woman it deals with only one of the three. Why is that?

>>>>> Beyond that you've made an argument that homosexual relationships might need government regulation. Sure, if you want the government to go into the bedrooms of homosexual couples, to (as Dale Carpenter suggests as well as yourself) enforce monogamy, and to hold people's hands as they break up, then petition the government for that. Make your case as to why it is important. And many (like Dale and yourself) do.

[That last quote from above denoted with '>>>>>' was repeated in the grandparent post '>>>']

So, jrose, if you have a disagreement or wish further clarification just let me know. But make sure to note where you feel the previous explanation was insufficient so that if this was just a misunderstanding we can prevent them in the future.
10.30.2006 5:56pm
jrose:
On Lawn,

As best as I can tell, you are arguing that promotion of child well being is the distiniguishing characteristic that separates opposite-sex couples from same-sex couples. If that were so, then the state would be able to deny the infertile from marrying. Zablocki strongly suggests the state cannot do so.

of just binary relationships possible of man-man, woman-woman, and man-woman it deals with only one of the three. Why is that?

Because the acceptance of gayness as a trait is a new thing.
10.30.2006 6:09pm
Chairm (mail):

none of this is a social construct. sure, races can intermarry. the result is a MIXTURE of the races.


Racism is the social construct. The triviality of differences in groups of human beings does NOT rise to the level of subspecies of human beings. Human men and women do not create hybrid human beings. If wish to exagerate the significance of color or physical features, then, you return to the subjectivity of racial identity. No such identity is based on genetic testing of an individual.

Subgroups are not races. The concept of race is just that, a concept, not an objective truth. The boundaries of that construct for any race you wish to seperate would be so blurry as to not make sufficient reason to see a person's "racial category" (such as some here have claimed can be discerned with genetic testing in labs) first and his humanity a distant second. On the level of community, race is a social construct as is racism, clearly.


I'm not sure I understand your claim that the state gives marriage a "special status".


I think that it is the status that the SSM advocates seek to appropriate to the one-sexed, presumptively homosexed, relationship type.

I am speaking of the social institution, not of this or that particular instance of marriage. At law, and in many other venues, marital status is a preferential status based on society's benefiting from the social institution (not for his or her particular marriage) and society's benefiting the social institution in turn. The status carries with it significant social esteem. You will hear this emphasized by SSM advocates who want the name, marriage, as a social marker of the equivalence between homosexuality and heterosexuality. That is a misuse of the social esteem for the social institution of marriage.

That is the significance of the point that the society, through state authority, elevates the social institution by recognizing it with a unique status that is at once social, legal, and normative.

State regulation and other protocols do not define marriage. These are ways that the state recognizes marriage. Not all regulations are good for the social institution; some intrude and undermine it.


the state makes no attempt to regulate only "ideal" marriages. Rather, it regulates them pretty much as they come, barring extraordinary circumstances.



The marriage idea is at stake, not ideal marriages of this couple or that couple.

The one-sex ideal that has been put forth in SSM argumentation is indeed proposed as a replacement for the marriage idea. It is not an extension.
10.30.2006 6:56pm
On Lawn (mail) (www):
> jrose: As best as I can tell, you are arguing that promotion of child well being is the distiniguishing characteristic that separates opposite-sex couples from same-sex couples.

Perhaps you could have phrased that more clearly. As written it looks like you are disagreeing that male-female relationships can give birth, and homosexual relationships cannot.

I needn't remind you on basic biological facts, I'm sure. Your statement was probably meant for a context which you didn't specify. Could you clarify your remark?

>> On Lawn: If you wish to argue that the recognition of gender-complete relationships in the very definition of marriage almost universally through all cultures and human history is to regulate romances, then you would have to explain why it only deals with a small segment of romantic combinations. In fact, of just binary relationships possible of man-man, woman-woman, and man-woman it deals with only one of the three. Why is that?

> jrose: Because the acceptance of gayness as a trait is a new thing.

I'm sorry you probably misunderstood. My question is not why homosexual identity was never recognized. My question asked why only a subset of romantic combinations were recognized, if marriage was intended to regulate romance.
10.30.2006 7:08pm
On Lawn (mail) (www):
> ScottS the guest: I don't know if Mr. Lawn et. al. are that far gone, but if you really care about the welfare of children, you might also be outraged at the heinous things that (too many) fundamentalist parents say and do when their kids turn out gay in addition to court decisions you object to.

You bring up many aspects of the struggle people have with prejudice. And you bring up concerns people have had with first amendment rights.

I'm concerned about bigotry and I'm concerned with the welfare of children. I believe that the people raising children should be held accountable to some degree, and given benefits and privileges to help them. And so I wonder why you might be so bigoted as to only consider children raised by homosexual couples as worthy of this attention.

Children raised in households headed by homosexual parents are a small sliver of all children raised in households without access to marriage, foster parent, or even orphanage status. These include mother-daughter arrangements, or ones like mine where I am assisted by my parents in raising my children while my wife is getting medical attention. These include circumstances where the adults are not related, and are not romantically interested in each other. Others where there is a romantic interest that you happen to feel antagonism towards, polygamy, polyamory, incest, etc...

But none of that justifies neutering marriage. The needs of others can be addressed, and should be, without actually taking away from another institution. I'm concerned with neutering marriage because it has a direct impact on our understanding of marriage, and our understanding of taking care of children in in-tact families.

> ScottS the guest: Otherwise, your agenda truly is bigoted, an agenda masquerading as child welfare.

Hmm, it seems that you are the one who is bigoted masquerading so thinly under child welfare.
10.30.2006 7:50pm
Jon Rowe (mail) (www):

No such identity is based on genetic testing of an individual.

Subgroups are not races. The concept of race is just that, a concept, not an objective truth. The boundaries of that construct for any race you wish to seperate would be so blurry as to not make sufficient reason to see a person's "racial category" (such as some here have claimed can be discerned with genetic testing in labs) first and his humanity a distant second. On the level of community, race is a social construct as is racism, clearly.


It seems to me that you've ignore much of the science, which, by the way seems to have been offered from the social right, showing that race is a biological reality and that it can be discerned with genetic testing. The fact that virtually every single marathon winner comes from the same region of the globe is, I assure you, not a social construct.

My point would be that because of our common humanity, whatever the biological differences between the races has nothing to do with legal rights. Ditto with gender. As such governments' right to draw legal distinctions on the basis of race &gender ought to be greatly restricted. Perhaps more gender distinctions should be allowed than race distinctions. But even most public gender distinctions should be forbidden. And this in turn affects governments legal right to confer the status of marriage b/n gender.

As a libertarian, I'd let folks in the private sector work these things out on a volunary and consensual basis.
10.30.2006 7:52pm
Chumund:
Chairm,

You write, "At law, and in many other venues, marital status is a preferential status based on society's benefiting from the social institution (not for his or her particular marriage) and society's benefiting the social institution in turn."

How is this true "at law"? Again, I understand that the state regulates marriages through marital law, and in that sense marriages have a legal status. But makes that status a "preferential" status, rather than just what I might call a "regulatory" status?

Similarly, you write, "That is the significance of the point that the society, through state authority, elevates the social institution by recognizing it with a unique status that is at once social, legal, and normative."

Again, I know the state regulates marriages by giving them a legal status. But how is this "elevating" marriage as a social institution? Indeed, how is this regulatory mechanism "unique"?

Perhaps a hypothetical analogy would help. Another relationship the state regulates is the doctor-patient relationship. Would you say that by choosing to regulate this relationship, the state is "elevating" the doctor-patient relationship, or giving it a "preferential status"?

And what would you make of an argument like this: suppose that the state regulated the internist-patient relationship, and someone proposed that the state also regulate the surgeon-patient relationship. Would it make sense to argue that the state should not also regulate the surgeon-patient relationship on the ground that this would constitute "misuse of the social esteem for the social institution of internist-patient"?

In general, in my view the state has little influence over what society, and elements thereof, will or will not esteem. So, for example, already some people (and churches, and companies, and so on) do esteem gay marriages, and other elements of society still do not esteem interracial marriages, and all this despite the current state of marital law.

What the state can do through the law, however, is regulate things, including marriages. But I'm not persuaded yet that the state even attempts to do more, let alone succeeds in doing more, when it comes to marriages.
10.30.2006 10:34pm
Chumund:
Chairm,

That should read, "But WHAT makes that status a 'preferential' status ...".

