In the comments to this post, Mark Miller writes:
The argument that the basic rationales between allowing SSM and incest are the same is just old and tired. I agree that allowing SSM is moving the line - but that doesn't mean that I support NO LINES. ...It follows the same logic as to why hunting animals is legal but hunting humans is not, why owning a gun is legal but making bombs is not, why we chose to attack Iraq but we won't attack North Korea, why contraception is legal although it has an effect on procreation, why having sex with a 14 yr old is rape but with a 18 yr old is not .... and so on. I've said it many times before - the law draws lines all the time. [N.B., Mark didn't pair these two passages as I have, but I don't believe I've changed his meaning.]
I've responded to his entire comment in that post, but in the rapids of my afternoon, I didn't follow all the way through with my thinking on the specific point of age of consent (to which Mark has made reference before, in argument with me). Here's what I wrote:
The age of consent for sex is probably the most effective of your examples, but even that is a line by age and maturity, not by significant difference. States have different laws, and moreover, as Eugene Volokh proved a couple of weeks ago when he opened it to his blog readers as an academic question, it's still a matter under debate. Still, I think the burden is on you to go into more detail as to how it applies.
The simpler, more potent point that I failed at first to spot is not so much that discrimination according to age is discrimination by a single criterion, whereas the lines that Mark would draw for marriage are by "significant differences." Rather, while society agrees that the law can legitimately make distinctions according to age, the distinctions that Mark would like to make for marriage are by "sexual orientation."
That phrase, in essence, means the way in which one prefers to conduct himself or herself sexually, and a central — probably the central — argument for same-sex marriage is that it is illegitimate for the law to discriminate on that basis. If love, commitment, sincere desire, and so on are to be the defining requirements for marriage, what barrier stands between various ways of expressing all of these purported social goods?
Now, I continue to hold that reserving marriage for couples containing people of opposite sex is not discrimination according to orientation, because homosexuals are free to enter into such marriages. Similarly, those SSM advocates who've made much of the tarnished state of the institution should agree, as well, that people inclined to consort with multiple partners are also free to enter into marriage, as currently defined. The particular relationship, not those engaged in it, is the object of privilege, and the simple biological fact is that same-sex and opposite-sex couples are not similiarly situated in that respect.
Posted by Justin Katz at July 14, 2004 7:56 PMAgain, thanks for the recognition - I know it wasn't meant to be complimentary but I guess I like to find the silver lining.
To be honest, my view is that you thought way past my point.
What I mean is that I do not feel that there is an effective ban on same-sex marriage or that current law marriage is discriminatory against same sex couples. I've acknowledged - and on this blog - that SSM would be a change in the current definition of marriage.
And I've also acknowledged that I am not the poster boy for SSM advocacy - yet I do believe there should be some way to legally acknowledge same sex relationships.
"If love, commitment, sincere desire, and so on are to be the defining requirements for marriage, what barrier stands between various ways of expressing all of these purported social goods?"
—--- As I wrote in the response to the original post, I believe that you can legitimately draw the line between same-sex relationships and incest or polygamy on the basis of moral and social acceptance and the effect on the culture. In the same way that alcohol use is legal but drugs are not despite the similarity in their social effects. In the same way that smoking is an acceptable behavior despite its negative effects. The truth is that the law and culture does draw lines with regard to the social effect and freedom/liberty. In this case, I happen to believe that the cost of legitimizing gay relationships is far less than the cost of legitimizing incest or polygamy. I also don't believe that homosexual behavior should be considered in the realm of those other behaviors - and this is the true basis of our disagreement.
Let's at least acknowledge that.
Posted by: Mark Miller at July 15, 2004 11:49 AMBut it is discrimination by sex. Chris wants to marry a certain woman. Do we allow it? That depends on whether Chris is a man or a woman. Chris #1 could be similarly situated to Chris #2 with the only difference being their genders, and yet one is allowed to marry this woman and the other is not.
Posted by: Gabriel Rosenberg at July 15, 2004 11:50 AMPerhaps I should explain why I oppose drawing a line based on sex in this instance, but support drawing lines based on prior existing relationships or based on distinctions between an individual human being and a group of humans.
I generally oppose drawing lines based on sex because while I feel gender is important, I think it is more important who were as a human being. I get upset when women discouraged from going into mathemtics or sports because those are disciplines for men. I get upset when men are discouraged from going into teaching or nursing because those are disciplines for women. When it comes to who we choose as a life mate I want that choice to be based on who someone is as a total individual.
Of course distinctions based on the number of indviduals does not conflict with this idea, nor is it problematic. Without such distinctions the law could not refer to individuals. As for distinctions based on legal relationships, well that is what is at stake here. We are drawing a distinction between a married couple and an unmarried couple. Without the ability to draw such distincitons marriage would have no legal consequences.
