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DOJ Boosts the Cause of SSM:

The Obama Justice Department today filed a reply brief supporting its motion to dismiss in Smelt v. United States, a constitutional challenge to DOMA filed a few months ago in a California district court. Readers may remember that back in June the DOJ supported its motion to dismiss with some merits arguments that justifiably angered gay-rights groups. The June brief opposed just about every constitutional argument gay-rights supporters have been making for more than three decades.

What a difference two months can make. While the DOJ hasn't retracted its earlier arguments, its new brief is much more friendly to gay families in tone and in substance. It also emphasizes the plaintiffs' lack of standing and suggests that a ruling on the merits would be unnecessarily broad. The original motion could have been this narrow and done the job.

Consider this almost apologetic, but also uncontroversial, passage:

With respect to the merits, this Administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal. Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.

There was nothing like this anti-DOMA language in the June brief. There was no mention of the administration's anti-DOMA policy views. The DOJ labels DOMA a form of discrimination, although it doesn't say what kind. Back in June, the DOJ went out of its way to argue that DOMA does not discriminate on the basis of sex or sexual orientation. In fact, the new brief makes no new argument for DOMA, and only vaguely says it supports the value of "federalism."

Much more significantly, and to me surprisingly, it now appears to be the view of the executive branch that the social interests in child-rearing and procreation do not even rationally justify the exclusion of gay couples from marriage:

Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

Next comes this passage, suggesting that empirical learning has bolstered the case for gay and lesbian parenting:

Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

The idea that same-sex parents are inadequate or at least sub-optimal has been a major point in the public-policy opposition to SSM, and was used to support passage of DOMA. The DOJ now implies that DOMA is anachronistic, a holdover from a benighted time when we didn't know so much about the quality of gay parenting. The parenting concern has also been a reason for deference by state courts: as long as there was still a legitimate debate over the quality of same-sex parenting, courts ought to defer to states' judgments that traditional families are best. While the DOJ hasn't exactly endorsed the view that the parenting debate is over, this passage certainly points us in that direction.

Finally, the DOJ brief shows that Justice Scalia's dissent in Lawrence v. Texas is coming back to haunt the opposition to SSM. Recall that in Lawrence Justice Scalia warned that the Court was dismantling the constitutional structure supporting traditional marriage. Why? Because, Justice Scalia argued, if traditional moral opposition to homosexuality is no longer a valid basis for law, there remain no other good constitutional reasons to oppose SSM — even on rational basis review. Scalia specifically mentioned that gay couples' inability to procreate — a critical point to "natural law" theories against SSM and to some courts — would be insufficient. Now comes the DOJ armed with arguments from Justice Scalia:

Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion -- which, of course, is the prevailing law -- because "the sterile and the elderly are allowed to marry." For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA's constitutionality.

While gay-rights groups complain that the DOJ is continuing to defend the constitutionality of DOMA (see here and here), and are understandably disturbed by the still-unabandoned arguments the DOJ made back in June, they should be delighted by the turn taken in this reply brief. It will serve the cause of SSM in state and especially federal courts for years to come.

(HT: Law Dork)

Roger Schlafly (www):
It is a weak argument when it depends on a prediction in a dissenting opinion. But I guess that the DoJ wanted to make weak arguments.
8.17.2009 4:59pm
ruuffles (mail) (www):
Kennedy won't retire until he writes the landmark gay marriage opinion with all the fluffy language to be quoted by the NYT (if it's still around).
8.17.2009 5:03pm
Steve:
But I guess that the DoJ wanted to make weak arguments.

I'm pretty sure they didn't want to make weak arguments in the course of articulating their disagreement with the intervenors, or they wouldn't have bothered to articulate the disagreement in the first place.
8.17.2009 5:03pm
Pro Natura (mail):
I thought that ethical lawyers made the strongest case they could for their clients. I also thought that the rule of law required that the executive branch enforce and defend the laws passed by the legislative branch. Now that the Obomination of Desolation rules in Washington I guess quaint concepts like these go by the boards.
8.17.2009 5:04pm
sk (mail):
"Unlike the intervenors here, the government does not contend that there are legitimate government interests in "creating a legal structure that promotes the raising of children by both of their biological parents" or that the government's interest in "responsible procreation" justifies Congress's decision to define marriage as a union between one man and one woman.

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government's position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions."

Yes it will. Isn't it absurd? The government 'does not contend,' or, in other words, 'holds the policy opinion that' the paragraph above is true. You are probably correct that this policy opinion will be cited by litigants, and will make its way into judicial opinions. Arguing that policy will make its way into judicial opinions, of course, implies that judicial opinions enforce policy (rather than law).

I do appreciate your naked expression of the way law works. Some of your colleagues here like to pretend to be on a Platonic quest for the truth. The elitist imposition of policy, clearly expressed, though intellectually dishonest is at least overt.

Sk
8.17.2009 5:14pm
ruuffles (mail) (www):

Now that the Obomination of Desolation rules in Washington I guess quaint concepts like these go by the boards.

Bob Jones University v. United States
Dickerson v. United States
8.17.2009 5:18pm
Thorley Winston (mail) (www):
Is it standard practice for the DOJ to include language in its motions as to whether the administration currently in power supports or opposes (and wants repealed) the laws that it is defending in court?

I don’t know what the applicable ethical rules are for a government lawyer but as an in-house attorney or one in private practice, while I’m not required to personally agree with the positions of my client, I think it would be borderline malpractice for me to go before a judge and say “well your honor, I don’t actually agree with my client’s position or my client doesn’t actually believe in what he’s asked me to defend here today but please consider the argument I’m making.”
8.17.2009 5:22pm
Steve:
I think it would be borderline malpractice for me to go before a judge and say “well your honor, I don’t actually agree with my client’s position or my client doesn’t actually believe in what he’s asked me to defend here today but please consider the argument I’m making.”

So if your client asked you to include qualifying language in a brief, it would be malpractice for you to comply? I wonder who would file that malpractice action.
8.17.2009 5:24pm
Tatil:
Umm, this is not the opinion of the lawyer representing the government, it is the government's opinion. Your analogy fails.
8.17.2009 5:26pm
Chris L (mail):
Professor Carpenter,

What do you make of this portion of the brief:


III. Plaintiffs' Equal Protection and Due Process Claims Must Be Dismissed Because DOMA Survives Rational Basis Review

Plaintiffs' equal protection and due process claims raise several issues, all of which were addressed in the United States' motion to dismiss. As established in the government's opening memorandum, federal courts have unanimously upheld the constitutionality of DOMA. Plaintiffs' only response to the government's arguments in favor of dismissal is to assert, without elaboration, that "same gender marriage is a . . . fundamental right" such that DOMA is subject to "heightened scrutiny," and to imply that DOMA constitutes "gender discrimination" (Doc. 40 at 4, 5). The United States refuted these assertions in its opening memorandum.


It seems to me that as much as the Obama Administration is furiously backpedaling given how poorly received its earlier brief was, that it is also trying to play both sides of the fence.

DC: I think that's about right. The June brief made unnecessary arguments for DOMA. This brief makes unnecessary arguments against DOMA. It makes me wonder whether the June brief was really a considered, and fully vetted, one.
8.17.2009 5:33pm
Tammy Cravit (mail):
It strikes me that government lawyers are in a difficult spot. Especially in litigation involving contentious issues, the administration can, as happened here, become stuck defending a policy enacted by a prior administration, whether or not the current administration disagrees with it, wants to see it changed, and/or is perhaps even working to change it. Yes, "the United States" is a party to this lawsuit, but the real people holding the reins of that ship obviously change from time to time, and the government is bound to defend the actions of its former leaders even as its present leaders may wish to pull the reins in a different direction.

In that regard, this brief read to me like a lawyer saying "my client may have changed his mind, but I'm stuck defending the prior position, so here's my best shot."

That said, I think the government did a decent job of distancing itself from arguments whose credibility is too controversial to rely upon, and instead argued the best case it could given the state of the facts - namely, the jurisdiction and standing arguments which stand alone.

Or, as LawDork put it, "for those many people who believe that the government, in a situation such as this, does have a responsibility to defend the law, this brief makes clear the distinction between opposing a policy and defending a law."
8.17.2009 5:36pm
Ghost:
Professor Carpenter, with all due respect, your gleeful posts on this topic are nothing short of sickening. It is blatantly obvious that you are cheer-leading for the redefinition of marriage through the federal courts.

You never used to do this. I recall reading your postings over the years, and while I found myself disagreeing with your ultimate conclusion, I respected the fact that you discouraged judicial intervention in an issue that is rightly left to the legislative branch of government.

Since the people spoke in California on Prop 8, you seem to have shifted gears.

Let there be no mistake about it, what the Marxist puppet in the White House is doing is shirking his duties. It is his responsibility to vigorously defend DOMA in the strongest possible terms, not to "knock the legs out from underneath opponents of SSM."

I submit that this brief is dishonest on a number of accounts. Not only is the Marxist trying to undermine the rule of law and play both sides of the fence, they are misrepresenting the actual state of science on this issue.

While it is true that the various leftist organizations posting as scientific health organizations have submitted position statements arguing that children in same-sex households do not suffer harm, the data relied on to come to those positions is entirely inadequate. A truthful response would be that the data is completely insufficient to determine the harm that might come to children raised in same-sex households. EVERY SINGLE STUDY conducted in this area suffers from a host of methodological flaws.

What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity. To focus on "self-identification" rather than acts is unconscionable when reaching the policy positions advocated by the various leftist organizations cheer-leading for SSM.

These position statements are not worth the paper that they are written on. Why SSM advocates yield them as some sort of magic talisman is beyond me.

Frankly, I am surprised that you would egg-on the purposeful undermining of the rule of law.
8.17.2009 6:09pm
A Law Dawg:
What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.


I think you are assuming that homoerotic activity is a manifest harm. The dispute over that core assumption is at the heart of the entire debate.
8.17.2009 6:27pm
Brian K (mail):
What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.

And why don't you link to these "studies"? could it be because "studies" created by anti-gay religious groups aren't known for their methodological correctness?
8.17.2009 6:31pm
einhverfr (mail) (www):
ghost:

With all due respect, your post reads as if you have a battle-axe to grind. A few excerpts:

While it is true that the various leftist organizations posting as scientific health organizations have submitted position statements arguing that children in same-sex households do not suffer harm, the data relied on to come to those positions is entirely inadequate. A truthful response would be that the data is completely insufficient to determine the harm that might come to children raised in same-sex households. EVERY SINGLE STUDY conducted in this area suffers from a host of methodological flaws.


Ok.... So in the absence of harm shown we should assert that it must be seen as harmful?

However, then you state:

What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.


So, it seems to me we can bring your argument full circle:

1) Homoerotic activity is BAD therefore should be condemned in the strongest possible language. See Scalia in Lawrence v. Texas. Q: Am I right to assume you believe Lawrence was wrongly decided, as was Romer, and you would like to see anti-homoerotic act legislation passed and upheld in all 50 states?

2) Gay parents won't adequately condemn such behavior and hence their kids won't adequately avoid it. Therefore gays neglect their duties to their kids. Q: Should the kids be taken from their parents just because they are gay? Should we require folks who are adopting to either be married or state their sexual orientation as a condition to adopting kids?

However, this is fairly circular reasoning. I would be interested in knowing EXACTLY why homoerotic action is as bad in itself as you say it is. Most likely you are just spouting a campaign to make America a Christian nation again, whatever that means. (I am straight, a Norse pagan, etc. so.... your religious arguments will not go far with me.)
8.17.2009 6:31pm
RPT (mail):
Obama is a "Marxist puppet"? What does that make Timothy Geitner?
8.17.2009 6:32pm
Borris (mail):
One step closer to Dred Scott, part II.
Another chance to see if one state can impose its laws on another state.

Back then, Democrats wanted to bring slavery to all the states, whether the citizens of those states wanted it or not.
Now, Democrats want to bring same-sex marriage to all the states, whether the citizens of those states wanted it or not.

Get that popcorn popping. The Constitutional entertainment is about to begin.


It sure would be nice for the SC to explain why SSM is "now" (as of their inevitable ruling) Constitutionally required when ~30 years ago the drafters of the failed ERA didn't think it was.
8.17.2009 6:33pm
ruuffles (mail) (www):

Another chance to see if one state can impose its laws on another state.

Oh, you mean like the Thune Amendment?
8.17.2009 6:35pm
Chris L (mail):

DC: I think that's about right. The June brief made unnecessary arguments for DOMA. This brief makes unnecessary arguments against DOMA. It makes me wonder whether the June brief was really a considered, and fully vetted, one.


Professor Carpenter,

I guess what I'm getting at is this: if the Administration really is committed to walking back its earlier defense of DOMA, then why in this brief, when it gets beyond the threshold standing issue and comments on the merits of Plaintiffs' equal protection and due process claims, does it expressly re-urge its position in the supposed motion that no longer represents the views of the Administration that DOMA survives rational basis review on most of the grounds previously stated?
8.17.2009 6:35pm
spudbeach (mail):
Quite the interesting brief, with a much more reasoned tone than the last one.

