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Ted Olson, Law vs. Policy, and the Role of Courts vs. Counsel:
Like my co-blogger Dale, I was very interested in today's New York Times article on Olson's decision to argue in favor of a constitutional right to same-sex marriage. The Times mostly covers the story as "prominent conservative takes liberal view and thereby annoys conservatives." That's a significant part of the story. At the same time, the fact that a prominent conservative lawyer like Ted Olson is personally in favor of same-sex marriage isn't particularly newsworthy. I haven't done any formal study on this, but my rough sense is that opinion on that policy question is somewhat divided among Federalist Society types, especially among younger members. Social conservatives tend to be "against," while more libertarian members are often "for."

  What makes Olson's involvement in the same-sex marriage litigation so interesting — and among right-of-center lawyers, controversial — is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. The Times story touches on this, but I would add a bit more detail. Those who have watched Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.

  The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long. It's the juxtaposition that is surprising. Of course, different people will disagree on which Ted Olson is right. Some will say he was wrong before and right now; others will he was right then and wrong now. But however you look at it, it seems hard to reconcile the two.

  I personally don't see anything wrong with that. Olson is a lawyer, and he's not under an obligation to maintain consistency between what he says when he speaks for himself and what he says when he speaks for a client. Most attorneys who are also public figures at some point make legal arguments that they themselves would reject if they were judges. This is plainly true with Olson: As Solicitor General in 2003, Olson defended campaign finance laws; this Term, as counsel for a private client, he is attacking the very same laws he defended six years ago. Clearly in at least one of those cases he is making an argument that he finds unpersuasive. So from the standpoint of Olson as a lawyer, there's nothing so surprising here. Still, from the standpoint of Olson as a public figure, it's a surprising move.

  UPDATE: I fiddled with the 1st paragraph of the post for reasons of accuracy.
J. Aldridge:
Olson's decision to argue in favor of a constitutional right to same-sex marriage.

There lies the problem. There is NO constitutional right to SSM. Ted should know better.
8.19.2009 12:17pm
Ugh (mail):

Olson's decision to argue in favor of a constitutional right to same-sex marriage.


Is that really the argument he is making, or is he arguing that once the government grants special rights and privileges to people who engage in the ritual of "marriage," it can't then deny those same rights and privileges on the basis of sex? IOW, there's not constitutional right to non-same sex marriage, just a bunch of benefits granted by gov'ts to those who are in a non-same sex marriage that are then denied to those who are in a same sex marriage, the sole distinguishing fact being the sex of the participants.
8.19.2009 12:38pm
Ugh (mail):

There lies the problem. There is NO constitutional right to SSM. Ted should know better.


Could you pleas point out the constitutional provision granting the right to non-same sex marriage?
8.19.2009 12:39pm
Rock Chocklett:
Olson is a lawyer, and he's not under an obligation to maintain consistency between what he says when he speaks for himself and what he says when he speaks for a client.

It makes sense that over the course of his career, an attorney would at times make arguments that he personally rejects, or that he would reject as a judge. This seems to be especially true when the attorney is an associate, a public defender, or lower-level government attorney and has limited discretion to determine what cases or positions he will take. But here, didn't Olson take this case on because he believes in the cause? And here the "cause" is to constitutionalize a policy preference.
8.19.2009 12:42pm
ShelbyC:

What makes Olson's involvement in the same-sex marriage litigation so interesting -- and among right-of-center lawyers, controversial -- is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting. Those who have watched Olson's annual Supreme Court Roundups for the Federalist Society know how harsh Olson tends to be about judges who Olson thinks are constitutionalizing their policy views, especially when that means constitutionalizing social policies popular among elites. Olson hasn't just been critical of those who take a broad view of constitutional meaning in this setting: he has been dismissive and sometimes even brutal.


Well, if they're going to constitutionalize policy views anyway, the're nothing wrong with making sure they constitutionalize the right ones.
8.19.2009 12:44pm
Gabriel Malor. (www):
Professor Kerr:

Like my co-blogger Dale, I was very interested in today's New York Times article on Olson's decision to argue in favor of a constitutional right to same-sex marriage.

Problem number one: You think Olson is arguing for a constitutional right to same-sex marriage. The commenters note that one is not explicit in the Constitution.

Fortunately, Olson isn't arguing that there is one. Rather, he is arguing that there is a right not to be discriminated against. And, of course, he's absolutely correct.

What makes Olson's involvement in the same-sex marriage litigation so interesting -- and among right-of-center lawyers, controversial -- is that his position is relying on the kinds of constitutional arguments that Olson is personally so closely identified with rejecting.

Problem number two: Could you actually specify one or more constitutional arguments Olson is making now that he rejected before? You say there are some. In fact, that makes up the entire basis of this post. But the only thing you list is his advocacy about campaign finance laws. You provide no evidence that Olson has reversed constitutional arguments.
8.19.2009 12:48pm
Gabriel Malor. (www):
No evidence related to this case, I mean.
8.19.2009 12:49pm
J. Aldridge:
Could you pleas point out the constitutional provision granting the right to non-same sex marriage?

Don't need a constitutional right to get married or even own an automobile. However, there are laws that regulate marriage and even defines marriage. Usually when we say "marriage" we are speaking of a man and woman just just as we mean a flow of water when we speak of a "river."
8.19.2009 12:50pm
MCM (mail):
Usually when we say "marriage" we are speaking of a man and woman


This always strikes me as a curious argument, especially given how often it comes up.

Ok, so it used to mean that. Now it doesn't. End of argument.
8.19.2009 12:58pm
Arkady:


Don't need a constitutional right to get married



Evidently some of us do (or did), see Loving vs. Virginia.
8.19.2009 1:00pm
A Law Dawg:
Don't need a constitutional right to get married or even own an automobile.


Please explain why it's okay for the government to deny homosexual marriage licenses but not okay for the government to deny homosexual driver's licenses.
8.19.2009 1:13pm
Hanoch:
It is so tiresome to hear about the right not to be discriminated against in this context. It is such utter nonsense. If I decide to "marry" my elderly mother for whom I provide food, clothing and shelter, should I be entitled to the benefits the government provides to those who are legitimately married? Or how about my dog for whom I do the same? Of course not, because I can't marry my mother or my dog. This isn't a question of discrimination; it is a question of common sense as to what marriage is and that question has been well-settled for a long, long time.
8.19.2009 1:17pm
ShelbyC:

Please explain why it's okay for the government to deny homosexual marriage licenses but not okay for the government to deny homosexual driver's licenses.


They get them under the same terms as everyone else. Problem is, they don't want them under those terms. Which of course is understandable, given their orientation. So it becomes more of a personal liberty issue and less of an equal protection issue.
8.19.2009 1:18pm
sk (mail):
"Usually when we say "marriage" we are speaking of a man and woman


This always strikes me as a curious argument, especially given how often it comes up.

Ok, so it used to mean that. Now it doesn't. End of argument."

According to whom? Obviously, not to the majority of citizens in the country (otherwise, there would be SSM). Since marriage's meaning hasn't changed to those who (rightfully, in a democracy) hold political power, presumably, as a policy matter, marriage still means what it used to?**

Sk

**Of course not. What you mean, is "The definition of marriage has changed for me and my friends. Therefore, society is obligated to change to please us."
8.19.2009 1:19pm
BN (mail) (www):
There is NO constitutional right to SSM.


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Was Bork right? Is that just an inkblot?
8.19.2009 1:20pm
Melancton Smith:
I don't see what power the government has to be in the marriage business at all. Certainly not the federal government. The State governments should only issue civil unions. Period. Any two consenting adults should be eligible for the civil union. The government does has an interest in preventing the product of said union if they are too closely related, for instance, so limitation on degree of relation would be allowable.
8.19.2009 1:24pm
Pyrrho:
I don't understand why we are even still discussing this. J. Alridge, the final authority on the Constitution, has made it clear that there is no right to SSM in the Constitution. And because he is authoritative, J. Alridge doesn't even have to back up his decrees with a constitutional theory or supporting argument.
8.19.2009 1:25pm
Guest14:
If I decide to "marry" my elderly mother for whom I provide food, clothing and shelter, should I be entitled to the benefits the government provides to those who are legitimately married? Or how about my dog for whom I do the same?
Men and women alike may not marry their mothers. Men and women alike may not marry dogs.

If men and women alike were prohibited from marrying men, there would be no discrimination. But this isn't the law. Some people are allowed to marry men, and some people aren't, and the determination of who is allowed and who is not is based on sex. This is discriminatory.
8.19.2009 1:26pm
MCM (mail):
**Of course not. What you mean, is "The definition of marriage has changed for me and my friends. Therefore, society is obligated to change to please us."


"As a policy matter", there are same-sex couples legally married to one another in their respective home states or countries. In several localities, including multiple localities in America, same-sex partnerships can become "marriages".

It's already over. Society already changed, but what you're saying is, "Society hasn't yet changed for me and my friends, so I'm going to pretend that it hasn't changed for anyone."
8.19.2009 1:28pm
Guest14:
**Of course not. What you mean, is "The definition of marriage has changed for me and my friends. Therefore, society is obligated to change to please us."
No. Society is obligated to stop discriminating on the basis of sex. A very long history of sex-based discrimination does not change this.
8.19.2009 1:34pm
ShelbyC:

Some people are allowed to marry men, and some people aren't, and the determination of who is allowed and who is not is based on sex. This is discriminatory.


Well, some people are allowed to marry my mother and sister, but I'm not. Is that discriminatory?
8.19.2009 1:36pm
BN (mail) (www):
Well, some people are allowed to marry my mother and sister, but I'm not. Is that discriminatory?


Of course it is; and there are specific reasons why we ban incestuous marriage. The same can't be said for SSM however. I have yet to hear a rational reason to prevent two, unrelated, adult gay men from getting married.
8.19.2009 1:41pm
Guest14:
Well, some people are allowed to marry my mother and sister, but I'm not. Is that discriminatory?
In some sense, yes, but I don't find it particularly troubling. Unlike sex-based discrimination, family relations-based discrimination is much less burdensome (the vast majority of people are not your family members) and doesn't have the same unfortunate history.
8.19.2009 1:44pm
scattergood:

Men and women alike may not marry their mothers. Men and women alike may not marry dogs.



The patent illogic of your retort is pretty typical.

Men and women alike cannot marry people of their same sex! So what's your problem?

The ONLY reasonable statement as to why such a limition is onerous is because by doing so the state is denying the rights of an individual man or woman to express their 'innate' sexuality and that such a burden is too much.

And this really is THE issue, is engaging in homosexual acts deterministic? Clearly being Black is deterministic and thus discirminiating against an individual Black person by denying them the right to marry is too onerous a restriction. But you should note that Loving refererd specifically and intentionally to the right to marriage in the context of reproduction and cultural survival, thus it's application to SSM is twisted at best.

Unfortunately for the SSM crowd, engaging in homosexual acts is clearly, scientifically, and repeatedly proven to NOT BE DETERMINISTIC. Even the Iowa court ruling on the subject clearly stated that it is only because people FEEL like they have no choice they should become a special protected class.

The pro-SSM crowd has no answer for this basic issue. They cannot explain bi-sexual behavior, they cannot explain changes in engaging in same sex behavior and back to opposite sex behavior, they cannot explain why twins aren't uniformly engaging in same sex behavior, etc. This is the crux of the issue.

If you buy into the fact that engaging in same sex behavior is deterministic, like being a woman is, or being a Black is, then it is totally logical and in fact probably imperative that you support SSM. However, if you deal with reality, that engaging in same sex behavior is NOT deterministic, then it isn't so clear.

You can make the policy argument that it is then like religion, which is a protected class. But the problem with that is the fact that we as a society CHOSE to put such protections in. We as a society have chosen NOT to put SSM into our laws, except in limited cases which are causing problems in the legal system as a whole.
8.19.2009 1:46pm
Guest14:
Men and women alike cannot marry people of their same sex! So what's your problem?
The problem, as I explained, is that this rule discriminates on the basis of sex.

Your long-winded reply boils down to, "well, I want to discriminate on the basis of sex". Not good enough.
8.19.2009 1:48pm
AF:
The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long.

There is at least one key exception to this point, which Olson himself actually points out in the article: affirmative action.

The argument that affirmative action violates the Equal Protection Clause is similar in form to the argument that the lack of same-sex marriage violates equal protection. Both arguments are consistent with, though not required by, the text of the clause. Both are inconsistent with the original expected application of the Equal Protection Clause, though with respect to same-sex marriage that is just an assumption.
8.19.2009 1:52pm
scattergood:

The problem, as I explained, is that this rule discriminates on the basis of sex.

Your long-winded reply boils down to, "well, I want to discriminate on the basis of sex". Not good enough.


And the sophistry continues. No, both sexes have the same restriction. How is that discriminating on the basis of sex?

Just as both sexes cannot go into opposite sex bathrooms. Is that discrimination on the basis of sex? If not, why not?
8.19.2009 2:00pm
Guest14:
And the sophistry continues. No, both sexes have the same restriction. How is that discriminating on the basis of sex?
Hypothetical: Pat emails Pat's lawyer, stating, "I wish to engage in course of conduct XYZ. Is this permissible under applicable laws?"

Pat's lawyer replies, "Pat, thank you for your email. Whether you may under applicable law engage in course of conduct XYZ depends on your sex. If you are a man, it is permitted, but if you are a woman, it is not."

Your serious suggestion is that there is no sex-based discrimination occurring here? And you want to accuse me of sophistry?
8.19.2009 2:05pm
AF:
Here's what Olson said:

[Olson] sees nothing inconsistent with that stance and his devotion to conservative legal causes: The same antipathy toward government discrimination, he said, inspired him to take up another cause that many on the right applauded — a lengthy campaign to dismantle affirmative action programs.

Olson is right. From the perspective of constitutional interpretation, pro-same-sex marriage and anti-affirmative action are cousins. Both involve claims of government discrimination which are plausible in light of the text of the Equal Protection Clause, but have no grounding in its history, and which were not backed by precedent until political movements recently began to bring these claims and courts began to accept them.
8.19.2009 2:08pm
GV:
In case anyone was interested in reading the complaint Olson (and Boies) filed, you can do so here. They allege an equal protection violation, along with a due process claim. The basis for the due process claim is unclear; it just references "fundamental liberties."

It should go without saying, but it apparently needs to be said, that you can believe that the constitution legally mandates a certain social policy not just because it is good policy but because there is a valid legal argument in favor of the social policy. For example, most of us would agree that segregation is bad and that the constitution also prohibits segregation. Most of us would also agree that black people should be allowed to marry white people and that the constitution mandates that black people have this choice. So to say something like Olson is "constitutionalizing his social policy preferences" is not analysis, but to dress up a political slogan as a conclusion.

Nobody advocates (as far as I'm aware) that merely because he or she has a certain social policy preference, it therefore must be mandated by the constitution because of the fact that it is that individual's policy preference. Rather, people are just disagreeing about what the constitution requires and some people like to short circuit that debate by claiming the other side is acting in bad faith. "Oh, you can't actually think a principled application of the equal protection clause demands that homosexuals be treated equally with respect to the benefits of marriage! You must just be arguing that because you believe same-sex marriage is good policy!"
8.19.2009 2:09pm
PQuincy1:
Hanoch, please consider doing some research into the anthropology and history of marriage.

In some societies, a man may marry one to many women.
In some societies, a woman may marry one to many men.
In some societies, marriages are strictly limited in time.
In some societies, a third gender exists, which sometimes may and sometimes may not marry either men or women or both.

"Common sense," after all, is exactly what we say it is. And that changes, here and everywhere.
8.19.2009 2:09pm
John D (mail):
Scattergood,
Just as both sexes cannot go into opposite sex bathrooms. Is that discrimination on the basis of sex? If not, why not?


Show me a law that mandates this. Actually, the last public restroom I used was a unisex, one-user restroom. Are you suggesting that this company was violating the law by insisting that people use the same restroom (in turn), without differentiation by sex?

For that matter, there are situations in which people legitimately end up in a restroom marked for the other sex. Small children with their opposite-sex parent. "Sorry, ma'am, the ladies room is being repaired, but the men's room is empty and we'll make sure it stays that way until you're out."
8.19.2009 2:09pm
einhverfr (mail) (www):
J. Aldridge:


There lies the problem. There is NO constitutional right to SSM. Ted should know better.


So says the man who thinks a blog post on symbolic speech trumps Prof. Volokh's law review article.

J. Aldridge evidently does not believe in any general liberty guarantee, which suggests he does not believe that this should be a free country.
8.19.2009 2:11pm
Ken A (mail):

But you should note that Loving refererd specifically and intentionally to the right to marriage in the context of reproduction and cultural survival, thus it's application to SSM is twisted at best.


