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March 6, 2004

Doing a Split on the Apex

Prof. Rosenberg has responded to my thoughts of a few posts ago. First, just to clarify, I don't "have a problem" with anything that he has written in the sense that phrase can be seen to have. ("Hey, you gotta problem?") Second, it seems a large part of the disagreement has to do with what the disagreement is. He writes:

The question over interracial marriage was whether race can be used as a basis to deny marital recognition. The question over same-sex marriage is whether sex can be used.

Those aren't the relevant questions to this particular discussion, at least as I've assessed it. The question is whether the irrelevance of race to marriage somehow leads into the debate about whether sex is irrelevant, as well. Rosenberg's are good, interesting, and important questions, but they are not the questions that Volokh was answering. Of more concern to my argument is that skipping this connection skips my essential point: the racial comparison is raised mainly as another immutable, readily identifiable attribute that once presented barriers to marriage.

However, society's acceptance of interracial couples isn't significantly relevant to the debate over same-sex couples. Similarly, I suggested, faith is not either. Therefore, it sidesteps my point and Volokh's for Rosenberg to write, "We no longer use race as a basis to deny recognition, and the argument is that similarly we should no longer use sex." We're saying that the "similarly" does not apply.

Moving to the occupational segment of the discussion, I have to admit to being a little disconcerted by this:

My argument, though, was the government should be hesitant to use gender at all. If they do decide to use it they must justify that use as vitally necessary. If we simply allowed the government to use gender whenver the majority thought it was relevant we would be back in a time when women were not allowed into certain professions.

I note, in passing, that I truly don't see that as the argument presented in his previous post. The scale by which the government discerns gender distinctions justifiable didn't come up at all. Rather, the argument was that equality should be measured from the individual's perspective (which, if one so desired, could bring the discussion back to incest and polygamy). Letting that slide, for now, what I find disconcerting in this quotation are the related points that the government can, in the right circumstances, differentiate by gender and that the majority oughtn't decide when those circumstances have been achieved. If it doesn't fall to the majority to decide such things, then to whom?

That was the point of my painter analogy. I'll side with Prof. Rosenberg in having a problem "with the government telling the painter he has to hire a man for his model" — if we're understanding the painter as a private entity. The metaphor, however, is for private versus public employment. It is our project. We hire the painter. It is up to us all, therefore, to decide what sort of Adam we want painted.

When it comes to civil recognition of marriage, the public is commissioning a relationship, as it were, and the public has a right to decide what the project is meant to accomplish and what factors are relevant to that goal. In the metaphor, as originally used to address Prof. Rosenberg's previous argument, he was suggesting that the model — the individual — ought to be the judge of his or her own relevancy. Rosenberg would have had every right to be "livid if [he] had been denied a marriage license becuase the state didn't think [his] wife was right for [him]," but when he sought that license, he had selected a mate and approached the desk with a person within the parameters that society has set: over the age of consent, singular, and of the opposite sex.

Further, the professor elides a central piece of the argument when he asks, "So why should the government have wanted me to marry a woman?" It wasn't, given the context of our current debate, that the government wanted him to marry a woman. (That's another part of the total issue — the stability/mutual care aspect — that is best left out of this thread for now.) It was more that, since his relationship was with a woman, the government wanted them to get married. The government, as it happens, still gives homosexuals "a lot of leeway" in deciding with whom to form extended relationships. For a variety of reasons, it just doesn't equate those relationships with marriage.

ADDENDUM:
I want to comment, in a separated way, on something that is probably inadvertent on Professor Rosenberg's part, but relevant nonetheless, particularly in light of his comment about the majority:

They would have allowed me to marry an axe murderer, a child abuser, an idiot, a person on their deathbed, etc.

It has long seemed to me that intellectuals go much too far in presuming the importance of their intelligence. An axe murderer, a child abuser, and an idiot? How about a rapist, a child beater, and a cerebral relativist? If you ask me, certain family lines would do well, for the mental health of progeny, to leaven their brainpower.

Posted by Justin Katz at March 6, 2004 12:01 AM
Marriage & Family
Comments

Let me start with the addendum issue. My choice of words was purposeful, although I did fear it would be taken the wrong way. The first two items in my list were extremes of examples of people that others would find morally repugnant. I wanted to emphasize that it was not how we considered the person as a human being that mattered. That is I wanted to include examples of people that were morally neutral. Hence my last two examples. After all, most people don't equate marrying someone of the same-sex with marrying someone evil.

Posted by: Gabriel Rosenberg at March 6, 2004 12:13 AM

However, society's acceptance of interracial couples isn't significantly relevant to the debate over same-sex couples. Similarly, I suggested, faith is not either.

All of the above are suspect classifications. In Massachusetts all of the above are explicitly listed as impermissible bases for denying equal protection. One of the arugments given for why it is okay to deny same-sex marriage is that there is equal protection since both men and women have parallel restrictions. This argument though was rejected in the case of race. Volokh tried to get around this by saying race and sex are different because race is superficial whereas sex was not. Hence I asked about faith which is certainly not superficial, and yet where I suspect (although I'm not sure) Volokh would object to a parallel restriction argument.

Posted by: Gabriel Rosenberg at March 6, 2004 12:19 AM

When it comes to civil recognition of marriage, the public is commissioning a relationship, as it were, and the public has a right to decide what the project is meant to accomplish and what factors are relevant to that goal.

I will assume, for the sake of argument, that recognition of marriage was commisioning a relationship. Why couldn't the government then decide that race or faith were relevant factors to achieve some goals? And why couldn't they decide judges (certainly a public commision) could be selected on the basis of sex?