My favorite section had to do with the only rational basis the brief found:

Under rational basis review, Congress can reasonably take the view that it wishes to wait to see how these issues are resolved at the state level before extending federal benefits to marriages that were not recognized in any state when Congress tied eligibility for those benefits to marital status.

Every other rational basis for upholding DOMA is disclaimed. It's interesting that a mere procedural issue is that is left.

I await the US reply in Gill et al. v. Office of Personnel Management et al. (the MA case brought by people with actual standing). Will the arguments be just as toned down? Will there be an intervenor willing to make the other arguments? Will a judge be persuaded by the lack of arguments as to rational basis from the US attorney?

P.S.: To Pro Natura -- attorneys should only make the arguments they can make with a straight face.
8.17.2009 6:36pm
A. Zarkov (mail):
"Obama is a "Marxist puppet"? What does that make Timothy Geitner?"

The puppet of the Marxist puppet.
8.17.2009 6:41pm
spudbeach (mail):
Ghost:

What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.

You say that like it's a bad thing. I don't understand why you, the government, or anybody should really care.
8.17.2009 6:43pm
Perseus (mail):
If President Obama were a Marxist puppet on this issue, he'd be claiming that homosexuality is a product of the capitalist bourgeoisie and following Stalin's example and trying to impose article 121 of the old Soviet criminal code (5 years hard labor).
8.17.2009 6:46pm
A. Zarkov (mail):
"If President Obama were a Marxist puppet on this issue, he'd be claiming that homosexuality is a product of the capitalist bourgeoisie and following Stalin's example and trying to impose article 121 of the old Soviet criminal code..."

One can be a Marxist without being a Stalinist. Indeed if you read Kolakowski's Main Currents in Marxism: Vol. 3 The Breakdown you will see an argument that Stalin was not a Marxist.
8.17.2009 6:57pm
A. Zarkov (mail):
einhverfr:

"I would be interested in knowing EXACTLY why homoerotic action is as bad in itself as you say it is."

Would you want your children to be attracted to members of the same sex if that could be avoided?

If you could raise your children in two ways A and B, where A causes them to be homoerotic and B acts protectively, would you choose plan A or B?

Of course we don't know for sure that homoeroticism necessarily leads to homosexuality, but we don't know it doesn't either. I think most Americans would choose B and play it safe.
8.17.2009 7:05pm
Steve:
I think most Americans would choose B and play it safe.

People can raise their kids however they like. We're talking about laws that mandate how other people's kids can be raised.
8.17.2009 7:15pm
yankev (mail):

I think you are assuming that homoerotic activity is a manifest harm. The dispute over that core assumption is at the heart of the entire debate.
It is certainly a major part of it. So is whether a court should have the power to redefine social institutions, and whether being able to enter into a legal sanctioned relationship with the partner of one's choice is a fundamental right equivalent to the right to marry.
8.17.2009 7:28pm
RPT (mail):
On a somewhat related topic, it was interested to watch Dick Armey being neutered by Rachel Maddow on Meet The Press yesterday.
8.17.2009 7:33pm
Connecticut Lawyer (mail):
There is no reasonable argument either that the Constitution prohibits states from limiting marriages to men and women or that the Constitution prohibits the Federal Government from exercising its powers under the FF&C clause to protect States that do not as a matter of morality and public policy desire to recognize homosexual marriages performed in other States.

The Court may or may not rule otherwise, but any such decision would be utterly lawless, a naked exercise of political power and not deserving of respect.

If you want homosexual marriage, then persuade enough legislators in each state to vote for it. Or persuade enough congressmen and state legislators to pass a Constititutional amendment to that effect. Anything else is lawless.
8.17.2009 7:44pm
http://volokh.com/?exclude=davidb :

Let there be no mistake about it, what the Marxist puppet in the White House is doing is shirking his duties.

Well, what do you expect from a guy born in Indonesia?!?

How I love the VC.
8.17.2009 8:22pm
einhverfr (mail) (www):
A. Zarkov:

Would you want your children to be attracted to members of the same sex if that could be avoided?


I dunno. Are you saying it is an easier life to be straight rather than gay? Sure I agree.

However are you saying it is better to be a gay man in a straight marriage than a gay man in a gay relationship? There we probably differ.

However, even on the first statement that doesn't suggest that homoerotic actions are bad in themselves. They may lead to unfortunate social consequences for those who are homosexual. But that isn't sufficient to make the argument Ghost was making.
8.17.2009 8:23pm
einhverfr (mail) (www):

Well, what do you expect from a guy born in Indonesia?!?


Please leave my son out of it (born in Indonesia five and a half years ago).
8.17.2009 8:25pm
Oren:

What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.

And children of basketball players are more likely end more than six feet tall! Imagine that!
8.17.2009 8:35pm
Oren:

So is whether a court should have the power to redefine social institutions, and whether being able to enter into a legal sanctioned relationship with the partner of one's choice is a fundamental right equivalent to the right to marry.

The courts have no authority, and have never claimed, to alter social institutions, which are entirely distinct from the legal institutions that have grown up around them.

More than ever, I realize how much of the confusion could be removed if people made a distinction between the social institution of marriage and the legal one.
8.17.2009 8:37pm
einhverfr (mail) (www):
Connecticut Lawyer:

There is no reasonable argument either that the Constitution prohibits states from limiting marriages to men and women or that the Constitution prohibits the Federal Government from exercising its powers under the FF&C clause to protect States that do not as a matter of morality and public policy desire to recognize homosexual marriages performed in other States.


If the court held the purpose of the law to be discriminatory and applied precedent like Romer v. Evans, would you think that proper?

Wouldn't it be more safe to simply say the FF&C clause could be used to create a son-of-DOMA act which simply left ALL marriage issues to the states as long as it was nondiscriminatory between gay and straight couples?
8.17.2009 8:41pm
Blargh:

Would you want your children to be attracted to members of the same sex if that could be avoided?

If you could raise your children in two ways A and B, where A causes them to be homoerotic and B acts protectively, would you choose plan A or B?

Of course we don't know for sure that homoeroticism necessarily leads to homosexuality, but we don't know it doesn't either. I think most Americans would choose B and play it safe.



Ha ha. You say this like your parenting actually can influence the sexuality of your children. Choosing B when your kid is really gay will do nothing but subject them to years or decades of closeted self-hating and ultimately disaster - see e.g. Larry Craig, Mark Foley et al.

Why not rephrase your question. If you could raise your children in two ways A and B, where A causes them to have a healthy and satisfying sex life and B condemns them to years of confusion, shame and therapy bills which would you choose?
8.17.2009 8:42pm
Danny (mail):
More than "boosting" marriage equality, it sounds rather like they are opposing it in a more polite way, cf. the gratuitously insulting previous brief. What progress.

At this rate of change we can believe in, the Obama administration might be "not categorically opposed" in 20 years. Then maybe in 100 years, after Iran and Saudi Arabia get gay rights, maybe Obama's grandchildren will fulfill his campaign promise to repeal DOMA and DADT.
8.17.2009 8:46pm
arbitraryaardvark (mail) (www):
Not discussing gay marriage, I'm going to make a more general point.
Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Department disagrees with a particular statute as a policy matter, as it does here.
I agree that's a good description of what DoJ and their state counterparts do, but I don't agree that it's consistent with the rule of law. It's a like a check and balance in reverse. Step 1: congress passes the flavor of the week without regard to their oath of office to uphold the constitution. Step 2: DoJ says, yeah, it's probably unconstitutional,and it's a bad idea anyway, but we're going to squander taxpayer funds to defend it to the death anyway, if we can think of some argument, any old argument will do.
Step 3: Courts presume constitutionality and defer, or dismiss on a technicality, or avoid deciding based on doctrine of constitutional avoidance. Maybe 30 years years later it gets held unconstitutional, at which point return to step 1. This is a recipe for a soviet-style constitution that looks good on paper but is unenforceable in practice.
8.17.2009 9:02pm
Bhmebelcom (mail) (www):
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8.17.2009 9:20pm
Danny (mail):
MA, CT, VT, NH, ME, IA etc. should all stop recognizing hetero marriages from states and countries which won't recognize all of their marriages, and charge out-of-state hetero couples $2000 to register their out-of-state marriages, otherwise they are considered single roommates. And if they want to see each other in the hospital, etc., they had better bring a kilo of legal documents some of which can only be faxed in during business hours. I wonder how long hetero couples would stand for it.
8.17.2009 9:26pm
A. Zarkov (mail):
einhverfr:

"However are you saying it is better to be a gay man in a straight marriage than a gay man in a gay relationship? There we probably differ."

I'm not saying that. It's irrelevant. I see no advantage to having my children be homoerotic, and I can see a potential downside. That's all.
8.17.2009 9:38pm
einhverfr (mail) (www):
Danny:

If DOMA allowed such a thing I would expect it to be Constitutional. :-)
8.17.2009 9:39pm
einhverfr (mail) (www):
(though actually, the bar should be set at any procedural or eligibility difference which would render the marriage illegal in those states)
8.17.2009 9:39pm
A. Zarkov (mail):
Blargh:

"Ha ha. You say this like your parenting actually can influence the sexuality of your children."

I didn't say we could. It's a hypothetical to clarify my point that having homoerotic children is not necessary desirable or even without undesirable consequences. Some commentators seem to think it doesn't matter-- I think it does.
8.17.2009 9:43pm
Steve:
Step 1: congress passes the flavor of the week without regard to their oath of office to uphold the constitution. Step 2: DoJ says, yeah, it's probably unconstitutional,and it's a bad idea anyway, but we're going to squander taxpayer funds to defend it to the death anyway, if we can think of some argument, any old argument will do.

Well hopefully after step 1, the President, i.e. the boss of the DoJ, will veto the bill. If Congress overrides the veto even though the President believes the bill to be unconstitutional, historically there's precedent for the President instructing the DoJ not to defend the law.

It's not like we get to save a lot of taxpayer money if the DoJ declines to defend the law. It's not like the Government can just stipulate to take a law off the books, meaning there has to be a lawsuit either way.
8.17.2009 9:43pm
Perseus (mail):
One can be a Marxist without being a Stalinist. Indeed if you read Kolakowski's Main Currents in Marxism: Vol. 3 The Breakdown you will see an argument that Stalin was not a Marxist.

That's an argument frequently made, and has some merit, but it's likely to be lost on the original commenter.
8.17.2009 10:02pm
ReaderY:
The Administration was not exercising its duty to defend the statute effectively. It should have brought in lawyers willing to do so if it wasn't willing to do so itself. A back-handed attack is not a defense.
8.17.2009 10:05pm
Ricardo (mail):
While it is true that the various leftist organizations posting as scientific health organizations have submitted position statements arguing that children in same-sex households do not suffer harm, the data relied on to come to those positions is entirely inadequate. A truthful response would be that the data is completely insufficient to determine the harm that might come to children raised in same-sex households. EVERY SINGLE STUDY conducted in this area suffers from a host of methodological flaws.

The data is completely insufficient to determine the harm that might come to children raised in households where celery is eaten on a regular basis. Don't agree? Point me to one study without serious methodological flaws that disproves that any harm comes to children raised in celery-eating households.

In fact, the studies showing that children raised by gay households are more likely to be gay suffer from three flaws:

1. Since almost all of the children studied are the biological children of the gay parent, the studies do not control for the genetic influence on sexual orientation. Having a gay identical twin brother gives you a 50% of chance of being gay yourself. There is no single "gay gene" but genes do play a role according to empirical research. Not controlling for this influence is sloppy and undermines the result.

2. The gay couples surveyed are typically not comparable to married straight couples. For one thing, in the gay household sample, many of the households had undergone divorce (the man was a closeted homosexual and the wife divorced him after finding out) while others are single-parent households. A truly scientific study would compare children adopted by stable gay couples in domestic partnerships or marriages with children adopted by stable straight married couples.

3. The studies rely on self-identification -- it's entirely plausible that some homosexuals lie on the survey and identify as straight. Those who grow up in households in which homosexuality is normal would be more likely to tell the truth. Even without #1 and #2, this suggests the effect is magnified by response bias.
8.17.2009 10:14pm
Oren:

I see no advantage to having my children be homoerotic, and I can see a potential downside.

And I can see no advantage to my kids have brown hair instead of blond (in fact, blonds do get paid more).

What you prefer and what you control need not be coterminous.
8.17.2009 10:14pm
http://volokh.com/?exclude=davidb :

Please leave my son out of it (born in Indonesia five and a half years ago).

If I had known you had a son, I still would have thought that I actually WAS leaving him out of it.

In any event, better get cracking -- you may need to generate some fake birth announcements in a local newspaper in order to give your kid a chance to become President some day.

Obama's parents totally figured that out.
8.17.2009 10:16pm
einhverfr (mail) (www):
A. Zarkov:

I see no advantage to having my children be homoerotic, and I can see a potential downside. That's all.