Posted by: Gabriel Rosenberg at July 15, 2004 12:08 PMThe difference of course, Dr. Rosenberg, is that a woman can be just as capable as a man at doing mathematics or sports, and a man can be just as capable as a woman at teaching or nursing. (Not to mention that I'm not sure there were laws against such things - they are/were a result of social attitudes, not the law. But I could be wrong about that.) But a same-sex couple is not equally capable (situated, to use Justin's term) of producing offspring as a heterosexual one. Which is the point at issue - is marriage defined the way it is in large part due to this fact, or is its current definition unrelated to procreation and thus irrationally exclusive of SS couples? I presume you support the latter conclusion. I think this is a radical denial of biology, human nature, and history, not to mention theology.
Mark, you should read Mark D. Roberts post on this ( http://www.markdroberts.com/ ). I agree with him that it is foolish to claim that changing the definition of a fundamental social institution such as marriage will not have large effects. It makes more sense to claim that the effects will be beneficial for society as a whole than to claim that there will be little effect. The problem is that we won't know what the social effects are until years to decades have passed. (See, welfare). As a self-professed conservative, you should, in my estimation, be more cognizant of the dictum that traditional institutions should be changed only slowly and with great caution. Which is clearly not the situation we find ourselves in.
This is probably a hopeless quest, but I'll try once more: nobody is disagreeing with you that the law draws boundaries all the time, and that sometimes those boundaries are or appear to be arbitrary, due to the fact that they are implemented by fallible human beings. But the presumption is that one should be able to make a rational case for a particular law. If that can't be done then the presumption must be that it is a bad law. Your argument seems to boil down to "I don't see a problem with homosexuality, so why not change the definition of marriage?" What we are asking for is an argument that delineates between changing the definition of marriage to include same-sex couples, and changing it to include multiple partners. It could be the case that due to the vagaries of social norms and the political/legal system that allowing SSM would not result in a further expansion of what kinds of relationships should be included in the definition. But your argument shouldn't be "some of our laws are arbitrary - why not draw an arbitrary line around marriage?" It should include a rationale for defining it in the particular way that you think it should be defined. That is what we haven't seen from you.
I suppose the good doctor considers separate restrooms for men and women a violation of civil rights as well...
Posted by: Marty at July 15, 2004 1:21 PMMark,
For the most part, I'll defer to Mike's comment above. However, I do want to respond to two points:
I happen to believe that the cost of legitimizing gay relationships is far less than the cost of legitimizing incest or polygamy.
But what if one cost of "legitimizing gay relationships" proves to be legitimizing incestuous or polygamous relationships? What must be shown, to avoid this question, is that something inherent in the differing relationships presents a natural stopping point for social and legal thinking. Moreover, this something must inhere, as well, to the arguments being put forward for homosexuality.
I also don't believe that homosexual behavior should be considered in the realm of those other behaviors - and this is the true basis of our disagreement.
That presents an interesting question, mostly because there are various ways in which to approach the definition of "behavior." However, from my ideological position, it's quite clear to me that it matters very little what realms I believe various activities to inhabit. A significant argument against same-sex marriage, vis-à-vis incest and polygamy, is that the manner in which it is being pursued precludes any barriers that might be placed behind it. (As I recall, in fact, Prof. Rosenberg wrote somewhere or other that he doesn't care to "close the door" behind same-sex marriage; although my recollection could be putting somebody else's words in his mouth.)
P.S. — Incidentally, this post wasn't meant to be uncomplimentary.
Posted by: Justin Katz at July 15, 2004 1:40 PMhttp://www.city-journal.org/html/14_3_redefining_marriage.html
As usual, Professor George (and David Tubbs, who I haven't heard of before) puts the matter concisely and clearly. Note, Mark, that this essay doesn't include the words "God", "Bible", or "morality". It merely points to the fact that gays view the institution of marriage differently than heterosexuals do. Maybe their views of it will affect the broader culture, and maybe they won't. But I thinks it's foolish to discount the possibility entirely. Especially considering that it is future generations who will have to live with the consequences of our decision on this matter.
Posted by: Mike S. at July 15, 2004 1:48 PMProf. Rosenberg,
Do you get upset when men are passed over as surrogate mothers? Women turned away at the sperm bank? Is it irrational of me to suggest that men are palpably better suited as male role models to both boys and girls?
I suppose if husbands and wives are hereafter to be (creepily) "life mates," then perhaps it makes sense to forget mothers and fathers for what... life parents, guardians, parental humans, parent one and parent two? Sure, people should commit to "life mates" with consideration of the whole person. However, it seems to me, as I argued in a previous post, that in formulating the language thus, you undermine the ability to claim that "life mate" oughtn't include siblings and should exclude "mate #3."
Moving to a different point, forgive my tone if I'm coming across as harsh (it isn't my intention), but I can't help but see a bit of sleight of hand in this:
We are drawing a distinction between a married couple and an unmarried couple. Without the ability to draw such distincitons marriage would have no legal consequences.
The distinction between a married couple and an unmarried couple, legally speaking — from which follow the legal consequences — is the registration and licensure process. That "distinction" is only procedurally related to the determination of who is allowed to receive a license. Come on, now.