Posted by: Gabriel Rosenberg at March 6, 2004 12:28 AM

It was more that, since his relationship was with a woman, the government wanted them to get married.

Again let us assume, for the sake of argument, that the government wanted me to get married since my relationship was with a woman. Why would this change if we allowed SSM? Certainly the government now allows couples to marry that it doesn't particularly desire to marry. And why shouldn't the government then be able to stop interracial couples from marrying when the majority don't want them to marry? And why doesn't the government want same-sex couples to marry?

Posted by: Gabriel Rosenberg at March 6, 2004 12:34 AM

Why couldn't the government then decide that race or faith were relevant factors to achieve some goals? And why couldn't they decide judges (certainly a public commision) could be selected on the basis of sex?

— Well, as an underlying perspective, we have to realize that the government could do all of this were the country to change its mind dramatically. I would fight it, personally, and I don't think it'll happen in a United States that resembles the present even moderately.

But finding purchase on the slippery slope doesn't mean that we'll begin climbing back up it. Indeed, if your questions are legitimate responses to my suggestion that the public has a right to input about what marriage is and means, there can be no limits on marriage at all. From our past correspondence, I don't know that you object to that, and if that's the case, why don't we just drop the pretence about this being purely a matter of sex/orientation?

All of the suspect classifications are different, in their way (which is why those lists are foolish except in a specific context and dangerous in a country run by judges). When it comes to marriage, the gender classification is the biggest conceivable one.

Why would this change if we allowed SSM?

— In the current atmosphere, particularly with the way in which gay marriage would come about, deleting the gender requirement would have ramifications throughout society. At the family level, it would officially divorce the institution from procreation, "locking in" (as Stanley Kurtz has put it) the detrimental changes of the past 30 years and pushing them forward.

As I wrote in my previous post, this categorical, each-point-addressed-discretely approach is a debater's ploy, and it is a continuation of an approach to social policy that has torn society apart.

And why doesn't the government want same-sex couples to marry?

— It isn't a negative preference, particularly at the individual level. The government doesn't have as compelling an interest in pushing homosexuals into marriage, and if it will disrupt the benefits of recognizing marriages, then what limited interest it does have is subsumed.

Posted by: Justin Katz at March 6, 2004 8:45 AM

Responding to each of your points was a sincere attempt to make sure I addressed all of your concerns. It was not meant as a ploy. On the contrary I sometimes wish others would address my points such as the lesson of Perez v. Sharp that parallel marriage restrictions can never be considered separate but equal.

My view is that there can be limits on marriage but (1) they must be justified and (2) if those limits are drawn using suspect classifications the burden of justification is especially difficult. You say all suspect classifications are different, but they are all suspect. You might not like the list, but its part of the Massachusetts Constitution. We should be cautious about the government using any suspect classification in any context, especially to deny someone a choice of spouse. Yes we could change this through constitutional amendments, but why should we? The idea behind suspect classifications is that we are individuals and should be treated as such, not as a member of some group. I strongly support that idea and hence I strongly oppose making an exception to it for marriage.

I have responded to Kurtz's arguments here and here. I find the procreation argument to be completely pretextual. It's not just that I don't think marriage is or should be only about procreation. It's that the government has no problem with nonprocreating couples marrying unless they are of the same sex. And it's not simply a matter of it being too invasive to weed out other nonprocreating couples as the examples of the elderly marrying and facilitating deathbed marriages show.

...and if it will disrupt the benefits of recognizing marriages

This is what I and many others (including the Mass SJC) have a hard time understanding. How will allowing same-sex couples to marry disrupt the benefits of recognizing marriage? The government will still be able to recognize other marriages exactly the same way.


Posted by: Gabriel Rosenberg at March 6, 2004 1:52 PM

I apologize; I replied too early in the morning and wasn't clear.

By "categorical, each-point-addressed-discretely approach," I didn't mean your method of response, but the logician's strategy of compartmentalizing each relevant point. And my objection to the "debater's ploy" is mostly that it isn't (necessarily) meant as a ploy, but has been internalized as an approach to considering social policy.

So, for example, the objection that marriage isn't "only about procreation" is supported by citing the infertile and is subsequently taken to suggest that marriage can maintain its meaning entirely without reference to procreation. But apart from the simplicity of concept maintained through the largely effective fertility measure of opposite sex restriction, infertile couples are defined with reference to the central principle, and in a way that leaves fertility desirable. More importantly, as I've said, it isn't procreation, per se, that is the object of encouragement, but commitment between members of the two groups that can, by design, procreate when their relationship is such that procreation can happen. This is an area that's up for debate, of course, but I'm just using it, here, to illustrate what I mean.

To some extent the underlying cultural understanding that the "ploy" undermines is what SSM advocates cite as "prejudice," but it isn't that. It's just the expression of long-held, long-honed beliefs that can't be articulated at the speed of a litigatory assault. No human can simultaneously comprehend and consider every aspect and potential consequence that bears on such questions as the matter of gay marriage, and phrasing social questions as if we can work through each discrete point is a reckless approach.

Posted by: Justin Katz at March 6, 2004 4:22 PM

I agree that the question of gay marriage should be treated as a whole and it is difficult to simulateouly comprehend and consider every aspect it. In order to consdider the whole, though, it is first necessary to consider various aspects of the question. I know of no other way of organizing the matter. Even just looking at one part of the question, "What is marriage for?", is incredibly complex. I would recommend What is Marriage For? by E.J. Graff for an insightful book into this broad question.