And I mean that to be a specific question. I understand it is a common thesis that the state regulation of marriages is also designed to "reward" marriage as a social institution, but I don't think that is at all obvious, and I wonder if you have some particular things in mind that make it clear the state is doing more than just regulating.
10.30.2006 10:39pm
Chumund:
Sorry to serial post, but I want to make this point as clear as possible:

Why do people go to the doctor? Is it because the state has tried to elevate society's esteem of the doctor-patient relationship by regulating it? Or just because they want medical attention?

I think we can and should ask the same question about marriage. In other, why do people get married? It is becase the state has tried to elevate society's esteem of the institution of marriage by regulating it? Or just because people want the inherent benefits of being married?
10.30.2006 10:51pm
Lee J. Yatlee (mail):
Yatlee:
If we accept the premise that the fundamental right to marry really translates in practice as the right for a couple to legally cohabit and engage in sexual relations, then homosexual couples do not find themselves in the same situation as at the time of Loving v. Virginia.

jrose:
I don't accept the premise. Of course, Loving ........

Yatlee:
I can't imagine what else the "fundamental right to marry" might have been if it wasn't the right for a couple to legally cohabit, engage in sexual relations and start a family.

jrose:
Assuming you agree that it would be unconstitutional for a state to deny a marriage license to the infertile, what legitimate governmental purpose justifies leaving same-sex couples on the outside and infertile opposite-sex couples on the inside?

Yatlee:
The sole obligation upon the state is the equal application of the law to the constitutionally valid classifications deemed pertinent to a governmental objective. But to answer your question I'll cite the New York Supreme Court ruling Hernandez v. Robles:


"In arguing that the definition is over inclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea."



Also United States Court of Appeals For The Eighth Circuit Citizens for Equal Protection v. Bruning:


"But under rational-basis review, “Even if the classification . . . is to some extent both underinclusive and overinclusive, and hence the line drawn . . . imperfect, it is nevertheless the rule that . . . perfection is by no means required.” Vance v. Bradley, 440 U.S. 93, 108 (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” Heller, 509 U.S. at 326

“We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” Vance, 440 U.S. at 109.



Finally, there is no requirement in rational basis equal protection analysis that the government interest be furthered by both those included in the statutory classification and by those excluded from it (see People v Whidden, 51 NY2d 457, 461 [1980], appeal dismissed for want of a substantial federal question 454 US 803 [1981]).

Chumund:
I'd be interested in Yatlee's analysis of this hypothetical: A state creates a "patient's bill of rights", except it doesn't apply to Jewish patients. Is this constitutional?

Yatlee:
No. But then, the classification of Jewish would not be pertinent to the classification of patients the same way gay would not pertinent be to the classes concerned by marriage, which are men and women.

You seem to be suggesting by your analogy that Jewish is to a "patient's bill of rights" what gay is to marriage. I'm not sure if this is the analogy you want to use. Jewish is a religion, a culture, a history, a people. Is being gay any of those things?

ScottS the guest:
Calling the extension of equality under the law to an unpopular minority group "arbitrary" is offensive. You might not agree with the conclusions, or find another line of thinking more compelling, but there is legitimate reasoning behind the claim and the decision. Merely asserting that it is arbitrary is more arbitrary than the decision itself.

Yatlee:
I used the word "arbitrarily" because if gays were permitted to marry, then the classifications to be included in marriage would be men, women..... and homosexuals; that is two classes based on gender and one class based on one particular sexual orientation or practice. There would be no rational explanation for this inclusion except arbitrariness.

ScottS the guest:
Besides, the government's purpose in supporting hetero marriage is what exactly? To promote less personal conflict, more stable social relationships, public health, and environments for child-rearing, right?

Yatlee:
Following is a sufficient explanation of what the government's purpose is as cited from the United States Court of Appeals For The Eighth Circuit, Citizens for Equal Protection v. Bruning:


"The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” "



ScottS the guest:
The legitimate governmental purpose in conferring the rights and benefits of marriage to homosexual couples would be exactly the same things.

Yatlee:
That would be very hard to rationalize.....

ScottS the guest:
There is a governmental purpose in encouraging stable and happy homosexual relationships; to establish a norm of enduring romantic love for gay Americans serves everyone's purpose, gay and straight.

Yatlee:
This is not the purpose in the state of Washington and quite likely not the purpose for every other state also, except Massachusetts and quite possibly New Jersey now, since the justices of these states seem to have lost their minds:


"Contrary to the view expressed in Justice Fairhurst’s dissent, the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal." ( Washington State Supreme Court ANDERSEN v. SIMS No. 75934-1 July 26, 2006)
10.31.2006 5:57am
Lee J. Yatlee (mail):
Shawn-non-anonymous:

Using the Loving logic, which essentially says anti-miscenegation laws say that "John" is the wrong race to marry "Jane", anti-gay-marriage laws say that "Adam" is the wrong gender to marry "Steve". Basically, anti-gay-marriage laws discriminate based on gender.

Yatlee:

Yes they do, but this categorical discrimination is permitted where it concerns a legitimate state interest so long as the means are rationally related to a legitimate governmental purpose. Numerous higher court rulings have found this to be so. The word "discriminate" is not a dirty word.
10.31.2006 6:20am
Hans Gruber:
"I'd say marital law is more properly characterized as a set of regulations, with the "inducement" to enter marriage being provided primarily by the inherent benefits of being in such a relationship, not by the state."

So gay couples are fighting for the right to be regulated (I know this was way up thread, but I couldnt resist)?
10.31.2006 6:28am
Chumund:
Yatlee,

As an aside, it would actually be very easy to have a nonintrusive civil marriage scheme that applied only to couples who procreated. It would work just like that: couples could get privately married, but the state regulation of marriage would apply only once the couple actually had a child (and this, of course, is already a matter of public record through the birth certificate process).

Anyway, obviously being gay is not a religion (although as another aside, I always like using discrimination against religion in analogies because I think it shows why it doesn't really matter if being gay is genetic, a choice, or some combination). But now change the analogy: the state creates a patient's bill of rights, but excludes left-handed patients. Is that constitutional?

As I think you agree, ultimately this question would come down to whether the state has a legitimate reason for this discrimination between right- and left-handed people. And so, the same question applies here: does the state have a legitimate reason for its discrimination between straight couples and gay couples?

As you note, some courts have said yes, but on the other hand, some courts have said no. And I think that is part of what we are discussing here--do any of the asserted reasons for this discrimination, whether or not accepted by a court, actually stand up to rational scrutiny?

A final thought: line-drawing is a notorious problem in the law, and indeed one where the state usually gets a lot of deference. But drawing different lines for different people is an importantly different form of discrimination from consistent line-drawing. So, for example, I think it is notable that arguments to the effect that gay couples are being denied recognition of their marriages because they would not be ideal parents can be contrasted with the fact that straight couples can have their marriages recognized even when they would not be ideal parents (indeed, even when the state has adjudicated that they would be legally UNFIT parents and have terminated their parental rights). So, given this suggested rationale, there is no line at all being drawn for straight couples, and yet an impossibly high line being drawn for gay couples. And that application of different standards to straight and gay couples cannot be defended as a simple example of line-drawing.

Hans,

Absolutely--those gay couples seeking state recognition of their marriages are in fact fighting for state regulation of their marriages. And as an aside, I gather not all gay couples do see state regulation of their relationship as a good thing, just as not all straight couples see that as a good thing, and just as with straight couples, I am sure that not all gay couples would enter civil marriage even if they could.

One might then ask why anyone, gay or straight, would want to invite state regulation of their marriage. For straight people, I think a lot of it actually just comes down to administrative convenience--you can duplicate a lot of the legal structure of marriage using various private legal measures (wills, contracts, and so on), but it ends up taking quite a bit of work. There are also certain things the state may in fact not let you contract for outside of civil marriage (e.g., sexual services). Finally, some relevant third parties may not be amenable to negotiation (e.g., gay people have often been successful at negotiating with private employers for things like health and pension benefits for their partners, but governmental employers may prove more difficult).

But for gay people, I actually think the real issue is the ways in which the state denying recognition of their marriage operates as a punishment. Indeed, this brings us right back to Loving: insofar as the state's refusal to recognize gay marriages is, in truth, the state's way of asserting that straight people are superior to gay people, then gay people could reasonably fight to remove such state-authorized stigmatization of gay people, even if state regulation of marriage had no other concrete benefits for gay people.