"In the context of"? That's a rather meaningless phrase. After all, the Second Amendment placed the right to bear arms "in the context of" militias. Yet we've come around to adopting a larger application of that right.

In any event, are you suggesting that the Loving court would have carved an exception to interracial marriages where no children could be had?

I don't think so.


You can make the policy argument that it is then like religion, which is a protected class. But the problem with that is the fact that we as a society CHOSE to put such protections in. We as a society have chosen NOT to put SSM into our laws, except in limited cases which are causing problems in the legal system as a whole.


Actually, there are a wealth of laws, regulations, corporate policies, etc. that prevent discrimination based on sexual orientation. Even the concept of "civil unions" has, underneath it, the idea that we shouldn't discriminate against SSMs in the area of relationships.

Put another way, "society" has spoken; you just haven't listened. The ONLY remaining holdout on discrimination against gays is in the field of actual marriage.
8.19.2009 2:14pm
scattergood:

Show me a law that mandates this. Actually, the last public restroom I used was a unisex, one-user restroom. Are you suggesting that this company was violating the law by insisting that people use the same restroom (in turn), without differentiation by sex?

For that matter, there are situations in which people legitimately end up in a restroom marked for the other sex. Small children with their opposite-sex parent. "Sorry, ma'am, the ladies room is being repaired, but the men's room is empty and we'll make sure it stays that way until you're out."


It matters not if there is a law that mandates it, just that people who do mandate it are not 'guilty' of discrimination. And they aren't.

But as to children, the exception exists for their safety. A 16 yo male child can't claim he just needs to be with his mother and go into the ladies room.

But nice try.
8.19.2009 2:16pm
Smooth, Like a Rhapsody (mail):
Guest

Was your failure to address the hypothetical of the sex-segregated bathroom intentional?
8.19.2009 2:17pm
scattergood:

"In the context of"? That's a rather meaningless phrase. After all, the Second Amendment placed the right to bear arms "in the context of" militias. Yet we've come around to adopting a larger application of that right.

In any event, are you suggesting that the Loving court would have carved an exception to interracial marriages where no children could be had?

I don't think so.


"Marriage is one of the "basic civil rights of man, fundamental to our very existence and survival..."

I won't say what the Court WOULD have done or said, I don't know. What I do know is that they specifically referenced EXISTANCE and SURVIVAL, ie procreation.



Actually, there are a wealth of laws, regulations, corporate policies, etc. that prevent discrimination based on sexual orientation. Even the concept of "civil unions" has, underneath it, the idea that we shouldn't discriminate against SSMs in the area of relationships.

Put another way, "society" has spoken; you just haven't listened. The ONLY remaining holdout on discrimination against gays is in the field of actual marriage.


And there are a wealth of laws that specifically did not put such protections in. There are a wealth of amendments to state constitutions that specifically state that marriage is between a man and a woman. So, 'society has spoken', why don't you listen?

And let's be clear, you are of the opinion that there is such a person as 'a gay'. There is zero, let me repeat, zero evidence for this. There are people who engage in homosexual behavior however. But again, let's be clear, you aren't arguing for HOMOSEXUAL MARRIAGE, but for SAME SEX MARRIAGE. And while you try to conflate the two, they are not the same. Unless you want to have the state start policing the bedroom activities of married couples.
8.19.2009 2:23pm
Guest14:
It matters not if there is a law that mandates it, just that people who do mandate it are not 'guilty' of discrimination. And they aren't.
Of course they are. The burden of the discrimination is very minor (assuming identical restrooms situated close to each other), though, and the rationale for the discrimination is relatively sound (discouraging sexual predation or the fear thereof, and encouraging a feeling of comfort and ease while using the facilities).

Do you think all charges of sex discrimination can be avoided by slapping "Men's" and "Women's" labels on things and simply dictating the men use the men's and women use the women's? That's absurd. When the things in question are relatively identical rooms, it's forgivable, but don't confuse the exception for the principle.
8.19.2009 2:23pm
einhverfr (mail) (www):
A couple thoughts here....

Evidently some of us do (or did), see Loving vs. Virginia.


Interestingly, I would be in that category as I would legally be considered "white" and my wife "asian."

If I imagine a country where my marriage might be recognized in some states, unrecognized in others, and perhaps even criminal in others, that doesn't seem to be a way I would want our great republic to work.

Interestingly this is a big part of my support for efforts to declare DOMA unconstitutional. I don't think other family units should face such problems.

However, it is also a major part of the reason why, even though I am not a gun owner, I think that reasonably strong second-amendment rights are important. I don't think someone should have to decide between relocating and keeping his/her property. Gun laws need to be reasonably uniform, and for this reason, in keeping with second amendment jurisprudence since Presser, folks need to be generally allowed to own them.
8.19.2009 2:24pm
Ken A (mail):

Was your failure to address the hypothetical of the sex-segregated bathroom intentional?


Guys, the government can discriminate on the basis of ANYTHING (gender, race, whatever) if there is some overwhelming governmental interest.

There is a reason for discriminating on the basis of gender in certain circumstances. In public (i.e., government) schools we have boys and girls lockers rooms, for obvious health and safety reasons. The same for sex-segregated restrooms.

The problem is opponents of same-sex marriages can't come up with a good reason for permitting discrimination. The only governmental interest I've ever heard boils down to "homosexuality is immoral/non-traditional". And that doesn't fly, constututionally.

So drop the segregated bathroom analogy. It's not analogous.
8.19.2009 2:26pm
scattergood:

Of course they are. The burden of the discrimination is very minor (assuming identical restrooms situated close to each other), though, and the rationale for the discrimination is relatively sound (discouraging sexual predation or the fear thereof, and encouraging a feeling of comfort and ease while using the facilities).

Do you think all charges of sex discrimination can be avoided by slapping "Men's" and "Women's" labels on things and simply dictating the men use the men's and women use the women's? That's absurd. When the things in question are relatively identical rooms, it's forgivable, but don't confuse the exception for the principle.


So the fear of sexual predation is ok? Nice to know. So the people who are fearful of the homoeroticization of their children becasue of the SSM movement are well within their rights? So what's your problem?
8.19.2009 2:26pm
Ken A (mail):

"What I do know is that they specifically referenced EXISTANCE and SURVIVAL, ie procreation."


Referencing something on the way to a legal conclusion doesn't mean it's the reason FOR that legal conclusion.

And let's be clear, you are of the opinion that there is such a person as 'a gay'. There is zero, let me repeat, zero evidence for this. There are people who engage in homosexual behavior however. But again, let's be clear, you aren't arguing for HOMOSEXUAL MARRIAGE, but for SAME SEX MARRIAGE. And while you try to conflate the two, they are not the same. Unless you want to have the state start policing the bedroom activities of married couples.
8.19.2009 2:29pm
scattergood:

Guys, the government can discriminate on the basis of ANYTHING (gender, race, whatever) if there is some overwhelming governmental interest.

There is a reason for discriminating on the basis of gender in certain circumstances. In public (i.e., government) schools we have boys and girls lockers rooms, for obvious health and safety reasons. The same for sex-segregated restrooms.

The problem is opponents of same-sex marriages can't come up with a good reason for permitting discrimination. The only governmental interest I've ever heard boils down to "homosexuality is immoral/non-traditional". And that doesn't fly, constututionally.

So drop the segregated bathroom analogy. It's not analogous.


So there is no moral argument ever? People can walk around naked? They can marry their fathers, sisters, and mothers? They can engage in polygamy and polyandry?

If not, why not?
8.19.2009 2:31pm
Guest14:
So the people who are fearful of the homoeroticization of their children becasue of the SSM movement are well within their rights?
They are well within their rights not to host any SSM ceremonies in their homes, sure.

Banning SSM places an extraordinary burden on both men and women precisely because marrying a man is very different than marrying a woman. Consequently, a very good reason is needed to ban SSM.

Banning same-sex restroom usage (in favor of providing relatively identical sex-segregated restrooms) imposes a relatively light burden on men and women. Consequently, a relatively weak reason will justify the policy.
8.19.2009 2:32pm
A Law Dawg:

The ONLY remaining holdout on discrimination against gays is in the field of actual marriage.


You forgot DADT, among others.
8.19.2009 2:33pm
einhverfr (mail) (www):
I think DOMA would be entirely Constitutional if it wasn't discriminatory. For example, if Massachusetts could respond to Nevada not recognizing their same sex marriages by refusing to recognize marriages not meeting appropriate waiting periods, or where states impose different limits on how closely related one can be and still be married, refuse to recognize such marriages when such couples who were legally married elsewhere relocate into their state.

However, DOMA singles out one specific issue of marriage policy and does so in a way which is, IMO, Unconstitutionally discriminatory.
8.19.2009 2:33pm
Joseph Slater (mail):
Scattergood:

Please provide some evidence that SSM, in any of the various places it currently exists, has led to the "homoeroticization" of your children or any straight person's children.
8.19.2009 2:35pm
Ken A (mail):

And let's be clear, you are of the opinion that there is such a person as 'a gay'. There is zero, let me repeat, zero evidence for this.


There's evidence of people who habitually practice in homosexual sexual/romantic experiences to the exclusion of heterosexual ones -- people who cannot and do not conceive themselves in any other orientation. I don't care what they're called, but I am going to call them "gay" or "homosexual", just as people with the opposite orientation are typically called "straight" or "heterosexual".



But again, let's be clear, you aren't arguing for HOMOSEXUAL MARRIAGE, but for SAME SEX MARRIAGE. And while you try to conflate the two, they are not the same.


Hahaha. Is there a difference between heterosexual marriage and opposite-sex marriage?


Unless you want to have the state start policing the bedroom activities of married couples.


Preventing certain marriages from happening in the first place is the WORST kind of state interference into private relationships.
8.19.2009 2:38pm
A.:

So there is no moral argument ever? People can walk around naked? They can marry their fathers, sisters, and mothers? They can engage in polygamy and polyandry?

If not, why not?


I'm fine with all of that (with the usual caveats about consent, etc.). Generally, incest and polygamy give rise to concerns about consent because of the underlying power structures, and those concerns might be sufficient to bar the practices (as they are, for example, in the context of student/teacher sex), but that's the only legal restriction that should be in place.

Moral issues should be addressed through persuasion and social mores, not through majoritarian decrees.

Of course, this is based on my own morality, which opposes coercion and is indifferent toward others' sex acts. Your morality may differ from mine. If we can agree, we can live happily in the same country. If enough people like you and people like me cannot agree, we will be unhappy to live under the same laws. Federalism done right might give each of us choices that would please us more, but compromise would still likely be necessary to avoid jurisdictions-of-one. Society is a tricky beast, huh?
8.19.2009 2:45pm
A Law Dawg:
Preventing certain marriages from happening in the first place is the WORST kind of state interference into private relationships.


That's just not true. Forcing me to sit in Mrs. Edwards' 2nd grade class was worse.
8.19.2009 2:45pm
einhverfr (mail) (www):
Scattergood:

So there is no moral argument ever? People can walk around naked?


In Seattle they can. Seattle doesn't seem to have too many problems with this. I wouldn't cry too much if such bans were declared Unconstitutional. Morality that depends on government enforcement isn't morality anyway.


They can marry their fathers, sisters, and mothers?


How far do you go between group and individual harm arguments. The general arguments are at least as much based on the fact that closely intermarried groups tend to show more genetic illnesses than non-intermarried groups. Even without a morality argument, I would expect such rules to be upheld.


They can engage in polygamy and polyandry?

If not, why not?


I don't think engaging in polygamy or polyandry should be ILLEGAL.

However, there are structural issues which make it difficult to suggest that marital benefits should be simply expanded to cover such cases. For example consider a man with two wives.

If he dies, are the wives still married to eachother?

If he is sick and unconscious and the wives disagree with what he would have wanted regarding medical care, who decides?

If he is sick and unconscious and major financial decisions need to be made on his behalf and the wives disagree, who decides?

Our structures of legal benefits don't translate simply over to polygamy/polyandry relationships. While the legislature might be free to create such a relationship, this would pose problems if the family ever moved to a state that structured things differently....

Looking at polygamy/polyandry issues, while I think that laws CRIMINALIZING the practice need to be abolished, I think that expanding marital benefits to such groups would create a genuine legal mess regardless of whether it is a good policy or not.
8.19.2009 2:45pm
Ken Arromdee:
Pat's lawyer replies, "Pat, thank you for your email. Whether you may under applicable law engage in course of conduct XYZ depends on your sex. If you are a man, it is permitted, but if you are a woman, it is not."

Your serious suggestion is that there is no sex-based discrimination occurring here? And you want to accuse me of sophistry?


By that reasoning, I could ask "is it legal for me to take this item belonging to Ken". The lawyer's reply is "you may only do that if you are Ken". I now claim that there is Ken-based discrimination.

For that matter, imagine that the question is "I want to expose my chest on the beach". Or "I am a law enforcement officer and I want to know if I'm allowed to strip-search a female prisoner". Or "I want to go into a women's bathroom". The answer to all of these will be "it's only legal if you're the right sex", yet none of them are discrimination.
8.19.2009 2:49pm
Hanoch:
Men and women alike may not marry their mothers. Men and women alike may not marry dogs.


Your argument doesn't cut it. If a man can say he should be entitled to marry a man, then why can't I declare myself married to my mother or my dog? Clearly, those who object must harbor a deep-seated bigotry against dutiful sons and dog-lovers.
8.19.2009 2:51pm
Ken A (mail):

So there is no moral argument ever? People can walk around naked? They can marry their fathers, sisters, and mothers? They can engage in polygamy and polyandry?

If not, why not?


There's a moral argument, but those moral arguments don't suffice as legal reasons permitting a government to discriminate.

People DO walk around naked. Nudist colonies aren't illegal. But maked people can't walk around ANYWHERE. Again, it's not a moral issue, but a health and safety issue. It would cause public disruption.

There are health issues when families inbreed.

And the overwhelming evidence shows that polygamy comes at the price of subjugation of women. There is a lack of informed consent. The government also has an overriding interest in not recognizing polygamy because our laws are not geared to it (say, it's laws of intestate succession -- who gets the estate when someone dies without a will).

Again, not morality issues.

But can any of that be said of two people of the same sex consenting to marry?
8.19.2009 2:51pm
Ken A (mail):

For that matter, imagine that the question is "I want to expose my chest on the beach". Or "I am a law enforcement officer and I want to know if I'm allowed to strip-search a female prisoner". Or "I want to go into a women's bathroom". The answer to all of these will be "it's only legal if you're the right sex", yet none of them are discrimination.


They ARE discrimination, but -- I repeat -- the government CAN discriminate. The examples you give are perfect examples of accepted exceptions to the general protection against government discrimination.

But the government just can't discriminate whenever it wants. It must have some compelling reason to do it. That's what the law and courts demand.

So the impetus is on opponents of same-sex marriage to come up with that compelling reason. And no, "gay marriage is icky and immoral" doesn't cut it.
8.19.2009 2:59pm
Guest14:
Your argument doesn't cut it. If a man can say he should be entitled to marry a man, then why can't I declare myself married to my mother or my dog?
Your argument doesn't "cut it". The man is arguing that he is entitled to marry a man because other people are allowed to marry men, but he isn't, because of his sex. He's arguing that sex discrimination is disallowed absent some important governmental interest served by the discrimination that outweighs the burden placed on people by the discrimination.

I have no idea what your argument that you should be able to marry your mother or dog is.
8.19.2009 2:59pm
Hanoch:

In some societies, a man may marry one to many women.
In some societies, a woman may marry one to many men.
In some societies, marriages are strictly limited in time.
In some societies, a third gender exists, which sometimes may and sometimes may not marry either men or women or both.

Oh, please. Where in western civilization in the last 2000 years have homosexual relationships been given the status of marriage?
8.19.2009 3:01pm
Ken A (mail):

Your argument doesn't cut it. If a man can say he should be entitled to marry a man, then why can't I declare myself married to my mother or my dog? Clearly, those who object must harbor a deep-seated bigotry against dutiful sons and dog-lovers.


Dude, you can declare yourself married to your mother AND your dog... BOTH.

This isn't abouty what you declare, but whether the government must/should recognize it and give you the same benefits as man-woman marriages.
8.19.2009 3:02pm
Putting Two and Two...:

why can't I declare myself married to my mother or my dog?


Your dog has a message: he sees absolutely no reason you can't marry your mother.
8.19.2009 3:07pm
Ken A (mail):

Oh, please. Where in western civilization in the last 2000 years have homosexual relationships been given the status of marriage?


