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Do Pro-Gay Marriage Court Decisions Harm the Cause of Gay Rights?

University of San Diego lawprof Michael Rappaport has a thoughtful response to my post arguing that pro-gay marriage court decisions advance gay rights despite the fact that they have inspired a major political backlash.

In my original post, I argued that these decisions are a net benefit to the cause of gay marriage for three reasons:

1. They have established gay marriage in two states (Massachusetts and Connecticut) where the political process was unlikely to do so in the near future.

2. The anti-gay marriage state constitutional amendments enacted in their aftermath occurred in states that would not have adopted gay marriage in the foreseeable future anyway. Moreover, most of these amendments will be easy to reverse if public opinion continues to move in a pro-gay rights direction.

3. Putting gay marriage on the political agenda has brought newfound legitimacy to civil unions, which seem more moderate by comparison, and now enjoy widespread support even among conservatives.

Michael doesn't completely reject these points. But he does note a countervailing consideration: people are likely to view a pro-gay marriage court decision as less "legitimate" than a similar legislative measure, and might therefore resist it more. He also suggests that the recent uptick in support for civil unions is the result of a long-term trend of reduction in homophobia rather than the pro-gay marriage court decisions.

On the first point, Michael may be right to some extent. However, it's important to remember that the choice gay rights advocates face is not one between enactment of gay marriage through the legislative process and enactment through court decisions, but rather between court decisions and no gay marriage at all for many years. Even if enactment through the legislature is the best option from their point of view, a pro-gay marriage court decision is still better than nothing. Moreover, I doubt that the anti-gay marriage backlash would have been significantly smaller if Massachusetts had enacted gay marriage legislatively. Lots of polling data shows that public attitudes towards controversial court decisions are mostly results-oriented rather than driven by "legitimacy" considerations (Terri Peretti's book compiles much of this evidence). For example, pro-lifers overwhelmingly oppose Roe v. Wade and pro-choicers overwhelmingly support it, with very few people, for example, taking a pro-choice position yet believing that Roe was wrongly decided.

Michael's second point undoubtedly has a lot of validity. Much current support for civil unions (and gay marriage as well) is indeed the result of long-term trends. However, longterm trends cannot explain the major, sudden surge in support for civil unions that occurred in 2003-2004, in the immediate aftermath of the Massachusetts Supreme Court decision mandating gay marriage. They also cannot explain the apparent decline in conservative activist opposition to civil unions over the last few years. Recall that conservative activists were strongly opposed to the creation of civil unions in Vermont in the late 1990s, at a time when gay marriage was just beginning to get on the political agenda.

Overall, Michael is right to suggest that pro-gay marriage court decisions carry some costs for gay rights advocates. But those costs are likely outweighed by the benefits.

Cityduck (mail):
I think you miss the most important consideration: When people hear their gay colleagues and neighbors have gotten married, it humanizes the issue and generates support for gay marriage. It is the same thing that happened when gays came out of the closet: Visibility breeds legitimacy and destroys the anti-gay myths.

My conservative mid-west based law firm's managing partner sent out a congratulatory firm-wide email about a California partner's marriage in California. That kind of visibility, and the legitimacy conferred by it, changes attitudes.

That is largely the reason why Prop 8 did so much worse in the vote totals than the last anti-gay marriage measure in California. Attitudes are already changing on this issue. In ten years, this firestorm will be over, just as anti-sodomy laws are now viewed as ancient history.
12.1.2008 3:11pm
JB:
Gay marriage advocates are focusing on the battle to the exclusion of the war.

The gay marriage issue can be compared to two other major, divisive issues: Abortion and Black Civil Rights.

In the first case, the only thing that happened was litigation--Roe v. Wade is the only major achievement of the pro-Choice movement. And abortion remains a divisive issue.

In the latter, the string of court cases from Brown v. Board of Ed onward was matched by a string of legislative actions at the federal and state level. Although many question specifics about the implementation of the court decisions and bills, or hold up countervailing rights as equally important, no one questions that the basic rights the decisions and bills defend are legitimate.

Gay marriage, pushed solely through the courts, will end up like abortion. A mixed legislative-judicial strategy, aimed at eventually legislatively overturning the Defense of Marriage Act, will be more successful. Seen that way, the California case was a bridge too far for a generally-successful movement, rather than a stinging smackdown of the movement's only course.

The ultimate goal of gay marriage advocates has to be political acceptance. Courts may force gay marriages to be recognized, but that's a minimal way of achieving gay marriage--that's just winning the battle. When society changes to the point that anti-gay bigotry is viewed in the same way as white supremacism is now, then gay marriage will naturally be adopted. That is winning the war.
12.1.2008 3:15pm
Ilya Somin:
Gay marriage, pushed solely through the courts, will end up like abortion. A mixed legislative-judicial strategy, aimed at eventually legislatively overturning the Defense of Marriage Act, will be more successful. Seen that way, the California case was a bridge too far for a generally-successful movement, rather than a stinging smackdown of the movement's only course.

As I noted in my original post, gay marriage advocates have in fact pursued a mixed legislative-judicial strategy. The legislative part just hasn't been successful so far, in part because public opinion is still against it. In the meantime, however, pro-gay marriage court decisions continue to be a net benefit to the movement.
12.1.2008 3:20pm
Cityduck (mail):
But, the string of court cases leading up to Brown was not accompanied by legislation. Those cases established the right at issue, the subsequent legislation was just implementation and enforcement. So your analogy does not hold.

Indeed, cases like Loving, striking down bans on interracial marriage, not only let individuals exercise the rights to which they should be entitled, but also led to visibility and acceptance of those relationships. So too here.