In that sense, I think those people who ultimately see this as an issue about norms are correct. But I think they are being a bit misleading about the relevant expression of norms. This policy is not really about saying that a marriage between a man and a woman is ideal, for child-raising or any other purpose, because as I noted previously, there is no basic policy that all marriages should be ideal. Rather, in my view this policy is about saying that gay people are uniquely bad--bad lovers, bad parents, bad members of society, and so on. Of course, I am trying to keep an open mind on this subject, but in my honest opinion I have yet to encounter an argument against recognizing gay marriage that does not ultimately depend on some such normative judgment of gay people, either explicitly or implicitly.
10.31.2006 7:50am
Jon Rowe (mail) (www):
Just to give you something to think about. It's entirely possible that gay couples, because they can't naturally bear children, having and raising children will yield on average, superior outcomes with children who are better off (by various objective measures). I note, the lack of a parent of one gender may indeed be a negative. But there may also be other positives involved with that outweigh that one significant negative.

The key point I make: The biggest problem with heterosexual breeding is irresponsible parents having children when they shouldn't. Because gay sex naturally yields no children, gay couples must go through a screening process that probably selects for among other things, responsibility, rational planning, and perhaps even the selection for more desirable genes.

See the whole thing in this post.
10.31.2006 8:17am
jrose:
On lawn: As written it looks like you are disagreeing that male-female relationships can give birth, and homosexual relationships cannot.

Of course I am not saying that. I am saying that the purpose of marriage is not just for the well-being of children. If it were, then the state would be able to deny civil marriage to the infertile. Zablocki strongly suggests the state cannot do so.

My question is not why homosexual identity was never recognized. My question asked why only a subset of romantic combinations were recognized, if marriage was intended to regulate romance.

The answer to your question is (in part) that gayness was not, until recently, an identified trait. People felt that there was no need to recognize same-sex romances because they were temporary - all people would/should find an opposite-sex partner. In addition, there was moral disapprobation of homosexual sex.
10.31.2006 8:18am
jrose:
I can't imagine what else the "fundamental right to marry" might have been if it wasn't the right for a couple to legally cohabit, engage in sexual relations and start a family.

It means the right to a civil marriage license (Zablocki) - and the benefits, responsibilities and status that goes along with it. Don't you agree that Loving would have been decided against Virginia even if the Lovings had only been denied a marriage license.

The sole obligation upon the state is the equal application of the law to the constitutionally valid classifications deemed pertinent to a governmental objective

I agree that same-sex couples can be on the outside and infertile, opposite-sex couples on the inside if rational basis applies. But, why doesn't strict scrutiny apply given Zablocki? Wouldn't strict scrutiny apply to a law which denied marriage licenses to the infertile? Given that, how can you justify not also applying strict scrutiny to a law which denies marriage licenses to same-sex couples?
10.31.2006 8:52am
Hans Gruber:
Chumond,

Certainly marriage is regulatory in nature, I have described it as such in many comments on this blog, but that's not why gays want "marriage equality." They want it for the stamp of approval (which you allude to), and they want it for the benefits. Yes there are many, many benefits, let's not fool ourselves. Your characterization of the institution is at odds with the gay activists themselves, who are none too shy about listing all the goodies they're missing out on unjustly (over 1,000 benefits providing by federal and state government!).

Gays are not clamoring for regulation, they understandably want access to their lover's great health insurance plan, or social security pension, or the opportunity to exploit one of the many tax loopholes available to married couples. I don't blame them for wanting the opportunity to utilize these benefits and game the system.

Regulation is the price they have to pay, it's not the aim. Indeed if they could get all the benefits, the inducements you call them, without having to be regulated, then that would be a real triumph.
10.31.2006 9:17am
Hans Gruber:
"Wouldn't strict scrutiny apply to a law which denied marriage licenses to the infertile? Given that, how can you justify not also applying strict scrutiny to a law which denies marriage licenses to same-sex couples?"

To be examined under strict scrutiny a fundamental right must be infringed upon, or a suspect class implicated. Are you suggesting gay marriage is a fundamental right, which is deeply rooted in our history? Or do you instead suggest that homosexuality is the constitutional equivalent to race?
10.31.2006 9:24am
jrose:
To be examined under strict scrutiny a fundamental right must be infringed upon, or a suspect class implicated. Are you suggesting gay marriage is a fundamental right

I suggest that the liberty interest at stake is the right to marry, not the right to marry someone of the same sex.

Tradition ought not have any relevance in determining what the liberty interest is. Tradition is used as a factor in determining if the liberty interest is fundamental after the liberty interest is defined.
10.31.2006 9:40am
Shawn-non-anonymous:
An argument that has been made before but perhaps ought to be repeated:

If you believe that marriage of heterosexuals for the purpose of procreation is ideal, and if you believe the state has an interest in advantaging those that choose this, then any situation that detracts from or disadvantages this should be regulated against when possible.

State recognized marriages of homosexual couples supports an interest in seeing more children raised in a two-parent, one-man and one-woman household.

In a society where there are several options for couples of any (legal) stripe to live with each other and raise children, tolerating non-marriage choices will lead to fewer marriages. Homosexual couples have no choice but to raise their families outside of marriage. It is not practical for the state to prevent homosexuals from becomming parents, so it will be true that homosexual couples will have children. The state, by refusing marriage to those homosexual families that would avail themselves, increases the number of otherwise successful families living outside the ideal.

Young, heterosexual couples see real-life examples of people living outside of the state-sanctioned ideal and some are tempted to choose that for themselves. As this situation increases in social acceptance, barriers to cohabitating and raising children will diminish, thus subverting the state's goal in encouraging procreation within marriage.

If including non-fertile couples into marriage to re-enforce the social idea of marriage is a supportable state interest, the same should be true of homosexual couples. The state's interest is better served by coopting homosexual couples rather than excluding them.

That is, *if* you believe that procreation is the primary state interest in marriage. I do not.
10.31.2006 9:47am
David Chesler (mail) (www):
Antony and Cleopatra were evidently married but they were not an interracial couple. Cleopatra was a member of the Ptolemaic dynasty, which was of Greek origin. Antony was of course a Roman from Italy.

Guest2 might have us believe that a marriage between an Italian and a Greek is not a mixed marriage :-)
10.31.2006 9:47am
Hans Gruber:
"This policy is not really about saying that a marriage between a man and a woman is ideal, for child-raising or any other purpose, because as I noted previously, there is no basic policy that all marriages should be ideal."

I tire of these arguments from the exception. All government policy does not have to be consistent and reinforcing. The government can ban marijuana and legalize booze; it can ban transfats but not ban smoking. Would a ban on transfats be unconstitutional because the government continues to allow smoking? Would it be a good argument to say, "the ban on transfats isn't really about public health, because people can still smoke." Is that really the only explanation that the government allows one and bans the other?

Yes, it is undoubtedly true that the best gay marriage is many times better than the worst straight marriage. But policy isn't made around the exceptions. And I am not implying that I know gay marriage is bad, I emphatically do not know. But that's precisely the point--we don't know; yet experience leads most to believe that having both a mother and a father is important, important enough that "discrimination" is justified until the efficacy of the gay family can be studied.
10.31.2006 9:48am
Shawn-non-anonymous:
Hans Gruber:

As requested, here is the link that references laws requiring sterility to marry in certain states.

You requested this in a prior thread, but I thought it would still be slightly relevant in this one, even though it has not direct bearing on Loving v. Virginia.
10.31.2006 10:03am
Hans Gruber:
" Homosexual couples have no choice but to raise their families outside of marriage."

"Marriage" as you define it can exist regardless of whether the state recognizes it or not. Gays can marry and live together. They can raise children together. The choice not to do these things is their own, though that choice is presumably marginally effected by state policy.

It is important to always keep in mind that we are not talking about the right to cohabitate, have a wedding, and raise a family. We are talking about the right to be recognized by the state as married. But that's hard to get people excited about I guess. Better to pretend that gay liberty is being meaningfully obstructed.
10.31.2006 10:05am
Hans Gruber:
Shawn,

Thanks. Though I don't remember what point was being made, it is still interesting. I think you were saying that several states required proof of sterility before granting marriage (evidence, you thought, that the state doesn't give a hoot about procreation in marriage).
10.31.2006 10:26am
On Lawn (mail) (www):
> jrose: I am saying that the purpose of marriage is not just for the well-being of children.

No one doubts that marriage is useful for many things. But having other uses to the couples does not justify removing its primary purpose in being a setup of procreation responsibility.

> jrose: If it were, then the state would be able to deny civil marriage to the infertile. Zablocki strongly suggests the state cannot do so.

If I remember right, Zablocki was a ruling that said even death row inmates could get married. But I don't remember it saying it was because marriage was an institution of romantic regulation.

IIRC, they found that with the imperfections of the judicial system, even someone on death row might be there by mistake. They might be found innocent and let free. They would be married and ready to have children. I believe for you to say Zablocki makes marriage a right through inability to have children is a strongly slanted interpretation.