That's the argument made against interracial marriages. The appeal to history fallacy.

If this was 1900, and the issue was women's suffrage, and I asked "Where in western civilization in the last 1900 years have women been allowed to vote?", would you accept that argument?

News flash: Things change.

That said, the answer to your question is Holland, Belgium, Canada, Spain, Norway, Sweden, Massachusetts, Iowa, Connecticut, Vermont, and New Hampshire. I might have missed some.....
8.19.2009 3:10pm
M N Ralph:

Men and women alike may not marry their mothers. Men and women alike may not marry dogs.

If men and women alike were prohibited from marrying men, there would be no discrimination. But this isn't the law. Some people are allowed to marry men, and some people aren't, and the determination of who is allowed and who is not is based on sex. This is discriminatory.


So, prohibitions on SSM are sex discrimination, not discrimination against homosexuals?
8.19.2009 3:16pm
Ugh (mail):

So, prohibitions on SSM are sex discrimination, not discrimination against homosexuals?


Yes, and...?
8.19.2009 3:25pm
M N Ralph:
And, I've always heard the argument for SSM framed as discrimination against homosexuals, rather than sex discrimination. It's a new and interesting way for me to think about the issue.
8.19.2009 3:39pm
Danny (mail):
Underneath all the slippery slopes (a logical fallacy), the snarky comments and the indignation there seem to be three main arguments against the government recognizing SSM:
1. Same-sex relationships (marriage, whatever) are icky.
2. My religion says that same-sex relationships are wrong.
3. The USA/Western countries c. 500-2000 AD don't have a history of legal SSM

I think it is obvious that the above arguments, while certainly culturally significant, aren't very weighty in a discussion of constitutional rights. A more interesting debate for right-of-center lawyers the question of whether the constitution gives any inalienable right to having a romantic relationship, or to marrying at all. Imagine if the USA didn't recognize any marriage relationships at all, whether the couple had children or not. Imagine if the government treated every American as related only to his blood relatives and treated everyone else as a legal stranger even if they lived together for 60 years and called themselves "married". There is no such thing as family leave, or inheritance of property and pensions between "spouses", no immigration rights for a foreign "spouse", no insurance or tax benefits. Your employer would never know or care that you lived with an opposite-sex roommate and had children with him/her.

Would this dystopia fit with the Constitution, or would some constitutional principle of personal freedom be violated?

On an international level, the UN declaraton of human rights (article 16) says this:
* (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
* (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
* (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

That is to say, in other countries it has been argued that allowing people to be legally married is not a gift that the State magnanimously offers its citizens. Rather, assuming there is no compelling reason to discriminate, the default position is that people have a natural right to form marital relationships that are recognized by the State, as an extension of their personal autonomy. That is to say, it is active State interference in personal autonomy to say that an individual may not form any marital relationship.

Do you agree with such a principle, and its relevance to US law? In other words, is the constitutional argument for SSM based exclusively on equal treatment and due process, or is there some deeper natural right to marry?
8.19.2009 3:47pm
einhverfr (mail) (www):
Danny:

I think this example is a bit off:


I think it is obvious that the above arguments, while certainly culturally significant, aren't very weighty in a discussion of constitutional rights. A more interesting debate for right-of-center lawyers the question of whether the constitution gives any inalienable right to having a romantic relationship, or to marrying at all. Imagine if the USA didn't recognize any marriage relationships at all, whether the couple had children or not. Imagine if the government treated every American as related only to his blood relatives and treated everyone else as a legal stranger even if they lived together for 60 years and called themselves "married". There is no such thing as family leave, or inheritance of property and pensions between "spouses", no immigration rights for a foreign "spouse", no insurance or tax benefits. Your employer would never know or care that you lived with an opposite-sex roommate and had children with him/her.

Would this dystopia fit with the Constitution, or would some constitutional principle of personal freedom be violated?


Sure. I don't see how personal freedom would be violated in such a case. After all, the law wouldn't prevent choice of sexual partners, and would probably increase rather than decrease freedom.

However, consider the opposite example: Suppose the government would tell you who to marry, excluding all other possibilities, and might legally punish you for having sex outside that specific, government-ordained marriage. Would that violate any sense of a liberty guarantee? Would the Constitution forestall THAT dystopia?

That seems closer to the current issue anyway.
8.19.2009 3:51pm
Randy R. (mail):
I guess people are pretty darn upset that gays can actually get married in so many places now. And so far, in none of those places, such as Mass, Spain, Canada, Vermont, etc, that Ken A listed, nothing much has happened. There is no movement afoot for marrying your dog, or marrying a parent. Society hasn't collapsed. People still go to church. Straight (and gay) couples are still raising children.

In short, they are able to point to nothing at all detrimental society or individuals when SSM occurs. So their only arguments are that gays don't have a right to it.

I'm fine with that. The demographics are pretty clear that within a few years, a clear majority of Americans will indeed find it a right and will vote it in. Nate Silver has documented this quite well. The battle is lost for opponents -- people under 30 are pretty much unanimous in favor of SSM (at much as unanimity can be achieved), and people in their 30s and 40s are mostly supportive. So when J. Adridge &Co say there is no right to SSM, the next generation's response is, "So let's grant them the right!" That will end this discussion.

So it really doesn't matter what anything thinks or argues on this thread, or even how the courts rule. By 2020, almost all states will have a majority of people favoring SSM. We might have to wait that long, but it will be worth it.
8.19.2009 3:54pm
Ken A (mail):
Reponse to Danny:

Well, if there is a "deeper natural right to marry", then prohibition of it violates Due Process. So we've come back around.

For what it is worth, the Loving court recognized there is a "fundamental freedom to marry", which I take to be synonymous with a "natural right to marry".

And I agree with that.
8.19.2009 3:56pm
rick.felt:
I have yet to hear a rational reason to prevent two, unrelated, adult gay men from getting married.

I have yet to hear a rational reason to prevent two, related, adult gay men from getting married.

Please to explain.
8.19.2009 4:06pm
Ken A (mail):

However, consider the opposite example: Suppose the government would tell you who to marry, excluding all other possibilities, and might legally punish you for having sex outside that specific, government-ordained marriage. Would that violate any sense of a liberty guarantee? Would the Constitution forestall THAT dystopia?

That seems closer to the current issue anyway.


I agree.

And I'd like to make a pitch for the First Amendment's "freedom of association" (on top of everything else). It seems to me that when government condones one certain type of marriage to the exclusion of another, absent some compelling reason, then you've got a First Amendmenr problem. It's no different than endorsement of a particular religion to the exclusion of another. I think you've got a constitutional issue, even without resorting to Equal Protection.
8.19.2009 4:08pm
Ken A (mail):

I have yet to hear a rational reason to prevent two, related, adult gay men from getting married


Maybe there is no rational reason, legally speaking.

But I'm not going to sweat it until such a case actually exists. I wouldn't hold my breath. That's so far down the slippery slope that I can't even see it from here.
8.19.2009 4:13pm
J. Aldridge:
J. Aldridge evidently does not believe in any general liberty guarantee, which suggests he does not believe that this should be a free country.

I believe in local self-government and a limited national government. Most of the SSM crowd is advocating for the federal judiciary to the their magical depository of rights.
8.19.2009 4:15pm
rick.felt:
Oh, please. Where in western civilization in the last 2000 years have homosexual relationships been given the status of marriage?

That's the argument made against interracial marriages. The appeal to history fallacy.
Not that it necessarily matters, but the restriction of marriage to members of the opposite sex is of much older vintage than any ban on interracial marriages.
8.19.2009 4:16pm
SeaDrive:

And let's be clear, you are of the opinion that there is such a person as 'a gay'. There is zero, let me repeat, zero evidence for this.


Wrong as a matter of scientific fact. Scientists can put you in an MRI and show you some pictures, and tell from your brain activity whether you are gay or straight. IMHO, the advances in the science of sexual orientation are the principle driver of the increasing public acceptance of gays in America. However, the issue of SSM will be not be decided by the courts or the legislature; it will be decided by the voters, either directly, or by passive acceptance of change.
8.19.2009 4:18pm
Danny (mail):
@ Randy R

Maybe marriage equality is coming to the USA eventually but I don't think that is grounds for complacency or not making the constitutional arguments clearly. Unlike many countries in Europe or Canada, etc., where policies like civil unions and SSM can be calmly debated and voted on, there are groups in the USA who have an interest in maximizing cultural conflict on this issues. In Spain and Canada, the gay rights movement quietly ended with equality and gays faded into the background. No one talks about them every day. But Americans don't tend to face controversial issues with a cool head and dispassionate consideration of the law - the country often opts for an extended "culture war" replete with disinformation and panic, which then culminates in whatever social progress happening decades later than it could have. There remains a frustrated cultural resentment on one side and an exaggeratedly righteous PC indignation on the other. Americans don't talk, they scream, and the media profits from the circus. And I'm afraid they will continue screaming about this issue some time to come..
8.19.2009 4:19pm
rick.felt:
I'm not going to sweat it until such a case actually exists. I wouldn't hold my breath. That's so far down the slippery slope that I can't even see it from here.

You really think it's that far away? Consider how marriage has already been redefined: it's a big wedge of government cheese, arbitrarily given away to heteros. That's how it's conceptualized for purposes of this argument. It's not (usually) defined by SSM proponents as a bedrock of civilization. It's just a bundle of government handouts, like the oft-cited right to visit with someone you love in the hospital.

Well, I love my brother and uncle. Do you think it's very long before someone starts complaining that I can't marry one or more of them to get the rights that two unrelated men could marry to get? And how long have you been in the city, Country Mouse?
8.19.2009 4:22pm
einhverfr (mail) (www):
Randy R:

I guess people are pretty darn upset that gays can actually get married in so many places now. And so far, in none of those places, such as Mass, Spain, Canada, Vermont, etc, that Ken A listed, nothing much has happened. There is no movement afoot for marrying your dog, or marrying a parent. Society hasn't collapsed. People still go to church. Straight (and gay) couples are still raising children.


But you see, it took how many years after Loving v. Virginia to get to change on gay marriage? Give it a few decades and I am sure we will see the social conservatives vindicated ;-)
8.19.2009 4:24pm
Ugh (mail):

Well, I love my brother and uncle. Do you think it's very long before someone starts complaining that I can't marry one or more of them to get the rights that two unrelated men could marry to get?


And the problem with that would be...?
8.19.2009 4:30pm
Hanoch:

News flash: Things change.



You are right. And sometimes for the worse. That is why morality-by-gut-check is so insidious.


That said, the answer to your question is Holland, Belgium, Canada, Spain, Norway, Sweden, Massachusetts, Iowa, Connecticut, Vermont, and New Hampshire. I might have missed some.....


Just a bit disingenuous, no? I think (hope) you understand I am not talking about the morality-du-jour. The fact is before arguments like yours started to spring up relatively recently in the history of western civilization, no society ever defined marriage as between members of the same sex.
8.19.2009 4:33pm
MCM (mail):
it's a big wedge of government cheese, arbitrarily given away to heteros. That's how it's conceptualized for purposes of this argument.


I almost always see exactly the opposite argument from SSM advocates; that their love is equal to hetero love, so they want equal recognition for it.

Would be pretty convenient for you if SSM advocates were cynical about marriage, though.
8.19.2009 4:36pm
Randy R. (mail):
Rick.felt:" Do you think it's very long before someone starts complaining that I can't marry one or more of them to get the rights that two unrelated men could marry to get?"

Again, if you think that marriage is nothing more than a bundle of rights, sure, go ahead. Make the argument to marry your brother.

But that's not what gays are asking for. We want to get married for the exact same reasons you do -- because we have a life partner, and we want to make a commitment to them, in sickness and in health. And in fact, we do -- many churches allow SSM. Do you have any problem with that? Surely even the strongest opponent of SSM will allow a church to marry two men if it's part of the belief system.

The only question is that if I get married in my church (or Danny in his), why can't we also get the same benefits as straight people do? The only argument is that you don't like it for some reason. Well, some people don't like interracial marriage, but that's hardly a reason for prohibiting it. I might not like your choice of bride, but I don't pass laws to prohibit your marriage.

Unless you can convince any of us why SSM is so bad, there is no good reason to oppose it. So far, you haven't come up with evidence at all. Massachussetts has had SSM for several years, and a majority of its citizens supports SSM, and there is no issue of brothers trying to marry each other.
8.19.2009 4:36pm
Ugh (mail):

no society ever defined marriage as between members of the same sex.


well it may be the case that no society ever exclusively defined marriage as between members of the same sex, but that's not what's going now either.
8.19.2009 4:37pm
Joseph Slater (mail):
@rick.felt:

Gosh, I've hung out in Mass. and other jurisdictions that have SSM, and I haven't heard any calls from anyone for a right to marry their brother.

Like other opponents of SSM, you make various slippery slope arguments about where SSM is sure to lead (remember "man-dog sex"?) as if SSM is some idea that has not yet been tried. But it has been tried in a variety of places, as various posters keep mentioning, and none of the dire predictions of opponents have come close to coming true.
8.19.2009 4:37pm
Randy R. (mail):
scattergood "There are people who engage in homosexual behavior however."

I want the dirt. So we know that you are not gay, of course, so just tell us about when you've engaged in homosexual behavior. Don't leave any detail out!
8.19.2009 4:38pm
Hanoch:

Dude, you can declare yourself married to your mother AND your dog... BOTH.

This isn't abouty what you declare, but whether the government must/should recognize it and give you the same benefits as man-woman marriages.



Great. So now explain why the government should not recognize my choice of spouses?
8.19.2009 4:40pm
Hanoch:

well it may be the case that no society ever exclusively defined marriage as between members of the same sex, but that's not what's going now either.


Where did I use the word "exclusively"?
8.19.2009 4:42pm
Ken A (mail):

Well, I love my brother and uncle. Do you think it's very long before someone starts complaining that I can't marry one or more of them to get the rights that two unrelated men could marry to get?


Well, now you're talking about fraudulent marriages. The government has always had an interest in banning those.

That, of course, is neither here nor there on the topic of SSM.
8.19.2009 4:43pm
Randy R. (mail):
Hanoch: "You are right. And sometimes for the worse. That is why morality-by-gut-check is so insidious."

And sometimes morality changes for the better. Actually, quite often. Morality today is much better than it was 200 years ago, and far better than it was 1000 years ago. Women aren't treated as husband's property any more. We don't allow slavery (even though that was defended as moral by many churches 200 years ago). Child labor is prohibited.

So why do you assume that SSM will lead to worse things? Got any evidence at all? If not, then one can just as easily assume that it will actually lead to better morality, right?
8.19.2009 4:43pm
MCM (mail):
The fact is before arguments like yours started to spring up relatively recently in the history of western civilization, no society ever defined marriage as between members of the same sex.


There was another social institution that existed through all of human history, until it came under attack by judicial fiat in 18th century England, and it was mostly eradicated in the western world by the end of the 19th century.

So I'm not really feeling the historical precedent argument.
8.19.2009 4:44pm
Ugh (mail):

Where did I use the word "exclusively"?


You didn't, I inserted it so your statement was accurate. If you want to continue to be wrong, go ahead.
8.19.2009 4:47pm
Snaphappy:
Is it possible to discuss anything having to do with SSM without rehashing the entire debate from the beginning? What's most remarkable about the above is that both sides seem to think that their answer is obvioulsy correct. Let me go on record as saying I support SSM as a policy matter, but whether there is a right to marriage in the abstract, and whether the lack of recognition of SSM violates equal protection are difficult questions that reasonable people can disagree on.

One side says no discrimination because both men and women are prohibited from SSM.

One side says discrimination because only men are prohibited from marrying men and only women are prohibited from marrying women, for no rational reason.

Both are valid arguments. I happen to believe the SSM side will eventually win, but not because the constitutional argument is clearly correct and the other side isn't.
8.19.2009 4:49pm
einhverfr (mail) (www):
Hanoch:

Just a bit disingenuous, no? I think (hope) you understand I am not talking about the morality-du-jour. The fact is before arguments like yours started to spring up relatively recently in the history of western civilization, no society ever defined marriage as between members of the same sex.


Ok. Let's start by asking "what is the traditional definition of marriage?"

I would think "the traditional definition of marriage" would probably be "a political and legal arrangement for the purpose of engendering and raising kids." However, we moved away from that a long time ago. For example, unlike many Western cultures, we didn't make infertility grounds for divorce, nor do we consider marriages where the couple chooses not to have children to be fraudulant.