While I agree that no consensus has emerged on abortion, gay marriage is not analogous to that issue. No consensus can emerge when one side views abortion as murder. But, gay marriage is like interracial marriage, it harms no one. Attitudes towards gays have changed with visibility, and the evidence is clear that is happening now. Just look at the age breakdowns of attitudes on this issue.
12.1.2008 3:21pm
Robert West (mail) (www):
Point #2 is, I think, clearly false with respect to California. The Legislature had adopted gay marriage laws twice only to see them vetoed by the governor; it is a reasonable expectation that the next democrat to be elected governor would have signed it.
12.1.2008 3:22pm
Serendipity:
Didn't Arnold veto it saying for some reason the decision should come from the courts? It did, people voted to overturn that, and now he's on the record as saying Prop 8 should be overturned by the court. Anyone know why he thinks this should have been decided by the court rather than by the legislature, and why he now thinks it should be decided by the court rather than by the people?
12.1.2008 3:32pm
JB:
Ilya,
I agree. My point is that in the face of Prop. 8 gay marriage advocates should redouble their efforts to swing public opinion and get legislative gay marriage passed (in New York, for instance), rather than taking it as a rebuke of the nonjudicial strategy. Many people I've talked to have had a "let's get back to the courts" attitude, which I argue will snatch defeat from the jaws of victory.

Cityduck,
Up until 1964 there were no bills. But there were strong efforts made to swing public opinion not just from the Southern "Blacks have no rights" but from the Northern "Blacks are inferior, but they should have rights" that had been the preexisting norms. Since 1945 the movement had been pushing back against both--its nonjudicial successes before 1964 included desegregating the army, opening the GI Bill (unlike most New Deal programs) completely to Blacks, and other, quieter, actions across the country. Legislation only came to the South late--it was already widespread throughout the country before that.
12.1.2008 3:33pm
Dilan Esper (mail) (www):
Also, it's worth noting that there are still many, many people who don't share the consensus of enlightened attitudes on race. You can see some of it in the comments threads on this very website from time to time.

There's an easy story we tell on race where we say that at one time we didn't recognize equality, then the '50's and '60's came, and now we do. What really happened was a gradual process that started before the Civil War and still continues now, with a few high-salience events that pushed things along. But there's still plenty of racism out there and I doubt this is dependent on whether change was pursued by litigation, legislation, consciousness-raising, or any other strategy.
12.1.2008 3:34pm
Moonage Webdream (mail) (www):
"Didn't Arnold veto it saying for some reason the decision should come from the courts? It did, people voted to overturn that, and now he's on the record as saying Prop 8 should be overturned by the court. Anyone know why he thinks this should have been decided by the court rather than by the legislature, and why he now thinks it should be decided by the court rather than by the people?"

Without going back and re-researching it, it was because he knew any legislation on this issue would be challenged in court and therefore felt it would be best to allow the courts to make a ruling on existing suits before knowing what legislation would be acceptable to the courts, or what over-ride the courts. IF that is a correct interpretation, I agree with Arnie 100%. This is such a litigous issue that changing existing laws, and spending the money it takes to change those laws, only to have them struck down in court, would simply be a waste of money and effort. As it was, the courts did their thing, the legislation did their thing, then the people did theirs. I think Arnie had a pretty good pulse on how the system would work, and did.
12.1.2008 3:46pm
justleaving2cents (mail):

long-term trend of reduction in homophobia


Can we all please stop referring to people who are not fond of homosexuality as either suffering from a "phobia" or as "bigots"?

Thanks.
12.1.2008 3:49pm
jweaks (mail):

"Do Pro-Gay Marriage Court Decisions Harm the Cause of Gay Rights?"


Yes, of course, institutionalized gay "marriage" is another brick in the road on the way to societal self-destruction. That will harm everyone.
12.1.2008 3:54pm
Pashley (mail):
For the narrow question of promoting civil unions between consenting homosexual people, the reasoning is, in essence, tha if we shove the good medicine down their throats through the legal system it will be all right.

Wonderful, let's count the damage.

Civil unions without popular support have shaky foundations (i.e., California). Judges imposing domestic law become politicans; lose status, become subject to the policial pressure cooker, lose their focus on the existing law. Judges who take on judicial, legislative, and executive powers are, let's just say it, tyrants. Decisions made outside the electoral process harm that process, and discourage voting. Laws made outside the legislative process discourage further serious work by the legislature. I could go on, but most important, decisions imposed outside the existings lawas and existing political process are made by people who are one part activist and 9 parts arrogant, and those judges and activists presume on our patient and good-natured forebearance, when they have shown neither.
12.1.2008 4:01pm
John Howard (eggandsperm.org) (mail) (www):
The courts aren't in a position to decide for the world if same-sex procreation should be allowed or not. Even "expert opinion" on this issue is suspect and biased, because experts are likely to favor a gradual approach that continually relies on their professional opinions, and disfavor a blanket prohibition that obviates the most interesting parts of their field. But a blanket prohibition on genetically modified procreation is what we need. The public would vote against genetic engineering of children and same-sex conception in a heartbeat if the issue were in front of them, but if it is usurped by the courts as a gay rights issue, it could cause a major backlash of worldwide proportions. And why do that? Same-sex procreation is not a gay rights issue, it is not something you ever hear people demand (except rarely). It is not demanded, of course, because it doesn't need to be demanded, because it is currently legal.

But if it was offered up in exchange for equal protections in the form of civil unions, and so preserved marriage uniquely as a man and a woman with the right to conceive children together, it could lead to great political acceptance of Civil Unions. As long as people know they the end point, and that we have preserved marriage and natural conception and gays are not a threat to replace natural procreation, then CU's will be accepted here.

Is the right to attempt same-sex procreation really necessary for gay rights? Or is equal protections in all other areas what we want to achieve?
12.1.2008 4:01pm
Sarcastro (www):
Step 1: legalize gayness
Step 2: legalize same-sex marriage
Step 3: pedophile marriage
Step 4: legalize cannibalism.

chomp...chomp...BOOM! BYE BYE AMERICA!
12.1.2008 4:01pm
Smokey:
Dilan Esper:
Also, it's worth noting that there are still many, many people who don't share the consensus of enlightened attitudes on race. You can see some of it in the comments threads on this very website from time to time.
And much more often than that, you can see the race card being dealt from the bottom of the deck on this very website, and very often, too. How 'enlightened' is that? Liberals don't seem to call them on it, either. Why is that? Tacit agreement that it's OK to smear someone as a racist, in order to try and win an argument?

[And note that "We played the race card, and we dealt it from the bottom of the deck" was Johnny Cochran's own admission following the OJ case.]