I think you miss the point of my response. It depends on WHAT you are comparing that possibility to. The correlation argument is too weak to be a basis for public policy. For example, the question is why this pattern shows up. For all we know it could be that the heterosexual parent group includes sufficient folks brainwashing their kids with fire and brimstone crap to have a statistical effect, but we wouldn't make a public policy saying that Calvanists can't get married would we?
8.17.2009 10:19pm
einhverfr (mail) (www):


If I had known you had a son, I still would have thought that I actually WAS leaving him out of it.


It was satire :-P But yes, I have a son who was born in Indonesia.....
8.17.2009 10:20pm
Danny (mail):

I see no advantage to having my children be homoerotic


Uh, I would be a little worried if my children were homoerotic.


P.S. On the whole debate about child development: why get stuck on an obscure study (which is probably not scientifically credible and is from the same people who do "creationist science") when there is already a body of research about development and sexual orientation of the children of gay couples (guess what, they aren't more likely to be gay and they're not all killers, either). After all it's not like we are talking about something hypothetical. There are literally millions of people who have been raised by same-sex couples in the USA over the last 30+ years.
8.17.2009 10:31pm
Ricardo (mail):
I didn't say we could. It's a hypothetical to clarify my point that having homoerotic children is not necessary desirable or even without undesirable consequences. Some commentators seem to think it doesn't matter-- I think it does.

Zarkov, fair enough. Make sure you are straight before having (more?) children then. But don't go around telling others how to raise their children -- that attitude will come back to bite you.
8.17.2009 10:43pm
Another pinhead (mail):

Квартира и Гостиные. ООО «Балтик Хауз».... гостиные от ведущих производителей Литвы.




Я не знаю о том!
8.17.2009 10:56pm
A. Zarkov (mail):
"Zarkov, fair enough. Make sure you are straight before having (more?) children then. But don't go around telling others how to raise their children -- that attitude will come back to bite you."

I don't understand what you mean. I'm not telling anyone how to raise their children.
8.17.2009 11:03pm
Ghost:
1) Homoerotic activity is BAD therefore should be condemned in the strongest possible language. See Scalia in Lawrence v. Texas. Q: Am I right to assume you believe Lawrence was wrongly decided, as was Romer, and you would like to see anti-homoerotic act legislation passed and upheld in all 50 states?


Lawrence and Romer were improperly decided. That is a separate issue as to whether or not as a legislative policy we should enact Sodomy Laws.

2) Gay parents won't adequately condemn such behavior and hence their kids won't adequately avoid it. Therefore gays neglect their duties to their kids. Q: Should the kids be taken from their parents just because they are gay? Should we require folks who are adopting to either be married or state their sexual orientation as a condition to adopting kids?


Homosexuals cannot obtain kids as a result of their sexual activity. They have to obtain kids by artificial means. No, I don't believe that homosexuals should be permitted to obtain children in this manner.

However, this is fairly circular reasoning. I would be interested in knowing EXACTLY why homoerotic action is as bad in itself as you say it is. Most likely you are just spouting a campaign to make America a Christian nation again, whatever that means. (I am straight, a Norse pagan, etc. so.... your religious arguments will not go far with me.)


Well, you don't get to dictate any particular set of limitations on any argument that is advanced. Frankly, I don't care whether you are a Norse Pagan or not.

1. Homoerotic activity is against the Created order. (And no, you can't try to pull the homosexual animal card out of the woodwork, because even rabidly homosexual scientists admit that properly speaking, there is no such thing as homosexuality in animals.) 2. Homosexual activity cannot result in the natural creation of another human being. 3. Homosexual activity carries with it a much greater risk of disease and other health problems.
8.17.2009 11:38pm
Ghost:

One step closer to Dred Scott, part II.
Another chance to see if one state can impose its laws on another state.

Back then, Democrats wanted to bring slavery to all the states, whether the citizens of those states wanted it or not.
Now, Democrats want to bring same-sex marriage to all the states, whether the citizens of those states wanted it or not.

Get that popcorn popping. The Constitutional entertainment is about to begin.



Bingo. This is the end game. Dred Scott took us into a very dark place in our nation's history. The leftist tyrants are fooling themselves if they think that it won't happen again.
8.17.2009 11:39pm
Cornellian (mail):
I thought that ethical lawyers made the strongest case they could for their clients. I also thought that the rule of law required that the executive branch enforce and defend the laws passed by the legislative branch.

Inaccurate on both counts. Lawyers follow the instructions of their clients, and if the client doesn't want to advance a particular argument for policy reasons of its own (a frequent occurrence where very large clients are concerned), the client is free to decline to make that argument and the lawyer is bound to follow that direction.

Second, the executive branch is required to set out its views of the constitutionality of a statute. If it thinks a statute is unconstitutional, it doesn't have an obligation to pretend that it is. Even if it does think a statute is constitutional, that doesn't require the executive to present every conceivable argument to support it without regard for the policy implications of doing so.
8.17.2009 11:41pm
Ghost:

The data is completely insufficient to determine the harm that might come to children raised in households where celery is eaten on a regular basis. Don't agree? Point me to one study without serious methodological flaws that disproves that any harm comes to children raised in celery-eating households.

In fact, the studies showing that children raised by gay households are more likely to be gay suffer from three flaws:

1. Since almost all of the children studied are the biological children of the gay parent, the studies do not control for the genetic influence on sexual orientation. Having a gay identical twin brother gives you a 50% of chance of being gay yourself. There is no single "gay gene" but genes do play a role according to empirical research. Not controlling for this influence is sloppy and undermines the result.

2. The gay couples surveyed are typically not comparable to married straight couples. For one thing, in the gay household sample, many of the households had undergone divorce (the man was a closeted homosexual and the wife divorced him after finding out) while others are single-parent households. A truly scientific study would compare children adopted by stable gay couples in domestic partnerships or marriages with children adopted by stable straight married couples.

3. The studies rely on self-identification -- it's entirely plausible that some homosexuals lie on the survey and identify as straight. Those who grow up in households in which homosexuality is normal would be more likely to tell the truth. Even without #1 and #2, this suggests the effect is magnified by response bias.


Fine, if you want to go that route, you have to admit that the APA and other leftist organizations had no basis for reaching the policy positions that they reached. Futher, homosexual activists have no basis for relying on such position statements in these briefs and the Courts have no business considering them.

There is no study that can survive scientific scrutiny that shows what the homosexual activists keep insisting in any brief. They are riddled with methodological flaws.
8.17.2009 11:45pm
Ghost:
P.S. On the whole debate about child development: why get stuck on an obscure study (which is probably not scientifically credible and is from the same people who do "creationist science") when there is already a body of research about development and sexual orientation of the children of gay couples (guess what, they aren't more likely to be gay and they're not all killers, either). After all it's not like we are talking about something hypothetical. There are literally millions of people who have been raised by same-sex couples in the USA over the last 30+ years.


1. Stacey and Biblarz are homosexual activists. They are rabidly in favor of same-sex marriage. You fail.

2. Every single study in this area is riddled with methodological flaws. All of them. There is no basis for claiming that science has vindicated the homosexualist position.
8.17.2009 11:48pm
Danny (mail):

(And no, you can't try to pull the homosexual animal card out of the woodwork, because even rabidly homosexual scientists admit that properly speaking, there is no such thing as homosexuality in animals.)


This is factually false. But hey, maybe you believe in young-earth creationism and the death panels, so who am I to argue.


2. Homosexual activity cannot result in the natural creation of another human being.



Bravo, you didn't sleep through all of biology class then, just 90% of it


3. Homosexual activity carries with it a much greater risk of disease and other health problems.


All "homosexual activity" is more dangerous than.. (presumably any heterosexual activity)? So lesbians kissing is more dangerous than a man and a woman having vaginal or anal intercourse without protection? It is more dangerous to have sex with a gay virgin than a straight prostitute? Clearly heterosexuals and homosexuals, men and women, have a vast range of things that they can do in bed and I think you are sexually ignorant if you think it's based on orientation rather than actions and number of partners. In all fairness you do sound a little repressed and uneducated about human sexuality.

And if all homosexual sex were more risky - wouldn't that be an argument in favor of SSM and monogamy?
8.17.2009 11:52pm
Ricardo (mail):
Fine, if you want to go that route, you have to admit that the APA and other leftist organizations had no basis for reaching the policy positions that they reached. Futher, homosexual activists have no basis for relying on such position statements in these briefs and the Courts have no business considering them.

There is no study that can survive scientific scrutiny that shows what the homosexual activists keep insisting in any brief. They are riddled with methodological flaws.


I don't particularly care about the policy positions of any organization, leftist or otherwise. The point is that right after denouncing studies as suffering from "methodological flaws," you go on by saying "What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity." In fact, these studies themselves suffer from very serious methodological flaws as I just pointed out. You're not the least bit interested in facts, but only in cherry-picking studies that tell you what you want to hear.

If you don't want gay couples to raise children, fine. But don't go on claiming the science backs up your claim that gay parents are more likely to raise gay children because it does not.
8.17.2009 11:59pm
Oren:

Homoerotic activity is against the Created order.

That's odd, considering the creator made homosexuals along with the rest of us. Maybe he was out for a smoke break or something?
8.18.2009 12:00am
Dave Ruddell (mail):

3. Homosexual activity carries with it a much greater risk of disease and other health problems.


Yup, all those lesbians and their high rates of STIs and other health problems.
8.18.2009 12:01am
Cornellian (mail):

Homoerotic activity is against the Created order.


I think it's perfectly consistent with the "Created order." Why should your idea of the "Created order" govern?

According to some people, allowing women to have authority over men is also "against the Created order" yet we, fortunately, live in a society where you are free to disagree with that person's or any person's idea of the "Created order." Appeals to the "Created order" aren't going to get you anywhere.
8.18.2009 12:05am
Ricardo (mail):
To illustrate cognitive dissonance, I would imagine there is a positive correlation between people who oppose SSM and those who favor spanking or other forms of corporal punishment for their children.

There are many studies that show a positive link between children who are spanked in childhood and later problems in adulthood like lack of self-confidence, abusive or anti-social behavior and criminality. The methodological flaws in these studies are the same flaws that exist in the studies Ghost cites: they don't control for the fact that the two samples (spanked v. non-spanked children, gay v. straight households) differ in many ways aside from the one variable being studied. It is junk science to ignore or downplay the influence of these other variables.

So if Ghost and others of his ilk are going to "play it safe" by ensuring that children are not raised in gay households, are they also going to "play it safe" by supporting a ban on spanking and other forms of corporal punishment? After all, nobody can show that spanking does not cause harm to children, right? But we've already seen that Ghost doesn't particularly care about what the research has to say unless it supports his agenda.
8.18.2009 12:23am
einhverfr (mail) (www):
Ghost:

Homosexuals cannot obtain kids as a result of their sexual activity. They have to obtain kids by artificial means. No, I don't believe that homosexuals should be permitted to obtain children in this manner.


I am glad you agree it would be "artificial" for a homosexual to sleep with a heterosexual of the opposite sex for the purpose of engendering a child. Presumably this would also suggest that homosexuals should not be able to be a party to an opposite sex marriage.....

Lawrence and Romer were improperly decided. That is a separate issue as to whether or not as a legislative policy we should enact Sodomy Laws.


On what basis? Because homosexuality is bad in your view?

Well, you don't get to dictate any particular set of limitations on any argument that is advanced. Frankly, I don't care whether you are a Norse Pagan or not.


Sure, but biblical or Christian arguments won't be very persuasive. Just figured I would give you fair warning. Also I did ask what made it worse in itself and you have attempted to answer this. I do appreciate that effort for what it's worth.

1. Homoerotic activity is against the Created order. (And no, you can't try to pull the homosexual animal card out of the woodwork, because even rabidly homosexual scientists admit that properly speaking, there is no such thing as homosexuality in animals.)

To make that point persuasive, you will have to define "homosexuality in animals." Whether or not it exists is probably a matter of definition. We do know that some Bonobos and baboons seem to show a willingness to engage in homosexual acts. However, applying the label of "homosexuality in animals" is probably misleading as it might be more accurately "bisexaulity in animals." However either way it does suggest that some of the closest evolutionary relatives of humans engage in homosexual acts.

The second issue is whether or not it is consistent with the notion of a created order. To make this argument persuasive you would need to define that created order. For example, I see nothing in homosexual activity which would be contradicted by Odin, Hoenir, and Lodhurr creating man and woman by providing spiritual gifts (breath, inspiration/frenzy, goodly looks and hair) to trees.

2. Homosexual activity cannot result in the natural creation of another human being.

So? If in natural environments (bonobos, baboons, etc) homosexual acts tend to be somewhat limited, it doesn't suggest that everybody is going to go out and be gay, is it? I don't see there being a substantial argument here. Sorry.

Additionally (and significantly) Bonobos have sexual relations for many reasons, and these are not guided (as in some other animals) by a minimal drive towards procreation. One can see in Bonobos clear social elements of sexual relations.