I often have to say on this matter that the cat is already out of the bag and the question now whether things change but how.
8.19.2009 4:54pm
Ken A (mail):

I think (hope) you understand I am not talking about the morality-du-jour. The fact is before arguments like yours started to spring up relatively recently in the history of western civilization, no society ever defined marriage as between members of the same sex.


So? There was a time in western civilization when arguments for the abolition of slavery were "reletively recent" and the "morality du jour" when placed in the context of thousands of years of western civilization.

If we accepted your "but, but, but it's never happened in the history of western civilization before" argument on the subject of slavery (and some did, at the time), slavery would have never ended in Western civilization.

That's why your argument today -- on the subject of same sex marriage -- is nothing more than an appeal-to-history fallacy.

But IF we MUST look at historical trends in western civilization, the trend has ALWAYS been toward equal treatment of rights to significant minority groups.

In other words, your side always loses in the long run. That's what the march of western civilization should teach you.
8.19.2009 4:54pm
einhverfr (mail) (www):
Snaphappy:

Part of the problem is that there are far more than two sides to this argument. For example, I am concerned about the pace of social change, but consider DOMA to be discriminatory REGARDLESS of whether SSM bans are discriminatory. I square these by noting that the definition of marriage in fact has changed significantly over time and that we have already moved so far from the traditional definition of marriage that some level of change is inevitable.
8.19.2009 5:00pm
einhverfr (mail) (www):
Ken A:

However, the slavery argument is somewhat misleading because various Western cultures DID have strong limitations on owning and use of slaves prior. For example, I would hardly call slavery among the early Anglo-Saxons or the Icelanders to be comparable to American slavery.
8.19.2009 5:01pm
Danny (mail):
@ Snaphappy

I think the argument works better as a question of discrimination based on sexual orientation than just gender. The argument for same-sex partnership rights in general and SSM specifically stems from the gradual realization by society that there is more to the lives of gay people (people who are attracted to people of the same gender) than just sexual freedom and that they fall in love and form relationships just like everyone else. But when the gov't says that a person can only have partnership rights with someone of the opposite gender, that means that you have a category of citizens who can have a legal relationship with someone of the gender that they are attracted to, while another category cannot have any sexually and romantically functional marriage which is also recognized by the State. The effect of the gender restrictions means that a suspect class (gay and lesbian people) is severely curtailed in terms of personal autonomy.
8.19.2009 5:03pm
Borris (mail):

There was a time in western civilization when arguments for the abolition of slavery were "reletively recent" and the "morality du jour" when placed in the context of thousands of years of western civilization.

Yes, but it took a Constitutional amendment to outlaw slavery.
The SSM crowd failed to get their Constitutional amendment passed, but want instead to redefine the Constitution without all that messy democracy stuff.
Why bother to get a mere >50% of "the little people" to agree with your cause when you can shove it down their throats by only convincing 5 black-robed Solons of your cause?
If you win (and I think it likely that you eventually will), you need to win in the legislature or via initiative, not by raping the Constitution and violating the Social Contract.
~40 years ago the SC took away our Right to Vote on the matter of abortion. How has that worked out? Every other Anglo country eventually OKed abortion and we would have too, but we never got the chance to debate and reach a compromise; instead we got ~40 of anger.

The Left's open hatred of democracy is troubling, but par for the course.
Hey, you're smarter and better than everyone else. If the dumber masses don't agree with you why not just starve them in the Ukraine, shoot them in the rice paddies, call them un-American?
8.19.2009 5:06pm
Ken A (mail):

However, the slavery argument is somewhat misleading because various Western cultures DID have strong limitations on owning and use of slaves prior. For example, I would hardly call slavery among the early Anglo-Saxons or the Icelanders to be comparable to American slavery.


Right, but somewhere in the history of western civilization, attitudes started to change -- not just on slavery but on a variety of subjects (don't get me started on gender).

My point is: It's lame to argue that a particular social change is relatively novel when compared to 2000 years of western civilization, and therefore should be rejected. Such an argument would essentially would negate all social changes throughout the course of western civilization.
8.19.2009 5:09pm
einhverfr (mail) (www):
Ken A:

But IF we MUST look at historical trends in western civilization, the trend has ALWAYS been toward equal treatment of rights to significant minority groups.

In other words, your side always loses in the long run. That's what the march of western civilization should teach you.


I am not really sure I agree with those assertions either, btw. In fact I don't really see much evidence of universal social progress across all of Western civilization. There are some periods where things improve, but there are many cases when they don't. I think it is intellectually dishonest just to look at whatever we want to see as positive.
8.19.2009 5:09pm
Ken A (mail):

Yes, but it took a Constitutional amendment to outlaw slavery. The SSM crowd failed to get their Constitutional amendment passed


Well, first of all, outlawing SSM isn't even on the table. Nobody has gone to prison for being gay-married, even in states that fail to recognize it.

Secondly, SSM proponents don't NEED a constitutional amendment. We already have one:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When a state provides privileges and immunities to some married citizens and not other married citizens, that's a violation of the Constitution. That's denying equal protection of the laws.

Even if you disagree with me, I fail to see how me thinking that is, in your words, "raping the Constitution".


The Left's open hatred of democracy is troubling, but par for the course.


Your open embrace of "tyranny by the majority" is troubling, but par for the course.
8.19.2009 5:16pm
einhverfr (mail) (www):
Ken A:


Right, but somewhere in the history of western civilization, attitudes started to change -- not just on slavery but on a variety of subjects (don't get me started on gender).

My point is: It's lame to argue that a particular social change is relatively novel when compared to 2000 years of western civilization, and therefore should be rejected. Such an argument would essentially would negate all social changes throughout the course of western civilization.


How about this argument: wide-scale social change is inevitably disruptive and so substantial deference should be given to the status quo. This does include a substantial deference to tradition.

Unlike you, I don't have confidence that social progress is always a force for good. The gender arguments are in fact a lot more complex than most want to admit and while gender issues have improved relative to 200 years ago in many ways, in some other ways, they have substantially fallen behind (for example, in rural areas, 200 years ago, there were substantial sections of the economy run by women via cottage industries-- no need to choose between profession and staying at home to raise kids when one can do both).

IMO, while the novel approaches should be PRESUMED to be problematic and, absent a compelling reason, should not be accepted, this is not a bar that cannot ever be met. Instead, I think one needs a sober account of how the change interacts with our institutions as they have developed, not as they were some time ago.

This is one case where we have a conflict of traditions. IMO, given that conflict, and given the current social factors, I am in favor of SSM.
8.19.2009 5:18pm
Brandon 2L:
For those wanting evidence that legalization of same-sex relations has a historical basis ... It appears that some historians find the evidence persuasive that there is a pretty long history of civil-union-esque relations (600 years or so) in Great Britain:
http://hnn.us/articles/42361.html
8.19.2009 5:18pm
Ken A (mail):

In fact I don't really see much evidence of universal social progress across all of Western civilization. There are some periods where things improve, but there are many cases when they don't


Fair enough. If you don't see it, you don't see it.

Hills and valleys to be sure, but when I compare social progress from the dawn of Western civilization to now, I can't help but see a significant upward trend.
8.19.2009 5:21pm
Aaron Denney (mail):

For that matter, imagine that the question is "I want to expose my chest on the beach".


In fact, there are cases in many states voiding those laws.
8.19.2009 5:26pm
einhverfr (mail) (www):
Ken A


Hills and valleys to be sure, but when I compare social progress from the dawn of Western civilization to now, I can't help but see a significant upward trend.


If you define the Dawn of Western Civilization as the coronation of Carolus Magnus, I wouldn't question that. However, I think otherwise you are picking and choosing too readily.

I can't find any evidence, for example, that the ancient Greeks, Romans, etc. cared much at all about color of skin. They might have been xenophobic in many ways but not racist by modern definitions. In fact racism as such is almost exclusively a "modern" phenominon (really starting from the end of the Renaissance and accelerating through the mid 19th century).

I still think you are being rather selective at what you look at.
8.19.2009 5:26pm
Ken A (mail):

How about this argument: wide-scale social change is inevitably disruptive and so substantial deference should be given to the status quo. This does include a substantial deference to tradition.


Wanna float that argument in 1860? "Let's not have a Civil War, folks. It's too disruptive." Keep everything as it is.

Look, social change is only disruptive because some people are resistant to change. ANY change. I'm sorry, but tradition comes in pretty low on my priority scale when we're talking about liberty and justice for all.

Still, I find it ironic that some people (not you, I'm assuming) are happy to "water the tree of liberty with the blood of tyrants and patriots" from time to time, but when it comes to social change that doesn't even affect them personally, they get all queasy about social disruption and make appeals to "tradition" and western civilization.

Western cicilization is just a series of (mostly) bloodless revolutions that happen from time to time. Abolition, women's suffrage, voting rights -- these are all mini-revolutions. It's nothing to fear, and in retrospect, future generations wonder what all the fuss was about. The same holds true for same-sex marriage.
8.19.2009 5:31pm
Ken A (mail):

I still think you are being rather selective at what you look at.


I'm looking at the gestalt of it all.

Gotta run. Nice chatting with ya.
8.19.2009 5:33pm
Randy R. (mail):
Borris; "The SSM crowd failed to get their Constitutional amendment passed, but want instead to redefine the Constitution without all that messy democracy stuff. "

No, actually, it was the anti-SSM that tried to get a constitutional amendment to ban all gay marriage. It failed. There has never been any amendment proposed in either house to require SSM in all the states.

So, actually, it is the anti-gay crowd that wanted to circumvent democracy. Instead of allowing each state to decide on its own (as Massachusetts did), they wanted to ban it everywhere.

STrange how much anger people have regarding SSM. You'd think that we were trying to require everyone to marry everyone of the same sex. On the other hand, I note that there are plenty of straight allies who view SSM as harmless and nonthreatening. AFterall, we lost CA by but a few percentage points. Within five years, that will be flipped.
8.19.2009 5:34pm
Ken Arromdee:
And once again a disclaimer: I am not "Ken A".
8.19.2009 5:46pm
Randy R. (mail):
Borris: "Why bother to get a mere >50% of "the little people" to agree with your cause when you can shove it down their throats by only convincing 5 black-robed Solons of your cause? "

And I'm sure you are just as outraged when SCOTUS ruled on the Second amendment, right? AFterall, the 'little people' spoke through their legislatures to ban handguns and such, but that ran afoul of the constitution, so said those black robed Solons. Or is your anger only directed towards issues you disagree with?
8.19.2009 5:53pm
einhverfr (mail) (www):
Ken A:


Wanna float that argument in 1860? "Let's not have a Civil War, folks. It's too disruptive." Keep everything as it is.


Silly me. I thought the Confederacy fired at the Union first.....



Look, social change is only disruptive because some people are resistant to change. ANY change. I'm sorry, but tradition comes in pretty low on my priority scale when we're talking about liberty and justice for all.


No. It is disruptive because social systems are complex and hence changes tend to cascade into unintended side effects. IMO SSM is a result of the cascade more than it would be the cause of additional cascades.

This is one of my big concerns about the House health care bill-- it seeks to destroy a problematic but complex autochthonous system of medical insurance with a brand new, engineered beaurocracy. It would be better to have one modest reform every year than a major reform once a few decades.



I'm looking at the gestalt of it all.

Gotta run. Nice chatting with ya.


Then would you mind defining "Western civilization?" In particular which of the following are part and why?
* Middle ages Europe
* Byzantium
* Roman Empire
* Hellenic period city-states
* Early Anglo-Saxons, pre-Augustine
* early Republican Iceland
* Republican Rome
* early Ireland
* early Germanic tribes at the time of Tacitus
* Vedic India
* late Tripolye cities on the Pontic-Caspian Steppes
* Yamnaya Horizon
* Botai-Tersek horizon
* Sumeria
* Usatuvo horizon
* Dynastic Egypt

Now we can try to understand what "The dawn of western civilization" is and can try to evaluate your claim.

Unfortunately, I can't think of an appropriate definition of "Western Civilization" unless one ties it to Christianity, which strikes me as quite suspect, or unless one ties it to Indo-European culturolinguistic inheritance, in which case Iran and India are included.
8.19.2009 5:58pm
einhverfr (mail) (www):
SK:

The "traditional definition of marriage" argument is generally brought up because folks want to look to one specific point in the tradition and claim a non-evolving constant.

However, for the vast majority of Western civilization (expansively interpreted to include ALL Indo-European cultures), marriage has been fundamentally a legal relationship between families which had as one major and fundamental goal the production of children.

In short I would think the traditional definition of marriage would be "a legal and social relationship between a man and woman for the express purpose of creating and raising children."

However, if we accept that then all those married straight couples who don't want to have kids are committing fraud. Nobody believes that outside of non-American Catholics :-)
8.19.2009 6:07pm
ChrisIowa (mail):
Ken A.

Wanna float that argument in 1860? "Let's not have a Civil War, folks. It's too disruptive." Keep everything as it is.

Actually, that is a fair summary of the Northern Democrat position in 1860.
8.19.2009 6:10pm
MCM (mail):
However, if we accept that then all those married straight couples who don't want to have kids are committing fraud. Nobody believes that outside of non-American Catholics :-)


So there isn't actually a conflict of traditions, as you said earlier? You seem to be saying we've already abandoned "the traditional definition of marriage".
8.19.2009 6:12pm
einhverfr (mail) (www):
MCM:


So there isn't actually a conflict of traditions, as you said earlier? You seem to be saying we've already abandoned "the traditional definition of marriage".


Well aside from a few anti-Griswold folks,the argument is between resisting further change (and leaving us in an inconsistent state) and allowing the changes which began with Griswold to finish playing out and expanding marriage to same-sex couples.

While there is a conflict of traditions, though, I don't think most proponents or opponents of SSM argue from tradition really.
8.19.2009 6:17pm
MCM (mail):
While there is a conflict of traditions, though, I don't think most proponents or opponents of SSM argue from tradition really.


Really? I think that's all opponents of SSM really have left.
8.19.2009 6:31pm
Owen Hutchins (mail):

I have yet to hear a rational reason to prevent two, unrelated, adult gay men from getting married.

I have yet to hear a rational reason to prevent two, related, adult gay men from getting married.

Please to explain.



How closely related?

In any case, such a prohibition against marrying a person too closely related to you would in fact apply equally.

Tradition makes for a bad argument. The past gets a vote, but not a veto.
8.19.2009 6:37pm
einhverfr (mail) (www):
MCM:

No, they are arguing status quo, in the guise of tradition.

The status quo argument is fine as part of a larger case, but not much by itself.

There are a few folks who argue that marriage SHOULD be just about raising kids or who argue that it remains this despite all the other changes. These are both tradition arguments.

However, the first suggests changes to the status quo to reverse changes like access to contraception and the like. It isn't a common viewpoint outside of some segments of the Catholic church.

The second view supposes that widespread access to contraception doesn't eliminate this element, but it falls short in suggesting that, where vasectomies don't eliminate that role, that same-sex marriage some how would. It is hence a relatively weak argument.
8.19.2009 6:37pm
MCM (mail):
Ah, I see your distinction now.
8.19.2009 6:45pm
Leo Marvin (mail):
Rock Chocklett:

But here, didn't Olson take this case on because he believes in the cause? And here the "cause" is to constitutionalize a policy preference.

The cause is to legalize it. "Constitutionalizing" it is the legal strategy.
8.19.2009 6:46pm
Leo Marvin (mail):
I agree with Borris. Stalin was totally gay, and I'll bet anything Pol Pot wanted to marry his brother.
8.19.2009 7:07pm
CDR D (mail):
How about being able to marry a tree? Regardless of limbs or knotholes, of course.

After all, Obama's science adviser seems to think trees ought to have legal standing.
8.19.2009 7:30pm
MarkField (mail):

How about this argument: wide-scale social change is inevitably disruptive and so substantial deference should be given to the status quo. This does include a substantial deference to tradition.



"It is the business of the future to be dangerous…. The major advances in civilization are processes that all but wreck the societies in which they occur." A. N. Whitehead
8.19.2009 7:32pm
Down from the Ivory Tower:
Lots of electrons being wasted here. Gay marriage is coming. The cake is baked. Get used to it.
8.19.2009 7:37pm
Perseus (mail):
The surprising aspect of the new case is that it has Olson making same kinds of constitutional arguments that he has specialized in ridiculing for so long. It's the juxtaposition that is surprising. Of course, different people will disagree on which Ted Olson is right. Some will say he was wrong before and right now; others will he was right then and wrong now. But however you look at it, it seems hard to reconcile the two.

Has Olson somewhere provided an argument that would reconcile the apparent contradiction?

However, if we accept that then all those married straight couples who don't want to have kids are committing fraud.