This particular thread started by looking at one particular aspect of the question, "What can we learn from the debate on interracial marriage to help our understanding of the debate over same-sex marriage?" I think we can learn several things.


  • A majority being opposed to a marriage is insufficient to prohibit it.
  • Parallel restrictions cannot qualify as "equal" when it comes to marriage.
  • The courts can and should play a role in enforcing our principles of equality even in the matter of who may marry whom.
  • Marriages that were at one time thought by a large majority to be unnatural, can over time come to be gradually accepted.

Yes it is possible to support interracial marriage, but be opposed to same-sex marriage. The former debate does not determine the latter, but the lessons from the former should not be forgotten.

Posted by: Gabriel Rosenberg at March 6, 2004 4:51 PM

The objection to the miscegination/SSM comparison in the first place, however, carries through to the specifics in ways that mitigate or obviate your suggested lessons:

  • A majority being opposed to a marriage on the basis of such superficialities as race is insufficient to prohibit it.
  • Parallel restrictions on the basis of such superficialities as race cannot qualify as "equal" when it comes to marriage.
  • The courts can and should play a role in enforcing our principles of equality even in the matter of who may marry whom, if those principles don't affect what "marriage" actually means. (Whose principles, by the way, are "our principles" if the majority's view is an insufficient foundation?)
  • Marriages that were at one time thought by a large majority to be unnatural, can over time come to be gradually accepted, but that which is not marriage may not become marriage over time. (Why, by the way, couldn't that which is thought to be natural, now, become gradually unaccepted? And why, again, does the majority's opinion matter?)
Posted by: Justin Katz at March 7, 2004 12:00 AM

In 1948 most people didn't consider race to be superficial. And even today not all suspect classficiations are superficial characteristics and race and sex are both suspect. There is no reason to think that there is any exception to the sex as suspect classification rule. By your reasoning cases dealing with race would never be informative as to how to handle cases dealing with sex.

You also come up with an exception for when courts should get involved with marriage. What is the basis for this exception? When people thought the purpose of marriage was to preserve culture, should the courts have stayed out? By the way by "our principles" I mean those principles we have enshrined in our various constitutions, including the principle that all people should be treated equally without regards to their sex, race, color, creed, or national origin.

In your mind a same-sex couple can never be married. At one point in time people thought that people without property could never really be married. What the people as a whole consider to be a marriage does change. Certainly what is now considered natural could become gradually unaccpeted. For example it used to seem natural that married women could not own property. The majority opinion is very important. Right now, though, there is a conflict between the majority opinion that marriage should be male/female only and the constitutional principle that we should all be treated equally without regards to sex. When such a conflict occurs I think it is important for the constitutional principle to pervail until/unless the constitution is changed.

Posted by: Gabriel Rosenberg at March 7, 2004 1:12 AM

By your reasoning cases dealing with race would never be informative as to how to handle cases dealing with sex.
— Not true. There are many instances in which sex can reasonably seen as just as superficial as race (e.g., your definition of "governor" example from a couple of weeks ago). With respect to marriage the differences between the two are profound. An interracial couple can function in every innate way that a one-race couple can. Miscegenation laws just expressed displeasure with the the outcome (e.g., interracial procreation).

You also come up with an exception for when courts should get involved with marriage. What is the basis for this exception?
— Definition is a legislative act. What's the basis for differentiating between judicial purview and legislative purview in any case? There is no doubt how marriage is defined in the law, even the Mass. SJC acknowledged that; it's a somewhat different matter what its purpose is seen to be.

In your mind a same-sex couple can never be married. At one point in time people thought that people without property could never really be married.
— Oh bosh. First, what I did wasn't to declare that same-sex couples could never be married (hence the word "may"); I merely drew a distinction between interracial and monosexual marriage; "unnatural" verses "non sequitur."

Second, I simply won't accept, without your presenting evidence, that people thought of property-less marriage in the same negating way that people see same-sex marriage today. There seems to me to be a bit too much wiggle room in your "really."

Right now, though, there is a conflict between the majority opinion that marriage should be male/female only and the constitutional principle that we should all be treated equally without regards to sex.
— That may be the case in Mass., but at the federal level, ERA never passed (I don't imagine it ever would have made it through Congress were today's consequences of its principles known back then.) The debate shifts to federalism, in that case. And I happen to support constitutional amendments when and where they are needed.

Posted by: Justin Katz at March 7, 2004 9:21 AM

Why is sex superficial in governing? If women and men have "different sytles" of parenting, why wouldn't they have "different styles" of governing. [I think gender differences are overblown, but the same argument works both places] Also, a mixed race couple can't produce a "pure-race" child and a same-sex couple can function the same as many opposite-sex couples who marry. Most importantly, whenever a legislature is using some classification, it does not think the classification is superficial. Suspect classificatons are those (superficial or not) that we believe the legislature should strive not to use. That is why such classications are generally subjected to a higher scrutiny.

If you believe a court shouldn't get involved in definitions, then a court couldn't rule that "governors" could be female if the legislature defined it otherwise. Even in marriage all the legislature would have had to do is "define" marriage as the union between two people of the same race in order to ban interracial marriage. If the legislature is going to use definition that make reference to gender, those definitions are going to be reviewed by the courts.