3. Homosexual activity carries with it a much greater risk of disease and other health problems.


Is this an innate issue? Or is it due to social issues? Is it the same for male and female homosexuals? My guess is that you will find that there are added health issues for male homosexuals but not females, and that these are made far worse by a lack of social support for enduring relationships (and thus society fostering promiscuity).

It seems as though your arguments are based on the following assumptions:

1) The "Created Order" is outlined in the Bible (while I say it is outlined in the Eddas).
2) The only legitimate purpose of sexual relations is procreation.
3) We know the above two by looking into nature.

I am sorry, that is just a religious argument clothed in 16th century humanism. I would hope to see better than that.
8.18.2009 12:25am
Cornellian (mail):

3. Homosexual activity carries with it a much greater risk of disease and other health problems.


On that logic the government should be encouraging women to become lesbians, since lesbians are at a much lower risk of sexually transmitted diseases (to say nothing of violence) than straight women.
8.18.2009 12:55am
http://volokh.com/?exclude=davidb :

On that logic the government should be encouraging women to become lesbians, since lesbians are at a much lower risk of sexually transmitted diseases (to say nothing of violence) than straight women.

And just think how many men would be spared the joys of "family law."
8.18.2009 1:17am
John Moore (www):
Oren, obviously a fan of Lysenkoism writes:


What the studies have shown us, is that children raised in same-sex households are more likely to consider or engage in homoerotic activity.

And children of basketball players are more likely end more than six feet tall! Imagine that!
8.18.2009 1:36am
John Moore (www):

I am glad you agree it would be "artificial" for a homosexual to sleep with a heterosexual of the opposite sex for the purpose of engendering a child.

Of course it is. This is not a love relationship, but the use of another person's body for purely biologic function.
8.18.2009 1:40am
John D (mail):
At the risk of derailing the thread by actually referring to Professor Carpenter's post (why am I even considering that?), there was a similar situation during California's In Re: Marriage Cases.

The plaintiffs made one argument for allowing same-sex marriage. On the other sides, the State of California made a series of arguments for the constitutionality of Prop 22, while the interested parties made their own separate arguments.

Later, Maggie (Margaret Srivastav) Gallagher wrote a piece in which she criticized the State of California for not advancing the procreation argument, despite that when the interested parties did so, the judges did everything but wad up pages of the briefs and lob them off the attorneys' foreheads. (After all, one justice did ask at what point infertile marriages would be forcibly dissolved.)

Here we have the Obama administration arguing that DOMA, while discriminatory, does not rise to the level of being unconstitutional. Therefore, they can support upholding DOMA (as constitutionally-permissible bad public policy) while rejecting arguments that they find specious.

It is ironic that on this issue they have managed to infuriate both sides. The pro-gay-rights side feels they have defended DOMA too vigorously. The anti-gay-rights side feels they have failed to defend DOMA. Sometimes, you can't please anyone.
8.18.2009 2:03am
Oren:
John, you would have to be willfully blind to deny the plain fact that children inherit significant traits (e.g. more than skin/hair/eye color) from their parents. That does not imply a State role in choosing a mate any more than it implies a State role in choosing the starting lineup of the Chicago Bulls.

Plus, if anything, the variation in our attributes crushes Stalin's ambition to reinvent humanity.


It is ironic that on this issue they have managed to infuriate both sides. The pro-gay-rights side feels they have defended DOMA too vigorously. The anti-gay-rights side feels they have failed to defend DOMA. Sometimes, you can't please anyone.

Moderates tend to do that, yes.
8.18.2009 2:55am
John D (mail):
Oren,

I think you're conflating people named John.

John Moore (not me) made the argument about heredity.

I made the comment you quoted at the end of your comment. And I agree. The President's attempt at finding a middle ground on the issue of same-sex marriage makes him a moderate.

Thanks.

John D
8.18.2009 3:33am
A. Zarkov (mail):
Oren:

"John, you would have to be willfully blind to deny the plain fact that children inherit significant traits (e.g. more than skin/hair/eye color) from their parents."

Do you think that children inherit significant personality traits as well? Such as IQ and aggressiveness?
8.18.2009 6:14am
MCM (mail):

Do you think that children inherit significant personality traits as well? Such as IQ...?


Don't you just mean "intelligence"? Obviously children inherit height from the parents, but nobody says children inherit their parents' feet or centimeters.

It's probably an illuminating comparison, actually, as height is strongly determined by nutrition and other environmental factors, in addition to genetics.
8.18.2009 6:51am
Alanmt (mail):
This happily married attorney appreciates the Administration's move to more qualified and reserved support of DOMA. It is a move in the right direction. It shows that the government is interested in analysis and thoughtful - rather than shotgun - advocacy. Unlike some of my gay compatriots, I am willing to be a little patient.

I am intrigued by those who self-identify as attorneys in their posts above but somehow see something wrong in this brief's approach. My clients are better served when I don't make ineffective arguments which aren't legally or factually supported and damage our respective integrity.

Anecdotally, I posted here a fair bit in October, 2005, When Ms. Gallagher and Prof. Carpenter were debating same-sex marriage. I was a few weeks away from getting married in Canada at the time. Now my husband and I are a few weeks away from having (via surrogate) our first child, a little girl. We are preparing extra hard to be good parents, as we know that our baby will have a lot of prejudice against her parents like that of Ghost's to overcome in life. We don't care if she grows up to be gay or straight. We recognize the chances are that she will be straight. We will love her regardless.
8.18.2009 9:13am
Joseph Slater (mail):
Ah, nothing like a SSM thread to bring out the best in all of us. Discussions of whether Stalin (unlike Obama) is a "real Marxist" -- heck, I haven't heard that argument since the motley "Trotskyists" on my college campus used to harrangue me about "state capitalism."

And a poster whose repeated use of the term "rabidly" to describe others demonstrates a certain lack of self-awareness.

But finally, in the why-can't-we-all-get-along category, consider this quote:

any more than it implies a State role in choosing the starting lineup of the Chicago Bulls.

Could not even the most hard-core libertarians on this site agree that, for some time now, the government could not realistically have done any worse -- and might well have done better -- choosing the Bulls starting lineup than the actual management/coaches of the Bulls have done?
8.18.2009 10:30am
einhverfr (mail) (www):
John Moore:

Of course it is. This is not a love relationship, but the use of another person's body for purely biologic function.


Ok. So let's focus on this common ground for a moment.

A prerequisite for a valid marriage in your opinion then is that it be a love relationship. (I am not saying that is the only prerequisite, just that it is one.) Presumably this means that individuals who cannot satisfy this requirement in addition to others should not get married, right?

Now, in certain circumstances we can agree that society has a just role in protected folks from predatory relationships, so age of majority rules are something both of us would further agree with. Similarly, there may be legitimate reasons to ban human/animal sexual relations relating to questions of animal cruelty.

However, beyond that, folks who would then otherwise find that loving, erotic relationship with individuals of their own gender.... What is the proper role in society for them? Presumably they should remain celebate? And since they can't get married, doesn't it necessarily follow that the main door that is open is to the priesthood (at least among Catholics)?

Is this what you would advocate? Or would you advocate something else?
8.18.2009 10:48am
Connecticut Lawyer (mail):
All the debate above about what the sociological/psychological/medical studies prove or don't prove is utterly irrelevant to the Constitutionality of laws requiring that marriage be between men and women. Those studies may be relevant to some legislative debate. But the Court is not a legislature and has no business trying to act as one.
8.18.2009 12:26pm
NickM (mail) (www):

Inaccurate on both counts. Lawyers follow the instructions of their clients, and if the client doesn't want to advance a particular argument for policy reasons of its own (a frequent occurrence where very large clients are concerned), the client is free to decline to make that argument and the lawyer is bound to follow that direction.


Cornellian - in this case, the client is not the executive branch, but the entire U.S. government. Congress has at least equal say-so on what reasons served as a basis for passing this law. The brief, however, just asserts the position of a successor executive branch. I rather doubt that a majority of both houses of Congress would publicly disclaim this rationale.

In the California case, it was even worse, because the statute at issue there was passed by the voters over the opposition of the state AG. IMO disclaiming any arguments offered as rational bases (unless such would clearly be foreclosed by reason of having been disclaimed in the ballot arguments for the proposition or would be frivolous to raise) in such a case is a breach of ethical duties. His client is the people, not the government.

Joseph Slater - considering how the federal government ran a casino, a government-run Bulls team would have probably traded Derrick Rose to the Knicks for Stephon Marbury.

Nick
8.18.2009 12:35pm
einhverfr (mail) (www):
Connecticut Lawyer:

All the debate above about what the sociological/psychological/medical studies prove or don't prove is utterly irrelevant to the Constitutionality of laws requiring that marriage be between men and women. Those studies may be relevant to some legislative debate. But the Court is not a legislature and has no business trying to act as one.


What level of scrutiny should be applied to laws which discriminate against homosexuality? Does equal protection have any teeth in this area?

I.e. would there be a difference if the Federal law simply allowed states to recognize or not any marriage that didn't conform to their standards? Or is singling out SSM special?

For example, under a Federal DOMA which did not single out SSM, wouldn't it be reasonable for Louisiana to refuse to honor common law marriages which became valid in other states? Why should that be different than SSM?
8.18.2009 12:40pm
einhverfr (mail) (www):
(BTW, I think it is the job of the courts to do as little as possible to render the laws consistent and effective.)
8.18.2009 12:43pm
A. Zarkov (mail):
"It's probably an illuminating comparison, actually, as height is strongly determined by nutrition and other environmental factors, in addition to genetics."

Some traits are wholly genetic such as eye color. General intelligence (g-factor) as measured by IQ and other tests is influenced by both genetic and environmental factors. The heritability (fraction variance explained) of IQ is somewhere between 0.5 and 0.85. Psychometricans do talk about the "heritability of IQ."

Unlike height which is a ratio variable, IQ is an ordinal variable. While we can meaningfully say that one person is 50% taller than another, we can't say one person is 50% more intelligent. Unfortunately many people think IQ is a ratio variable and misunderstand the implications of IQ differences. Since IQ is ordinal, any rank preserving transformation is allowed. As such the normal distribution for IQs is pretty artificial. We could make it most any distribution. The distribution of white IQs has a mean of 100 and a standard deviation of 15 by definition, although there are historical reasons for choosing these numbers. All measured IQ scores are referenced to the defined white distribution.
8.18.2009 12:53pm
A. Zarkov (mail):
Alanmt:

"We don't care if she grows up to be gay or straight."

Do you really mean that? Of course you will love your child just as much if she should become homosexual. I understand that, and feel the same way about my daughter. But suppose you knew that feeding your daughter an apple a day as she was growing up would avoid her becoming homosexual. Wouldn't you do that? Or are you actually indifferent about her future sexual orientation? That that through carefully.

After all that, congratulations!
8.18.2009 1:34pm
Danny (mail):
I don't think that gay people must have internalized homophobia if they hope that their kids turn out heterosexual. Most people want their kids to have the easiest, most convenient life possible. They want them to be happy. And let's face it, it is more challenging to be gay in 2009 than to be straight. Gays have to deal with a government that is hostile to their interests, societal prejudice and discrimination as well as just the regular complications that come with being part of a small minority, such as finding good relationships in a small dating pool. And most people want grandkids which you are more likely to have if your kids are straight. Obviously it is not a moral question but a practical one.

Of course, unlike some straight parents gay parents probably all love their kids unconditionally and would never throw them out or make it into a tragedy if their kids came out.. they would be supportive.
8.18.2009 2:04pm
einhverfr (mail) (www):
A Zarkov:

Speaking as a parent, it isn't that I wouldn't prefer my child not to have extra difficulties thrown in his path in life, but that homosexuality ranks far lower than general sexual neuroses and a general lack of self-confidence.

One problem with the argument about parenting is that there is a decent chance that one important factor may be religious browbeating over moral issues. IMO this would be a cure worse than the disease. Since I would expect homosexual couples to condemn homosexual activity less than a certain segment of straight couples, I would be suspicious of any study which suggests that this is causation instead of correlation unless other factors (such as religious upbringing and geography) were adequately factored out.

Once again, the cure might be worse than the disease. Unless you can show me what the alternatives are for each specific child, the broad generalization breaks down.
8.18.2009 2:08pm
Joseph Slater (mail):
NickM:

Take a careful look at the Bulls current roster and salary cap situation. It's worse than one bankrupt casino.

Zarkov:

As others have said, the only reason I would be concerned if my son turned out gay would be that he would face irrational bigotry from some corners of society. Fortunately, that level of bigotry has gone down considerably in recent years, and I predict it will continue to do so. And fortunately, while there is no magic apple I can feed my kid to make him gay or straight, I can teach him not to be bigoted.
8.18.2009 2:23pm
Losantiville:
children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.

Since they are much more likely than the children hetro couples to be commies (since most homosexuals are 'of the left' -- 3/4 of gays voted for BHO), their well-adjustment is bound to be below average (since non-commie kids are better adjusted than commie kids).