Of course, infertility is another thing. The disabled are an especially privileged class where the state commits resources to overcome barriers to achieve what as medically sound human beings would have. If homosexuality is a disability, then they would have access to the same exception. You would be arguing homosexuality is a handicap. But do you believe homosexuality is a malady? Something that keeps them from being medically whole and sound individuals?

I, for one, do not.

> jrose: People felt that there was no need to recognize same-sex romances because they were temporary - all people would/should find an opposite-sex partner.

You are tip-toeing up to the answer, as close as you can yet still avoiding it. Why were homosexual relations considered temporary, and why were people expected to find someone of the opposite sex? And why were the heterosexual relationships expected to be regulated and permenant and the homosexual relationships not?

History has record of many long-lasting homosexual relations. History has record of societies that found homosexual relations to be the superior relation (sort of like desert), and the heterosexual relation a neccissary one (like broccoli). These directly contradict the belief that expectations of monogamy, or moral disapprobation of homosexual sex can explain the view of marriage regulation. In fact, there seems to be no correlation between how people saw homosexuality at all. All that is really constant is that marriage was between a man and a woman.

So I ask again, if marriage was about regulating romance, why did it only focus on one of the three primal romantic combinations? What made that one distinct? How does that distinction follow to the need to make sure that relationship stays intact?
10.31.2006 10:55am
lucia (mail) (www):

Hans Gruber wrote> We are talking about the right to be recognized by the state as married.

Yes, state recognition is precisely what we are discussing. I assert the state has a strong interest in recognizing the already existing marriges.
10.31.2006 11:29am
lucia (mail) (www):
Hans> Though I don't remember what point was being made, it is still interesting. I think you were saying that several states required proof of sterility before granting marriage (evidence, you thought, that the state doesn't give a hoot about procreation in marriage).


Hans:
Why would you think Shawn is attempting to show the state "doesn't give a hoot about procreation"? More likely Shawn is providing evidence that some states recognizes their interest in regulating marriages where procreation is not only impossible but proven to be impossible.

The fact that non-procreative couples isn't not some accidental oversight or overinclusiveness of the marriage statutes. The state actively wants to regulate these marriages through civil marriage. I believe it does so to protect the state interest.
10.31.2006 11:40am
lucia (mail) (www):
Some day I will learn to proof read. . .

The fact is that permitting non-procreative couples to marry isn't some accidental oversight or overinclusiveness of the marriage statutes. The state actively wants to regulate these marriages through civil marriage. I believe it does so to protect the state interest.
10.31.2006 11:52am
David Chesler (mail) (www):
As requested, here is the link that references laws requiring sterility to marry in certain states.

The link is about cousin marriages, mainly. As I noted in February 2004, just before I started blogging,
[T]hat map looks awfully familiar doesn't it? It seems to correlate very will the 2000 Election Blue State/Red State maps...

This just struck me as interesting. I don't know what to make of it. Maybe I should correlate backwards, and conclude that since Blue states are progressive, being allowed to marry one's first cousin is a progressive kind of thing. I also have to rethink all those inbred hillbilly stereotypes -- cousin marriage is prohibited in the Ozarks (except it's allowed in Gore's Tennessee).
10.31.2006 11:57am
David Chesler (mail) (www):
It is important to always keep in mind that we are not talking about the right to cohabitate, have a wedding, and raise a family. We are talking about the right to be recognized by the state as married. But that's hard to get people excited about I guess. Better to pretend that gay liberty is being meaningfully obstructed.

There are some 1000 privileges and obligations that are automatically triggered by marriage. You mention 3. That leaves 997, like those having to do with inheritance, and anything else presuming the spouse is the legal next-of-kin like hospital visitations, and the ability to commingle income for tax purposes so that one spouse can concentrate on earning income while the other concentrates on raising the children and maintaining the home, and so forth. Some of these privileges and obligations may be obtained with private contracts, others cannot, and even those that can, it's a burden to figure them out instead of relying on centuries of rules based on experiences of various eventualities.
10.31.2006 12:03pm
David Chesler (mail) (www):
(And on re-reading I see the Chumond already answered about the bundle that comes with civil marriage.)

I tire of these arguments from the exception. All government policy does not have to be consistent and reinforcing. The government can ban marijuana and legalize booze; it can ban transfats but not ban smoking. Would a ban on transfats be unconstitutional because the government continues to allow smoking? Would it be a good argument to say, "the ban on transfats isn't really about public health, because people can still smoke." Is that really the only explanation that the government allows one and bans the other?

At a certain point of picking and choosing, one calls "Bullshit!" If (alluding to an earlier discussion) a local government was facing popular anti-Mexican pressure, and a Mexican restaurant opened up, and the local board of health said "Booze is just as harmful, if not more, than marijuana, so therefore we are enacting a ban on tequila and Corona beer in our locality" it would be very fair to point out the massively inconsistent policy and to note that this has nothing at all to do with its putative health reason.

Having at least one representative of each sex within the set of one's parents is certainly good, but the expected good and harm from all sorts of readily and less readily identifiable characteristics of those who would marry so easily outweighs that one particular good that is more likely (not certain!) in DSM than SSM that it is clearly just an excuse, not a reason.
10.31.2006 12:19pm
lucia (mail) (www):
I tire of these arguments from the exception.


The arguments about marriage being in the states interest even in absense of procreative ability aren't arguments from the exception. They are arguments from a rule:

The state has an interest in recognizing and regulating non-procreative marriages. It has always recognized its interest vis-a-vis non-procreative heterosexual marriages and has regulated them.

Because this rule exists, we find states permit non-procreative marriages in all states. These examples follow an established rule; they are not exceptions.
10.31.2006 1:21pm
jrose:
But having other uses to the couples does not justify removing its primary purpose in being a setup of procreation responsibility.

If marriage's primary purpose is procreative responsbility, then a state law which prohibited the infertile from marrying would be Constitutional. Zablocki (which established the fundamental right of marriage and was not about inmates) strongly suggests otherwise.

History has record of many long-lasting homosexual relations. History has record of societies that found homosexual relations to be the superior relation (sort of like desert), and the heterosexual relation a neccissary one (like broccoli).

What societies viewed homosexual relationships as lifelong romances and what socieites viewed only heterosexual relationships in that manner? Even assuming you are correct, you have only established that for some societies procreation used to be a primary purpose of marriage. That conclusion does not apply to our society in our time.
10.31.2006 1:45pm
Chumund:
Hans,

As an aside, I don't consider myself responsible for whatever sorts of arguments other advocates of gay marriage might make. As a litigation and political strategy, I understand why some might want to characterize state recognition of marriage as a set of rewards, but I really think that is inaccurate. And again, I find the analogy to the doctor-patient relationship apt. I am sure, for example, that if one were inclined, one could identify all sorts of rights and benefits that accrue to doctors and patients as a result of the state regulation of this relationship. Of course, there would also be various duties, limitations, and burdens as well. But the ultimate point would be that the state regulation of this relationship was not somehow a inducement scheme to give people an incentive to enter the relationship, because their primary motivation is supplied by the relationship itself. And I think that the same is clearly true of marriage.

Indeed, consider for a moment these 1000 rights and benefits. How many people getting married do you think could give an accurate description of these 1000 rights and benefits? How about of their various duties, limitations, and burdens? I think this just illustrates that most people get married in order to enjoy the benefits of the relationship, not because they have calculated a net benefit from the state regulation of marriage.

Finally, I think it is inaccurate to suggest that the norm issue can be described as gay people wanting a "stamp of approval". Rather, I think it is more accurate to say they want to remove a "stamp of disapproval".

And along those lines, I think you have mischaracterized my argument by claiming I am trying to argue from the exception. My point is actually much more straightforward: there simply is no policy whatsoever of requiring straight marriages to approach some ideal (parental or otherwise). Therefore, imposing such a requirement on gay marriages and not straight marriages is simply treating gay marriages by a completely different rule, rather than refusing to make an exception for gay marriages.

To put this in slightly more technical terms, the default rule for straight couples is that the state will recognize their marriage, and the state only refuses to do so in certain limited cases (e.g., incest cases). In contrast, the default rule for gay couples is that the state will not recognize their marriage, and there is no way around this rule. That difference in default rules is the discrimination that needs to be justified, and it simply cannot be justified on the ground that gay couples fall short of some ideal to which straight couples are never held, because that itself is the nature of the discrimination which needs to be justified.