Sorry for the misunderstanding on "may". I thought you meant "may not" as in "not allowed", I see now you meant it as in "possibly will not". I agree that it is possible that same-sex marriages will never be considered marriages (although I think it is likely that they will be). As for propertyless marriage, one 19th century judge wrote about slave marriage:


The relation between slaves is essentially different from that of man and wife joined in wedlock. The latter is indissoluble during the life of the parties, and its violation is a high crime; but with slaves it may be dissolved at the pleasure of either party, or by a master of one or both, depending on the caprice or necessity of the owners...[Even emancipation cannot] by a sort of magic, convert it [into a "real" marriage].

In Christian Roman law serfs could not contract a fully valid marriage and servile unions were considered as little more than liasons. [For both of these claims I'm using Graff as a source. If you'd like, I can give more detail as to the sources she used.]

Yes I was referring to Massachusetts, Hawaii, and many other states. At the federal level we just have a guarantee of equal protection without regards to specific categories. As applied it has come to give a higher scrutiny to sex-based classications, but not as high as that of racial classifications.

Posted by: Gabriel Rosenberg at March 7, 2004 11:59 AM

Let me say, off the bat, that I'm not willing to take either of your sources at face value. Academics pushing society toward androgeny and lesbians researching the history of marriage require, at the very least, deeper scrutiny than I'm able to provide, just now.

For the record, the "parenting styles" formulation is your contribution, not mine; style isn't function. (I ask this with a friendly smile: how much of your current approach and your language are you taking directly from recent research?) Men and women are different, deeply and significantly, and the simple fact of having one of each as parents has profound, yet intricate and subtle, effects on children. That is the prevailing conclusion, it just makes sense to me and a majority of people, and it is the presumption with which we approach the issue of gay marriage after millennia of human development. Evidence to the contrary is severly lacking, which is one of the reasons that I support a constitutional amendment to slow down, at least, the gay marriage movement.

I'm going to be perfectly frank with you, here, Prof. Rosenberg: it may be merely that I'm gradually increasing my deficit of sleep, but I'm beginning to resent your Socratic method. "Why is sex superficial in governing?" Please. That was a parenthetical reference to an argument that you had previously made. Moreover, in a representative democracy, we vote for leaders based (theoretically) on "style," whatever the reason for it. Please — in all sincerity, I lack the time and patience to field entirely open questions without at least some effort on your part to narrow the range of answers and address some of the more obvious.

Moving on: if I'm arguing that miscegenation rightly fell on the basis of its untenable reliance on a discrimination according to a superficiality, while arguing that gender isn't superficial to marriage, it's a bit of a dance to force me to argue against the distinction that fell. People recognized, ultimately, that "pure-race" children weren't the purpose of marriage. Furthermore, I'm not going to allow you to reintroduce infertile heterosexuals without addressing my relevant argument above.

Most importantly, whenever a legislature is using some classification, it does not think the classification is superficial.
— And throughout the course of public debate, the country decides whether the legislature is right. There are various roles for various parties in that decision, and they will all fall out differently for different issues. This is where the difference between race and sex comes into play.

Even in marriage all the legislature would have had to do is "define" marriage as the union between two people of the same race in order to ban interracial marriage.
— But I don't believe that's how anti-miscegenation laws functioned. Again, though, we're dealing with fundamentally different qualities by which to "define" marriage. Blacks could marry; whites could marry. "Marriage" obviously has a definition apart from race.

— Regarding the property question, your examples don't address my implied statement: a lack of property didn't negate a marriage in the same way that same sex does. In both of your examples, particularly the most relevant to our debate, the problem was more that the people were considered property. At any rate, even by your examples, it seems that the marriages were still marriages, just of lesser value. (Whose are the interior brackets in the blockquote, by the way?)

Posted by: Justin Katz at March 8, 2004 1:18 AM

Well, if you don't like my methods perhaps we should end this debate. I believe I had addressed the superficiality issue quite a bit. In short it came down to two main points. (1) What is superficial is quite subjective. (2) Even when a characteristic is not superficial, we should be hesitant to legislate based on certain suspect classifications. The "parenting style" was neither introduced by me, nor you. It was in Volokh's original post to which I was responding. I thought we were still dealing with that issue.

I believe in furthering undrstanding and discussion through questions and answers. I would be happy to try to answer any questions you ask of me, and I expected the same in reverse. I was also quite offended by your accusations about stealing language and arguments (friendly smile or not). The language was that of Volokh to which I was responding, the arguments I believe are rater common, and I've been making them before I received Graff's book for my birthday last week. I have discovered that she has made most of the points I have made, and others, with research to back it up. (I had read Grossberg's book on the history of family law before. I don't think he's a lesbian, so maybe you'll trust him).

Posted by: Gabriel Rosenberg at March 8, 2004 8:59 AM

Look, I've found our discussions edifying and often entertaining. I admitted that my temperament mightn't be the most level, at this time. Still, throughout this thread, I've been getting the sense that you're approaching it as if I were a student requiring your guidance to think matters through. The governing parenthetical was a quick example hearkening back to a previous iteration of our exchanges. To extract that example as an open question that would require restatements of previous comments and the drawing of basic ideological foundations struck me, late as it was, as contrary to reasonable expectations for this medium.

Regarding your numeric points: 1) I had written that there are "many instances in which sex can reasonably seen as just as superficial as race"; subjectivity is inherent in that language. 2) That you make this statement is exactly related to my reaction to your "governing" question. Regarding the "parenting styles," I think you and I have been arguing different aspects of the same thread throughout most of this comment series.