I agree with Cityduck's first post. Sooner or later society will give way on the issue. My problem isn't SSM, it's guys in black floor length shirts trumping the People on flimsy pretexts whenever they damn well feel like it.
12.1.2008 4:03pm
einhverfr (mail) (www):
Illya, I agree generally with your points. However, there is a danger that a litigation-centric approach coupled with frustration at opponents will lead to a large political backlash which could cause many gays to be victims in unexpected ways.

So I don't think the question is simply a matter of use of the courts. I think a larger part of the question needs to be shaping hearts and minds via person-to-person communications. Unfortunately both sides in the debate seem to be better at avoiding rather than engaging in real, meaningful dialog and debate.
12.1.2008 4:16pm
einhverfr (mail) (www):
John Howard: Agreed on genetically modified conception. As a software engineer, my concern there is just that some things are sufficiently complex that we ought to avoid messing with them.

Of course good, old fashioned sperm banks and surrogate mothers would not be banned by your proposal nor should they be. Hence it does not deny gay couples the right to raise children together and even be biological parents.
12.1.2008 4:21pm
MarkField (mail):

Can we all please stop referring to people who are not fond of homosexuality as either suffering from a "phobia" or as "bigots"?


No.
12.1.2008 4:29pm
einhverfr (mail) (www):

What really happened was a gradual process that started before the Civil War and still continues now, with a few high-salience events that pushed things along.


I would agree. In fact one central holding in Plessy v. Fergusson was that states were required to provide equal facilities regardless or race. In that case, the one area where the court declined to go as far as later courts was on the issue of segregation, and in upholding segregation the court there paved the way for continuing inequality (hint-- if blacks had equal seating rights on busses, Rosa Parks wouldn't have been required to move). However, such inequality was clearly a violation of the spirit of Plessy. There was, IMO, a later recognition that, as far as race was concerned, separate could not be enforcibly equal. However, this is really limited to a few truly suspect classes, and we still allow separate but equal restrooms which are gender-segregated.

The question really comes down to, in my mind, how many baby steps a solution can be broken down into. Personally, I think that Biden's comments in the VP debate were right on the mark, and that the government should only recognize civil unions, of which church-recognized marriages are a proper subset. Marriage then would be continue to be defined as a sacrament, rather than simply a legal arrangement.
12.1.2008 4:30pm
John Howard (eggandsperm.org) (mail) (www):
but marriages have a right to conceive together, using their own genes! No one suggested that the Lovings could marry but they'd have to use a black man's sperm.

And besides, sperm banks are of dubious legality. It used to be considered adultery, but the practice was allowed to fester underground for long enough that people just started thinking it was legal. It really shouldn't be legal, but you are right that is a different issue.
12.1.2008 4:31pm
Cornellian (mail):

Can we all please stop referring to people who are not fond of homosexuality as either suffering from a "phobia" or as "bigots"?


And while we're at it, can we all please stop referring to people who are not fond of Jews as "bigots?"

Thanks.
12.1.2008 4:34pm
Perseus (mail):
And much more often than that, you can see the race card being dealt from the bottom of the deck on this very website, and very often, too. How 'enlightened' is that? Liberals don't seem to call them on it, either. Why is that? Tacit agreement that it's OK to smear someone as a racist, in order to try and win an argument?

Agreed. For example, see Dilan Esper smearing Judge Cassell as a bigot.
12.1.2008 4:35pm
Enki:
John Howard:
I know plenty of gay couples who have children, some adopted and some their own biological children. Perhaps they are fortunate to live in a part of the country (PNW)where they aren't really bothered for it, but the notion that only married couples should be allowed to have children is a bit old fashioned, IMO. There are plenty of people out there having children out of wedlock, gay or straight, not to mention plenty of het married couples who don't have any children, so it seems to me that the whole 'right to procreate' bent on marriage is a huge red herring these days. most of the gay couples I know who have their own biological children have used a surrogate and nobody stopped them, nor should they.

also, civil unions = separate but equal (and only 'equal' if they're lucky). it seems to me that pushing the CU agenda is only providing fuel for the fire. like someone mentioned earlier, marriage hurts nobody (except perhaps one of the spouses, but that's a different matter altogether). why this is even an issue sometimes boggles, except for the knowledge that many of us are stuck in old ways of thinking. homosexuality has been around as long as humanity, and it's taken us a very long time to accept it, i understand that. but to me accepting it means accepting it, and half-measures like civil unions only tend to highlight the bigotry rather than solve it.

if marriage is truly a secular institution - which it is in this country because it is legally recognized by secular laws and accompanied by secular, legal benefits - then it should be available to anyone (with the one caveat that i think it's perfectly OK to age restrict marriage). to me, it's an all or nothing proposition. either everyone has the same right to marry who they choose (within reasonable limits - IE only one at a time, and of a certain minimum age), or make it a purely private, personal institution with no benefits. the fact that certain people are excluded from a government benefit makes the policy inherently discriminatory, and that's what the SSM proponents are fighting against.
12.1.2008 4:40pm
Ken Arromdee:
the fact that certain people are excluded from a government benefit makes the policy inherently discriminatory, and that's what the SSM proponents are fighting against.

Isn't the correct answer to this just to make sure the government doesn't exclude the people from the benefit? I don't believe the California civil unions excluded gay couples from any benefits that California was actually capable of providing (except maybe spousal privilege when testifying in court).
12.1.2008 4:50pm
PubliusFL:
Enki: "There are plenty of people out there having children out of wedlock, gay or straight, not to mention plenty of het married couples who don't have any children, so it seems to me that the whole 'right to procreate' bent on marriage is a huge red herring these days."