That's why I have no problem with setting a time limit before sterile marriages are dissolved.

Lots of electrons being wasted here. Gay marriage is coming. The cake is baked. Get used to it.

Please keep repeating that line as it will serve to further delay that which is supposedly inevitable.
8.19.2009 8:06pm
Danny (mail):

That's why I have no problem with setting a time limit before sterile marriages are dissolved.


And if someone's child dies I guess the gov't should divorce them, too, since their marriage is no longer "useful", no longer "furthers state interests"? What a totalitarian freak..
8.19.2009 8:28pm
einhverfr (mail) (www):
Perseus:


That's why I have no problem with setting a time limit before sterile marriages are dissolved.


And I am sure banning contraception is right up there on your list of goals too.

BTW, if you really want to push this agenda through, wasting your time and effort on SSM is not the way to go. Start pushing for Griswold to be overturned and for states to ban contraception sales categorically, and for couples who get married and don't plan to have kids to be prosecuted for fraud.

If you can accomplish those, the SSM problem will take care of itself, I guarantee....
8.19.2009 8:34pm
Owen Hutchins (mail):
And when the children are all adults, and when they can no longer have children due to age.
8.19.2009 8:35pm
einhverfr (mail) (www):
Owen: You think childrearing stops when the kids leave home?
8.19.2009 8:51pm
Owen Hutchins (mail):
Of course not, but there's no reason to let the parents stay in the same home, taking up valuable marriage space.
8.19.2009 9:05pm
Owen Hutchins (mail):
Are you missing the sarcasm here?
8.19.2009 9:06pm
http://volokh.com/?exclude=davidb :

Preventing certain marriages from happening in the first place is the WORST kind of state interference into private relationships.

In general I agree with you. Nevertheless, I could have used an anti-marriage decree from Big Brother in, oh, 1992.
8.19.2009 9:09pm
einhverfr (mail) (www):
Owen:

My problem is that your sarcasm sort of disrupts the core issues. The issue is that traditional marriage (as it was defined for the last, say, 4000 years in Europe) was a legal arrangement specifically about raising kids that were a product of that marriage. This was true whether we were talking about Norse, Celtic, Greek, Roman, etc. marriage. These were fundamentally different institutions in terms of gender roles, independence, roles of extended families, divorce rights, etc. but they shared that basic commonality.

The fundamental question is whether in the last fifty years, that basis has been sufficiently eroded to expand the social organization to same-sex couples.

The secondary question is whether that erosion is sufficiently a bad thing to try to reverse it (banning contraception, etc).

The status quo is at odds with itself. I think that Griswold inevitably leads to gay marriage, and Lawrence inevitably leads to decriminalizing polygamy (though not necessarily expanding marriage benefits to multiple spouses due to legal structure issues involved). I suppose on the balance, liberty is a good thing though.
8.19.2009 9:21pm
einhverfr (mail) (www):
IOW, gay marriage is one marker partway down the slippery slope. We started down that slope around 3 decades ago. It would be rather difficult to reverse course.
8.19.2009 9:23pm
Danny (mail):

The issue is that traditional marriage (as it was defined for the last, say, 4000 years in Europe) was a legal arrangement specifically about raising kids that were a product of that marriage.


That's such a sweeping generalization as to be untrue. I'm not sure that all those tribes were monogamous. Often marriage is about acquiring in-laws and strengthening trade relations and political ties between politically relevant clans; whether the marriage produced children was not so important

You have to make a distinction too between a society like ancient Greece, where women were uneducated non-citizens confined to the home as basically the property of men, who used them to get kids, to maintain the house and for sexual release (among many morally and legally acceptable sexual outlets), and ancient Rome, where marriages were more based on romance and both spouses could divorce at will. Ancient Rome had a high divorce rate, too, because women were more emancipated and could initiate divorce.


and Lawrence inevitably leads to decriminalizing polygamy (though not necessarily expanding marriage benefits to multiple spouses due to legal structure issues involved).


Isn't that the current situation? There are Muslims and Mormons who have multiple wives; as long as only one is recognized by the state I don't think it is a criminal arrangement.
8.19.2009 9:31pm
einhverfr (mail) (www):
Danny:


That's such a sweeping generalization as to be untrue. I'm not sure that all those tribes were monogamous. Often marriage is about acquiring in-laws and strengthening trade relations and political ties between politically relevant clans; whether the marriage produced children was not so important


Umm.. Examples please?

Certainly wasn't the case in Ireland, among Germanic tribes, among Greeks and Romans, etc.


You have to make a distinction too between a society like ancient Greece, where women were uneducated non-citizens confined to the home as basically the property of men, who used them to get kids, to maintain the house and for sexual release (among many morally and legally acceptable sexual outlets), and ancient Rome, where marriages were more based on romance and both spouses could divorce at will. Ancient Rome had a high divorce rate, too, because women were more emancipated and could initiate divorce.


However, the pater familias role in Roman law more or less negates your differentiation between Greek and Roman systems.

Better examples would be Irish law where women could retain dowry on divorce, and where legal challenges to pater familias-like powers were possible, or among the Norse where divorce was relatively easy for either party and marriages were monogamous.
8.19.2009 9:41pm
Perseus (mail):
And I am sure banning contraception is right up there on your list of goals too.

Why should I support such a policy since I'm not an advocate of the Catholic version of natural law, which takes a dim view of contraception as such? My "agenda" is that public policy should link civil marriage with procreation and child rearing, not that it should attempt to maximize the number of children per marriage.
8.19.2009 10:00pm
Danny (mail):

However, the pater familias role in Roman law more or less negates your differentiation between Greek and Roman systems.


Hmm.. I heard that wives still had a lot of legal independence. I can't hit the Roman history books right now..

I know though that among many peasants in Europe right up through the Middle Ages, there was often no formal marriage at all. That is to say, a couple started simply living together and called themselves married, and so they were married. And there was no legal divorce because it was all Catholic, of course.

In the days before social security numbers people could just leave each other and move somewhere else. If a lady showed up in a town calling herself "widow of so-and-so" or if a guy showed up with a woman he called his "wife", nobody could really question it. So I think there was more flexibility that the rules on paper maybe acknowledged, right up to the 19th-20th centuries.
8.19.2009 10:05pm
Leo Marvin (mail):
Owen Hutchins:

Are you missing the sarcasm here?

Sarcasm, like marriage, is for closers.
8.19.2009 10:23pm
Perseus (mail):
And if someone's child dies I guess the gov't should divorce them, too, since their marriage is no longer "useful", no longer "furthers state interests"? What a totalitarian freak..

Anytime the conditions for receiving any legal benefit are no longer met, then they usually expire. That said, I would have no problem with continuing it as a kind of survivor benefit in that instance just as I would continue it for couples whose children have grown up (as a reward).
8.19.2009 10:49pm
Randy R. (mail):
Perseus: "My "agenda" is that public policy should link civil marriage with procreation and child rearing, not that it should attempt to maximize the number of children per marriage."

Since there are thousands of gay couples currently rearing children, then your agenda should certainly include SSM, right?
8.19.2009 10:50pm
http://volokh.com/?exclude=davidb :
Perseus is actually Sarcastro, right?
8.19.2009 10:53pm
Danny (mail):

That said, I would have no problem with continuing it as a kind of survivor benefit in that instance just as I would continue it for couples whose children have grown up (as a reward).


Wow, you would reward them? How magnanimous, supreme dictator of other people's family planning. Please tell us if not from religion, where you acquired this supreme arrogance with which you presume to decide when others can use contraception or be married or stay married. I assume that you are either very young, or that you have some history of a failed marriage or a broken family for which you are compensating, since it is never a contented, successful person who is obsessed with controlling other people.
8.19.2009 11:00pm
Perseus (mail):
Wow, you would reward them? How magnanimous, supreme dictator of other people's family planning. Please tell us if not from religion, where you acquired this supreme arrogance with which you presume to decide when others can use contraception or be married or stay married. I assume that you are either very young, or that you have some history of a failed marriage or a broken family for which you are compensating, since it is never a contented, successful person who is obsessed with controlling other people.

As a professor of political philosophy, I'd refer you to a long list of political philosophers from Plato to Pufendorf who presumed to provide advice on the institution of marriage, so spare me your crude pseudo-psychological reductionism. And to repeat, civil marriage involves controlling third parties, so why are you so obsessed with insisting that the rest of society be compelled as a legal matter to recognize and subsidize those unions?

The issue here is who should be eligible to receive the legal goodies and public recognition associated with civil marriage, and few except some libertarians would deny the state the right to place restrictions on who is eligible as well as when it dissolves (e.g., divorce laws).
8.20.2009 12:55am
einhverfr (mail) (www):
Danny:

BTW, I am not entirely negating your points about inlaws and extended families. These were important elements and deeply important. However, they were cemented by offspring. Thus marriage customs and law properly form a major part of reproductive culture.

The larger question though is whether Griswold v. Connecticut doomed that model as far as the United States goes. I don't know many (though there are a few on this board) who, when given the choice of having the state be able to ban contraception etc. or allow gay marrige would choose contraception bans.

BTW, the Laxdaela saga suggests that in early Republican Iceland, a woman could divorce her husband on the grounds that he wore a shirt with a neck hole that was too big and a man could divorce his wife if she wore a man's pants. Based on everything it was pretty close to a divorce on demand system.

Ancient European marriage and family law is an extremely interesting field.....
8.20.2009 1:28am
J. Aldridge:
Danny says, "The argument for same-sex partnership rights in general and SSM specifically stems from the gradual realization by society..."

You mean the realization of the court, not society.
8.20.2009 1:35am
einhverfr (mail) (www):
J Aldridge:

Danny says, "The argument for same-sex partnership rights in general and SSM specifically stems from the gradual realization by society..."

You mean the realization of the court, not society.


I disagree here. The fundamental rational basis for the SSM ban was dealt a mortal wound and condemned to a slow and painful death in Griswold v. Connecticut.

At the same time, we have seen a gradual realization in society that discrimination against gays isn't a good thing, or is it in line with American ideals. The court may be ahead of the curve, but I don't think it is too far ahead of the curve.
8.20.2009 1:41am
einhverfr (mail) (www):
Danny wrote:

How magnanimous, supreme dictator of other people's family planning. Please tell us if not from religion, where you acquired this supreme arrogance with which you presume to decide when others can use contraception or be married or stay married.


To which Perseus replied:


As a professor of political philosophy, I'd refer you to a long list of political philosophers from Plato to Pufendorf who presumed to provide advice on the institution of marriage, so spare me your crude pseudo-psychological reductionism.


I would further note that in "Republic" the thought experiment included doing away with marriage as such altogether and having arranged matings which would be entirely controlled by the state.

I don't think Plato appreciated the ideal of liberty very much. Like Perseus on this board, he wanted to see a perfectly moral and just republic, not a free one. And those exist along a continuum....
8.20.2009 1:44am
J. Aldridge:
At the same time, we have seen a gradual realization in society that discrimination against gays isn't a good thing, or is it in line with American ideals.

The court does its best to draw the picture of discrimination and activists run with it. It's like Obamacare, many think it's a bad thing but it wont stop Obama from trying to convince enough that it's a good thing to adopt.
8.20.2009 1:53am
einhverfr (mail) (www):
J. Aldridge:
I think a lot of hate crime laws came about before Lawrence v. Texas. I think your cause and effect are backwards.
8.20.2009 2:26am
Down from the Ivory Tower:
This thread typifies why I don't bother "debating" gay marriage anymore. The arguments against it are so facile that anyone who mouths them cannot possibly be debating in good faith from the point of view that gays are also people of dignity, too.

If you people truly cared about marriage and child-rearing, you'd be clamoring for laws to ban divorce, but I don't see that happening. Face it, your opposition is not to gay marriage, but to gay people, and this is because the thought of two men making love frightens you, maybe even in confusing ways. But know this: we will not be stopped, and our time is here. Let justice flow down like waters. Hallelujah and Amen.
8.20.2009 2:30am
J. Aldridge:
einhverfr, how did we all the sudden get into hate crimes?
8.20.2009 2:49am
cmr:
Snaphappy

Is it possible to discuss anything having to do with SSM without rehashing the entire debate from the beginning? What's most remarkable about the above is that both sides seem to think that their answer is obvioulsy correct. Let me go on record as saying I support SSM as a policy matter, but whether there is a right to marriage in the abstract, and whether the lack of recognition of SSM violates equal protection are difficult questions that reasonable people can disagree on.

One side says no discrimination because both men and women are prohibited from SSM.

One side says discrimination because only men are prohibited from marrying men and only women are prohibited from marrying women, for no rational reason.

Both are valid arguments. I happen to believe the SSM side will eventually win, but not because the constitutional argument is clearly correct and the other side isn't.


I'd agree with most of this, except the part about the second argument being a valid argument. It's not discrimination, it's discretion. Discrimination is when the entire point of a policy, or the sole effect of, or the definition of, policy is meant to express what people cannot do. A law that says marriage is defined as being male/female is an affirmative law based on expressed consent, not on the tacit denial of any other type of marriage.

And then, if we did accept the oppressed rhetoric, it's mutually oppressive. Because both men and women are restricted from doing the same thing. There isn't an inequality, nor is there a basic threat against the life, liberty, or property of a citizen because of it.

Down from the Ivory Tower

This thread typifies why I don't bother "debating" gay marriage anymore. The arguments against it are so facile that anyone who mouths them cannot possibly be debating in good faith from the point of view that gays are also people of dignity, too.


Actually, you have it backwards. People don't have to argue against gay marriage, and they don't have to make good arguments, either. Those opposed to SSM simply must defend the status quo. It's those who are for it who need to improve their arguments. Given all the constitutional poetry and pseudo-intellectual legal jujitsu going on on your side of the aisle, I'd say you're jaded with the wrong side.

If you people truly cared about marriage and child-rearing, you'd be clamoring for laws to ban divorce, but I don't see that happening. Face it, your opposition is not to gay marriage, but to gay people, and this is because the thought of two men making love frightens you, maybe even in confusing ways. But know this: we will not be stopped, and our time is here. Let justice flow down like waters. Hallelujah and Amen.


Heh, see what I mean? No, your ilk is the side that apparently can risk alienating people by being extremists. Most of the social conservatives who rally against gay marriage aren't any more in favor other things that sully the institution of marriage (i.e. divorce), but they realize there isn't much they can do about it. Stopping something from being legal that would do the same as divorce is something they can do.

And your "we're here, we're queer, give us a light beer" stuff is tired, my friend. We...don't care. In fact, gay marriage is losing support among Americans. NYT and CBS just did a poll on it not too long ago. People see that many of you aren't just well-meaning individuals who want to live your lives happily. They see that you're polemicists who have no problem bashing religion and race-baiting and subverting the will of the people, for a supposed Constitutional right you can't prove, and many of you are afraid to take to federal court because you're afraid you'll lose. It took a conservative to push this issue into the federal courts.

So please, spare me the whole bit where you poke your chest out in defiance. We all know it's an act. We're not impressed.
8.20.2009 2:50am
A. Zarkov (mail):
BN:

"I have yet to hear a rational reason to prevent two, unrelated, adult gay men from getting married."

Why do these two men have to be unrelated? They can't have children together, so there can't be any incest.
8.20.2009 3:03am
A. Zarkov (mail):
SSM will increase the number of bogus marriages to gain entry into the US.

It's already a problem with heterosexuals. Enlarging the universe of people who can marry provides more opportunity to engage in this particular fraud.

I know several people who have entered into sham marriaqes to get someone a green card. One a homosexual married an English woman, then divorced her. Needless to say the marriage was never consummated. Some do it for money others do it to grant favors. In all cases these people show contempt for the US, its laws and institutions.

We can argue of how many addition bogus marriages SSM will create, but it's certainly not zero. This is a rational basis on which to deny SSM.
8.20.2009 3:11am
A. Zarkov (mail):
For those who think opposition to SSM and homosexuality for that matter, is pretty much of Christian origin, I present the Satires of Juvenal.
And what about
That noble sprig who went through a "marriage" with some common
Horn-player or trumpeter - and brought him a cool half million
As a bridal dowry? The contract was signed, the blessing
Pronounced, and the blushing bride hung round "her" husband's neck
At a lavish wedding breakfast. Shades of our ancestors!
Is it a moral reformer we need, or an augur
Of evil omens?
Juvenal's Second Satire is often omitted from books. Fortunately I have a Latin scholar in the family who can translate from the original. Then we have the Internet see here. Juvenal also commented on disease transmission by anal sex.
Infection spread this plague
And will spread it further still, just as a single
Scabby sheep in the field brings death to the whole flock
Or the touch of one blighted grape will blight the bunch
In short Juvenal like some today viewed SSM as a moral decay in a secularized society. A crime against nature and a corruption of moral principles. We have all these in abundance today and just as they destroyed Rome they will destroy us.
8.20.2009 3:39am
Leo Marvin (mail):

Actually, you have it backwards. People don't have to argue against gay marriage, and they don't have to make good arguments, either. Those opposed to SSM simply must defend the status quo. It's those who are for it who need to improve their arguments.