Indeed, in that sense I would suggest it is those who oppose state recognition of gay marriage who typically argue from the exception (namely, exceptions such as incest). They are trying to turn what is generally an inclusive marital scheme into an exclusive marital scheme by focusing our attention on the few exclusionary rules that we have for straight couples. But once we look back at the main rule for straight marriages--that the state will presumptively recognize straight marriages absent extraordinary circumstances--then it becomes clear that gay people are indeed being actively discriminated against because they are subject to a very different rule.
10.31.2006 2:10pm
David Chesler (mail) (www):
most people get married in order to enjoy the benefits of the relationship, not because they have calculated a net benefit from the state regulation of marriage.

Indeed. Law is not math. Long before there were states, there were marriages. Most of what those 1000 regulations do is codify expectations, including some (some of which existed at common law and some, like income tax treatment, new) that are available only through marriage.

It is not at all like the government said "Let us create a new entity called an M-Partnership..."

I don't see any downside, save the pain of a paradigm shift, neither logistical (except that certain forms can no longer assume that spouses are of different sex, but the HCFA-1500 for instance has long and formerly redundantly asked this) nor public policy, to removing from civil unions (that is, the governmental face of marriages) the requirement that the parties be of different sex.

(By comparison, non-binary marriages do have logistical issues, although OTOOH they have been dealt with in societies that have long had polygamy; incestuous marriage [especially inter-generational incestuous marriage] does raise public policy concerns in many instances. Different-race marriages have comparable logistical and paradigmatic issues as SSM, such as the existence of mixed-race offspring messing with the neat pigeonholing.)
10.31.2006 2:32pm
Chumund:
David,

I obviously agree, and I think it is worth emphasizing the extent to which the state is really just trying to codify marital expectations, not change them. Indeed, changes in marital law over history have trailed changes in societal norms and expectations with respect to marriage, and the fact that marital law experiences these changes strongly suggests that society at large, and not the government, is the prime mover in marriage.

Which is why I think that this is largely a temporary issue: our society has been becoming steadily more accepting of gay marriages, and the government simply lacks the power to halt this trend. And ultimately this trend will determine the future of state recognition of gay marriages--although that doesn't address the potential legal claims of those who are living in the present.
10.31.2006 2:54pm
Shawn-non-anonymous:
Hans Gruber,


"Marriage" as you define it can exist regardless of whether the state recognizes it or not.


I don't recall specifically defining marriage. The topic of this thread is about legal marriage. Your arguments have been against allowing access to legal marriage to gay and lesbian citizens. Why now assume I'm refering to a social marriage without a legal contract?

Or, put another way, if a social/religious marriage is enough to meet the state interest in encouraging stable families, why bother with all the complicated laws? Seems a huge waste of money to me, if that's true.

My point was simple: state recognition of homosexual marriages (legal marriage)would advance the state's interest in keeping marriage the norm for couples and families. Excluding a rough 3 to 5 percent of the couples from marriage creates a competing alternative at no gain to society. Civil unions, domestic partnerships, and cohabitation counter the state's interest.

[Again, let me just say that I actually support government recognized civil unions for everyone with "marriage" left to religion.]
10.31.2006 2:57pm
Randy R. (mail):
Hans: important enough that "discrimination" is justified until the efficacy of the gay family can be studied.

The efficacy of the gay family has in fact been studied quite a bit. The children of gay parents turn out no better or worse than children of straight parents. This is why adoption agencies all over the US and Britain urge the legalities of gay adoption.

So, since the 'efficacy' of gay families has been proven to be no worse or better than straight families, what else have you got to justify discrimination?
10.31.2006 4:01pm
David Chesler (mail) (www):
[Again, let me just say that I actually support government recognized civil unions for everyone with "marriage" left to religion.]

Agreed, but for the vast majority of us who aren't hung up about whether two members of the same sex who are publicly committed etc. are "married" or just "united", it would be a lot bigger deal than recognizing SSM to stop using "married" to refer to couples, same or different sex, who are united only by the state and not by (or even contrary to) religious rules or to expect every reference in the existing laws and regulations to be changed from "marriage" to "civil union".

Hmmm - would those who prefer Vermont-style object to referring to remarried Catholics as "married"?
10.31.2006 4:16pm
lucia (mail) (www):
Hmmm - would those who prefer Vermont-style object to referring to remarried Catholics as "married"?

By "remarried Catholics" do you mean widows and widowers, who enter into a second sacramental marriage? Unless a spouse dies, a Catholic can't technically remarry in the church. Their first marriage may be annulled-- that is to say, decreed void and in "never was". In a sense, they do not become "formerly married" they become "never married".

Of course, the civil law will consider them formerly married and if they divorce and remarry, they will be remarried, but not in the sacramental sense.

It can all be very confusing, but I think this is the way it goes. (Oh, and of course, nearly everyone who knows the not-remarried-yet-civilly-remarried person will consider them "remarried".)
10.31.2006 4:27pm
Hans Gruber:
"More likely Shawn is providing evidence that some states recognizes their interest in regulating marriages where procreation is not only impossible but proven to be impossible."

I think it's a fair judgment that in those seven states where there those laws exist, that the legislators didn't think too hard on the subject. Why whould we read much into it? As I have demonstrated, it's silly to expect perfect consistency and reinforcement from every law on the books.
10.31.2006 6:15pm
Hans Gruber:
"So, since the 'efficacy' of gay families has been proven to be no worse or better than straight families, what else have you got to justify discrimination?"

I absolutely disagree that anything remotely close to consensus among social scientists has been reached on the issue, and for good reason--there is very little trustworthy data to base conclusions on.
10.31.2006 6:22pm
Hans Gruber:
"I don't recall specifically defining marriage."

What it was implicit in you argument that heterosexuals would be influenced by homosexuals "living outside of marriage." Why would it matter if the homosexuals you describe imitated marriage in every meaningfuly way save the absence of state involvement. That doesn't make sense; your comment only makes sense if "living outside marriage" entails more than state recognition.

"The topic of this thread is about legal marriage. Your arguments have been against allowing access to legal marriage to gay and lesbian citizens."

Actually, I try to keep my comments mostly within the context of whether denying gay marriage is constitutional. It's true that I would, at this time, decline to redefine the institution. I think you might be interested that I previously had the opposite inclination, before courts try to push it down our throats.

"Or, put another way, if a social/religious marriage is enough to meet the state interest in encouraging stable families, why bother with all the complicated laws? Seems a huge waste of money to me, if that's true."

It does effect the institution, but the decisions to live as "married" is still a personal decision. That's my point. Interestingly enough, I accept the premise that the state's involvement in marriage does effect decisions.

"My point was simple: state recognition of homosexual marriages (legal marriage)would advance the state's interest in keeping marriage the norm for couples and families... [Again, let me just say that I actually support government recognized civil unions for everyone with "marriage" left to religion.]"

I know you are genuinely concerned about fairness, but being too nice (and "inclusive") isn't always a good. I know you're serious about this issue because you seem to acknowledge that it's not just gay couples who are excluded from marriage. But ask yourself what being inclusive and compassionate means for the norm of marriage. It means its destruction as a meaningful concept, by requiring marriage to be all-inclusive marriage ceases to mean anything. The more we expand it the more ambiguous it becomes. If any two people can get "married," then the ideal of the man-woman romantic bond is destroyed. All the other alternatives are more attractive and the special place that traditional marriage has long held is a thing of the past. It would become only one of the possible family structures entitled to recognition as marriage. How does that not weaken the institution as it exists today?
10.31.2006 6:45pm
Randy R. (mail):
But where is there any evidence that children of gay parents are worse off than children of straight parents? I've never seen anything of the sort.

And -- let's just suppose -- that the evidence comes in at some point to your satisfaction that the efficacy of gay families is perfectly fine, would you then concede that there is no basis for discrimination?

And -- one more point -- how does discrimination against gay families help these gay families? If you are truly concerned about the children, they how do you justify ANY discrimination against them? It seems to me that your thinking is that we must discriminate against gay families until they can prove that they are fit and worthy of being called a family. And if not, then how does discrimination do anything but make the situation worse? You are not going to stop gay families by discrimination against them, if that's what your hope is.

It's time to accept facts. And the fact is that there are at least 600,000 children in gay families right now. If that's not enough enough numbers to do a good scientific study, then you will never be happy.
10.31.2006 6:49pm
Randy R. (mail):
Hans: If any two people can get "married," then the ideal of the man-woman romantic bond is destroyed.

Sorry, Hans, but this is where you are dead wrong. The ideal of NOT man-woman romantic bonds. perhaps for YOU it is. For me, as a gay person, that is not only not an ideal, it's simply not in the cards.