If that's true, AND not a cause for concern (i.e. something we needn't be concerned about or try to discourage), we might as well abolish legal marriage altogether. Why should being married get anyone a tax break if we don't even care whether people are married when they have children?
12.1.2008 4:56pm
Roger Schlafly (www):
Didn't Arnold veto it [same-sex marriage] saying for some reason the decision should come from the courts?
The California governor said in 2005:
I am returning Assembly Bill 849 without my signature because I do not believe the Legislature can reverse an initiative approved by the people of California.
The voters had previously passed an initiative against same-sex marriage.
12.1.2008 4:59pm
Enki:
Ken
I suppose if a "civil union" were recognized as equal to a marriage in every state then you might have something. but because that is a matter of state law, even if you are right (I don't know the details of the CA CU law) a CU still carries a discriminatory effect.

you know, from a lawmaking perspective, it's so much cleaner to simply allow people to marry regardless of sexual orientation. the secular laws conferring benefits - whether they be tax benefits, death benefits, spousal privilege, or whatever - are already codified using the term 'marriage'. creating a whole new class of "marriage" but just calling it something different seems like a huge waste of time, and for what? creating the herculean task of making sure that all the benefits of marriage are equally conferred to folks who have a civil union, with the risk that not all of them will be included, seems so much more effort than simply changing one law - redefining marriage.

again. i must ask. who gets hurt by this?
12.1.2008 4:59pm
Enki:
Publius, not sure if you are suggesting what I think you are, but to me the problem is one of focus. IE we are focusing on the wrong "cause", if in fact you think illegitimacy is indeed a "problem". Allowing people to marry who are currently not allowed to will not "cause" any of those problems, in fact it will go at least a little way to solving them.

by the way, my son was born out of wedlock, and he's doing just fine thank you very much.
12.1.2008 5:03pm
tim maguire (mail):
I think cityduck hits on a pretty important point--visibility. Having judicial gay marriage in one or more states helps move the legislative argument forward by putting the lie to all this "threat to society" nonsense. When supporters can point to a state that has had gay marriage for years without civil society breaking down, opponents have very little to fall back on.
12.1.2008 5:19pm
John Howard (eggandsperm.org) (mail) (www):
You guys are missing the point: we should not allow people to attempt to conceive with someone of their same sex, only with someone of the other sex.

Do you agree we should ban that, or do you insist on allowing same-sex conception?

If we ban it, we can not allow same-sex marriage, because all marriages should continue to protect the right to conceive with the couple's own genes, to create offspring. We shouldn't strip that right from marriage, just to say they are equal. My point is (professors, take note): same-sex couples shouldn't have equal rights.
12.1.2008 5:20pm
Randy R. (mail):
justleaving2cents:"Can we all please stop referring to people who are not fond of homosexuality as either suffering from a "phobia" or as "bigots"? "

Short answer: No. There simply is no reason to deny rights to an entire group of people just because you are 'not fond' of them. For a perfect example of this see:

" institutionalized gay "marriage" is another brick in the road on the way to societal self-destruction. That will harm everyone."

Of course, jweaks offers no proof or evidence that gay marriage has actually led to societal self-destruction, or that it harms anyone at all. He just assumes that it will. Why? Because homosexuality is somehow 'bad' and therefore must be contained. That is pretty much the definition of homophobia.
12.1.2008 5:27pm
Enki:
John Howard
Why? that makes no sense. assuming that it's technically possible for same sex couples to conceive without outside help (IE sperm donor, surrogate, etc), what's the harm? (and again, I'm assuming that it's actually possible to do this outside the normal course of things, meaning there are no genetic anomalies as a result, etc) seems like camouflage for bigotry to me. it also seems like an irrelevancy because right now that's not possible. if you want my opinion, we shouldn't "Ban" any private behavior that does not impact the lives of others. my marriage has no affect on anyone else's life except me and my wife, and that's it. it has no affect whatsoever on anyone else's marriage or family. ergo, my marriage should not be banned (and it isn't, I'm het). the same should be true of anyone who happens to be gay and happens to want to marry his or her partner.
12.1.2008 5:27pm
Enki:
John Howard
[sorry for the 2nd post, I can't edit my posts]
Maybe it's easier if I put it this way. Because marriage is a secular arrangement in this country, the religious undertones cease to be the driving force behind marriage. it's a contract between two people and the government, and as such it confers rights and benefits upon those two people that are recognized by the government. nowhere is there a "right to have children" that is exclusive to married people. or put differently, people who are not married are not forbidden from having children. this includes gay people, and for now that must happen in the normal manner. so what is being denied is not a right to conceive, we all have that right regardless of our marital status, but instead a contract right. gay people are denied the right to be a party to a marriage contract. in that sense, the solution ought to be academic.
12.1.2008 5:36pm
Bleepless:
"[T]he political process" is a delicate euphemism for "democracy."
12.1.2008 6:09pm
John Howard (eggandsperm.org) (mail) (www):
assuming that it's technically possible for same sex couples to conceive without outside help (IE sperm donor, surrogate, etc), what's the harm?

Yes, this is the debate we need to be having, thank you.

There are many harms, ranging from the cost of developing it, the psychological burdens it would place on the child produced by it, the need to continually treat the child as a science experiment to check him for side effects, the huge risks of birth defects (though risks in and of themselves are not the main issue, since the right to procreate trumps the fact that all procreation is risky), the fact that it would usher in all manner of genetic engineering and designer babies and therefore cause people to lose their right in practice to have natural children, and turn all procreation into a government regulated commercial industry that wastes tons of energy on something that should not require any energy at all.

I could go on and on about why we shouldn't allow it. I could also go on and on about the benefits to society that will follow from stopping genetic engineering and affirming everyone's natural conception rights and preserving sexual reproduction, it's not just a matter of preventing bad things but also of realizing good things that are currently impossible because genetic engineering and transhumanism and postgenderism loom over society like dark clouds.

Now, how about you trying to explain why it is so important for same-sex couples to be allowed to attempt to conceive together with modified gametes? Don't you know there are other ways for couples to raise families? Don't you know love makes a family? Don't you know that thousands of couples are without any protections for their relationships, and could care less about some hare-brained idea to facilitate same-sex conception? Why make that the priority? Why force them into a hetero-normative notion that they must have children together to be legitimate in the eyes of society?
12.1.2008 6:09pm
Randy R. (mail):
Tim: "When supporters can point to a state that has had gay marriage for years without civil society breaking down, opponents have very little to fall back on."

I totally agree, Tim. However, I have pointed out the numerous jurisdictions that already have SSM, and I keep asking opponents where is the harm there? They NEVER answer. Instead, they just keep repeating their talking points on how it will destroy marriage and society and will provide all unintended consequences. Of course, all the unintened consequences will be bad, and it never occurs to them that they might also be good. It doesn't stop them.

So yes, we will have had SSM in several states for a 100 years, and they will still proclaim that bad effects will happen if it is legalized in their state.