I was also quite offended by your accusations about stealing language and arguments (friendly smile or not).
— Perhaps I overstated, if I gave the impression that I was alleging some sort of illicit theft. I draw from research all the time; it is, in fact, the point of research. I was merely noting — poorly perhaps, but with an attempt to convey tone — that the arguments that you're putting forward and the way in which you are doing so seem different than heretofore, and I wondered, in a metadebate sort of way, which points of yours your recent reading had honed. For one thing, you seem to be debating more, now, whereas before I got more of a sense of mutually working through the various aspects of this issue. I'm more interested in the latter, and in that context, the former is frustratingly like a game being made of sincere and difficult contemplation.

If I misread your approach, I apologize.

Posted by: Justin Katz at March 8, 2004 12:32 PM

Apology accepted. I myself have been--and probably am here--guilty of overreacting. And I hope you feel better soon. I search for general principles. When I find an exception to that principle I try to figure out why that exception exists. I then either tend to reject the exception, or I try to modify my principle. In addition to doing that in my own mind, I search for explanations from others as to their reasons for allowing the exception. Hence my many questions. It's a very critical way of thinking, but it's what I do in mathematics. If we've been taling at cross-ends throughout this post, let us see if we can figure out what point each of us was trying to make.

Volokh's original post was divided into two sections. In the first he explained why interracial marriage prohibitions were morally and practically less legitimate than same-sex marriage prohibitions. The reason he gave was that race was only skin deep and gender was a much deeper difference. He wrote:


But people's sex is not skin deep. Men and women are different biologically. To my knowledge, this difference reflects itself in substantial biologically driven differences in parenting styles, behaviors, emotional interactions, and the like; certainly there are at least some very deeply rooted social differences there, but I suspect that they're biological, too. Certainly given the current state of biological knowledge, the claim that there's a biological difference in men's and women's parenting styles is much more plausible than there's any such difference in blacks' and whites' parenting styles.

I mentioned two objections to this. One was that I believed the problem of the interracial prohibition was not the lack of difference in parenting styles, but the use of a classification system that should not be used. (The two are not unrelated, though). Hence I asked about classifications based on faith, which I thought Volokh would also see as unjust despite different parenting styles. My second objection was that different styles of doing things could be used as a basis for sex discrimination in other areas as well. Hence my look at employment opportunities and, later here, my questions about governing styles.

Volokh's second part concerned the legal arguments. Here he noted that while "separate but equal" is unacceptable for race it is acceptable for sex-based classifications. As he wrote:

Sex discrimination just isn't quite the same as race discrimination, and that's especially so for "separate but equal" legislation or other legislation that treats men and women equally while still providing essentially similar benefits for them.

I'm skeptical of "separate but equal" legislation even with regards to sex, but the main objection I had with this argument is that I believe parallel restrictions in marriage can never be separate but "equal" because there is no "equal" replacement for one's spouse. This I believe was one of the lessons of Perez v. Sharp which was decided when "separate but equal" racial restrictions were legal.

Posted by: Gabriel Rosenberg at March 8, 2004 2:50 PM

Well then, we've the age-old problem of the mathematician and the poet.

My experience of life, and its manifestation within the structures of society, is that the threads are all jumbled up, and one can't separate one to examine exceptions on the terms of just that particular line of thinking.

I've only partially attempted to bolster Volokh's argument, but I don't imagine that he'd object to adding language clarifying that the disparity of depth of difference between race and sex is mostly significant in that the latter will more often be relevant. As I've stated repeatedly, I believe the utility of marriage, as a public institution, to depends on its striking a balance between specifying something useful and being sufficienty simple and broad to maintain cultural force.

Staying within the bounds of the parenting aspect, the object is to facilitate each child's being raised in the best circumstances given each child's particular predicament. The biology of male-female couples means that their relationship, whatever other qualities the two have, can result in childbirth.

Thus, adding scrutiny of couples' faith, for example, is beyond the competency of the government and begins to add barriers to the relationship that we want heterosexual couples to enter. Moreover, heterosexual couples of any faith can have children, meaning that excluding them because their "parenting styles" will be less than ideal pushes their children even further from that "ideal."

As for the sex-discrimination in employment, the gaps from marriage are too many to make the reference applicable except in unnaturally limited context. For one thing, candidates are evaluated individually, so employers can look for the qualities that they desire independently of gender. An employer also has a more defined purpose for hiring the person, and so has a much more specific basis on which to judge the qualities of candidates.

As for the legal argument, since I support a Constitutional amendment, the legal thickets of suspect categories and precedent of "separate but equal" don't concern me much.

Posted by: Justin Katz at March 9, 2004 11:32 AM

Staying within the bounds of the parenting aspect, the object is to facilitate each child's being raised in the best circumstances given each child's particular predicament....Moreover, heterosexual couples of any faith can have children, meaning that excluding them because their "parenting styles" will be less than ideal pushes their children even further from that "ideal."

This is one of the main arguments I have been making for why same-sex couples should be allowed (even encouraged) to marry. Given that a child's parents are a same-sex couple what is the best circumstance: that his parents are married, or that they are unmarried? [I know, more questions. I'm sorry, but it's my style.] Even if one believed that this situation is less than ideal, excluding the parents from marrying pushes them farther from the ideal.

Posted by: Gabriel Rosenberg at March 9, 2004 12:01 PM

I don't mind questions, as long as they aren't entirely open and don't have obvious answers that I'm sure the asker believes to be true.

Given that a child's parents are a same-sex couple what is the best circumstance: that his parents are married, or that they are unmarried?

But here we run into the tangle of the issue. Same-sex couples, by their nature, aren't open to children — meaning that acquiring children (except in very odd circumsances) won't just happen to a gay couple, whether "married" or not. Given that one can't solely admit gay parents to marriage, other aspects of the debate come into play.