No, at worst all they (we) have to do is wait.
8.20.2009 4:37am
Owen H. (mail):
einhverfr- even with the argument that marriage is about raising children (which I disagree with as it is not the only reason people marry), you ignore all the children being raised in same-sex households now. Why do those children not deserve the extra protections your idea of marriage is intended to provide to them?

It seems to me that the real problem with my sarcasm is that it points out the flaws in your argument.
8.20.2009 6:46am
MCM (mail):
Zarkov... thank you for the most unintentionally hilarious posts in this whole thread.
8.20.2009 9:18am
Gabriel McCall (mail):
A more interesting debate for right-of-center lawyers the question of whether the constitution gives any inalienable right to having a romantic relationship, or to marrying at all.

This question misperceives the relationship between individual rights and the Constitution. The question is never whether the Constitution grants a right to the private individual; the question to be asked is whether the Constitution grants a power to the government.

The federal government, of limited and enumerated powers, has no authority to pass any legislation regarding marriage. The only Constitutional clause which even approaches relevance to the marriage issue is Full Faith and Credit.
8.20.2009 9:42am
cmr:
No, at worst all they (we) have to do is wait.


Uh huh. Just like Butterfly waited for Pinkerton.

Owen H.

einhverfr- even with the argument that marriage is about raising children (which I disagree with as it is not the only reason people marry), you ignore all the children being raised in same-sex households now. Why do those children not deserve the extra protections your idea of marriage is intended to provide to them?


It doesn't matter what people's motivation is to get married (though I'd still say children probably ranks pretty high for most people); what matters is the motivation for the state to bestow these benefits on people because they get married.

The main point people who bring up children make is that children need a mother and a father and gay couples can't offer that. Marriage is meant to provide them protection by way of offering them that stable home with their biological parents. Though gay couples can be great and loving parents, gay marriage is solely about them, since by design, they don't have children. Perhaps they deserve some type of legal status that would allow them to more "protections" for their kids, but that doesn't mean marriage.
8.20.2009 9:44am
MCM (mail):
The question is never whether the Constitution grants a right to the private individual; the question to be asked is whether the Constitution grants a power to the government.

The federal government, of limited and enumerated powers, has no authority to pass any legislation regarding marriage. The only Constitutional clause which even approaches relevance to the marriage issue is Full Faith and Credit.


What? The states obviously have powers not granted by the US constitution, especially the traditional police powers. Yet the US constitution (particularly the 14th amendment) says that persons have rights which the states shall not infringe.

I would agree with your post if the federal government were the only government and there were no 14th amendment.
8.20.2009 10:01am
NRWO:
Zarkov: I have argued a similar position in the past -- but didn't note the immigration issue, which is pertinent.

Sexual orientation cannot easily be visually verified. (Can it be visually verified at all?) Under same-sex marriage, two adult heterosexual males would be just as qualified for marriage as two adult homosexual males -- even if the two heterosexuals are effectively complete strangers who merely want marriage for benefits.

Same-sex marriage makes it easier for new classes of people besides homosexuals (e.g., two heterosexual males or females) to engage in bogus marriages, i.e., marrying merely for benefits, or whatever, rather than for love and/or procreation.

The upshot is that you can't expand the class of eligible partners (when instituting same-sex marriage) without also expanding the class of bogus marriages. That's a rational basis for rejecting same-sex marriage.
8.20.2009 10:19am
MCM (mail):
The upshot is that you can't expand the class of eligible partners (when instituting same-sex marriage) without also expanding the class of bogus marriages. That's a rational basis for rejecting same-sex marriage.


Indeed; an argument well-supported by the rash of sham gay marriages in MA.
8.20.2009 10:25am
NRWO:
Do you know how many sham marriages have been obtained in MA?

This is part of the problem: I don't think you can easily judge the number of sham marriages, in part (a) because sexual orientation cannot easily be visually verified, and (b) because most people who obtained such marriages would probably not want to publicly declare them as such.
8.20.2009 10:32am
MCM (mail):
Do you know how many sham marriages have been obtained in MA?

This is part of the problem: I don't think you can easily judge the number of sham marriages, in part (a) because sexual orientation cannot easily be visually verified, and (b) because most people who obtained such marriages would probably not want to publicly declare them as such.


No, do you? You're the one making the argument, it's up to you to tell me. I'm guessing you don't have any evidence.
8.20.2009 10:38am
Joseph Slater (mail):
Along the lines of what MCM says, re the fear of sham SSM marriages, this is yet another horrible trotted out by SSM opponents who are pretending that SSM is merely a theory that has not been put in practice anymore.

We have SSM in a number of countries and states. If SSM really leads to a bunch of sham marriages (and hey, who among us wouldn't pretend to be gay just to get, um, hospital visitation rights?), man-dog sex, etc., you should be able to show that, right?
8.20.2009 11:20am
MCM (mail):
On the other hand, I Now Pronounce You Chuck and Larry was such a truly awful movie that we should enact harsh penalties for anyone caught emulating it in any way.
8.20.2009 11:55am
einhverfr (mail) (www):
Owen H:

einhverfr- even with the argument that marriage is about raising children (which I disagree with as it is not the only reason people marry), you ignore all the children being raised in same-sex households now. Why do those children not deserve the extra protections your idea of marriage is intended to provide to them?


Except that a major part of the function has been conception of new children.

As I say, I think Griswold dealt this a death blow. Gay marriage is inevitable because the conception function has already been declared outside the State's authority.

Not that I disagree with Griswold. Just pointing out that the slippery slope is something which we have been on for some time.......
8.20.2009 12:16pm
A. Zarkov (mail):
"We have SSM in a number of countries and states. If SSM really leads to a bunch of sham marriages (and hey, who among us wouldn't pretend to be gay just to get, um, hospital visitation rights?), man-dog sex, etc., you should be able to show that, right?"

Many sham marriages are arranged to gain entry into the US, not for hospital visitation rights.

We can't say for sure how many future SSM marriages will be sham, but the potential certainly exists because legalized SSM will certainly expand the universe of opportunities. It's a potential downside to SSM, and since 99% of the population will enjoy no benefit from SSM, we should we do it? The advocates of SSM have the burden of proving a benefit for the rest of us. A significant benefit to SSM would overcome a negative potential, but as yet no one demonstrated such a benefit for the rest of us.
8.20.2009 1:04pm
MCM (mail):
Many sham marriages are arranged to gain entry into the US


"Many"? How many?

It's a potential downside to SSM, and since 99% of the population will enjoy no benefit from SSM, we should we do it? The advocates of SSM have the burden of proving a benefit for the rest of us.


Actually, 100% of the United States will receive a benefit: all people will be allowed to marry someone of the same gender. Just because they choose not to exercise that benefit doesn't mean they don't have it.

A significant benefit to SSM would overcome a negative potential, but as yet no one demonstrated such a benefit for the rest of us.


It's just as likely that federal recognition of SSM will decrease sham marriages, because gay foreigners with US partners will be able to marry their US partner and legitimately receive a green card. An entire class of potential sham marriages would be eliminated.

I would still really love to see some evidence about the actual number of sham marriages people think are going on, whether for US entry or sham gay marriages in MA for marriage benefits.
8.20.2009 1:40pm
einhverfr (mail) (www):
A. Zarkov:

The sham marriage issue regarding immigration is a very different issue. Yes, there are many sham marriages currently. My own thinking though is that if one can work on solving this problem with reasonable fairness regarding straight couples, then the SSM issue in this area goes away.

I have first-hand experience dealing with bringing my wife to the US (she is from Indonesia). There is certainly some room for improvement in removing the most obvious scams. However, these are generally applicable solutions involving better record keeping, making sure the bar is in the right place regarding evidence provided during adjustment of status proceedings, etc.

I am also sure some of these things are better handled now than they were six years ago.

Also it is worth keeping in mind that some of the issues with sham marriages are due to specific Constitutional issues regarding roles of the states and the full faith and credit clause. These present unique difficulties here in the US, but there are no fundamental problems with tightening up controls a bit.
8.20.2009 1:44pm
einhverfr (mail) (www):
(I would also point out that there are problems with sham tourist visas issued to folks who come over here to engage in bona fide marriages as well, so the same goes both ways.)
8.20.2009 1:50pm
Joseph Slater (mail):
Zarkov:

In addition to what MCM said:

(1) No, the burden of proof is on you to show this is a real problem, since, again we already have SSM in a number of countries and U.S. states.

(2) Why would SSM make the problem of sham marriages for immigration significantly more likely? Are we really positing a large number of people who are hell-bent to enter into a sham marriage to gain immigration status who can't find anyone of the opposite sex to engage in the sham with, but can find members of the same sex who will then have to publically proclaim that they are gay -- and try to prove it to the immigration authorities?

(3) The idea that SSM only benefits those who enter into SSM is absurd. I have a sister who is married to her (wonderful) partner in Mass. That makes me and my family (and a number of other folks, straight and gay, married and unmarried) happier.
8.20.2009 1:54pm
MCM (mail):
I find it hilarious that we have well over a million immigrants to US every year (650,000 legal and about that many illegals, plus more) and yet millions of Americans are to be denied the right to marry their loved one because there might or might not be so much as a .1% increase in illegal immigration.

I think you were doing better with Juvenal, to be honest.
8.20.2009 1:57pm
A. Zarkov (mail):
MCM:

"Actually, 100% of the United States will receive a benefit: all people will be allowed to marry someone of the same gender. Just because they choose not to exercise that benefit doesn't mean they don't have it."


That benefit is more theoretical than actual. We know that 99% of the population will not want to marry someone of the same sex. So on a practical level, there is no benefit to me or most everyone else.

"Many"? How many?


We can't come up with a number (yet) because very few states have SSM. It's only been around a short time. I don't know how the fed treat SSMs for immigration purposes, and finally it's hard, but not impossible to detect such arrangements. In case, the potential is enough in light of the fact that SSM does not benefit very many people.

"It's just as likely that federal recognition of SSM will decrease sham marriages, because gay foreigners with US partners will be able to marry their US partner and legitimately receive a green card. An entire class of potential sham marriages would be eliminated."

You might be right on this, but its too hard to tell at this point. However, I think heterosexuals will do sham marriages and feign (if necessary) their orientation. That's a much larger universe. People will do most anything for money.
8.20.2009 2:06pm
grendel (mail):
"Many sham marriages are arranged to gain entry into the US, not for hospital visitation rights."

If you limited immigration to whites only we could prevent even more fraudulent immigration, right?

That aside, I don't get why it is so much easier to fake a same sex marriage for immigration purposes than it is to fake an opposite sex marriage for that purpose. I would think the opposite, most heterosexuals would have an easier time faking a marriage which someone of the opposite sex for a year or so for immigration purposes than they would with someone of the same sex. US Immigration looks for things like photos of the couple behaving as a couple, you know hugging, kissing, being affectionate. Agents will go to your home and check out your bedroom and medicine cabinets, interview neighbours and colleagues, etc. It is not as easy to fake a marriage as you might think.
8.20.2009 2:09pm
einhverfr (mail) (www):
There is another element to SSM immigration issue....

Right now, there are a significant number of people who cannot marry the one they want to because SSM is not legal. One thing SSM might do might be to remove some of these folks from the sham marriage pool.

For example.... Gay man is US citizen, good friends with a foreign lesbian who wants to immigrate. Legal down side to entering into a marriage for immigration purposes without SSM? I can't think of any. They could stay married for any number of years and then divorce with no legal consequences whatsoever.

What about with SSM? The issue of showing a bona fide marriage during adjustment of status (2 years later) would create a burden the same way it does now with OSM. In essence you are giving 2 years of your life to someone that could be given to the marriage you want to have.

As I say, it opens up possibilities for immigration fraud, but it also puts some other controls in place. One needs to address the fraud itself, not other issues.
8.20.2009 2:09pm
einhverfr (mail) (www):
Grendel:

Most of those only happen during unusual cases. In my case, we just submitted evidence and adjustment of status went quite smoothy. Of course my wife and I had a kid at the time which is good evidence of a bona fide marriage.

We didn't even have to show up for an interview. And we handled our case ourselves.
8.20.2009 2:11pm
A. Zarkov (mail):
Joseph Slater:

"The idea that SSM only benefits those who enter into SSM is absurd. I have a sister who is married to her (wonderful) partner in Mass. That makes me and my family (and a number of other folks, straight and gay, married and unmarried) happier."

The benefit to you is vicarious, not direct, and more than canceled out by those who would be made very unhappy by SSM. But if one day the public really wants SSM, for whatever reason, then we will have it as part of the normal democratic process.
8.20.2009 2:13pm
A. Zarkov (mail):
MCM:

"I find it hilarious that we have well over a million immigrants to US every year (650,000 legal and about that many illegals, ..."

That show we have too many immigrants.
8.20.2009 2:15pm
MCM (mail):
So I take it you oppose Loving v. Virginia because the benefit is more theoretical than actual (the vast majority of people marry someone of their own race) and it greatly expanded the potential for sham marriages.
8.20.2009 2:17pm
A. Zarkov (mail):
grendel:

"If you limited immigration to whites only we could prevent even more fraudulent immigration, right?"

Yes we would, and there is no constitutional barrier to doing that. Foreign nationals residing abroad are not US "persons."
8.20.2009 2:17pm
Guest14:
That benefit is more theoretical than actual. We know that 99% of the population will not want to marry someone of the same sex. So on a practical level, there is no benefit to me or most everyone else.
Excellent point. It also strikes me that you having due process rights provides me with no benefits whatsoever, and makes it more likely that you'll be able to escape punishment for some crime you might commit on a technicality. I've now shifted my position to supporting your indefinite detention without trial.
8.20.2009 2:20pm
A. Zarkov (mail):
einhverfr:

"In essence you are giving 2 years of your life to someone that could be given to the marriage you want to have."


That's costly to some people, but not to others. As I said, I know of a gay man who did a sham marriage with an English woman to get her into the country. Neither minded staying married for a few years. He gave up nothing as far as I know. Most gays do not want to get married.
8.20.2009 2:24pm
MCM (mail):
That show we have too many immigrants.


Whether or not we have too many immigrants, it also shows that SSM would not change the amount of illegal immigration in any way we are capable of detecting.
8.20.2009 2:26pm
A. Zarkov (mail):
Guest14:

"It also strikes me that you having due process rights provides me with no benefits whatsoever,..."


Hardly comparable. Any of us can face a criminal charge-- we have no control over such events. Therefore due process rights for everyone includes me, and I might very well need those rights someday.

On the other hand, I know for sure that I will never want to marry a person of the same sex, and so do about 99% of the US population. I know when someone is giving me the sleeves off his vest.
8.20.2009 2:31pm
A. Zarkov (mail):
MCM:

"Whether or not we have too many immigrants, it also shows that SSM would not change the amount of illegal immigration in any way we are capable of detecting."

We don't know that. Should the country finally wise up and significantly curtail immigration both legal and illegal, sham marriages would represent a significant fraction of the immigrants. I'm assuming that even with a very tight immigration policy we would make special exceptions for married people. Of course we don't have to do that either.

On the other hand, should we go to a virtually open borders policy, then sham SSMs would be a small part of the total. Perhaps I'm being naive, but I think the country will wake up and wake up soon to the downside of excessive immigration.
8.20.2009 2:37pm
Joseph Slater (mail):
Zarkov:

Vicarious or direct can be tricky, especially in family situations. Suppose my wife and I decide that, if both of die, my sister and her partner should have legal custody of my child? Does my sister's marriage count as a direct benefit to me, since that will make various aspects of parenting my child easier? What about sorting through our family inheritances -- the legal clarity of my sister's marriage will be a benefit to me. So it's not just my personal joy at seeing my sister happy that benefits me.

More broadly, more stable, committed, loving relationships in society are good for society.

And no, it's not "outweighed" by people being abstractly disappointed that their favored political outcome on SSM (a minority one in Mass.) lost. I've never met a single person who has told me that my sister's marriage has made him or her unhappy or harmed them.