(Not to mention that they will always throw out that really stupid argument that gays already have the right to marry -- we can pick up any old person off the street and marry them, as long as they are the opposite sex. )
12.1.2008 6:12pm
Enki:
um. where to begin. I suppose I'll start at the end. my view is to not force people into any particular norm at all, but instead to simply afford everyone the same contractual rights of marriage. I don't think gays want to be forced into any norm, they just want to be treated equally. I don't see what's wrong with that.

marriage does not include a right to procreate. the two "rights", if that is even the correct term, are separate and distinct from one another. I procreated outside of marriage, as do many people. I did not violate any law in doing so. some people procreate within marriage, and I might even agree that having a stable home life is preferable, and statistically couples who stay together are more stable, but there is NO linking of the two in terms of "rights".

so. if you have a problem with genetic engineering, fine. restrict that. you won't get any disagreement from me there. but that has NOTHING to do with marriage. marriage does not include a right to procreate, only a contractual right to be recognized as a married couple. there are benefits associated with having children (IE tax benefits), but those do not make the conception of those children a right. they are two different things.

again. red herring. you have only managed to convince me of one thing - that genetic engineering, when it comes to humans, is currently too dangerous to allow without restrictions. and even on that front there is no reason why that has to remain true forever. I can envision a world where it's perfectly safe. probably not in my lifetime, but with us humans and our wonderful minds, anything is possible.
12.1.2008 6:18pm
juris_imprudent (mail):
...very few people, for example, taking a pro-choice position yet believing that Roe was wrongly decided.

Figures. I'm always out in the political wilderness.
12.1.2008 6:24pm
Enki:
John Howard: Now, how about you trying to explain why it is so important for same-sex couples to be allowed to attempt to conceive together with modified gametes? Don't you know there are other ways for couples to raise families? Don't you know love makes a family? Don't you know that thousands of couples are without any protections for their relationships, and could care less about some hare-brained idea to facilitate same-sex conception? Why make that the priority? Why force them into a hetero-normative notion that they must have children together to be legitimate in the eyes of society?


I see what you did there, a clever re-framing of the argument. thing is, and I've seen your posts elsewhere, you are the ONLY person making this argument. Nobody is claiming that the right to marriage is also the right for same sex couples to conceive. Just you. So while you may find that this is the central issue, it seems that you are the only one who does.

instead, people just want to be treated equally. gay couples would like our government to recognize their relationships and, more importantly, confer the same secular benefits that straight couples have. the most efficient and most equal way to do this is to allow gays to marry.

like I said above, it's perfectly fine to restrict genetic engineering. but that is still just camouflage for bigotry against gays.
12.1.2008 6:27pm
hazemyth:
Randy R.--

Of course some people will remain obstinate but there's a key difference between what Tim is suggesting and the example that you're citing. You're talking about trying to win people over with argument and, yes, frankly that is hard and often fruitless work. But the public presence of gay married couples will become part of many people's lived existence. That, over time, will change a number of people's hearts on the issue. Hearing the rationale about gay marriage (even citing real examples) is less persuasive than seeing a gay married couple living down the street every day. All the more so, if the person's attitude is irrational and ingrained. It takes daily, mundane, personal experience to reach their centers of judgement.
12.1.2008 6:34pm
John Howard (eggandsperm.org) (mail) (www):
Enki, so are you agreeing with me that only male-female procreation should be allowed, and same-sex conception should be prohibited? Or are you going to insist on equal conception rights for same-sex couples? Do you accept that a same-sex couple should not have equal rights?

Also, you are wrong that "marriage does not include a right to procreate". It certainly does, there has never in history been a marriage that was prohibited from attempting to procreate together with their own genes, and there never should be. Civil Unions should give all the rights of marriage except for the right to procreate together.
12.1.2008 6:50pm
Dilan Esper (mail) (www):
And note that "We played the race card, and we dealt it from the bottom of the deck" was Johnny Cochran's own admission following the OJ case.]

Actually, it was Robert Shapiro's.

More generally, while it is true that there are false accusations of "racism", the conservative definition of "the race card" seems to mean accurately calling a conservative racist who happens to be one.
12.1.2008 7:00pm
Dilan Esper (mail) (www):
Perseus:

You can drag the thread off topic, but yeah, I have a problem with people who think it is permissible under the Fourth Amendment to strip-search, sodomize, and shoot illegal immigrants in the back. Especially when they hang their whole argument on an arcane distinction between "people" and "persons" which is completely contrary to the plain meaning of those terms.
12.1.2008 7:04pm
Cityduck (mail):
Weird argument.

The right to procreate is not unlimited, and in the criminal context has been denied as part of sentencing orders regardless of marital status. For example, in 1999, a Wisconsin man was sentenced to three years in prison and five years of probation on three separate counts of failure to pay child support. The man, David Oakley, was also ordered not to father any children during probation "unless he could prove to the court that he could support them all." No exception was made in the case of marriage. The decision was upheld by the Wisconsin Supreme Court.

So the first foundation to John Howard's "argument" fails.

Now consider this hypothetical: What if a hetero couple wanted to genetically engineer a child out of only the father's genetic material (cloning)? What if a hetero couple wants to genetically engineer a child using both of their genetic material? Would that be an infringment of their marital rights? Based on his doom and gloom scenarios and reasoning, I am sure that John Howard would answer "no." And that's the hypocrisy in John Howard's position. You correctly point out that the right to procreate is distinct from the right to marry. There is no need for those concerned about genetic engineering to fear gay marriage as it is poses no unique risk of undermining attempts to prohibit genetic engineering.
12.1.2008 7:12pm
Robert West (mail) (www):
Pashley, what's the evidence for the lack of support for civil unions in California? The DP law was adopted by the legislature and signed by the governor; the attempt to have a referendum on it failed to gather enough signatures to do so; attempts to repeal it via initiative have consistently failed to gather enough signatures; and polls show overwhelming majorities favoring either outright marriage or domestic partnerships.
12.1.2008 7:29pm
John Howard (eggandsperm.org) (mail) (www):
First of all, I'm not sure David Oakley was married to any of the numerous women he had children with. Second, that was a 4-3 decision and lots of people call it blatantly unconstitutional. I would agree with them if he was in fact married, or if the probation said he couldn't get married (Zablocki already said that a state couldn't stop people from marrying due to child support obligations). And are you suggesting that we needn't worry because we will prohibit same-sex couples from procreating even if they are married? Because it doesn't sound like it, it just sounds like you're willing to deny the fundamental basic civil right of people to marry and procreate, but you're still reserving the right to attempt same-sex conception. Do you agree it should be banned or do you insist that it should be allowed?