See the GSS.

Trads are happier, healthier, and longer-lived than non-trads and gays are definitionally non-trads.

Example in the non-sexual preference context:

1988 Democratic National Convention. Edward Moore Kennedy gives speech complaining about George H. W. Bush with numerous lines ending "... and where was George?".

Next day, Republicans don quickie t-shirts reading "Sober, At home, In bed with his wife."

You can't both embrace "difference" and disclaim "difference" at the same time.

As soon as I encounter a "True Love Waits" movement among gays, I'll believe in normalcy.
8.18.2009 2:50pm
Losantiville:
American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America

I wonder about people who judge truth by depending solely on the opinions of left-wing institutions. Shouldn't your search for truth be a little more diverse?

I know most people commend their souls, education, and entertainment to lefties but it seem pretty stupid to me. Why would you subsist in such a monoculture?
8.18.2009 2:59pm
Danny (mail):
@ Losantiville

So you want gays to become hypocritical trailer trash?
Do we have to grow mullets too?
8.18.2009 3:13pm
Joseph Slater (mail):
I know most people commend their souls, education, and entertainment to lefties

Most people, eh? So the U.S. really isn't a "center right" country in your view, but a leftist one?
8.18.2009 3:38pm
Lymis (mail):
People whip out the contention that the Administration is somehow required to defend existing laws if they are litigated. Who says? Where is this requirement?

I can certainly understand the idea that they are required to enforce existing laws until such time that they are repealed. Possibly even aggressively so in some cases.

But why in the world should they have to claim that they agree with them and support them as policy simply because they are on the books?

Seems to me enforcement of laws and defense of them are getting conflated.
8.18.2009 3:39pm
Danny (mail):

If in order to be "leftist" all that is required is to be in favor of giving everyone health care (even at the expense of other, lavish social programs), being in favor of relationship rights for gay people, and prudence and tact in international relations, then being "leftist" should be a badge of honor. If only the Democrats were as "leftist" as the conservative parties of Britain or Canada.
8.18.2009 4:09pm
Alanmt (mail):
Thank you Zarkov,

I have given the issue some more serious thought. As others have noted, my main concern if my child becomes homosexual would be the diminishing but still existent prejudice she would have to face, but as a girl who will have two dads, that's going to exist anyway. We deliberated at length about having a child for just that reason.

I would no more feed her an apple a day to make her straight than I would to change her race or gender.

I have to laugh at posts like Losantiville's. My guy and I are about as trad as you can get.
8.18.2009 4:14pm
einhverfr (mail) (www):
I can't figure out whether Losantisville's posts are supposed t be satirical or not.....
8.18.2009 4:15pm
John Howard (eggandsperm.org) (mail) (www):
"Ha ha. You say this like your parenting actually can influence the sexuality of your children."

Zarkov only brought up parenting your own children as a metaphor for the government's interest in people being straight that is advanced by not allowing same-sex marriages. Yes it does.

We can see by how much money people pay IVF doctors how much it is worth it to people to be fertile and have biological children. And we know that most couples value being able to have children together, and children value their progenitors and parents being the same people who love each other. And we know that it costs the government and insurance companies lots of money to fight infertility in all the ways it does.

And of course we know that same-sex conception might be prohibited, or never become feasible, so we can't assume it won't matter for kids whether they are straight or gay, and we should try to preserve everybody's health and fertility, which therefore means their ability to be straight, so they can have children with the person they love.
8.18.2009 4:16pm
A. Zarkov (mail):
Joseph Slater:

"As others have said, the only reason I would be concerned if my son turned out gay would be that he would face irrational bigotry from some corners of society." [emphasis added]

The only reason? Apart of "irrational bigotry" against gays, you can see no other reason for preferring you son not be gay? Surely you don't mean that.

"And fortunately, while there is no magic apple I can feed my kid to make him gay or straight, I can teach him not to be bigoted."

You can and that's certainly a desirable goal, but is it the highest goal? Would you prefer a honest, but bigoted son over a dishonest but apparently unbigoted son? We can replace "honest" with other desirable traits as well.

I see today that non-discrimination has become America's supreme virtue. Let's look at where is attitude is leading us.

Chief of Naval Operations Gary Roughead announced that "diversity is the "number one priority" at the Naval Academy. Number one? I thought that our Naval Academy's number one priory is to turn out competent naval officers. But you see in modern America non-discrimination is our highest possible goal. I detect this attitude in your response. You can't quite muster enough candor to really admit that being gay has some drawbacks other than the suffering of bigotry because non-discrimination is your supreme virtue. (I am being hyperbolic here to make a point. I don't really know what you actually believe.)

A professor at the Naval Academy takes exception and wrote this opinion article.
8.18.2009 4:21pm
MCM (mail):
The only reason? Apart of "irrational bigotry" against gays, you can see no other reason for preferring you son not be gay? Surely you don't mean that.


Could you stop teasing and just tell us why you feel someone would want to feed their child that magic apple of yours?
8.18.2009 4:54pm
Joseph Slater (mail):
Zarkov:

First, yes, the only reason I would be concerned if my son were to turn out gay is the irrational bigotry he might face. What else do you suppose I should be concerned about that would be unique to being gay? I guess that gay people, being a minority of the population, have fewer choices of potential mates, but there are other folks (e.g., those with certain religious beliefs) e.g.) who have limited choices as well.

Second, I never said that "not being bigoted" was the "highest" goal I have in child-rearing. It's a very important one, as is honesty. Fortunately I don't have to pick between various important goals, and being "honest" and being "not bigoted against gays" are in no way contradictory or competing values. I was contrasting something I might be able to influence (tolerance) with something I can't (sexual orientation).

Thus, your point about the Navy is not responsive to my points.
8.18.2009 4:54pm
John Howard (eggandsperm.org) (mail) (www):
Why does it have to be something unique to being gay? Yeah, many straight people are infertile and often unable to have children with the person they love, but ALL gay people are unable to have children with the person they love. Infertility in straights is a chance that we all acknowledge should be minimized, while infertility in gays is a certain fate, and publicly obvious.
8.18.2009 5:08pm
A. Zarkov (mail):
"Could you stop teasing and just tell us why you feel someone would want to feed their child that magic apple of yours?"

A homosexual son must either adopt, or get a surrogate mother to have children. In my opinion, both choices are inferior to the traditional means of getting a family. There's a really good reason for courtship: you know a lot about the person who will become your mate. To adopt, or use a surrogate mother is to play genetic roulette. A great many of our desirable and undesirable personality traits are inherited or have a high degree of heritability. If you want a greater chance of having children with personalities compatible to yours then then the traditional approach is the best assuming you pick your mate carefully. Unfortunately many of us don't, but that's another matter.

A homosexual daughter is somewhat less problematical if she can get a man she knows well to donate sperm. Of course any man who does that has to be pretty foolish, so he might be out of consideration a fortiori. A sperm bank or adoption gets us back to genetic roulette.

Then we have the whole area of adverse effects on children of having same sex parents. We don't have enough data to come to a definitive conclusion on that, but personally I think a child gets different and desirable things from two parents of the opposite sex. I can't prove that, but that's my intuition and I have confidence in that.

For all those reasons, I would feed my children the magic apple.
8.18.2009 5:23pm
Joseph Slater (mail):
John Howard:

Gays are not infertile as individuals. But as you say they, like some straights, are not capable of conceiving with their romantic/sexual partners. I guess in the universe of plusses and minuses, it's reasonable to consider that a minus as a generalization. Although in addition to some straights being infertile, some don't want to have children, some don't meet the right partner at the right time and don't have children, some are lousy parents, some have kids at the wrong time or with the wrong person, (thus messing up the lives of kids and/or parents).

And of course quite a few gays and lesbian couples raise kids that are not the product of both people in the couple, and they (parents and kids) are quite happy in that.

Anything else I should be concerned about?
8.18.2009 5:25pm
A. Zarkov (mail):
Joseph Slater:

"Second, I never said that "not being bigoted" was the "highest" goal I have in child-rearing."


I know you didn't, and that's' why I said I was being hyperbolic.

My story on the Naval Academy is in the nature of dictum.
8.18.2009 5:26pm
einhverfr (mail) (www):
John Howard:

And of course we know that same-sex conception might be prohibited, or never become feasible, so we can't assume it won't matter for kids whether they are straight or gay, and we should try to preserve everybody's health and fertility, which therefore means their ability to be straight, so they can have children with the person they love.


I am fascinated by this argument. Can you define "their ability to be straight" for me?

Also, would you mind reviewing my response to John More?
8.18.2009 5:28pm
Joseph Slater (mail):
Zarkov:

Why do you think that men who donate sperm are, necessarily, foolish? Do you feel like you know all of the many men who have done that and all of their various motivations to make such a sweeping judgment?

Beyond that, see my response to John Howard.
8.18.2009 5:28pm
MCM (mail):
A homosexual daughter is somewhat less problematical if she can get a man she knows well to donate sperm. Of course any man who does that has to be pretty foolish


I'm curious about this; why must be "foolish"?
8.18.2009 5:30pm
Joseph Slater (mail):
Zarkov:

I am also puzzled by this form of argument. You attribute a claim to me that I didn't make, then write: You can't quite muster enough candor to really admit that being gay has some drawbacks other than the suffering of bigotry because non-discrimination is your supreme virtue. (I am being hyperbolic here to make a point. I don't really know what you actually believe.) Then you say that this is "dicta."

I have found you to be civil in our disagreements in the past, so I would just caution that it might be jarring for you to read something like, you are too dishonest to admit that you are a bigot and that oppressing gays is your supreme virtue (I'm being hyperbolic, I don't know what you really think).
8.18.2009 5:34pm
Danny (mail):
All this is assuming that gay couples want kids which takes us away from the core of the SSM debate..

The US went about it backwards with respect to other countries. The USA instantly allowed the most controversial thing, same-sex adoption and parenting without SSM or civil unions. They didn't accomplish the simplest anti-discrimination steps before jumping ahead. Only now that there are millions of people being raised by gays they are they getting to discuss partnership and marriage rights.. and maybe someday they will even address employment and pay discrimination.

Obama doesn't even have the balls to clearly demand that the law say that gay people should get paid $1 for every dollar that a straight person makes and that people should not be hired/fired because of sexual orientation. But then again we elected glacial change we can't believe in.
8.18.2009 5:34pm
A. Zarkov (mail):
Joesph Slater:

"Why do you think that men who donate sperm are, necessarily, foolish?"

I'm referring to sperm donation done outside a sperm bank. If you give a woman your sperm, then your risk a paternity suit sometime in the future.

"You attribute a claim to me that I didn't make, then write: You can't quite muster enough candor to really admit that being gay has some drawbacks other than the suffering of bigotry because non-discrimination is your supreme virtue."

I thought you were being evasive, but subsequent statements show that you are not. I should have worded that differently. Nevertheless I do think it applies to some people, but obviously not to you.
8.18.2009 5:51pm
Joseph Slater (mail):
Zarkov:

Fair enough.
8.18.2009 5:54pm
A. Zarkov (mail):
MCM:

"I'm curious about this; why must be "foolish"?"

See my answer above. I assume I don't have to tell lawyers about family law.

BTW a few years ago, (I think) a Pennsylvania judge ruled that even a sperm bank donation does not provide a sperm donor with immunity against a paternity suit.

In Michael Michael Crichton's novel Next, a doctor who made an anonymous sperm donation (for money) faced a lawsuit because he had a heritable and undesirable personality trait.
8.18.2009 6:01pm
cmr:
All I'll say is this: if Obama overturns DOMA, or causes the SCOTUS to overturn it, he wont be getting my vote.
8.18.2009 6:13pm
John Howard (eggandsperm.org) (mail) (www):
And of course quite a few gays and lesbian couples raise kids that are not the product of both people in the couple, and they (parents and kids) are quite happy in that.

Well, I'm sure people can be "quite happy" in many circumstances that they would be even happier to change. The huge amount of money spent on fertility treatment is proof that people are NOT happy when they cannot have children with their partner. The fact that gay rights activists guard same-sex conception rights and refuse to accept that it should be banned is more proof that people are not happy being infertile with their partner, even though they are probably perfectly fertile with an opposite sex partner and could acquire children in other ways.

Any parent, and any caring government, would protect its children and its citizens from the disappointment and expense of infertility. And infertility is something both members of a couple experience, not just one.
8.18.2009 6:41pm
John Howard (eggandsperm.org) (mail) (www):
Can you define "their ability to be straight" for me?

To be capable of loving and having pleasing satisfying sex with someone of the other sex, right? To have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, someone of the other sex, right?
8.18.2009 6:46pm
ShelbyC:

I'm referring to sperm donation done outside a sperm bank. If you give a woman your sperm, then your risk a paternity suit sometime in the future.