Finally, your point is contradictory. If you claim the benefit to me from my sister's marriage is not "direct," and thus should be discounted, how can you possibly credit any abstract "harm" to people from my sister's marriage simply because they disapprove of it? What "direct" harm are they suffering?
8.20.2009 2:41pm
A. Zarkov (mail):
MCM:

"So I take it you oppose Loving v. Virginia because the benefit is more theoretical than actual (the vast majority of people marry someone of their own race) and it greatly expanded the potential for sham marriages."

Putting aside whether Loving was correctly reasoned, it hardly bears any relation to SSM. Loving did not make a major institutional change to marriage i the US. Most states allowed inter-racial marriages at the time Loving was decided. You want numbers. Tell me how many more inter-racial marriages caused?
8.20.2009 3:39pm
A. Zarkov (mail):
Joseph Slater:

"Vicarious or direct can be tricky, especially in family situations. Suppose my wife and I decide that, if both of die, my sister and her partner should have legal custody of my child? Does my sister's marriage count as a direct benefit to me, since that will make various aspects of parenting my child easier?"

I notice we have entered the subjunctive tense here, demonstrating the theoretical nature of your argument. I don't see why your sister even needs to be married to be a god mother. The couple could formally adopt the children.
8.20.2009 3:44pm
A. Zarkov (mail):
Sorry about the choppy typing, the phone kept ringing and distracted me. I hope it was readable.
8.20.2009 3:46pm
Joseph Slater (mail):
Zarkov:

It was readable, and I applaud you for getting out "subjunctive tense" during distractions.

On the merits, I don't think I have to reveal all the details of my family planning to make a plausible hypothetical that could affect quite a few people. And, given that scenario, even where gays can adopt, it should be obvious that it is easier for a couple that is married to raise a child than for a couple who has not married. And again there are inheritance matters.

Again, these are some potential direct benefits to me and other relatives of those in a SSM. Are you still maintaining that an abstract dislike for SSM somehow would "outweigh" that? Their abstract disapproval doesn't even outweigh my abstract disapproval.
8.20.2009 3:57pm
A. Zarkov (mail):
Joesph Slater:

"Are you still maintaining that an abstract dislike for SSM somehow would "outweigh" that? Their abstract disapproval doesn't even outweigh my abstract disapproval."


Laws have an expressive component apart from any real-world impact. I think that's what upsets many people. SSM legitimizes homosexuality by putting it on a completely equal footing with heterosexuality. Rightly or wrongly many people don't like that. At this point it's worth looking at some objective data on this issue here. I think that you and other readers will find these graphs extremely interesting.

As expected we see a dramatic age effect. Older people are less likely to support SSM. No surprise. But note the last graph: "Do you support federal gay marriage amendment?" Nearly flat with age! This is mysterious. Are they confused? Lying to the pollster? I don't know, but clearly this issue needs some good research before we make claims about how much total happiness or unhappiness SSM will create.

My major point. Like nationalized health care, SSM is a big change and should not be rushed through before we understand the consequences. It can be very hard to see the future downside to something that on the surface looks good.

Ridicule of SSM is nothing new and that's why I posted parts of Juvenal's Satire. Not only the Christians (which I'm not) think SSM is a bad idea. The fact that we have never had SSM also tells us that the public really does resist this sort of thing. I'm actually much more agnostic on SSM than might be apparent. I supported gay people long before it was popular to do so; when doing so brought ridicule. But today's gay activists are a real turn off. When I see them trying to get people who contributed to Prop 8 fired, I get extremely mad.
8.20.2009 4:43pm
einhverfr (mail) (www):
A. Zarkov:

Putting aside whether Loving was correctly reasoned, it hardly bears any relation to SSM. Loving did not make a major institutional change to marriage i the US. Most states allowed inter-racial marriages at the time Loving was decided. You want numbers. Tell me how many more inter-racial marriages caused?


My marriage is interracial..... I am glad I don't have to worry about consequences of moving from one state to another.....

However, would you agree that Griswold more fundamentally changed the institution of marriage than did Loving?
8.20.2009 4:45pm
shawn-non-anonymous:
NRWO:

"Same-sex marriage makes it easier for new classes of people besides homosexuals (e.g., two heterosexual males or females) to engage in bogus marriages, i.e., marrying merely for benefits, or whatever, rather than for love and/or procreation. "


This would be more amusing if it wasn't being said with a straight face (or pixel, in this case.)

Sham marriages for the purpose of immigration fraud are shams. Given that, why would a homosexual male not already marry a willing female (heterosexual or not) to get into the USA? The parties are already lying about their relationship. The existence of same-sex marriage would not create more opportunity, just additional varieties of the same opportunity.

I am open to evidence that shows it increases fraud, but I would be surprised to see any such evidence.
8.20.2009 4:47pm
Randy R. (mail):
You would think that the leaders of the anti-SSM, who consistently predict the most dire consequences for our society if SSM is legalized, would be happy to make predictions on rates of marriage, divorce, adoption, etc, if SSM is allowed.

You would, of course, be wrong. Check this out, http://www.reason.com/news/show/135539.html
8.20.2009 4:47pm
einhverfr (mail) (www):
A. Zarkov:

Laws have an expressive component apart from any real-world impact. I think that's what upsets many people.


Sure, but does that make the expressive nature a cause in itself for having a discriminatory law like DOMA?

BTW, I oppose hate crime legislation generally because it is usually supportive for its expressive component as well and the valid interests which a few supporters point to are not well served by such laws.

I don't think we should use laws to "send a message." Laws exist to structure our social order. No more and no less.
8.20.2009 4:47pm
Randy R. (mail):
cmr posted that support is dropping for SSM. It isn't, and actually it has been consistently rising over the last fifteen years. Go to Nate Silver to find that stats on support for gay rights, including SSM
8.20.2009 4:50pm
Danny (mail):
@ Zarkov


SSM will increase the number of bogus marriages to gain entry into the US.
It's already a problem with heterosexuals.
We can argue of how many addition bogus marriages SSM will create, but it's certainly not zero. This is a rational basis on which to deny SSM.


Forget the fact that same-sex married couples currently have no immigration rights as opposite-sex couples do. Let's assume that is corrected. So by your own argument, there is a rational basis to ban heterosexual marriage because bogus opposite-sex marriages to gain entry into the US are certainly not zero. Anyone can get a bogus opposite-sex marriage right now. So this is a very poor argument.

Just out of curiosity - were you born in the US and if so after how many generations?

You are also forgetting about the many Americans who, like me, have been forced to emigrate because of a lack of immigration benefits for their foreign partners (best thing I ever did). You might not care about them, but their families do.


The benefit to you is vicarious, not direct, and more than canceled out by those who would be made very unhappy by SSM.


This argument is even worse, because it smacks of the "right not to be offended" restrictions on free speech and actions that offend "groups" in Europe. You do realize though that even if there is no national SSM for 50 years in the USA, gays are never going back into the closet and will no longer hide in fear? You are always going to see out gay people and they are going to be even more visible as long as the gay rights movement is still going on.


In short Juvenal like some today viewed SSM as a moral decay in a secularized society. A crime against nature and a corruption of moral principles.


You were able to dig up a writer from the Roman Empire who was not impressed with homosexuality or SSM. However, it is not to your advantage to bring up the Roman Empire, which covered essentially all of Europe, North Africa and the Middle East over a centuries-long period. You can find a great deal of counter-exampels in that great cultural mix. (Male) homosexuality was at least viewed so casually that the Romans put a hardcore gay sex scene on a coin. The Roman emperor Hadrian was criticized for lavishing too much affection on his teenage boyfriend Antinou, but when Antinou drowned the entire Roman Empire went into a period of official mourning. When we get the California commemorative gay sex quarter, and Obama declares national mourning and builds statues of his teenage boyfriend all over the USA, then we will have the same level of condemnation of homosexuality as Ancient Rome.



We have all these in abundance today and just as they destroyed Rome they will destroy us.


I saved your best argument for last. Gay marriage caused - wait for it - the fall of the Roman Empire! And it risks causing the fall of the American Empire! Forget that the Roman Empire never fell but died a natural death after a long and successful life of 1,200 years, which is a lot longer than our American empire will probably last.

You forgot to mention that SSM may cause meteors and earthquakes. And every time a condom is opened, an angel dies.

I am surprised. I would have expected better arguments from a lawyer, which I presume you are. I'm sorry but I would not hire you to defend my case on the basis of what I have seen here.
8.20.2009 5:03pm
Owen H. (mail):


The main point people who bring up children make is that children need a mother and a father and gay couples can't offer that.


Whether or not that is the most perfect setup is debatable, but in any case we do not legally require that children can only be raised in a "perfect" environment. Otherwise we'd ban single-parenting, and poor people having children at all.

Marriage is meant to provide them protection by way of offering them that stable home with their biological parents.


Marriage is meant to provide more than that, and not simply for the sake of children.



Though gay couples can be great and loving parents, gay marriage is solely about them, since by design, they don't have children.


Homosexual parents don't care about their children? Besides, same-sex couples do have children. They have them all the time. The child may not be biologically related to both of them, but that happens a lot even in straight marriages.

Perhaps they deserve some type of legal status that would allow them to more "protections" for their kids, but that doesn't mean marriage.


It seems to me, by your (and others') definitions, that DOES mean marriage. And unless you are also willing to say that only couples willing and able to have children, and in fact do so, can be married then your arguments fall utterly flat. If you aren't willing to apply them to opposite-sex couples, it is disingenuous. If you are, that's another argument entirely, but also one I think you will, ultimately, lose.
8.20.2009 5:17pm
A. Zarkov (mail):
einhverfr:

"My marriage is interracial..... I am glad I don't have to worry about consequences of moving from one state to another....."

Why so many dots?

You would not have needed Loving in order to move from state to state. Very few states had laws prohibiting inter-racial marriage, and in those that did enforcement was weak to non-existent.

"However, would you agree that Griswold more fundamentally changed the institution of marriage than did Loving?"


No. I don't agree. Like Virgina's law on inter-racial marriage, Connecticut's ban on the sale of contraceptives was an old archaic law that was unenforced. From Wikipedia.

Griswold v. Connecticut involved a Connecticut law that prohibited the use of "any drug, medicinal article or instrument for the purpose of preventing conception." Although the law was passed in 1879, the statute was almost never enforced. Attempts were made to test the constitutionality of the law; however, the challenges had failed on technical grounds.

On a practical level, the decision in Griswold did squat to change marriage.
8.20.2009 5:25pm
ChrisTS (mail):
@ Perseus:
The issue here is who should be eligible to receive the legal goodies and public recognition associated with civil marriage, and few except some libertarians would deny the state the right to place restrictions on who is eligible as well as when it dissolves (e.g., divorce laws).

Those of us who think SSM should be recognized do not all do so on the libertarian grounds that the State has no business placing restrictions on 'legal goodies.'

Rather, we think the State ought not to discriminate without justification in handing out those goodies. This is a logical gap in your retort which I, as a philosopher colleague, find surprising.

By the way, the fact that some philosophers, from Plato to Perseus, have believed the State ought to micromanage marriage is not a proof of the wisdom or justice of its doing so. Appeal to authority, and all that.
8.20.2009 5:35pm
ChrisTS (mail):
@ Joseph Slater:
Finally, your point is contradictory. If you claim the benefit to me from my sister's marriage is not "direct," and thus should be discounted, how can you possibly credit any abstract "harm" to people from my sister's marriage simply because they disapprove of it? What "direct" harm are they suffering?

Thank you. Mill and logic live.
8.20.2009 5:36pm
ChrisTS (mail):
Speaking of philosophers: May the gods bless Mark Field for quoting from A.N.W.
8.20.2009 5:39pm
cmr:
einhverfr
Except that a major part of the function has been conception of new children.

As I say, I think Griswold dealt this a death blow. Gay marriage is inevitable because the conception function has already been declared outside the State's authority.

Not that I disagree with Griswold. Just pointing out that the slippery slope is something which we have been on for some time.......


It's kind of silly to keep asserting this. Griswold dealt with marital privacy, not the "right to marry", and it has nothing to do with the argument people make when they mention conception re: the SSM issue. The impetus for the state to bestow legal benefits still centers around the biological nature of heterosexual relationships, even if they can't exactly legislate against people because of it. There's a difference between that and expressed restrictions on marriage for the same reason.

Randy R.

cmr posted that support is dropping for SSM. It isn't, and actually it has been consistently rising over the last fifteen years. Go to Nate Silver to find that stats on support for gay rights, including SSM


I was referring to the NYT/CBS poll recently that showed support among Americans for gay marriage had slipped.

Owen H.

Whether or not that is the most perfect setup is debatable, but in any case we do not legally require that children can only be raised in a "perfect" environment. Otherwise we'd ban single-parenting, and poor people having children at all.


It's debatable if it doesn't vibe with your theories about ideal parenting, but the social science has been pervasive on the fact that children do best in a low-impact home with their biological mother and father. It's about as debatable as the Theory of Evolution.

And don't start throwing around false dilemmas. No, we wouldn't *have* to do any of those things. The point is, people understand what's optimal for children, and that's what they feel public policy should promote: what's best. Not what's merely acceptable. What's best are children being raised by their mother and father, and gay parents cannot offer them that. So while that doesn't necessarily mean they don't deserve some sort of legal recognition for the role they do play, it does mean that they don't have an empirical claim to marriage.

Marriage is meant to provide more than that, and not simply for the sake of children.


Children are a big part of the reason we have legal benefits based on marriage, and that's what I was referring to. I know marriage has more than one purpose.

Homosexual parents don't care about their children? Besides, same-sex couples do have children. They have them all the time. The child may not be biologically related to both of them, but that happens a lot even in straight marriages.


You're missing the point. It's a fact of nature that when two people of the opposite sex live together, sleep together, and are romantically involved, they will likely have children. That's eternal. It's not inevitable that the same will occur for two men or two women. It just happens to happen some of the time. So enshrining that definition as if it is just as pervasive as the traditional definition of marriage, or ever was, or ever would be, makes a completely false assumption. I never said they don't care about their kids. I said this issue is about gay people's identity as parents, it's about their identity as homosexuals.

It seems to me, by your (and others') definitions, that DOES mean marriage. And unless you are also willing to say that only couples willing and able to have children, and in fact do so, can be married then your arguments fall utterly flat. If you aren't willing to apply them to opposite-sex couples, it is disingenuous. If you are, that's another argument entirely, but also one I think you will, ultimately, lose.


The world doesn't work on your either/or summations of the issue. There are alternatives (civil unions) that gay couples can receive, for example. I don't believe in doing this careful parsing of the issue just so gay marriage supporters can feel better about their policy idea not being supported.
8.20.2009 6:24pm
A. Zarkov (mail):
Danny:

Yikes! I don't think I have the energy to reply to all that. In numerous places you misrepresent what I wrote, or I did not express myself clearly enough.

"So by your own argument, there is a rational basis to ban heterosexual marriage because bogus opposite-sex marriages to gain entry into the US are certainly not zero."

There is no rational basis for destroying a universal existing institution to correct an immigration problem. Creating a new institution that affects 1% of the population is another matter.

"Just out of curiosity - were you born in the US and if so after how many generations?"

I was born here and so were my parents. One one side they go back more than 200 years. I don't understand why that should matter.

"However, it is not to your advantage to bring up the Roman Empire, which covered essentially all of Europe, North Africa and the Middle East over a centuries-long period. You can find a great deal of counter-exampels in that great cultural mix. (Male) homosexuality was at least viewed so casually that the Romans put a hardcore gay sex scene on a coin. The Roman emperor Hadrian was criticized for lavishing too much affection on his teenage boyfriend Antinou, but when Antinou drowned the entire Roman Empire went into a period of official mourning."

While in some epochs the ancient Romans tolerated homosexuality, they drew the line at homosexual marriage. Roman Emperor Elagabus married both a vestal virgin, and his male lover. Both these acts were major transgressions at the time causing enormous outrage among the populace. They were not mad at him for having a male lover, which was common among Roman emperors, but for ridiculing the institution of marriage.

"I saved your best argument for last. Gay marriage caused - wait for it - the fall of the Roman Empire! And it risks causing the fall of the American Empire! Forget that the Roman Empire never fell but died a natural death after a long and successful life of 1,200 years, which is a lot longer than our American empire will probably last."

I never said that. I said moral decay caused the decline and homosexual marriage is one symptom of moral decay.

I would also argue that the Empire did not last 1,200 years. It went from 27 BC to 490 AD. A good 500 years to be sure, but hardly a millennium.
8.20.2009 6:25pm
einhverfr (mail) (www):
CMR:

So, what about making marriages probationary for five years unless a couple conceives? Legal under Griswold?
8.20.2009 6:25pm
einhverfr (mail) (www):
A. Zarkov:

I never said that. I said moral decay caused the decline and homosexual marriage is one symptom of moral decay.