People who are against gay marriage consistently make this mistake. They keep saying that man- woman marriage is the 'ideal' for society, for the children, for the participants. It is not. I know of people for whom the ideal family is having one mother and no father, because the father was an alchoholic who beat them.

It's just crazy to talk about the ideal, especially since less than 50% of all households in America now are not this so-called ideal. The ideal is to have a rich husband who helps out around the house, and a loving mother who devotes her life to the kids. So is gov't supposed to sanction only this ideal? At the expense of poor men, or wives who work fulltime?

All this talk of the 'ideal' marriage is simply a smokescreen. Because gay people will never fit your definiation of 'ideal' you have a convenient excuse to deny us rights.
10.31.2006 6:56pm
Hans Gruber:
Randy R,

Your argument proves too much. There are many more children who live outside of traditional marriage than the 600,000 you claim live within gay families, should the state provide equality for all those families as well? A grandma and a single mother working together to raise children are not afforded the benefits of marriage, should they be? If you really care about the children... And why should the state discriminate against single-parent households while we're at it (I know, I know, seems crazy, but so did gay marriage 10 years ago)? Ultimately redefining marriage, at least based on the arguments commonly forwarded, means defining it into oblivion. If we really care.... then we should create equality among everybody everywhere, archaic definitions of "marriage" be damned.
10.31.2006 7:09pm
Hans Gruber:
Randy R,

Most Americans are not as blaise about the importance of having both a mother a father. If you father is a SOB, you don't wish you had two mothers; you wish you had a father that wasn't a SOB.

And your argument is one for nihilism; since we don't strictly regulate marriage within its current confines then we cannot limit it at all--we must open it to all and any who wish to enjoy its benefits. The fact that many gay families are better than many straight families isn't much of an argument. Certainly there are terrible heterosexual marriages, some worse than even some incestuous ones... But what does that mean? Is that an argument for allowing incestuous marriage?
10.31.2006 7:18pm
Chumund:
Hans,

I think you are overlooking some of the positive arguments for gay marriage, including that gay marriage is good, appropriate, and even natural for gay people.

In that sense, I think you are wrong to suggest that support for gay marriage necessarily involves "nihilism" or that it imples that "the ideal of the man-woman romantic bond is destroyed." Rather, one can maintain that the man-woman romantic bond remains good, appropriate, and natural--but only for straight men and women. When it comes to gay people, however, the man-man romantic bond or the woman-woman romantic bond becomes the "ideal", and that is simply because romantic bonds are a function of sexuality. So, gay marriage on this view simply represents the logical extension of the idea that marriage should between people with a romantic bond to gay people, who form romantic bonds with people of their own gender. But it in no way undermines the idea that straight people should similarly marry according to romantic bonds arising from their sexuality, and indeed actually reinforces that very idea.

By the way, I support the granting of legal status to the co-parents of children who are not married. Indeed, in various ways we already do this, particularly following divorces but also sometimes attendant to adoptions. So, just as people can already be married without being co-parents, they can already be co-parents without being married.

All of which just demonstrates once again that there is no pretense in the actual law that marriage and child-raising are coextensive, and to adopt that pretense only for the purpose of excluding gay people from civil marriage represents not a line-drawing issue, but rather the imposition of different rules for gay and straight people.
10.31.2006 8:10pm
lucia (mail) (www):

I think it's a fair judgment that in those seven states where there those laws exist, that the legislators didn't think too hard on the subject.


How could it be likely they weren't thinking about the issue? The legislators in those seven states specifically crafted an exemption to the incest rule, which is itself and exception that general rule that two unmarried opposite sex partners can marry and they did this without thinking much about it?

Generally, "not thinking much" about things leads to overlooking an issue; it rarely leads to people tailoring something to specifically cover the issue.
10.31.2006 8:33pm
Randy R. (mail):
Hans: Most Americans are not as blaise about the importance of having both a mother a father. If you father is a SOB, you don't wish you had two mothers; you wish you had a father that wasn't a SOB.

Possibly true. possibly. But if you have two mothers, that doesn't mean that you wish you had a mother and a father. All studies of children of gay couplings have concluded that they are neither better or worse than those of straight parents.

Hans: Certainly there are terrible heterosexual marriages, some worse than even some incestuous ones... But what does that mean? Is that an argument for allowing incestuous marriage?

Nope. I never argued for incentuous marriages, no gay groups have argued for such, and in fact on this board, many of argued that there is no need for them. You are raising a red herring -- let's keep to the topic, which is gay marriage.

But you haven't answered any of my questions: How does preventing gay marriage help the children of gay parents? Just what is it that you are trying to prove to them? Do you really think that denying gay marriage will stop gay people from coupling? From gay people from having kids? No it won't. So what is your point?

And at if it is proven that gay people can raise kids as well as straight people, will you then back gay marriage?

Fact is, every adoption agency in the country (except the Catholic Church) supports gay adoption, and they are on record as stating that gay couples are consistently as good at raising kids and providing a sound family environment for them as straight people. Adoption agencies have no dog in the gay marriage issues: Their SOLE concern is the welfare of the children they place.

Your arguments, as much as I can gather, is this:
a) Marriage between man and woman is ideal.
b) Gay people will never be the ideal family.
c) Therefore, gay people can never be married.

But I have serious issue with this notion of what's "ideal." ideal has nothing to do with the gender of the people, but everything to do with the *relationship* among those people. If a single woman has a good relationship with her daughter, that's the ideal. If a gay couple have a good relationship with themselves and their children, that's ideal. If a striaght couple has 10 kids, goes to church every Sunday but can't talk to their kids, that's not ideal. It has *nothing* to do with who is gay or straight, man or woman, and everything to do with the relationship that exists between them.

And who are you to judge who is capable of having a good relationship? And more to the point, who is the state that is capable of such a judgement?

This isn't nihilism. If it were, then marriage in Massachusetts, Canada, Belgium, and the Netherlands would be 'destroyed.' But it isn't. People still get married. At some point, you are going to have to prove that nihilism is the result of gay marriage in those places, or you have to give it up.

Mayve, just maybe, your fears are overstated.
10.31.2006 9:17pm
lucia (mail) (www):
Hans Gruber said> A grandma and a single mother working together to raise children are not afforded the benefits of marriage, should they be?


Out of curiosity, who thinks these two could conceivably want something remotely equivalent to marital status?

I know the mother-daughter pair might want to be covered by insurance provided by an employer. There might be one or two other marital benefits they would like. But remember, the benefits of civil marriage come bundled with a package of responsibilities and duties. Moreover many marital "benefits" are only benefits if you want to be married. Otherwise they are burdens!

Sure, the mother wants to help her daughter raise her grandchild. But would the mother / daughter pair want to share assets accumulated during the civil marriage? If the mother prefers to keep these assets to herself or to divide them equally among her other children then the "benefit" of sharing assets accumulated during marriage becomes a burden.

In contrast, both homosexual and heterosexual couples who want to be married generally find this marital feature a benefit.

Does the mother want to be liable for her daughter's debts? (Or vice versa?) Does the daughter want to become legally responsible to support her mother should her mother fall ill? (Or vice versa?)

Do the mother/daughter pair want to co-own a house so they can leave it to each other -- but not someone else-- tax free on death? Does the mother want to become presumptive parent to children born to her daughter? (This could cost the mother lots of money should the dauther get pregnant.) Does the daughter want the mother to be a presumptive parent? (This could give the mother custody rights the daughter might not want her to have.) And since this is a two woman couple, just add vice-versa to those thoughts.

Both homosexual and heterosexual couples who want to marry actively want these. The mother/ daughter pair? Likely not so much.

Do the hypothetical mother/daughter want to be forced to get a divorce at significant cost in time and money if either meets someone they really want to marry?

People who really wish to marry actually want to entangle themselves and their partner this way. If they didn't want it, they wouldn't marry.

I honestly doubt a mother who wants to help her single-mother daughter raise a child really wants the benefits, rights and responsibilities of marriage. The daughter doesn't want them either. Both may want to extend mother's insurance coverage to the daughter's child, but I sincerely doubt either would want to be treated as married to the other!
11.1.2006 1:13am
Hans Gruber:
"I honestly doubt a mother who wants to help her single-mother daughter raise a child really wants the benefits, rights and responsibilities of marriage. The daughter doesn't want them either."