Gays — or straights — who see marriage merely as a benefits package will join the institution, changing its meaning. (Arguably, given at-least-somewhat-true stereotypes about gays' attitudes toward marriage, one might even be able to argue that straights would be more likely to form same-sex "marriages" for this reason.) Furthermore, your argument would extend to incestuous relationships as well as polyamorous ones.

And as a subtext to all of this, it isn't at all clear that homosexual couples who go out of their way to become parents will be any more likely to be "closer to the ideal" just because they've got a marriage license.

Posted by: Justin Katz at March 9, 2004 12:15 PM

Sometimes I'll ask a question even when I consider the answer to be obvious, becuase I might not get the answer I expect and I don't want to make assumptions. As, for example, here. To me the answer is the child of the same-sex couple would be better if the parents were married. (Incidentally do you think the child would be worse off or just no better?) Perhaps this is a discussion worth having.

Opposite-sex couples won't just happen to have children either. At the very least they must decide to have sex. More importantly, same-sex couples are just as open to having children as infertile opposite-sex couples. [In fact more so than some like elderly couples which are far less likely to have a child through other means]. I'm afraid also that I don't understand the relevance of how the child was born to whether the parents should be married.

Some same-sex couples might marry for the benefits, but some opposite-sex couples already marry for the benefits. I don't see the harm of this, but whatever it is, it already exists.

As for the incestuous and polyamorous relationships, well if the argument extends to them then it extends. If one believes that marriage would be good for them, and there are no other harms, then I believe you should support such marriages.

That being said, I don't believe a child can currently have three legal parents (all with the same status as full parent). I'm not aware if the genetic parents of a child of an incestuous union are considered legal parents, but I doubt that such a pair would be allowed to raise the child in that situation. So I don't believe the question even arises with regards to these other unions. Should it someday arise, I believe the child would do better if the parents weren't married. Finally I believe there are other reasons to prohibit such marriages. Childrearing has been the reason given to courts for why same-sex couples should not marry.

Posted by: Gabriel Rosenberg at March 9, 2004 1:40 PM

You guys are now moving in the right direction. This is where Jon wanted to focus the argument: Are children being harmed when raised by a same-sex couple? Justin’s argument is not based on evidence; it’s based on a good theory that male-female biological differences is an essential starting point for a good marriage and a good family. A man complements a woman, and a woman complements a man, and this works to raise a good kid.

But let’s consider the following: there are many couples of two men (or two women) that are just as beautiful as man/woman couples. If a man doesn’t complement a man, and a woman doesn’t complement a woman, why do these same-sex good couples exist? It’s because they are homosexual men, not heterosexual men. It is a ridiculous thing to imagine two straight men wanting to get married and trying to make a good marriage—they wouldn’t want to, and if they tried they wouldn’t be able to. But two gay men can.
Why? It’s because homosexuals and heterosexuals have “deep biological differences,” just like men and women have deep biological differences. I’m not saying that “sexuality defines the gay person,” as Justin would accuse me (has accused me) of doing, any more that sexuality defines the straight person.

Justin would say that it’s not biological differences that account for two gay men making a good couple. He would attribute this to mental illness. To which I respond: homosexuals are better off now (in every way) than when they were trying to be heterosexuals, and things are better for everyone now that heterosexuals accept homosexuals as they are. Mental illness was caused when society tried to repress homosexuals into a role that they were not biologically made for.

So, just a man complements a woman, a homosexual man complements another homosexual man (and, by the way, a pedophile and a child do not complement each other, a brother and a sister do not complement each other, etc). I’ll leave the children component for another time, except to say that it’s through experience that we were better able to understand what homosexuality is. It is also through experience that we are beginning to see that children can grow happy and healthy in same-sex households.

Posted by: arturo fernandez at March 9, 2004 2:00 PM

Let me make something a little more clear. When I say that "...homosexual men were not biologically made for..." I’m not talking about the penis and the vagina. I’m talking about the brain (or the soul, if that’s what it is). The part of the brain that makes two people attracted to each other—and love each other and care for each other (the genitals don’t do that).

Posted by: arturo fernandez at March 9, 2004 6:18 PM

Prof. Rosenberg,

To me the answer is the child of the same-sex couple would be better if the parents were married. (Incidentally do you think the child would be worse off or just no better?)
— I didn't make a judgment, here. My view is that, instituted as currently being attempted, gay marriage will further damage the entire institution, ultimately harming many more children than are directly affected by a lack of gay marriage. However, since what I consider to be the substantive benefits of marriage to children are largely cultural, it seems at least reasonable to suspect that homosexuals who go out of their way to have children have already imbibed at least a substantial portion of the cultural benefit of marriage. It's mostly a mitigating point. This also suggests that damaging the cultural idea of marriage — its link to parenthood, for example — could ultimately leave even the children of gay couples worse off.

Opposite-sex couples won't just happen to have children either. At the very least they must decide to have sex.
— Sorry, professor, there just isn't much room to come at me from the cultural right. I've written before, somewhere or other, that the philosophical disconnection of sex from procreation is one of the major factors that leave the ground insufficiently firm to make a marital exception for homosexuals. At any rate, it's quite a bit easier to have sex than to go through the processes of adoption or artificial childbirth.

More importantly, same-sex couples are just as open to having children as infertile opposite-sex couples.
— Infertile opposite-sex coules, however, won't likely know that they're infertile until they've already tried to have children. (And most don't turn out to be entirely sterile, anyway.) Even so, they don't change the cultural idea of marriage. As I said above, infertile couples are defined with reference to the central principle, and in a way that leaves fertility desirable.