I've never understood why it makes a difference if you go through a sperm bank or not.
8.18.2009 6:54pm
troll_dc2 (mail):
Frankly, I think that infertility is the least of our problems, given the excessie population that is already in existence.
8.18.2009 6:54pm
troll_dc2 (mail):
Ouch. I am great at inventing words, but "excessie" should be "excessive."
8.18.2009 6:56pm
Danny (mail):

To be capable of loving and having pleasing satisfying sex with someone of the other sex, right? To have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, someone of the other sex, right?


Wrong. Not everyone wants a relationship. Being straight is about being anything from a prostitute to married or to being a nun. Plenty of straight people who have zero interest in monogamy, honesty or commitment (like plenty of gays, too). If you are hot you can bang as many people as you want until old age. That is straight life, too, man.
8.18.2009 7:12pm
John Howard (eggandsperm.org) (mail) (www):
It's true that the government might feel that eugenics is better than natural sex, and that as many people should be infertile and homosexual as possible, so that as much reproduction happens via controlled and screened processes. But that violates basic human rights, the government ought to be protecting everyone's fertility.
8.18.2009 7:12pm
A. Zarkov (mail):
ShelbyC:

"I've never understood why it makes a difference if you go through a sperm bank or not."


It can make a big difference for the donor depending on the state law that applies.

In some states such as Pennsylvania, any insemination done outside a licensed insemination facility means the donor is automatically the father. California provides somewhat more protection for the donor outside a licensed insemination facility. If a licensed medical professional does the insemination, then the donor is not legally the father and has no responsibility for support. If the woman is married then her husband is presumptively the father.

Some guys get in a pack of trouble by doing a favor for a woman by donating sperm. Even if he has an oral or written agreement, he runs a substantial risk of a future paternity suit. Those contracts are generally held as against public policy and are therefore void.

My advice: don't do it. If you must be a donor than do it through a licensed sperm facility. Check the state law. Look at the case law and see if the courts are trending in a direction of providing less protection to the donor. You never know if in the future the law will change and one day you wake up to a paternity suit.

Best advice. Don't do it period.
8.18.2009 7:18pm
John Howard (eggandsperm.org) (mail) (www):
Yeah, don't do it through a sperm bank either. There are so many blogs by children looking for their donor, donors wondering about their children, etc. And given the excessive population and energy crisis, it's really ridiculous that we tolerate people purposefully going to so much expense and consumption.
8.18.2009 7:36pm
A. Zarkov (mail):
"And given the excessive population and energy crisis, it's really ridiculous that we tolerate people purposefully going to so much expense and consumption."

I think artificial insemination contributes little to population growth compared to immigration and Third World fertility. The US has a net in migration of about 1.5 million per year if you properly count the number of illegal aliens which the Census Bureau does not. The bulk of the immigrants are from Mexico. Foreign born Latinas have a total fertility rate of almost 4 children per woman. The Latinas in Mexico have a TFR= 2.3. Migration into the US causes an increase in birth rate. The US TFR as a whole is about 2.1. White women (those going to sperm banks) have a TFR= 1.87. Latinas don't need sperm banks-- they do it the old fashioned way at other people's expense.

If you are worried about population growth stop immigration.
8.18.2009 7:49pm
John Howard (eggandsperm.org) (mail) (www):
But artificial insemination is not a basic human right and it could be stopped, whereas natural reproduction by people is a right, and can't be stopped. And not all children have the same carbon footprint. The child of a lawyer is going to burn way more gas over his lifetime than four children of a poor immigrant, and probably do less useful work, too.
8.18.2009 7:54pm
ShelbyC:

Best advice. Don't do it period.


Heck nowadays I wonder if it's even a good idea to develop a relationship with an S/O's kid, with all the equitible adoption stuff.
8.18.2009 7:55pm
A. Zarkov (mail):
"The child of a lawyer is going to burn way more gas over his lifetime than four children of a poor immigrant."

Not in California. The immigrants drive old clunkers, while the yuppies are waiting for the Volt. Someone has done the calculation and immigration to the US does increase the worldd's net carbon emission. But we could do both. Close down the sperm banks and stop immigration. It's not one or the other.
8.18.2009 8:01pm
Danny (mail):
I hate to bring it back to the topic of the thread, but what will happen with the DOMA / SSM debate? Because of DOMA, couples who are legally married in five states cannot file federal taxes together or get their partner's social security.. there are no immigration rights for Americans' spouses..
8.18.2009 8:04pm
einhverfr (mail) (www):
John Howard:

To be capable of loving and having pleasing satisfying sex with someone of the other sex, right? To have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, someone of the other sex, right?


Ok. Now let's look at this carefully. You think it is important that everyone be able to find heterosexual relationships loving and sexually satisfying. This presupposes that everyone is capable of this on a basic biological level. However, these questions become more complex when looking at the real world.

For example, there seems to be a moderate genetic factor in male homosexuality which is not present (or at least not present to the same degree) in female homosexuality.

The first question is "at what cost?" Is it worth making our teenage kids feel ashamed at their own tendencies in the hope we can turn them around? At what point is the response worse than what you define to be the problem?

This is the question I have repeatedly asked to A. Zarkov and not yet received any response.

The second is whether you see divorce as a far greater threat than same sex marriage. After all a substantial number of Americans don't seem to care much about the "until death do us part" bit. Since there are probably more straight folks who are divorced than there are gay folks in this country (of whatever relationship status), wouldn't it make more sense to work on this problem instead?

Now on the second point, as a Norse pagan, I see no reason to argue that marriage needs to be seen as permanent either as a religious matter. As a pratical and social matter, in terms of dealing with inlaws, raising kids, etc. there are many reasons to make a good faith effort to keep it together, but these are mere practical elements. The Vikings made it easy for men to divorce their wives and for women to divorce their husbands, and provided for substantial protections against poverty for both parties to the divorce. Nor was remarriage frowned upon in the least (for example, see Hallgerd in Njal's Saga or Gudrun Osvithsdottir in the Laxdaela Saga). Like modern America, they didn't have an issue with retroactive contraception either (though due to the unavailability of abortion, such was conducted in the first few days after birth). Why should our public policy be based on your religious views instead of mine?
8.18.2009 8:09pm
Cato The Elder (mail) (www):
A. Zarkov,

You have said previously, in other contentious debates, that we must understand the world in order to form opinions on it. I agree. Consequently I am disappointed that a fellow empiricist seems to disagree with my views. Hence I give the reasons that I personally support gay marriage:

First of all, I think the Left and the Right are speaking past one another on this issue. The Left, because understanding it fully would destroy their naturalistic appeals to egalitarianism, and the Right because it is loaded with deep implications about the reality of religion and the social construction of morality. I think Ricardo's criticism of the anti gay-marriage studies is correct; there are whole host of genetic factors they should have controlled for; since homosexuality is odd in that it seems to fly in the face of Darwin's theory of evolution by natural selection, that would imply some heritable and adaptive genetic basis for the behavior, which also implies that any parenting study should control for the confound. The studies are not rigorous because both sides are seeking a conclusion they want to reach, and view this empirical question through very unaccommodating lenses. You know very well that there are too many leftists and many fundamentalist right-wingers who absolutely abhor the discussion of genetics and its influence on human behavior.

The key point to this discussion to me is the following question: Are gays a fundamental class? To many people, this hinges on the malleability of their sexuality, which in return requires a reconnoitering of the so-called "nature/nuture debate" (a false and misleading dichotomy). Unfortunately we observe that the data and theory produced here is poor because it is tainted by ideology, on both sides. Not even the relatively well-informed understand much. Even if but for that reason alone, I would still default towards a legal interpretation that favors granting them the franchise of marriage, since I am loath to give the government power to regulate any freedom of behavior, especially when that power is broadly tailored and turned towards something that is poorly understood.

The main problem as I see it is that we are speaking of "homosexuality" much too broadly. Lesbians are very different from male homosexuals, in a whole host of behaviors. What's more, there is convincing evidence to show that it is primarily they, and not male homosexuals, who are seeking marriage rights, adoption rights, etc. This divergence is quite large: this site says that there are 2.4x as many F/F same-sex marriages as M/M same-sex marriages in Oregon. Ergo, homosexual males only make up about 29% of initial same-sex couples there in the first place, not yet speak of the widely divergent predilections for parenting between the two demographics. This particular paper says that over time, after the burst of people eager to get their lifestyles validated by the State are relieved, it becomes on order of 4 to 1 or 5 to 1, meaning that only 16% - 20% of same-sex couples are male homosexuals. For that reason I will focus on lesbians mostly, and then return to the latter group later. I think lesbians are far more important to the discussion of whichever social pathologies that people who are against gay marriage are concerned about introducing, at least with regard to family dynamics.

Luckily, we have reason and the science of evolutionary psychology to guide us through this particular debate. We should be very specific in delineating the behavioral tendencies of lesbians and homosexuals if we are to make unilateral judgments about their parental fitness.

You see, given the little I understand, it makes no sense to me that lesbians should be worse parents than average. This is because I interpret the scientific evidence to say that lesbianism is an adaptive solution to lacking male parental investment; one might superficially say an adaptation to become a more nurturing parent. My anecdotal experiences with two lesbian couples bears out that interpretation. One of them obviously went "all out" when it came to taking care of the only child in their relationship, to the point of expensive music lessons and a tutor as the boy was reaching scarcely 3 or 4 years old.

einhevfr, in a previous discussion thread about abortion, mentioned that one condition for Icelanders to join the Lutheran Church was that the custom of infant exposure after eight days was preserved. I found that tidbit very interesting, and it is relevant to help make my point.

The work of Sarah Hrdy, a primatologist, has suggested that gauging allo-maternal care is important to the behavioral strategy of new mothers (Hrdy 2005) . I should define allo-maternal care: it is defined as the amount of external care that a society provides in excess of the mother's capability to provision. Human beings require something like 13 million calories until they are able to develop into functional adults, far in excess of what a single mother by herself can provide. Consequently, gauging the amount of external care she can receive from her kin and society is at large is very consequent to her parenting decisions, as altricial (helpless) infants of Homo sapiens are significantly taxing to raise. The custom einhevfr elaborated upon is a fine example of a woman judging that since there is insufficient forthcoming investment in this particular child, so she abandons this potential reproductive investment in favor of a future one — she chooses to expose the child to the elements, and certain death.

The same principle is at work in lesbian behavior, because I think Nature endowed women with psychological mechanisms to better improve on that last outcome. ('tis not so strange, is it, when you consider that infanticidal Iceland is also the only country in the world to be governed by an open lesbian.) I think lesbianism is an ESS, similar to infanticide, utilized by kin-related females who develop strong emotional attachments to one another when needed in order to solve the evolutionary problem of lacking male provisioners. (Because they cannot directly produce offspring of their own, the potential problem of inbreeding depression is mitigated. This is a cogent example of kin-based altruism a la Hamilton). For example, "women in lesbian relationships have reported that they receive more support in child rearing from their female partners than their heterosexual friends do from their husbands" (Ross 2005; Ross, Steele, &Shapiro 2005). They are also more likely to state than men that they "made a choice" in their sexuality rather than they were "always that way" (Rust 1992, 1993). And, suggestively, they were much more likely to say they changed sexual orientations after an abusive relationship. Id.

I think that theory would help explain why lesbians can be so dimorphic in their relationships, where there is one "butch" and one "femme" (e.g., this). I also think this might be a small reason why people find female homosexuality less offensive than male sexuality; while a lesbian is capable of bearing and raising a child of her own blood, a male homosexual is kind of "goofing off" and shirking his evolutionary "duty". (I am also aware that this is a facially group selectionist argument; however, I think the relevant groups were much smaller in the EEA, and also, closely related to one another, like the social structure of chimpanzees who live in groups of kin-related males intermixed with kin-related females.) Being wary of forthcoming investment, I predict that lesbians would tend to be more K-selected strategists in their parenting habits (See this article here that anecdotally describes this phenomenon.) That is, they would emphasize quality over quantity. That is, they would make fine parents.

There is an analogue of the same type of behavior in males, but it is not homosexuality. In certain cultures, like among the Nepalese for example: two, usually poor, brothers "marry" the same woman and raise a family in what is called cooperative polyandry.

I think male homosexuality is a much more complex phenomenon. It's much much harder to divine the causes of that behavior IMO. Male homosexual behavior can be a tool used to manipulate social dynamics including bonding, status jockeying and the like; e.g., Greek pederasty, and prison rape. I believe those motivations are different from those that act on "natural" homosexuals, those who describe themselves in surveys as feeling that they were "born that way". Some speculative theories on their cause include "sexy sisters", pre-natal viruses, and chimeras. Much more complicated. However, since 1) they generally don't want to get married, being males who devote more effort to mating and 2) being males, are especially not interested in paternal investment unless "forced" to by the strictures of marriage, they just aren't important to the analysis. Therefore, any worry about their much higher proclivity to partake in risky sexual behavior shouldn't much matter anyway -- they largely bear the costs themselves, not children. When people disapprove of homosexual marriage or adoption, they think of gay men, when they really should be thinking of lesbians.
8.18.2009 8:12pm
Cato The Elder (mail) (www):
Yecch...I'm never doing that again.
8.18.2009 8:18pm
einhverfr (mail) (www):
Cato the Elder:

einhevfr, in a previous discussion thread about abortion, mentioned that one condition for Icelanders to join the Lutheran Church was that the custom of infant exposure after eight days was preserved. I found that tidbit very interesting, and it is relevant to help make my point.