But if they did, if the benefits of, say, the health coverage was worth all the downside you layout, would you deny them their "equality" under the law? I could be just as dismissive and say why on earth would two gay men want to "entangle" themselves. A lot of gays think marriage is bunk. So what, the argument goes, those gays that want to get married should be able to. Why is this situation any different? If there is no way something like this situation would ever occur, why proscribe it?
11.1.2006 2:37am
ScottS the guest (mail):
I thought this thread would have died, but it turns out it didn't. JIC, this must be responded to:

Yatlee:
I used the word "arbitrarily" because if gays were permitted to marry, then the classifications to be included in marriage would be men, women..... and homosexuals; that is two classes based on gender and one class based on one particular sexual orientation or practice. There would be no rational explanation for this inclusion except arbitrariness.


Drop the legalese bull. This is about love.

Assumming that the participants of this thread have been in love with someone in their lives, we all have felt some incrediblely special joy in the company of another -- one other -- person. When people choose to marry, they are affirming a commitment and love for one another that trancends every other relationship in their lives.

The legal "rational basis" offered by some judges for the existence of heterosexual civil marriage might be "steering procreation into marriage," however, I surely hope you wanted to get married in the first place because you love your spouse and wanted to celebrate your union and have it recognized and celebrated by your community of family and friends. It is special. Having the State and therefore society at large recognize that this is special is appropriate and adds to the sense of permanance and commitment. That affirmation is a benefit -- one reserved by most US States for opposite sex partners.

Marriage as currently construed does not discriminate against people based on sexuality, as we can see by the number of homosexually oriented people who ended up in heterosexual marriages. It limits marriage on the basis of gender and (in order to accomodate the very real desire of homosexual couples to have their relationships respected) we are asking that it no longer limit marriage on the basis of gender.

I can't imagine that anyone has proposed to your future wife by saying, "honey, I want to have sex. And because sex can lead to children, and children deserve to be raised in household anchored by a stable relationship, I would like to get married, which by the way, the State will sanction our union on this basis." If your marriage with your spouse has no existential meaning in and of itself outside of the possibiliy of procreation, then I feel sorry for you.

Mr. Yatlee takes a court case as evidence of what the State's rational purpose is. (Steering procreation into marriage). That is so missing the point. Its obvious that I'm not arguing about what the legal standard is, but what it could and should be.

As for Mr. Lawn, thank you for taking my comments in good faith. You seem to think I am arguing within your premise that marriage exists as a structure and model for child rearing. I am not. I mention other aspects of parenting precisely to point out that if the state's interest in marriage is really about children, having one public policy limiting marriage to opposite sex partners is awfully incomplete (shall I say "arbitary"). There are many better predictors and criterion of good parenting than the gender of the adults. But I don't agree that the point of marriage is limited to procreation and child rearing in the first place (see above).

As for gay adoption, a different topic than gay marriage that you have conflated (I think sincerely, but wrongly), either you believe that gay adoption has a bad effect on the kids being raised by same sex parents, or, you believe that it has a bad effect on kids being raised by heterosexual parents, or both.

In the first case, there is ample evidence to the contrary, and it is hard to argue against 2 parents of the same sex being unallowable when there are so many single parents out there. Surely 2 parents are better than 1, no? Aren't love and character the main ingredients in successful parenting? Homosexuality, whatever its origins, is not contagious simply because people are exposed to its existence at any distance.

How gay couples or gay parents hurt straight families is still alien to me, even after this quote

However, the act of neutering marriage of its reference to gender-completeness does reach into the nuclear family. In attempting to equalize the homosexual and heterosexual relationships we completely ignore the importance of anything the homosexual combination cannot provide. In this case, consanguinity and the preservation it brings to heritage. It actively marginalizes the values we place in integration in general.


1. "Preservation it brings to heritage," I think that means tradition for tradition's sake. Perhaps we should return to the Loving decision...
2. "Completely ignore" -- not necessarily. But perhaps there are more important things in a marriage than gender integration, like the love of the 2 people for one another, the coupledom, the committment, and the fact that the heterosexual combination does not automatically provide much of anything to children if the parents don't have their act together in other ways. If children learn to relate to men and women primarily through their biological (or at least opposite sex) parents, one wonders if Mr. Lawn will be asking the State to repeal its divorce laws on the same grounds. These single parents!
3. "It actively marginalizes the values" -- aha! There's the crux of it. Gay marriage is a bad example for other people's children. Nuclear families will no longer be able to raise their children to have certain values (despite daily interaction for 18+ years) because gay couples thought their happiness and committment was worth respecting as equal to the happiness of a sterile heterosexual couple. What malarky, but at least you got around to admiting it.

I really doubt that children will be incapable of relating to both sexes unless they have opposite sex parents. So much of this is based on the assumption that opposite sex parents are best because of gender roles and relationships. But you really don't know how important that is in general, or in comparison to other factors of good parenting and child developement.

Perhaps the reason opposite sex parenting is the historical norm is that parents love thier children and want to raise them so they raise them together. Because of biology, kids were forced to grow up in households with opposite sex parents. This is undoubtly a good thing. But is it the only good thing?

Gay people getting married is not going to hurt society. It will help society be more kind and inclusive. It will serve to reinforce a model of romantic commitment and coupledom. And it will make a large number of people very happy to feel respected and normal, if still an uncommon minority of ~2-5%.
11.1.2006 3:04am
ScottS the guest (mail):
PS -- after reading this over, I am struck by this very last paragraph. Somehow this has largely been about proving that gay marriage will not do harm to others instead of showing how much it means to gay people to be seen as decent people whose love is sincere, natural, and respected by their fellow human beings. Many of the advocates in these court cases lack humility, which I understand as a byproduct of their passion and having been raised in an unfriendly society. But what it really means is not tax code benefits or even hospital bureaucracy (although that one scares me). It means really, truly being seen as the human beings we are, not as people to be feared and despised. Wrap the arguments around logic, law, precedent, and untested theories of child development as you will, you make some good "points." All the points in the world don't mean a thing next to the vicious lies and misunderstanding that fuels hostility toward gay people... you seem not to be haters, you might consider being part of the solution and not part of the problem. "Hate is not a family value" -- marriage is, and that's why we want to be included.
11.1.2006 3:28am
Lee J. Yatlee (mail):
Chumund:
As an aside, it would actually be very easy to have a nonintrusive civil marriage scheme that applied only to couples who procreated. It would work just like that: couples could get privately married, but the state regulation of marriage would apply only once the couple actually had a child (and this, of course, is already a matter of public record through the birth certificate process).


Yatlee:
First off, there is no such thing as a "private marriage". It is oxymoronic to say so. Marriage is a public act that engages the state and society. I prefer the term "union" or "private union" where it concerns agreements between individuals only.

The state has not only an interest in procreation, but also in regulating who may enter into a sexual relationship for the purpose of procreating. That is why there are interdictions on marriages between persons of close parentage, where one or both of the partners are legal minors, where someone is already married, etc. As there can be no purpose of procreation where it concerns same-sex relationships, these were never even considered under the law except until recently, and would necessitate the redefinition of marriage as a status that currently pertains exclusively to a sexual relationship to one that does not.

The problem that I see with the scheme you suggest is that the state essentially abandons all authority over who may enter into a sexual union, and later be faced with a "fait accompli" when it will have to recognize the union between siblings, for example, as a legitimate marriage when these produce a child, or multiple unions where it concerns polyamorous relationships when these produce children. The state would effectively be forced into recognizing as legitimate those relationships and domestic arrangements that most people may not deem socially desirable.

Chumund:
But now change the analogy: the state creates a patient's bill of rights, but excludes left-handed patients. Is that constitutional?


Yatlee:
Again, no. But again, your analogy fails because the assumption here is that left-handed patients are equally capable of doing everything with their left hand what right-handed patients are capable of doing with their right hand. But it is evidently not true that same-sex couples can do everything that opposite-sex couples can do.

Chumund:
And so, the same question applies here: does the state have a legitimate reason for its discrimination between straight couples and gay couples?


Yatlee:
To answer your question: Yes, the state does have a legitimate reason for making this discrimination. Opposite-sex couples effect society differently than do same-sex couples, and this effect that is the birth of children compels the state to make this distinction.

Chumund:
A final thought: line-drawing is a notorious problem in the law, and indeed one where the state usually gets a lot of deference....... So, for example, I think it is notable that arguments to the effect that gay couples are being denied recognition of their marriages because they would not be ideal parents .....

Yatlee:
Again, gay couples are not being denied recognition of their" marriages" because there are no marriages.

The line is not drawn according to sexual orientation but only according to gender. Using the classifications of men and women is the most rational way of relating a means to an end.
11.1.2006 4:25am
Lee J. Yatlee (mail):
To jrose:

Yatlee:
I can't imagine what else the "fundamental right to marry" might have been if it wasn't the right for a couple to legally cohabit, engage in sexual relations and start a family.

jrose:
It means the right to a civil marriage license (Zablocki) - and the benefits, responsibilities and status that goes along with it. Don't you agree that Loving would have been decided against Virginia even if the Lovings had only been denied a marriage license.