Regarding the hypothetical, the ban we need would also ban a hetero couple (married or not) from creating a child with modified gametes, and cloning. But it wouldn't change any man and woman's right to procreate with their own unmodified genes. People should only be allowed to procreate by combining their own unmodified genes with someone's of the other sex. Same-sex couples should not have equal conception rights, so they should not have equal rights. All people should have a right to marry, but only someone of the other sex.
12.1.2008 7:55pm
John Howard (eggandsperm.org) (mail) (www):
There is no need for those concerned about genetic engineering to fear gay marriage as it is poses no unique risk of undermining attempts to prohibit genetic engineering.

I'd really like to hear the professors chime in on this one. Do they agree that there is no risk of any same-sex couple using their marriage license to demand a right to attempt to conceive together in the future, if same-sex conception is banned? I agree that an unmarried couple could probably make just as valid a case to be allowed to conceive as a married couple, but isn't it likely that a married couple would use their marriage in their challenge, if they were being prohibited from attempting to conceive?

Also, if their challenge to a future ban on SSP fails, and same-sex couples do wind up with distinct rights, shouldn't their unions be called something different to reflect that they have different rights? I mean, if I marry a woman, I feel I should be allowed to attempt to have children with her, but if I choose a man to be with, knowing that I won't have that right that I'd have with a woman, why call it marriage? It's pointless. Especially when we are looking for a way to get equal protections to same-sex couples that are unprotected right now, and calling the unions marriage clearly is hitting a snag.
12.1.2008 8:06pm
John Howard (eggandsperm.org) (mail) (www):
Pashley, what's the evidence for the lack of support for civil unions in California?

They were ruled unconstitutional by the California Supreme Court, because using a different name for the same package of rights and benefits is harmful to the couple and their children and gay people in general. That decision still rules, Prop 8 didn't change that. The combination though, means that those DP's have to be called marriages, and so they too are not valid or recognized in California.

If they weren't substantially identical to marriage (say, if they were defined as "marriage minus conception rights") then they would be constitutional and could be recognized and valid.
12.1.2008 8:13pm
jweaks (mail):
Randy R.:

Of course, jweaks offers no proof or evidence that gay marriage has actually led to societal self-destruction, or that it harms anyone at all. He just assumes that it will. Why? Because homosexuality is somehow 'bad' and therefore must be contained. That is pretty much the definition of homophobia.


I have no desire to debate this here, but I don't appreciate the false accusations. Because I have not given my reasoning does not mean I am making assumptions. Inferring I'm a "homophobe" is just a cheap shot. -jw
12.1.2008 9:44pm
Thomas_Holsinger:
The California Supreme Court decision upset me so much that I almost didn't vote at all on Proposition 8. Only the pleading of my gay son got me to vote against it. And I had voted against Prop. 22 earlier.

I am very much opposed to judicial legislation, and this was certainly that.

IMO Prop. 8 would not have passed had the California Supreme Court not overruled Prop. 22, and now it will take another vote of the public to change things. Furthermore the childish, and thoroughly anti-democratic, gay backlash to Prop. 8 means it will be cold day in *ell before that happens.

So this particular court decision had a close to worst-case effect on SSM, and gay rights in general.
12.1.2008 11:22pm
Anatid:
Currently, all adults - married or unmarried, gay or straight, single or coupled - have the same right to try and create a child. It's just somewhat more difficult for gay couples, because they need to bring in a sperm/egg donor and/or a surrogate.

Lay down the doom and gloom, John Howard. Genetic engineering of humans is currently illegal, thanks to a barrage of evidence that suggests that current GM organisms experience a wide array of problems. The technology, like all technology, will continue to improve. The question you raise will become relevant when side-effect-free genetic engineering becomes possible (at which point I'm not sure you still have an argument against it), which will affect everyone regardless of whether or not they are in a same-sex marriage.

Why should a hetero couple be denied the right to engineer their child to remove her predisposition towards breast cancer? The fact that it's a heterosexual couple trying to engineer their child, rather than a homosexual couple, bears no relevance. Currently, that heterosexual couple also has the right to conceive in vitro, where two cells containing unaltered genetic material are combined in a laboratory. The process by which ova from two female mice successfully created a viable embryo also did not modify their genetic material.

An argument for same-sex contraception isn't an argument for genetic engineering, and it sure as hell isn't an argument against same-sex marriage.
12.2.2008 12:19am
Perseus (mail):
You can drag the thread off topic,

The issue isn't the 4th amendment, but rather your debating tactic of crying "bigot" and the like when someone has the audacity to dissent from your view on issues that you are particularly passionate about.

However, longterm trends cannot explain the major, sudden surge in support for civil unions that occurred in 2003-2004, in the immediate aftermath of the Massachusetts Supreme Court decision mandating gay marriage.

A six point increase in one poll is not sufficient to demonstrate to me that the MA Supreme Court decision produced the supposed surge. Were there other polls with similar results? I will, however, grant that the poll suggests that the decision didn't produce a major backlash.
12.2.2008 12:55am
John D (mail):
Thomas_Holsinge

the childish, and thoroughly anti-democratic, gay backlash to Prop. 8

Do you mean the protests? They strike me as a perfectly reasonable democratic action. [Full disclosure: I have taken part in these protests.]

Protest is a right. I may not, for example, agree with pro-life activists when they protest outside clinics, but I would fight for their right to do so.
12.2.2008 1:04am
Randy R. (mail):
"Hearing the rationale about gay marriage (even citing real examples) is less persuasive than seeing a gay married couple living down the street every day. "

Totally agreed.

jweaks: " Because I have not given my reasoning does not mean I am making assumptions. Inferring I'm a "homophobe" is just a cheap shot. "

Then why bother posting if you just come in and make a broad unsupported statement? You can hardly complain when you say:"Yes, of course, institutionalized gay "marriage" is another brick in the road on the way to societal self-destruction. That will harm everyone." and then someone calls you on it.