In fact more so than some like elderly couples which are far less likely to have a child through other means
— As a time-saving measure, I'm just going to copy my reply from a previous post:

More importantly, late-age marriage doesn't create a distinct, readily recognizable form of relationship. Additionally, the allowance of elderly marriage (and infertile marriage) gives the cultural force of marriage a level of simplicity. And, for good measure, having an age limit for marriage would create an incentive for divorce just at the time when any children require the most stability.

Overall, I guess, elderly couples just don't change the idea of marriage. Sure, as a couple grows older, the emphasis and purpose of their marriage shifts toward the mutual care end, but it's still a significant jump from that far-end of the spectrum of purposes to a relationship that is defined by this very quality. This definition is as true when homosexual couples are young as when they're old.

Some same-sex couples might marry for the benefits, but some opposite-sex couples already marry for the benefits. I don't see the harm of this, but whatever it is, it already exists.
— But opposite-sex marriage still has a cultural force to it. Moreover, there's still a pervading reality that men and women are less often pals than people of the same sex. If same-sex friends began marrying for benefits, marriage would become essentially a benefits program, divorced from even the affectionate relationship that homosexuals are claiming give them a civil right to marriage. (Unless, of course, gay marriage advocates wish to tie tighter divorce laws to their movement.)

Posted by: Justin Katz at March 10, 2004 11:30 AM

Arturo,

But let’s consider the following: there are many couples of two men (or two women) that are just as beautiful as man/woman couples.
— I'm not sure what measurement of beauty you're using, here. The fact remains that men are men and women are women, whatever their orientation. Most people with whom I've had related discussion would suggest that gay men are more like straight men than either is like a woman.

It is a ridiculous thing to imagine two straight men wanting to get married and trying to make a good marriage—they wouldn't want to, and if they tried they wouldn’t be able to.
— The very fact of its ridiculousness creates a cultural opening for straight men to form such marriages for the purposes of benefits. The intent wouldn't be to form a lasting, committed relationship.

It's because homosexuals and heterosexuals have "deep biological differences," just like men and women have deep biological differences.
— Are you suggesting that gay men ought to marry straight men?

Posted by: Justin Katz at March 10, 2004 11:37 AM

By the way, I didn't mean that last comment snidely, just thought it was a quick and light way to imply the response to your point.

Posted by: Justin Katz at March 10, 2004 11:38 AM

This also suggests that damaging the cultural idea of marriage — its link to parenthood, for example — could ultimately leave even the children of gay couples worse off.

I believe not allowing same-sex couples to marry does the damage to the link between marriage and parenthood. If gay parents aren't allowed to marry, and if this isn't considered an injustice, then marriage is not that important for parenthood. If we say, however, all parents should be married this strengthens the link to the benefit of every child.

I also think you undervalue the vast benefits of marriage in parenting. Here are just a few examples. Marriage can allow one parent to sacrifice career goals to spend more time taking care of children. This parent can make this decision knowing that his spouse cannot just abandon him, and if his spouse should die he will have some of the many protections marriage gives a widow (social security, pensions, inheritance issues, etc. the list goes on--this is an addition to the cultural value of caring for a widow, especially one who is still raising children). The parent can also not work and still be covered by a spouse's health insurance. The family medical leave act is another immense benefit to parenting. I could go on, but my point is that I believe marriage to be an enormous benefit to parents and that includes the cultural support. Same-sex parents are being denied the tangible benefits and the cultural support. This sends the false message that marriage isn't really that important for parenting.

More importantly, late-age marriage doesn't create a distinct, readily recognizable form of relationship...Overall, I guess, elderly couples just don't change the idea of marriage

This is another case where I see things just the opposite. An elderly couple getting married clearly isn't doing so to help raise kids or start a family. They do so for love and companionship late-in-life (which I think is a great reason to marry, also). Same-sex couples, though, get married for the same reasons as younger opposite-sex couples. In both cases they are looking to start a life together, and are probably at least discussing the possibility of children. So whereas you see elderly couples as essentially the same type of relationship as younger couples, and same-sex couples as an essentially different relationship. I see it the other way around. I would allow both to marry, though, because I believe marriage serves several purposes.

I should emphasize, though, that these purposes are not distinct. One of the great benefits of marriage to parenting comes from the child being raised by a couple in a loving committed relationship. Marriage helps to foster and maintain this relationship. I read somewhere (I can try to find it if you'd like) that children raised by parents who fought frequently tended to score the same (on the variety of scales used to measure child welfare) as children of single parents, whereas the children of parents who loved each other scored the best. One of the harms of cohabitation to childrearing, I believe, comes from the fact that cohabiters are more likely to split than married couples.

Posted by: Gabriel Rosenberg at March 10, 2004 5:26 PM

Justin:

"more like" is not the same thing as "like."

Posted by: arturo fernandez at March 11, 2004 10:04 AM

If gay parents aren't allowed to marry, and if this isn't considered an injustice, then marriage is not that important for parenthood.

— I don't think you'll be surprised, based on my comments above, that I don't think the net message of gay marriage, at this moment in history and in our culture, will emphasize that minority of the minority who are parents. I've also said that their cases are the hard ones; the uncomfortable sacrifices. You're assuming that the "injustice" must be seen as coming from the marital law and not the state of affairs that makes it necessary to be as it is. Not knowing much about your other politics, I don't know your opinion about this, but the belief that government can be constructed to eliminate all injustice is among the most detrimental strains in modern political thought.