Yatlee:
You are merely saying that the "fundamental right to marry" means the right to obtain the governmental rights and benefits of marriage. This is preposterous! Essentially, the right to marry means the right .... to marry!

I took this text from Loving v. Virginia and Skinner v. Oklahoma and substituted in the place of "marry" or "marriage" the following:
"The freedom to obtain governmental rights and benefits has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
"Obtaining governmental rights and benefits is one of the `basic civil rights of man,' fundamental to our very existence and survival."

That should have made you laugh. But Zablocki v. Redhail affirms my original contention:
"And, if appellee's right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place."

I agree that Loving probably would have been decided against Virginia even if the Lovings had only been denied a marriage license because of the equal protection clause. The racial classification conflicted with the gender classification and bore no rational relationship except to a very questionable governmental objective, which was maintaining white supremacy and quite possibly eugenics or racial purity. I don't believe there is any intent on the part of the state governments, however, to maintain the supremacy of heterosexuals over homosexuals, though this might be an interesting idea for conspiracy theorists.

jrose:
I agree that same-sex couples can be on the outside and infertile, opposite-sex couples on the inside if rational basis applies. But, why doesn't strict scrutiny apply given Zablocki? Wouldn't strict scrutiny apply to a law which denied marriage licenses to the infertile? Given that, how can you justify not also applying strict scrutiny to a law which denies marriage licenses to same-sex couples?


Yatlee:
First of all, you are making the comparison between infertile couples and same-sex couples with the mistaken assumption that these two classes are in fact the same class; that is, the pertinent classification is according to their inability to have children. This is simply bad logic. The fertility of the couples, whether heterosexual or homosexual, is not a criterion where it concerns the pertinent classes, which are men and women. Infertile persons, homosexual persons or indigent persons as in Zablocki, have the right to marry someone of the opposite sex as much as anyone has that same right.
11.1.2006 4:46am
Chumund:
Hans,

I think your analysis of the mother-daughter coparents hypothetical shows how you are not considering the wide variety of legal schemes that the state can--and in fact already does--apply both within marital law and without it. Co-parents need not be faced with a binary choice--either be married or have no legal relationship--and the state need not force such a choice on them.

In general, I think it is very important to understand that marital law is built up out of a set of contingent laws, not all of which apply to every marriage, and that marital law is itself just a subset of family law, and that many of our family laws do not require a predicate marriage. The net effect is that the state already has rules dealing with parenting outside the context of marriage, and already has rules for dealing with marriage outside the context of parenting.

Yatlee,

To clarify, by "private marriage" I didn't mean a marriage between the two individuals that in no way involves their community. In fact, I agree that a crucial component of marriage is a public demand by the couple that third parties treat them as a married couple.

Rather, by "private marriage" I simply meant a marriage not recognized or licensed by the state. "Private marriage" in that sense has always existed, and indeed existed long before there were central governments. And right now, many "private" (i.e., nongovernmental) elements of our society--families, communities, churches, businesses, and so on--are in fact recognizing gay marriages.

Anyway, just as a scrutiny of our marital laws indicates clearly that the state's interest in regulating marriage does not depend entirely on the state's interest in childraising, so too does a scrutiny of our other laws regulating sex indicate that the state's interest in regulating sex does not depend entirely on the possibility of procreation (the other interests the state has in regulating sex including things like a concern for STDs, sex acts which can cause unique physical and psychological harm (e.g., rape and sexual abuse of children), and so on). So, I think it is quite obvious that the state's interest in regulating sex also extends to gay marriages insofar as marital law is an attempt to regulate sex.

By the way, of course the state would not need to "abandon" its other regulations of sex even if it decided to restrict civil marriage to childraising couples, because it already regulates sex outside of marriage. In other words, just as the state's regulation of childraising is not coextensive with its regulation of marriage, so too is its regulation of sex not coextensive with its regulation of marriage.

On the patient's bill of rights: you say, "your analogy fails because the assumption here is that left-handed patients are equally capable of doing everything with their left hand what right-handed patients are capable of doing with their right hand."

I don't see how the abilities of the patients are relevant to a patient's bill of rights. I could replace left-handed versus right-handed with some difference in ability (say, patients who can or cannot do long division). That isn't going to change the issue. Rather, the issue would be that the state's regulation of the doctor-patient relationship actually isn't dependent on the patient's abilities at all, and therefore the state has no rational basis to exclude patients on those grounds.

I realize you are asserting that the state's regulation of marriage is dependent on the spouses' procreative abilities, and we have been discussing here whether that is plausible. But I just wanted to show how if that claim turns out to be false, then there is a valid constitutional issue. Again, to be more precise, if the state's recognition of straight marriages was not dependent on the spouses' procreative abilities, but the state then conditioned recognition of gay marriages on the spouses' procreative abilities, then this additional requirement imposed on gay couples but not straight couples would be the form of the discrimination, not a justification for that discrimination.
11.1.2006 7:48am
jrose:
Yatlee: I agree that Loving probably would have been decided against Virginia even if the Lovings had only been denied a marriage license because of the equal protection clause

OK. That means your earlier argument - the Loving analogy does not apply to same-sex couples because the Lovings faced prison and gay couples do not - does not follow. The Loving analogy might not hold for other reasons (e.g., a careful anaysis of Equal Protection), but the criminal sanctions the Lovings faced is not relevant.

Yatlee: Infertile persons, homosexual persons or indigent persons as in Zablocki, have the right to marry someone of the opposite sex as much as anyone has that same right.

There are two counterarguments to the claim that current marriage laws ought not be subject to strict scrutiny because gays already have the right to marry.

1) The liberty interest at stake isn't just the right to marry, but the right to marry the person of your choosing. This can be demonstrated through a hypothetical law which forbids the rich from marrying the poor. If the liberty interest were merely the right to marry, this law would not be subject to strict scrutiny. I would bet my bottom dollar that this law would be subject to strict scrutiny under Zablocki.

2) The liberty interest at stake does not extend to marrying the person of your choice, but rather is the right to marry someone, at least one person for whom marriage makes any sense. If you are gay, a marriage to a person of the opposite sex is nonsensical, or at the very least a sham. By denying them the right to marry anybody for whom marriage makes sense, current marriage law effectively prohibits gay people from marrying and should be subject to strict scrutiny.
11.1.2006 8:23am
lucia (mail) (www):
Hans Gruber said> I could be just as dismissive and say why on earth would two gay men want to "entangle" themselves.


Of course you could say you didn't understand why a homosexual couple who actually wants to get married wishes to do so. But your previous question did not include the detail that the couple actually wished to marry. They were just raising a child together.

For people who don't want to live as married the benefits of marriage often become burdens. One certainly would not wish to heap those on them unless they wish to be married. Recognizing this, we permit biological parents of dependent children to divorce and share custody.

You now ask, what if the mother and daughter do really want to marry? Like the gay couple, they want the whole ball of wax? Or maybe they are just willing to put up with the burdens to get the insurance? (The third is sort of like a story line in "Desperate Housewives" which involved the heterosexual couple Susan who first tries to marry some stray guy for his medical benefits and later does marry her ex-husband for his benefits?)

Answering your current question requires addressing two possible issues: 1) The incest issue because your example includes mother-daughter and 2) the 'possible sham marriage' entered into for the sole purpose of getting on benefit-- but wishing to avoid all the other rights, duties and obligations. (That is: What of the "Desperate Housewives" Susan marries men for medical benefits scenario?)

As to the incest issue that arises because your example is a mother and daughter: I would view this exactly like a father-biological or adopted daughter or mother-biological or adopted son marriage. I would not permit these. (I believe non-genetic explanations for the incest taboo have already been posted on this thread. I accept those as valid and believe they suffice to block mother-daughter, father-son incest and justify blocking adoptive parent-child marriages.)

As to the sham marriage: Where do I stand on sham heterosexual marriages that a male-female couple might enter simply to get one greatly desired benefit? I disapprove of them, but I think generally, they must be permitted provided we require the couple to assume the other rights, duties and obligations.

Of course, entering into legal marriage would confer a presumption the marriage is not a sham. However,I wouldn't stand in the way of permitting agencies to investigate and, after due process, and under expressly described rules of evidence, find certain marriages to be sham marriages. In that case, particular benefits can be revoked. I believe the US immigration authorities already do this; immigration preferences can be revoked if the marriage appears to be a sham.
11.1.2006 9:01am