Umm... That was the Catholic Church. And it was a few centuries before the Reformation.

Not that Iceland was ever conventionally Catholic. They didn't have celibate Catholic priests until after the country converted to Luterhanism five hundred years later.....
8.18.2009 8:33pm
einhverfr (mail) (www):
However, interesting and thought-provoking post.
8.18.2009 8:34pm
Cato The Elder (mail) (www):
einhverfr,

Whoops. I had "Catholic" originally, but changed it to "Lutheran" after thinking, "that can't possibly be right..." Should have double checked it.
8.18.2009 8:35pm
http://volokh.com/?exclude=davidb :

If you are hot you can bang as many people as you want until old age. That is straight life, too, man.

I'm starting to think that I may not be "hot."
8.18.2009 8:57pm
John Howard (eggandsperm.org) (mail) (www):
The first question is "at what cost?" Is it worth making our teenage kids feel ashamed at their own tendencies in the hope we can turn them around? At what point is the response worse than what you define to be the problem?

When it stops being compassionate and kind and understanding, I suppose. But surely it is compassionate to preserve people's ability to be straight, even by means of maintaining social stigma and shame. We shame lots of things that people do anyways, and surely people do things for genetic and other reasons out of their control. Farting comes to mind...
8.18.2009 9:01pm
Danny (mail):
John Howard, we need to preserve your ability to be European and agnostic
8.18.2009 9:19pm
einhverfr (mail) (www):
Danny:

When it stops being compassionate and kind and understanding, I suppose. But surely it is compassionate to preserve people's ability to be straight, even by means of maintaining social stigma and shame. We shame lots of things that people do anyways, and surely people do things for genetic and other reasons out of their control. Farting comes to mind...


I never felt ashamed of farting...... Slightly socially uncomfortable, but never ashamed......

The role of shame should be for things that cause real, rather than merely speculative social damage. Shame the niggard who refuses to share his good fortune or wealth. Shame the inhospitable. Maybe even shame the cowardly.
8.18.2009 9:40pm
Putting Two and Two...:

For all those reasons, I would feed my children the magic apple.


And in the absence of magic apples, you perpetuate your prejudices and just hope statistics save you from ruining your relationship with your children.
8.18.2009 11:06pm
einhverfr (mail) (www):
My last comment was directed at John Howard, not Danny....
8.18.2009 11:35pm
ghost:
This is factually false. But hey, maybe you believe in young-earth creationism and the death panels, so who am I to argue.


Wrong.

"Properly speaking, homosexuality does not exist among animals.... For reasons of survival, the reproductive instinct among animals is always directed towards an individual of the opposite sex. Therefore, an animal can never be homosexual as such. Nevertheless, the interaction of other instincts (particularly dominance) can result in behavior that appears to be homosexual. Such behavior cannot be equated with an animal homosexuality. All it means is that animal sexual behavior encompasses aspects beyond that of reproduction." Dr. Antonio Pardo

"Although homosexual behavior is very common in the animal world, it seems to be very uncommon that individual animals have a long-lasting predisposition to engage in such behavior to the exclusion of heterosexual activities. Thus, a homosexual orientation, if one can speak of such thing in animals, seems to be a rarity." Simon LeVay

Bravo, you didn't sleep through all of biology class then, just 90% of it.


Fail.

All "homosexual activity" is more dangerous than.. (presumably any heterosexual activity)? So lesbians kissing is more dangerous than a man and a woman having vaginal or anal intercourse without protection? It is more dangerous to have sex with a gay virgin than a straight prostitute? Clearly heterosexuals and homosexuals, men and women, have a vast range of things that they can do in bed and I think you are sexually ignorant if you think it's based on orientation rather than actions and number of partners. In all fairness you do sound a little repressed and uneducated about human sexuality.


Is that all that you have? Throw out a few ad hominems here and there and ask a bunch of stupid questions? Have you ever looked into Anal Cancer and the other risk of trauma and injury that certain activities carry with them?

And if all homosexual sex were more risky - wouldn't that be an argument in favor of SSM and monogamy?


Absolutely not. Why would we want to legitimatize behavior that is risky and cannot result in procreation?

Of course THIS is the real heart of the matter. Certain folk want to use the government to legitimatize and embrace certain sexual fetishes.
8.18.2009 11:35pm
ghost:
That's odd, considering the creator made homosexuals along with the rest of us. Maybe he was out for a smoke break or something?


The Creator never made individuals homosexual. Rebellion against the created order makes people homosexual.
8.18.2009 11:37pm
ghost:
I think it's perfectly consistent with the "Created order." Why should your idea of the "Created order" govern?


I'll throw the question right back at you. Why should your notions prevail? Why should we submit to your ideas for governance?

According to some people, allowing women to have authority over men is also "against the Created order" yet we, fortunately, live in a society where you are free to disagree with that person's or any person's idea of the "Created order." Appeals to the "Created order" aren't going to get you anywhere.


That's a hilarious position for someone of you ilk to take, as you want to use raw governmental power to force others (the majority) who disagree with your (minority) notions to submit to them.

You want the minority to rule the majority. Absent any other considerations, why should this be permitted? Why should the minority rule over the majority?

And what happens if I disagree with your notions? Can I then exercise force to get my way? That is after all what you are proposing to do to me.
8.18.2009 11:44pm
ghost:

I am glad you agree it would be "artificial" for a homosexual to sleep with a heterosexual of the opposite sex for the purpose of engendering a child. Presumably this would also suggest that homosexuals should not be able to be a party to an opposite sex marriage.....


You really are dense if you think you are going to be able to put words in my mouth. It's a pathetic and ignorant tactic. I think you know quite well what I said, and since you have no response, you try this juvenile nonsense.


On what basis? Because homosexuality is bad in your view?


Because the protection of Sodomy is not deeply rooted in our nation's history and tradition. Nor can the Court, other than in an act of raw judicial power, simply declare that the moral standards of society are not a rational basis for upholding a particular statute. The fact is, almost all law makes some sort of moral judgment, and the Court has no right to substitute it's judgment for that of the people and their elected represenatives.

Sure, but biblical or Christian arguments won't be very persuasive. Just figured I would give you fair warning. Also I did ask what made it worse in itself and you have attempted to answer this. I do appreciate that effort for what it's worth.


So why would secular arguments be persuasive then? What makes you think that you can pick and chose which arguments will be permitted and which won't? What makes you think that society can't embrace any set of argument that it finds persuasive?

Government force? Raw Power? What if the majority decide to exercise their raw power to deny you your chose of arguments?

To make that point persuasive, you will have to define "homosexuality in animals." Whether or not it exists is probably a matter of definition. We do know that some Bonobos and baboons seem to show a willingness to engage in homosexual acts. However, applying the label of "homosexuality in animals" is probably misleading as it might be more accurately "bisexaulity in animals." However either way it does suggest that some of the closest evolutionary relatives of humans engage in homosexual acts.


"Properly speaking, homosexuality does not exist among animals.... For reasons of survival, the reproductive instinct among animals is always directed towards an individual of the opposite sex. Therefore, an animal can never be homosexual as such. Nevertheless, the interaction of other instincts (particularly dominance) can result in behavior that appears to be homosexual. Such behavior cannot be equated with an animal homosexuality. All it means is that animal sexual behavior encompasses aspects beyond that of reproduction." Dr. Antonio Pardo

"Although homosexual behavior is very common in the animal world, it seems to be very uncommon that individual animals have a long-lasting predisposition to engage in such behavior to the exclusion of heterosexual activities. Thus, a homosexual orientation, if one can speak of such thing in animals, seems to be a rarity." Simon LeVay

The second issue is whether or not it is consistent with the notion of a created order. To make this argument persuasive you would need to define that created order. For example, I see nothing in homosexual activity which would be contradicted by Odin, Hoenir, and Lodhurr creating man and woman by providing spiritual gifts (breath, inspiration/frenzy, goodly looks and hair) to trees.


Again, you seem to think that you can dictate your version of the Created order to me, while denying me the same opportunity. Why is this the case, and how is the dispute settled? Raw naked power?


So? If in natural environments (bonobos, baboons, etc) homosexual acts tend to be somewhat limited, it doesn't suggest that everybody is going to go out and be gay, is it? I don't see there being a substantial argument here. Sorry. Additionally (and significantly) Bonobos have sexual relations for many reasons, and these are not guided (as in some other animals) by a minimal drive towards procreation. One can see in Bonobos clear social elements of sexual relations.


Uh, no. "Any account of homosexuality and transgender animals is also necessarily an account of human interpretations of these phenomena....We are in the dark about the internal experience of the animal participants: as a result, the biases and limitations of the human observer--in both the gathering and interpretation of data--come to the forefront in this situation.....With people we can often speak directly to individuals (or read written accounts)....With animals in contrast, we can often directly observe their sexual (and allied) behaviors, but can only infer or interpret their meanings and motivations." Bruce Bagemihl

Is this an innate issue? Or is it due to social issues? Is it the same for male and female homosexuals? My guess is that you will find that there are added health issues for male homosexuals but not females, and that these are made far worse by a lack of social support for enduring relationships (and thus society fostering promiscuity). It seems as though your arguments are based on the following assumptions:

1) The "Created Order" is outlined in the Bible (while I say it is outlined in the Eddas).
2) The only legitimate purpose of sexual relations is procreation.
3) We know the above two by looking into nature.

I am sorry, that is just a religious argument clothed in 16th century humanism. I would hope to see better than that.


You keep insisting that any reference to a Judeo-Christian morality is automatically invalid. That's fine for you to assert, but how do you resolve the problem of individuals who disagree with you?

If you want to divorce law from the lawgiver, what keeps the law from merely being the arbitrary whim of whatever group of people hold political power at the time? What is to stop individuals who disagree with YOU from using that same political power on you?
8.19.2009 12:03am
hlsdood:
"I thought that ethical lawyers made the strongest case they could for their clients."

No. Ethical lawyers advocate zealously within the bounds of the law. The DOJ is under no obligation to propagate what they view as a lie. In this case, they view as false the proposition that there is a rational basis for banning gay marriage. Arguing in bad faith what the DOJ considers to be false would be the actual unethical course of action.
8.19.2009 12:03am
John Howard (eggandsperm.org) (mail) (www):
The government, if allowed to be used by certain folk, might want to legitimatize fetishes that result in greater infertility and more reliance on eugenics professionals, like labs, lawyers, etc. We should reject them, by recognizing the unsustainability of transhumanism and postgenderism.
8.19.2009 12:15am
A. Zarkov (mail):
Cato The Elder:

"Consequently I am disappointed that a fellow empiricist seems to disagree with my views."

On this thread I have been fairly silent about SSM. I simply take issue with the notion that heterosexuality is not superior to homosexuality, everything else being equal.
8.19.2009 12:50am
A. Zarkov (mail):
Putting Two and Two...:

"And in the absence of magic apples, you perpetuate your prejudices and just hope statistics save you from ruining your relationship with your children."

The magic apple, by construction, is absolutely benign-- that's what make it magical.
8.19.2009 12:52am
Ricardo (mail):
Ghost, I'm not sure if you realize this, but those scientists you are quoting are saying that the "natural order" is for those animals who engage in homosexual conduct to also engage in heterosexual conduct with multiple partners. Are you advocating promiscuous bisexuality as part of the "natural order"?
8.19.2009 1:09am
A. Zarkov (mail):
Three isn't a crowd.
Less than 18 months ago, Sasha Lessin and Janet Kira Lessin gathered before their friends near their home in Maui, and proclaimed their love for one another. Nothing unusual about that--Sasha, 68, and Janet, 55--were legally married in 2000. Rather, this public commitment ceremony was designed to also bind them to Shivaya, their new 60-something "husband." Says Sasha: "I want to walk down the street hand in hand in hand in hand and live together openly and proclaim our relationship. But also to have all those survivor and visitation rights and tax breaks and everything like that."
Sound familar? Why can't n > 2?

BTW, Dr. William Moulton Marston, inventor of the lie detector, lawyer, and the creator of the comic book character Wonder Woman, lived with two women in a polyamorous relationship. He had two children with each woman.

In Michael Dobbs, House of Cards dramatized by the BBC in 1990, the protagonist, Francis Urquhart, (called "FU" in the drama) has a polyamorous arrangement with his wife. She's a very supportive wife.

As day follows night, SSM will lead to demands for polyamorous marriages-- the next, but not the final frontier.
8.19.2009 1:30am
Danny (mail):
@ Zarkov

Why should SSM lead to discussions of polygamy but the existence of heterosexual marriage would not lead to such demands? After all, polygamy is a well-established and exclusively heterosexual form of social organization. Many human societies have already had polygamy, including Biblical societies. So polygamy represents a real past, not an imagined future.