Not a homophobe? Then why the quotes around gay 'marriage'? Surely, you know that gays currently do get legalized marriage in Massachusetts, (now in Conn.), and in Canada, Belgium and other places, so it can't be that you think it doesn't exist.

If you say that gay marriage is the way to societal self-destruction, then you must have real evidence for it. What is it? I haven't seen any, and no one else has either. If you don't have any, then you are basing your statement upon mere assumptions.

So a person thinks that two gay men marrying each other will lead to societal self-destruction. And that's not homophobic? Then please, tell me what it is.
12.2.2008 1:33am
John Howard (eggandsperm.org) (mail) (www):
Currently, all adults - married or unmarried, gay or straight, single or coupled - have the same right to try and create a child.

Well, it currently depends on who they want to try to create a child with. All adults are forbidden to create a child with a sibling (even adopted), other close relatives, children, and (less enforced perhaps) people married to someone else. Only people that are eligible to marry, in other words.

It's just somewhat more difficult for gay couples, because they need to bring in a sperm/egg donor and/or a surrogate.

Right, they currently can't do it together, with each other, like a man and a woman in a marriage have a right to try to do.

Lay down the doom and gloom, John Howard. Genetic engineering of humans is currently illegal, thanks to a barrage of evidence that suggests that current GM organisms experience a wide array of problems.

It's only illegal in Missouri, as far as I know. Massachusetts has an anti-cloning law, but it allows creating children using anything a lab deigns to call an "oocyte" and a "sperm", with no restrictions on where that DNA came from, or what has been done to it. Missouri says it has to be "of a woman" and "of a man", thereby criminalizing attempts at implanting a GE'd embryo.

The technology, like all technology, will continue to improve. The question you raise will become relevant when side-effect-free genetic engineering becomes possible (at which point I'm not sure you still have an argument against it), which will affect everyone regardless of whether or not they are in a same-sex marriage.

So, you're entirely in the tank for allowing genetic engineering and same-sex conception. Who will answer those question then, and why should we have to wait until then to answer them? Why should we choose that path, when there is so much to gain from preserving natural conception rights, and forgoing genetic engineering? My arguments all assume that it will be risk-free, in fact the biggest argument is that it will become safer than natural conception. Every pregnancy has risk, and my right to conceive with the mutual consent of the woman of my choice shouldn't be up to a panel of risk-assessors, like you are implying same-sex couples would be. Risk of birth defects is a part of life, as are risks of inheriting breast cancer genes or not getting the gene to play the piano.

Why should a hetero couple be denied the right to engineer their child to remove her predisposition towards breast cancer?

Because that would be good public policy. We should focus on helping people that exist and preventing illness and preserve natural conception rights and not commercialize and regulate reproduction.

The fact that it's a heterosexual couple trying to engineer their child, rather than a homosexual couple, bears no relevance.

That's true.

Currently, that heterosexual couple also has the right to conceive in vitro, where two cells containing unaltered genetic material are combined in a laboratory.

Well, I'd say they have a right to both marital and medical privacy, which allows who-knows-what to happen when they overlap, and they do overlap with regard to fertility and pregnancy.

The process by which ova from two female mice successfully created a viable embryo also did not modify their genetic material.

No, it was heavily modified. You're talking about Kaguya? It inherently involves modifying the sexual imprinting of each chromosome, the same process that occurs naturally in meiosis, when our two copies of each chomosome (one male imprinted and one female imprinted, from our dad and mom) are divied up randomly and split into two gametes (two eggs or two sperm, depending on our sex) with one copy of each chromosome, re-imprinted as male or female (depending on our sex). That re-imprinting is what they want to do to make "female sperm" or "male eggs", possibly by creating iPSC stem cells from the subject and then putting them in some animals testicle or ovary or some chemical bath or something to get it to re-imprint. That's a major step to change the genetics, it makes the genes someone would have if they'd been the other sex, which are distinctly NOT the genes that person has that is an integral part in what makes that person who they are. It is the genes of someone that doesn't exist, just like all genetically engineering genes would be, which is why it opens the door to anything and everything.

An argument for same-sex contraception isn't an argument for genetic engineering, and it sure as hell isn't an argument against same-sex marriage.

I think you betray some doubt with that that stridency. First of all, thank you for illustrating that the question of same-sex marriage really is the question of allowing genetic engineering or preserving natural conception rights, just by being so hopelessly in the tank for the whole shebang. There's no separating them: if we want to preserve natural conception, and the right to use our modified gametes to have children, we have to prohibit same-sex conception. And that rules out same-sex marriage. Marriage should continue to protect the couple's right to conceive children together with their own genes.
12.2.2008 2:40am
John Howard (eggandsperm.org) (mail) (www):
oops, I meant "unmodified gametes" in my last sentence there. We need to preserve our right to use our own unmodified gametes and not be pressured or forced or coerced into having them improved or replaced. That means it can't be considered wrong to use our own genes to have children together with our spouse.
12.2.2008 3:06am
Soronel Haetir (mail):
John Howard,

I might agree with you if you were to change your position to unmodified DNA material, but that would make your idea fall apart. As I said before the only problematic combination I see would be YY and again I would simply hope that to be biologically non-viable.

I don't see a sperm or egg cell having value in itself, the only value these cells have is in the genetic material they carry..

I do however see problems with trying to mix-n-match genes to create designer babies, at least with our current technology.
12.2.2008 10:50am
John Howard (eggandsperm.org) (mail) (www):
Unmodified DNA means imprinted in the gamete the same way it is imprinted in the person. Representing that person. My DNA is imprinted male in every chromosome, I am a male.

There is no reason to expend any effort or energy on making it possible to procreate with someone of the same sex. It's wasteful and it moves us to a postgendered world and opens the door to designer babies. The only way to keep the door shut is to keep procreation limited to combining a man and a woman's genes. (And keep in mind that there are just as many people who feel that designer babies with "fixed" genes are much more ethical than attempting same-sex conception)

Procreating with someone of the other sex doesn't require any modifying or tinkering or manipulating. It keeps the door shut to all that. And it gives every person a parent of each sex, which is probably very important to our psychology. We aren't lab products, we are natural products, the same as people and animals have always been since the beginning. Making some people without a mother or without a father, and with two fathers or mothers, really disconnects the person from humanity and nature and makes them lab products. Is gay marriage really about postgenderism? It's not just about hospital visitation?
12.2.2008 11:51am
Thomas_Holsinger:
John D.,

Attacking peoples' jobs is way over the line. This over-reaction, coupled with the failure to denounce it by prominent gays and gay groups, means gay rights are pretty much dead and *amnded politically now. Your side is politically radioactive. Your former allies are saying, "See ya'" and "Don't call us, we'll call you."
12.2.2008 2:56pm
Dilan Esper (mail) (www):
The issue isn't the 4th amendment, but rather your debating tactic of crying "bigot" and the like when someone has the audacity to dissent from your view on issues that you are particularly passionate about.