I also think you undervalue the vast benefits of marriage in parenting.

— I've already said that I'm not opposed to specific benefits being granted through some form of civil union, particularly child-focused benefits. As for the cultural benefits, again, we're trapped between impulses, but we shouldn't forget that homosexual couples with children have had a higher bar to clear, which ensures some cultural traits. (Incidentally, we also wouldn't want to build a system that turned children into a means of acquiring marriage.)

Same-sex couples, though, get married for the same reasons as younger opposite-sex couples. In both cases they are looking to start a life together, and are probably at least discussing the possibility of children.

— Frankly, I don't think this can be stated as much more than an ideal, from those on your side. I certainly haven't seen any evidence that this is a pervasive viewpoint; quite the opposite. That's one of the reasons, in fact, that I support an amendment to slow the process down and force some cultural change and clarification.

Posted by: Justin Katz at March 11, 2004 12:27 PM

It's kind of interesting. I have said that prohibiting same-sex marriage sends the message that marriage is not important to parenting. It values cohabitation over marriage. I don't undertand this net message concept. Where's the other direction? How does saying same-sex couples can marry send any sort of message that marriage is not important for parenting? By the way, I doubt that only a minority of gays and lesbians marrying or seeking to marry have no desire to ever have children. On the contrary many of them already have children, and more and more gay and lesbian couple are having children. Also I fail to see how this injustice stems from anything other than the marital law. The laws could allow same-sex couples to marry. Same-sex couples are allowed to marry in The Netherlands, Belgium, Canada, and as of May in Massachusetts. The injustice would be quite easy to remedy.

I'm curious as to which benefits you support for civil unions. Which do you oppose? One of the great culutural benefits of marriage is that as a culture we value the goal of keeping marriages together. At the library today I saw rows and rows of books about "keeping your marriage strong" or "improving your marriage", etc. I didn't see a single one about "keeping your civil union strong".

I personally don't think the process needs to be slowed down. People in this country have been fighting for the right to marry for over 30 years. Every day that goes by without allowing them to marry is another day a family goes unprotected.

Posted by: Gabriel Rosenberg at March 11, 2004 4:11 PM

Prof. Rosenberg,

I think we may have reached the end of production discussion on this particular thread. For one thing, we've just come to different conclusions about the current states of marriage and homosexuals in our country. We're also working from different beliefs about the prudence of erasing the distinction between gay parents and straight parents.

For another thing, you're leading me in circles by focusing on only one component of larger statements:

  1. Me: Staying within the bounds of the parenting aspect, the object is to facilitate each child's being raised in the best circumstances given each child's particular predicament. The biology of male-female couples means that their relationship, whatever other qualities the two have, can result in childbirth.
  2. You: Given that a child's parents are a same-sex couple what is the best circumstance: that his parents are married, or that they are unmarried?
    Me: Same-sex couples, by their nature, aren't open to children — meaning that acquiring children (except in very odd circumsances) won't just happen to a gay couple, whether "married" or not. Given that one can't solely admit gay parents to marriage, other aspects of the debate come into play. ... it isn't at all clear that homosexual couples who go out of their way to become parents will be any more likely to be "closer to the ideal" just because they've got a marriage license.
    You: To me the answer is the child of the same-sex couple would be better if the parents were married. ... As for the incestuous and polyamorous relationships, well if... one believes that marriage would be good for them, and there are no other harms, then I believe you should support such marriages.
  3. Me: My view is that, instituted as currently being attempted, gay marriage will further damage the entire institution, ultimately harming many more children than are directly affected by a lack of gay marriage. However, since what I consider to be the substantive benefits of marriage to children are largely cultural, it seems at least reasonable to suspect that homosexuals who go out of their way to have children have already imbibed at least a substantial portion of the cultural benefit of marriage. It's mostly a mitigating point. This also suggests that damaging the cultural idea of marriage — its link to parenthood, for example — could ultimately leave even the children of gay couples worse off.
    You: I believe not allowing same-sex couples to marry does the damage to the link between marriage and parenthood. If gay parents aren't allowed to marry, and if this isn't considered an injustice, then marriage is not that important for parenthood. ... I should emphasize, though, that these purposes are not distinct. One of the great benefits of marriage to parenting comes from the child being raised by a couple in a loving committed relationship. Marriage helps to foster and maintain this relationship.
  4. Me: I don't think the net message of gay marriage, at this moment in history and in our culture, will emphasize that minority of the minority who are parents. ... You're assuming that the "injustice" must be seen as coming from the marital law and not the state of affairs that makes it necessary to be as it is.
    You: I don't undertand this net message concept. Where's the other direction? How does saying same-sex couples can marry send any sort of message that marriage is not important for parenting?

You see in 3 that I was talking about general damage to the institution, which will harm it in all its particulars. You simply can't admit only parents to marriage; thus, many more people among groups that don't have children as a matter of biological course will marry without children. I've seen nothing but evidence that this is so for homosexuals, let alone same-sex pairs regardless of sexual activity, whatever your personal doubts. Moreover, with each new group admitted to marriage, the institution becomes diluted, ultimately eroding its force to push people toward the ideal.

As for civil unions, I've not looked at the individual benefits. I think that will be for each state to do. My main emphasis, at this point, is on the notion that gay unions should be defined, legally and culturally, from the ground up. If they ultimately resemble marriage, legally and culturally, so be it.

And as for your library anecdote... well, that's cute. Publishers are understandably hesitant to publish books pertaining to relationships that don't yet exist in large number.

Posted by: Justin Katz at March 11, 2004 5:33 PM