There are groups living today in America - Mormons and Muslims among them - for whom polygamy is a religiously sanctioned traditional form of social organization. Why would such people wait for SSM in order to make their arguments?

And if they did, why would this have any bearing logically on the merit or lack of merit of SSM? I find your idea of a "slippery slope" arbitrary and illogical. You can rhetorically invent a slipperly slope from anything to anything: i.e. if we legalize pornography, then rape will become legal too. If the death penalty is permitted, then all murders will become legal. It doesn't take much to see through such an argument.
8.19.2009 1:47am
Ricardo (mail):
Zarkov,

Do you have any evidence that polygamous relationships or commitment ceremonies have become more common recently and that this can be attributed to the movement for SSM? If not, what is the point? Polygamy has been the norm in many societies throughout the world for much of human history. One of the wealthiest men in Asia -- Macau ca**no mogul Stanley Ho -- is a polygamist and he follows in a long-line of wealthy Chinese men with multiple wives. Polygamists don't really need SSM advocates.
8.19.2009 2:18am
A. Zarkov (mail):
Danny:

"Why should SSM lead to discussions of polygamy but the existence of heterosexual marriage would not lead to such demands?"

Once you tamper with the standard model, you invite other changes. The basic argument for SSM is to make people happy. Well other people want to be happy too. If anything there is a better argument for n > 2, because that has existed before. SSM is historically unprecedented as far as I know.
8.19.2009 2:34am
inahandbasket:
A general observation about the poster "Ghost": it seems to this observer that Ghost has spent a lot of time arguing with himself about homosexuality. He seems totally at odds over his probable christian fundamentalist upbringing and his own true sexual orientation. I say 'he' because Ghost keeps bringing up the litany of horrible diseases that (mostly) men get from unsafe sexual practices and he barely mentions lesbianism at all. Typical of a self-hating closeted male religious fundamentalist: horrified/fascinated/preoccupied by gay male sexuality and pretty much doesn't take into account women's sexuality, whether straight or lesbian, at all.

Pretty sad existence, Ghost. There's help available.
http://www.truthwinsout.org/
8.19.2009 8:34am
inahandbasket:
BTW - There's a great profile of Theodore Olson in the NY Times today:
http://www.nytimes.com/2009/08/19/us/19olson.html?hp
8.19.2009 8:37am
Cato The Elder (mail) (www):
A. Zarkov,

Do you not see how analogous that "anything will go" argument is to the modern multi-culti claim that "cultures" are infinitely malleable, that one can transport Western values from one people to another, like a fashion accessory? Why would people want to marry with with N >= 2? Are you finding that instinct apparent somewhere? Of course some crackpots will try to force it to make a point and draw attention to themselves, and might even succeed, but I doubt we will ever see such a thing on a wide scale.

Exclusively homosexual behavior has extensive historicity. In contrast, that type of polyandry story is rare, and is currently being promoted for ideological reasons by leftists and feminists. Even in least forgiving ecological environments it is only the purview of poor and desperate men. Just a small shift in the balance of power amongst males involved causes the urge to monopolize the women to quickly overwhelm whatever altruistic benefits they may garner from the "bond".

Polygamy is a legitimate concern. But it occurs frequently only in highly unequal societies, which is what increases the incentive to become the marginal second wife rather than staying the destitute primary wife. If that becomes a norm, well, society going to have alot more pressing problems than philosophical disagreements about gay marriage.
8.19.2009 9:12am
einhverfr (mail) (www):
A. Zarkov:

Once you tamper with the standard model, you invite other changes. The basic argument for SSM is to make people happy. Well other people want to be happy too. If anything there is a better argument for n > 2, because that has existed before. SSM is historically unprecedented as far as I know.


I think the standard model has already been tampered with. Marriages used to be far more centered on considerations of extended family than they are today.

However, back to the polygamy argument, there are actually two separate questions here. One of these questions has an answer that follows IMO from changes relating to Lawrence v, Texas, and the other requires legislative change if it will happen at all.

The first question is whether polygamy, where no legal marriage benefits are sought should be illegal. I don't think it should be. If a man wants to live with two common-law wives as long as he doesn't put both on his tax return, why should I care? If they all want to contractually solidify their relationship, why should that be a matter of criminal law?

The second question though regards legal benefits however. Our marriage STRUCTURE regarding legal benefits and rights is based fundamentally on the assumption that there is the individual and exactly one spouse. Polygamous marriages raise all sorts of legal issues which are best handled in the legislature, such as whether when two wives survive their husband they are married to eachother, what sort of power of attorney powers exist when both spouses disagree, etc. Those questions are fundamentally different than the SSM questions which don't raise questions of the structure of legal rights or benefits. I oppose the legislature getting involved too in this area, but courts would probably not want to wade into this minefield unless directed to do so by the legislature.
8.19.2009 11:08am
Randy R. (mail):
Ghost: "You keep insisting that any reference to a Judeo-Christian morality is automatically invalid. That's fine for you to assert, but how do you resolve the problem of individuals who disagree with you? "

Very simply. The same way we resolve all our other differences in America. You allow everyone the same rights to live their lives as they see fit. So, you allow SSM for people who are want to enter into a SSM. People who don't want to enter into a SSM don't have to. It works beautifully in Massachusetts, Vermont, Canada and many other places.

Think of it this way -- there are some people who want to marry interracially, but other people (some who subscribe to the judeo-christian morality) who find that abhorrant. So those who accept interracial marriage are allowed to do so, and those who find it abhorrant marry whom they find compatible. I don't see any problems with this accommodation, do you?
8.19.2009 11:34am
cmr:
I think the standard model has already been tampered with. Marriages used to be far more centered on considerations of extended family than they are today.


That's more cultural than systemic, and that's no excuse to further toy with the "standard model".
8.19.2009 12:35pm
A. Zarkov (mail):
Cato the Elder:

"Do you not see how analogous that "anything will go" argument is to the modern multi-culti claim that "cultures" are infinitely malleable, that one can transport Western values from one people to another, like a fashion accessory?"


I absolutely agree.

"Why would people want to marry with with N >= 2?"

Islam. This is already a problem in Europe. The UK has even gone to far as to recognize Muslim immigrants n >2 marriages, and provide welfare benefits to all the wives.

The US does not yet have large scale Muslim immigration in the way Europe does, but it's growing here. Islam does not assimilate-- it conquers and dominates. Why should we pave the way for them by tampering with a basics of a long standing institution?
8.19.2009 1:11pm
John Moore (www):
Oren:
John, you would have to be willfully blind to deny the plain fact that children inherit significant traits (e.g. more than skin/hair/eye color) from their parents.

Duh, no kidding? That never occurred to me.

Look my post in context.

einhverfr writes:
Speaking as a parent, it isn't that I wouldn't prefer my child not to have extra difficulties thrown in his path in life, but that homosexuality ranks far lower than general sexual neuroses and a general lack of self-confidence.

Except that GLBTs seem to define themselves by their sexuality (as is often shown in debates here). It's not clear what you mean by "sexual neuroese" but until the APA got politically correct, homosexuality was a sexual neurosis. As for self-confidence, that's a much over-hyped virtue, with the result that our attempts to create self-confidence (or more precisely, self esteem) have created a generation of narcissists.
8.19.2009 1:16pm
einhverfr (mail) (www):
Ghost:
Sorry I missed your responses. I wasn't trying to blow you off or anything.

That's a hilarious position for someone of you ilk to take, as you want to use raw governmental power to force others (the majority) who disagree with your (minority) notions to submit to them.

You want the minority to rule the majority. Absent any other considerations, why should this be permitted? Why should the minority rule over the majority?

And what happens if I disagree with your notions? Can I then exercise force to get my way? That is after all what you are proposing to do to me.


I don't think that is it for anyone really. In fact, I think your accusation tells me more about your views of the role of government than about your opponents. I would suggest that your posts suggest that you feel that government should be heavy-handed about enforcing your views about public morality. I think it should be limited to enforcing social order (so moral questions are entirely beside the point).

Plato's "Republic" is an interesting exercise which shows quite conclusively that a perfectly moral and just society is an unfree society, and that perfect morality and justice cannot exist in a free society. But this is perfectly true, isn't it? If we force everyone to make all the right choices, they don't have freedom, right?


Again, you seem to think that you can dictate your version of the Created order to me, while denying me the same opportunity. Why is this the case, and how is the dispute settled? Raw naked power?


No. It means the government should stay the heck out of the dispute and allow the marketplace of ideas to function properly. The idea that you think I want to use government power to convert you by the sword, however, suggests that you think this is a legitimate purpose of government. I disagree.

The solution is pluralistic government policy which allows you and I to argue about this without government interference.


You keep insisting that any reference to a Judeo-Christian morality is automatically invalid. That's fine for you to assert, but how do you resolve the problem of individuals who disagree with you?


That is limited to the question of a basis of governmental policy. As per the Establishment clause, the government has no basis legislating religious piety.


If you want to divorce law from the lawgiver, what keeps the law from merely being the arbitrary whim of whatever group of people hold political power at the time? What is to stop individuals who disagree with YOU from using that same political power on you?


Lawspeaker, actually. The lawspeaker doesn't invent the law but merely passes it on with full pagan pageantry (including animal sacrifice, which is legal in all 50 states if done in a proper setting). Of course Iceland was basically a "government by attorney" but that is a different issue.

My point though remains. The US is a pluralistic country and as such must avoid making public policy on the religious whims of one population segment, even if it is the majority. The government should not be involved in pushing religious ideals on folks. You can have your religious views and I can have mine, and the government MUST respect both absent a non-religious compelling reason to do otherwise.
8.19.2009 1:21pm
einhverfr (mail) (www):
John Moore:

My point though still comes down to the difference between broad generalities (it is better for one's children to be straight than gay) and what is best for a specific child. Often in parenting one has to deal with lesser evil questions, which means that any such answer is limited pretty much to the facts of its specific case.

Thus without a lot more research, I am not willing to read too much into such patterns.
8.19.2009 1:24pm
Joseph Slater (mail):
Except that GLBTs seem to define themselves by their sexuality (as is often shown in debates here).

No. Arguing in favor of SSM is not "defining themselves by their sexuality." I have a number of friends and some family members who are gay, and they don't "define themselves by their sexuality" any more than my straight friends and family members define themselves by their heterosexuality.

Of course, sexual orientation is always part of someone's self-definition, as is gender, race, religion (or lack thereof), occupation, nationality, etc.

I'm guessing you are uncomfortable with people who are comfortable about being gay. That's your problem, not theirs.
8.19.2009 1:38pm
einhverfr (mail) (www):
Also, Ghost:

FWIW, I argue against hate crime legislation on the same basis I argue for SSM, that the government shouldn't be in the business of defining morality and should focus on social order only, leaving morality up to other social structures to define.

(I recognize there are some legitimate arguments in favor of hate crime legislation, but these aren't well served by the shape of such legislation. It would be better to make any crime which is intended to intimidate a person or discrete group of people subject to an enhancement, regardless of what that group is-- public high school teachers, gays, blacks, and folks who work on Jones ave. as groups would have the same protections under my proposal.)
8.19.2009 1:46pm
Randy R. (mail):
JOhn Moore: "It's not clear what you mean by "sexual neuroese" but until the APA got politically correct, homosexuality was a sexual neurosis. "

Nope. The APA removed homosexuality from its list of mental illnesses in 1973. When the decision was challenged by Dr. Socarides (who has a gay son), the vote went to the full membership, and they affirmed the vote. Why?

Simple. Mental illness has a specific definition, and it includes an inability to function properly in society, or with ones peers, among other things. Dr. Hooker, a psychologist, did extensive studies throughout the 60s showing that altough some gays are mentally ill, they are not ill because of their sexual orientation, just as some straight are mentally ill, but not because they are straight. And she found that a great many gay people perfectly fit the definition of menally healthy. Therefore, homosexuality is not instrinsically a disease or neuroses of any kind.

Based upon her substantive and peer reviewed work, the APA voted as they did. Since then, the evidence is even stronger that being gay isn't itself a neurosis.

Now, if you have any evidence at all that is credible (not just something pulled from the Focus on the Family website), let's see it. But in the absence of any contrary evidence, you have to agree that with the evidence that supports the APA's decision.

But I suspect you won't, simply because you find homosexuality so aborrant that anyone who is gay must simply be mentally ill or defective in some way. You are free to think so, of course, just as you are free to believe in creationism. But your biases are not sufficient for entire medical establishment to ignore the evidence.
8.19.2009 3:36pm
John Howard (eggandsperm.org) (mail) (www):
Yes. Doesn't that mean "allow everything, if anyone wants to do something, let them do it?" It's pretty stupidly simple.
8.19.2009 4:09pm
John Howard (eggandsperm.org) (mail) (www):
Oops, should have made sure to refresh. My last comment was n reply to Randy's previous comment.
8.19.2009 4:14pm

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