I stand by my statement that people who think the Fourth Amendment permits the police to sodomize illegal immigrants or shoot them in the back, because it pluralizes "person" using the word "people" instead of "persons", is using a legal technicality to legitimize a hatred of Hispanic illegal immigrants.

Now, can we get back on topic?
12.2.2008 2:58pm
Perseus (mail):
Now, can we get back on topic?

I am on topic. Shorter Dilan Esper: opponents of SSM are bigots too.
12.2.2008 8:39pm
John Howard (eggandsperm.org) (mail) (www):
I need to correct myself above, I got it wrong about all of my genes being imprinted male.

I have, like all animals, two copies of every chromosome, one copy from mom and one from dad. The one from mom is imprinted female, the one from dad is imprinted male. The imprinting turns some genes on and some off, so that only one copy of the gene is on. This is true of all 23 chromosomes, not just the so-called "sex" chromosomes.

So when meiosis happens to make haploid gametes which contain only one copy of each chromosome, each pair separates and one chromosome heads to one side and one to the other side, randomly so that the resulting two groups are composed of some chromosomes from mom and some from dad. The cell then divides and forms two sperm cells, with the genes of my parents randomly represented, like maybe chromosomes 2,5,6,9,13,14,16,and 20 coming from my dad, and the other 15 chromosomes coming from my mom, and the other sperm cell gets the opposite mix. Note that I pass on the genes of my parents, not my own genes, except for whatever mutations may have occurred. So some very small percentage of my sperm contain the very same chromosomes of the sperm and egg and combined to create me, but most are a mix of them.

During meiosis each chromosome is imprinted male so that it can be complementary to an egg. But that only means it re-programs if it originally came from my mom. If it came from my dad originally, it doesn't need to be re-imprinted, it's already male.

So that's it. I wanted to correct where I said that all of my chromosomes were imprinted male in me. The fact is, one half of each pair is, and the other half is female. But once in my sperm, they are all imprinted male.
12.2.2008 9:13pm
Soronel Haetir (mail):
John Howard,

The problem with your above description is that you left out the gene swapping step. Chromosomes do not pass intact from parent to child. Meaning that the 1/2 inheritance from each parent happens at a lower level the chromosome. I'm not sure what you are trying to say with your imprinted idea. That would make me think you believe there is some magic marker that says "this sequence of DNA came from man" which is not the case.

As an example of what I mean, take an X egg cell, and X sperm cell and sequence the DNA blinding the information about which sorce provided each. Now allow someone to examine those sequences, there is no information left to answer the source question.


(There would of course be such information in the case of a Y sperm cell, that information being the fact that not as much data is available to be examined)
12.3.2008 8:16am
John Howard (eggandsperm.org) (mail) (www):
I don't know about a magic marker that would distinguish what sex a chromosome came from, but I do know that there is epigenetic imprinting that makes the chromosomes sexually complementary, some genes are turned on and other off in each chromosome as they are re-programmed to all be male or female.

Have you ever wondered why it hasn't been done, if all it takes is removing the chromosomes from an egg and putting them a sperm cell? They don't join together, because a step is missing to re-imprint the chromosomes so that they can be joined up with another female.
12.3.2008 12:51pm
Greg Q (mail) (www):
You know, you missed the most important reason why these actions are a bad idea:

They establish that SSM supporters are vile and evil people.

To prove this, I need only quote you:
They have established gay marriage in two states (Massachusetts and Connecticut) where the political process was unlikely to do so in the near future.
...
However, it's important to remember that the choice gay rights advocates face is not one between enactment of gay marriage through the legislative process and enactment through court decisions, but rather between court decisions and no gay marriage at all for many years.
IOW, SSM advocates have to chose between respecting the rule of law, democracy, and essentially every other principle this country is founded upon, or getting their way. And what they chose is "screw principle, we want our way."

That is the choice of a vile and evil human being.

And despite your claims to the contrary, there are plenty of people like me, people who think that principle does matter, that Court decisions should be judged by the quality of the decision, not merely the outcome. And we're all on the other side from you.

Finally, you should understand that this sort of judicial abuse of power is counter-productive, because each time it's done, it makes more people aware that a lot of judges are black robed thugs forcing their desires on the rest of us, rather than judges enforcing the Constitution. When enough people decide that's all the Courts are, the Courts will lose their ability to force rulings on the rest of us, even the legitimate ones.
12.3.2008 8:14pm
Colin (mail):
Perhaps you should think this through more carefully before announcing that marriage supporters are "vile and evil people." The language you quote could apply equally well to those who supported integrating public schools or striking anti-miscegenation laws. In those cases, legislative change was not accomplishing a just and valid goal, and the courts' actions were proper and appropriate--as was advocates' attempt to enforce the Constitution through the courts.

You apparently don't equate gay rights with the rights upheld in Brown or Loving, and your criticism rests on the assumption that SSM advocates agree with you. You say that they decided to "screw principal" by seeking marital rights in court, but that is only a "vile" decision if they believe, as you do, that those rights aren't already constitutionally guaranteed. If they believe, as they surely do, that their right to marry is constitutionally protected, but not currently enforced by the government, then there is absolutely nothing "vile" about attempting to have the right recognized by the courts. Reasonable people can disagree about the extent of the relevant constitutional protections, and those who read them more broadly than you are not monsters.

Your vehement but completely illogical denunciation of SSM advocates as "vile and evil human being[s]" says absolutely nothing about those advocates, but a great deal about yourself. I doubt that confronting the vacuity of your justification will change your mind; I suspect that it's a post hoc rationalization.
12.4.2008 8:40pm