The Roman angle is interesting. I am not going to go too far there except to say I think most folks (except perhaps Mr Zarkov) would be very unhappy with a return to Roman family law (pater familias and all).

Actually ancient family law as a general topic is quite fascinating.

The one issue though is there is a question of how relevant it is. No legal structure exists in a vacuum. The question IMO is whether the structures are sufficiently comparable to suggest that SSM today is comparable to SSM in the Roman Empire.
8.20.2009 6:42pm
A. Zarkov (mail):
einhverfr:

"The question IMO is whether the structures are sufficiently comparable to suggest that SSM today is comparable to SSM in the Roman Empire."

I'm sure they aren't. That's not the point. Homosexual marriage was virtually non-existent even at times and places were homosexuality was tolerated. The institution of marriage was all about the male-female relationship and producing children. SSM changes an age-old institution in a way that's unprecedented in the history of the world. Can anyone name any civilization that has ever had widespread SSM?
8.20.2009 6:57pm
Danny (mail):

While in some epochs the ancient Romans tolerated homosexuality, they drew the line at homosexual marriage. Roman Emperor Elagabus married both a vestal virgin, and his male lover.


I would be cautious in talking about Roman attitudes toward "homosexuality". They did not treat sexuality inthe same way as us. They were more hostile to lesbianism than to male homosexuality, curiously. For the Romans, there was a world of difference between a man giving and receiving sexual penetration. Only the latter was viewed negatively, and the previous was considered normal, average sexual behavior for men. This is why it was only legally and socially acceptable for a Roman male to have sex with a non-citizen foreigner or a slave, and only in the "active" role. Only those homosexuals who were on the receiving end of sex acts faced a loss of social status and an increased vulnerability to disease (it always medically riskier for anyone, male or female, to receive penetrative sex); the other half of people we would call "homosexuals" today had nothing to worry about.


I never said that. I said moral decay caused the decline and homosexual marriage is one symptom of moral decay.


So can we get you on record as saying that gays who are just interested in sex or having flings are more moral than gays who want to get married?
8.20.2009 7:12pm
A. Zarkov (mail):
Danny:

What you say is true, and Elagabus did adopt the female role with his male lover. That certainly inflamed public reaction against him. But the public still rejected the idea of homosexual marriage as an insult to the institution. You keep dancing around that fact. Rome, even Greece never had widespread SSM. Nero did it (with eunuchs), but look what happened to him. Later Rome after circa 200 AD has actually hostile to homosexuality.
8.20.2009 7:33pm
Danny (mail):
@ Zarkov

I don't want to dance around it, forgive me. Yes it is probably true that in ancient times same-sex marriage was not socially acceptable or typical. Indeed I think we would be hard pressed to find a Western society that allowed two adult males of equal social status to get a life-long marriage based on their sexual relationship. Nor would they necessarily have seen a need for such an institution. In ancient times, marriage was about controlling female sexuality (heirs), family alliances - not so relevant to gay couples. But gay people could just live together. Their sexual and romantic relationships were probably recognized by their social circle already. The state bureaucracy probably did not micromanage people's daily domestic lives. I doubt that ancient Roman gays who wanted to have a domestic life together had to deal with issues like hospital visitation, immigration rights (there were no passports), inheritance. Individuals dealt directly with providers of services - if you want medical care, you pay for the doctor to come to your house, etc. So the question of whether the gov't will allow your partner to see you was irrelevant. It's in modern times that the gov't institutionalized marriage to such an extent that to have the right to do so many things you had to have a gov't-issued marriage license, and so the inequalities facing gay couples multiplied. At the same time, religious and cultural changes meant that same-sex relationships were viewed more negatively in the period 500-1900 in the West: it had become the "love that dare not speak its name". Gays could not fight for partnership rights if they did not have sex rights and right to freedom of assembly and speech.

So now we are dealing with a novel situation (post-1950) where society is open enough to have large populations of out gays and lesbians once again, but we have a thoroughly modern state apparatus that micromanages people's domestic and married lives, tying gov't allotted benefits to marital status. So the SSM is relevant to our cultural context in a way that it wasn't 2,000 years ago or even 100 years ago.
8.20.2009 7:56pm
einhverfr (mail) (www):
Danny:

I would be cautious in talking about Roman attitudes toward "homosexuality". They did not treat sexuality inthe same way as us. They were more hostile to lesbianism than to male homosexuality, curiously.


The reason here is obvious. The pater familias was an institution which provided near total power by the head of household over all members of the household. For example, it was a serious reform when the rule that the pater familias could sell each child into slavery no more than three times. Women couldn't hold this role. So due to issues of family structure, holding a male lover as a concubine was fundamentally different than having one's wive have a female lover.
8.20.2009 8:18pm
A. Zarkov (mail):
Danny:

Ancient Rome actually had a well developed welfare state. That's part of what led to its downfall. The Romans simply regarded marriage as the a heterosexual institution because marriage is all about children. Today a lot of people seem to think marriage is all about recreational sex and getting benefits. So marriage has already been debased. SSM carries this a step further. That's why many people oppose it.
8.20.2009 9:16pm
justme:
As someone who wants to become more informed:

Can anyone point me to an intellectually honest source which provides the legal arguments of both sides of this debate? Or to sources which summarize well each side?
8.20.2009 9:24pm
Danny (mail):
@ Zarkov

I think you are projecting your own opinion onto the Romans. The ancient Romans didn't have reliable contraception. If a man and a woman had sex many times, there would be as many children as her fertility allowed. People married for political and social reasons. From Wikipedia:


Since marriage was often used as a political tool in ancient Rome, especially in the upper classes, divorces were common when new political opportunities presented themselves. Anytime a new opportunity arouse, a man or woman would divorce their current spouse and marry a new one. A man or woman could form valuable family ties through their various marriages and divorces to different families.[10] A motivated man or woman might marry and divorce a couple times in their lifetime if they thought it to their advantage.[10]

One of the main reasons for divorce, besides serious marital fault, was a desire to no longer remain married to a spouse.[9] Since one of the defining characteristics of marriage was a will to be married and an attitude of regarding one another as husband or wife, the marriage ended when the will or attitude ended.[9] A husband or wife would notify their spouse that they no longer desired to be married and the marriage would end. It is interesting to note that only one spouse's will was required for a divorce and that a divorce was still final even if the other spouse did not receive the notice of divorce.[9] All that mattered was that one spouse wanted it to end and then it ended.


People remarried often and brought their children from previous marriages into their new marriages. Everybody had stepmothers and stepfathers. And I don't see what your problem is with "recreational sex" as a reason for marriage - certainly the Romans had a very positive attitude toward sex for pleasure (the woman was supposed to enjoy sex with her husband, and the husband was supposed to enjoy screwing anything that walked on two legs).

Your idea that modern marriage based not on politics but on sex, romance, and benefits (i.e. a domestic life) is somehow "debased" is your own value judgment, and I think it is countercultural. Personally I think we are more civilized than the ancient Romans - I would not exchange our society for theirs.
8.20.2009 9:39pm
Danny (mail):
@Justme

I found this article to be a good, non-shrill summary
8.20.2009 9:42pm
Joseph Slater (mail):
Zarkov:

First, the last line of mine you quoted contained a typo that was mine: it should have read that the abstract disapproval of SSM opponents shouldn't even outweigh the abstract *approval* of me and other SSM proponents.

Second, you write Laws have an expressive component apart from any real-world impact. I think that's what upsets many people.

Well, yes, when all the practical arguments against SSM have been debunked, opponents tend to retreat into some form of "but SSM just SENDS A MESSAGE that GAYS ARE NORMAL and I DON'T WANT MY GOVERNMENT DOING THAT." And I understand that some people are legitimately upset about that.

But I don't feel as if I need to credit the offense bigots feel when equality comes as a legitimate harm or -- to get back to the original point -- as a rational basis for a law.
8.20.2009 10:43pm
Perseus (mail):
Yes it is probably true that in ancient times same-sex marriage was not socially acceptable or typical. Indeed I think we would be hard pressed to find a Western society that allowed two adult males of equal social status to get a life-long marriage based on their sexual relationship. Nor would they necessarily have seen a need for such an institution.

It would have been regarded as pointless, and I have little doubt that had Aristophanes created a play about a same sex couple setting up a domestic household, it would have been as farcical as his portrayal of Socrates investigating gnats' anuses.

By the way, the fact that some philosophers, from Plato to [Pufendorf], have believed the State ought to micromanage marriage is not a proof of the wisdom or justice of its doing so. Appeal to authority, and all that.

No, it is not proof of the wisdom of their views, but I invoked them to rebut the silly reductionist argument that "it is never a contented, successful person who is obsessed with controlling other people," that is, unless you happen to believe that every political philosopher who thought that marriage should be "micromanaged" was a grouchy, arrogant, failure of a person.
8.20.2009 10:53pm
Danny (mail):

It would have been regarded as pointless, and I have little doubt that had Aristophanes created a play about a same sex couple setting up a domestic household


That's where you're wrong (and historically ignorant). Don't project your own bigotry onto the ancient Greeks. While they did not have or need SSM they did celebrate same-sex couples at various points in their history (Achilles and Patroclus) and many others, both pederastic and more egalitarian.
8.20.2009 11:02pm
Perseus (mail):
That's where you're wrong (and historically ignorant). Don't project your own bigotry onto the ancient Greeks. While they did not have or need SSM they did celebrate same-sex couples at various points in their history (Achilles and Patroclus) and many others, both pederastic and more egalitarian.

I am well aware of ancient Greek practices, which indeed included same sex lovers, but I maintain that the notion of a same sex couple marrying and setting up a domestic household would be regarded as pointless, if not ridiculous--precisely because there would no be offspring and the relationship between the erastes and the eromenos was intended to be unequal and temporary.
8.20.2009 11:29pm
Danny (mail):
@ Perseus

Again you conflate marriage with living together. It is not the same thing. For two males living together would not involve adopting husband/wife domestic roles in ancient Greece where people had slaves and servants. The highly structured erastes/eromenos relationship was an aesthetic and intellectual ideal that was not necessarily even reflective of a homosexual sexual orientation. However the reality was complex. Not everyone behaved in an ideal way. As with many ancient societies, the problematic part was the role of the eromenos. The aesthetic ideal was love for a young, cute guy, probably an adolescent. A male who played the "female" role in sex past adolescence was at risk of losing his civic virtue and rights because the "female" side was seen as morally inferior and weak. This is why it was crucial that the eromenos be temporary. But some eromenoi were long-term and ended up losing their citizenship. The important thing was that a Greek not be the eromenos of a foreigner or non citizen, but a citizen (in the "active" role of course) could have a series of eromenoi, or have a sexual relationship with a non-citizen without age restrictions. If he chose a guy the same age it would probably have been seen as unusual or aesthetically non-ideal. There is no evidence however for your assertion that it would have been "farcical" or particularly mocked - what evidence there is indicates that it would have been easily tolerated.
8.21.2009 12:14am
cmr:
So, what about making marriages probationary for five years unless a couple conceives? Legal under Griswold?


What would be the purpose of this hypothetical probation? What's the point of this hypothetical anyway?
8.21.2009 12:36am
Perseus (mail):
Again you conflate marriage with living together. It is not the same thing. For two males living together would not involve adopting husband/wife domestic roles in ancient Greece where people had slaves and servants.

I'm not talking about simply living together, but rather a married couple setting up a household of the sort portrayed, for example, in Xenophon's The Economist. It is that situation that would have been regarded as pointless.

I agree that taking on a series of eromenoi would not have subjected a man to ridicule, but retaining the passive role in maturity certainly did so. In the case of cities like Sparta, the eromenos was supposed to become an erastes so that he, in turn, would adopt and train an eromenos.
8.21.2009 12:47am
MCM (mail):
Zarkov:

On a practical level, the decision in Griswold did squat to change marriage.


And on a practical level, federal recognition of SSM will do squat to change marriage.

it hardly bears any relation to SSM. Loving did not make a major institutional change to marriage i the US. Most states allowed inter-racial marriages at the time Loving was decided. You want numbers. Tell me how many more inter-racial marriages caused?


None of that is relevant to the test you're using on SSM: number of people who benefit versus potential for sham immigrant marriages. Whether or most states allowed interracial marriage at the time, you would have to agree that interracial marriage shouldn't be allowed because (1) hardly anyone does it anyway, and (2) it vastly expands the ability of foreigners to enter into sham marriages for green card purposes.
8.21.2009 9:06am
cmr:
And on a practical level, federal recognition of SSM will do squat to change marriage.


Except, you know, to confer benefits on people just because they like each other and might obtain kids somehow one day.
8.21.2009 9:46am
MCM (mail):
Except, you know, to confer benefits on people just because they like each other and might obtain kids somehow one day.


I think you should re-read Zarkov's comments to understand the context. Gay couples that want federal recognition of their marriage, and/or the right to marry under state law, are already acting as if they are married. They find ways to contract to one another many of the benefits that marriage typically provides, or similar benefits. They adopt children together. They maintain joint finances and otherwise manage households together.

In practice, there won't be much actual change since these people are already acting like they are married (and often are married in their church or a foreign jurisdiction). Since Zarkov isn't concerned by Griswold or Loving because they didn't cause any changes "in practice", and SSM won't cause much change "in practice", why be concerned about SSM?
8.21.2009 10:36am
MCM (mail):
And as Zarkov likes to point out, this is perhaps 1% of the adult US population we're talking about. If 1% of heterosexuals changed their marriage practices, nobody would notice.
8.21.2009 10:38am
Danny (mail):
@ MCM

Partnered gay people may be just 1% of the population, but we risk destroying all of Western civilization, along with earthquakes and meteors and possibly an asteroid. In fact, if you go to Spain today you will see huge craters on the ground where Barcelona and Seville and Madrid used to be. They're from asteroids God sent to punish the Spanish for having gay marriage. After the genocide of all the Christians, the survivors took to living in the hills, having man-dog sex and howling at the moon.
8.21.2009 11:23am
einhverfr (mail) (www):
Danny

Careful there or Donkey Hotay will come back to whip your Golden Ass.

(Ok, I will stop with the bad puns relating to early literature now...)
8.21.2009 12:38pm
einhverfr (mail) (www):
(and of course sincere apologies to Apuleius and Cervantes)
8.21.2009 12:41pm
Danny (mail):
Lol good one :)
8.21.2009 1:34pm
cmr:
I think you should re-read Zarkov's comments to understand the context. Gay couples that want federal recognition of their marriage, and/or the right to marry under state law, are already acting as if they are married. They find ways to contract to one another many of the benefits that marriage typically provides, or similar benefits. They adopt children together. They maintain joint finances and otherwise manage households together.

In practice, there won't be much actual change since these people are already acting like they are married (and often are married in their church or a foreign jurisdiction). Since Zarkov isn't concerned by Griswold or Loving because they didn't cause any changes "in practice", and SSM won't cause much change "in practice", why be concerned about SSM?


I got the context of the statement. The point is, it still would cause a change to why we receive those benefits in the first place.

And btw: citing the inevitability of gays and lesbians coupling undercuts your claim to gay marriage.
8.21.2009 7:08pm
einhverfr (mail) (www):
cmr:


And btw: citing the inevitability of gays and lesbians coupling undercuts your claim to gay marriage.


Does citing common law marriage traditions undermine your claim to the necessity of marriage laws?
8.21.2009 8:05pm
MCM (mail):
I got the context of the statement. The point is, it still would cause a change to why we receive those benefits in the first place.


We don't have a real reason as to why we recognize marriages. We currently let any two unmarried, unrelated opposite sex adults get married, regardless of their desire for children, race, religion, economic status, previous marriage status, nationality, criminal history, whatever. There's no state interest there that turns on sexuality. We DO apparently let people get married just because they like each other.

And btw: citing the inevitability of gays and lesbians coupling undercuts your claim to gay marriage.


Who said anything about inevitability? "It already happened" is not the same thing as "inevitable". I really doubt anyone thought SSM was "inevitable" in 1960, partly because gay couple didn't want to get married and live in the suburbs like everyone else, because they were on the margins of society. They no longer are.

Now gay couples do live together as if they were married, and some local jurisdictions (increasingly more) recognize that and treat it accordingly.

Gay marriage isn't inevitable. It already happened.
8.22.2009 10:11am
einhverfr (mail) (www):
MCM:

I said something about inevitability.

I suppose I should have said "national recognition of gay marriage is inevitable."
8.22.2009 2:38pm

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