Posted by: Justin Katz at July 15, 2004 1:59 PMThe truth is that the law and culture does draw lines with regard to the social effect and freedom/liberty
I agree with you on this point. The problem is that the "law" and "culture" are not allowed to draw the distinction - it is being forced down the culture's throat by a few judiciacrats. By all means, put it to a vote of each state and let the culture decide. Perhaps a more politically palpable FMA would read:
"No state shall be required to recognize a marriage, union, or other relationship from another jurisdiction, including another state of the United States, that would be invalid under its own laws."
Side note: I see people constantly dis "slippery slope" arguments as somehow invalid. If you are talking about a debating competition, you may have a point, as slip-slop is not the form of a syllogism where if A is true, then B necessarily must follow. But, in the real world, slip-slop arguments are absolutely valid. They are nothing more (or less) than arguments based upon observed (and often repeated) phenomena. While if you let A happen may not necessarily mean that B must be around the corner, it is perfectly reasonable to say, based upon past experience and observation, B is highly likely, reasonably probable, more than likely or whatever to occur. Its a simple inference from observation.
Posted by: c matt at July 15, 2004 2:38 PMJustin writes, "I continue to hold that reserving marriage for couples containing people of opposite sex is not discrimination according to orientation, because homosexuals are free to enter into such marriages."
Ah yes, I've heard that one before. Always guaranteed to get a knowing chuckle from a conservative audience. I even heard Michael Medved say it on his program: "Gay people have EVERY right to get married ... as long as they get married to someone of the opposite sex!" (wink wink, nudge nudge)
The thing is, Michael Medved claims to know plenty of Gay people, so he knows how patently absurd such a statement is. He knows it isn't that simple. Yet he continues to say it. Why? Because it draws a chuckle. He has a talk show, the line is almost a joke, so why not have a few yucks at the expense of Gay people. He knows better, yet he panders to the ignorance of those in his audience who DON'T.
Why would you want to do this, Justin? You're married to a woman. You have kids. I'll ASSUME that you've never felt physical attraction to any other men. WHY? Because you are heterosexual. THAT is your sexual orientation, am I correct? It wasn't something you made a cataclysmic decision about, am I right? When you were going through puberty, did you say to yourself, "Gee, now that I'm becoming an adult, I guess I'll have to decide whether I want to be Gay or Straight. Hmmm, most people are Straight, and most people think homos are yucky, so I guess I'll just be Straight!" No, I don't think that was the case. I suspect that, like everyone else, your sexual orientation was just sort of AUTOMATIC, something you arrived at without much conscious decision. Please correct me if I'm wrong.
Dammit, Justin, this is not rocket science. YES, we all have choices to make in how we conduct our lives. We can be celibate or monogamous or promiscuous, regardless of our basic sexual orientation. What we look for in a potential mate will have a lot to do with what we appreciate aesthetically, how compatible our personality traits are, what values we share, etc. But one truth remains for anyone who wishes to pair-bond with another person: If you are Straight, you'll be looking for another Straight person of the opposite sex. If you are Gay, you'll be looking for another Gay person of the same sex.
You are an intelligent guy, Justin ... which is why your contention that Gay people should simply marry people of the opposite sex is so insulting.
Posted by: Chuck Anziulewicz at July 15, 2004 3:14 PMTaking things in turn....
Mike S: I wouldn't say that marriage is unrelated to procreation, but the ability to procreate is not how the line is being drawn. Whether Chris can marry the woman does not depend on whether Chris and the woman can procreate. Nor do I believe that gender is being used merely as a convenient, if inexact, proxy for the ability to procreate. Even with the foreknowledge that Chris cannot procreate I think most of society has no problem with Chris marrying the woman unless Chris is a woman. Historically I believe that the man-woman criterion of marriage was based on gender roles. That women could give birth was part of that role, but did not itself define the role. Of course, that women could give birth was also used as a reason to exclude women from the bar.
Marty: I do not consider separate bathrooms a violation of civil rights in general (provided those bathrooms are substantively equal). The problem is there is no substantive equal replacement for one's soulmate. This was the same conclusion reached by the California Supreme Court in Perez. At the time (1948) it was perfectly legal to have separate restrooms or separate train cars for different races. That was not a violation of civil rights at the time. Yet it was still a violation to use race to prohibit a marriage. Their reason? You could provide a substitute train car, but not a substitute spouse. Human beings are not train cars and nor are they restrooms.
Mr Katz. I do not get upset when men are turned away as surrogate mothers provided that women who cannot carry the child are also turned away. I do not get upset when women are turned away from a sperm bank, provided that men who cannot ejaculate or also turned away. In these cases the line is not being drawn on gender, but rather on the ability to do something. As I noted, in the marriage case it is not the inability to procreate that is the cause for refusal.
It is not irrational at all for you to suggest that men make better male role models, and if you are looking for a male role model I would suggest you find a man. Being a good male role model is not a legal requirement of spouse. And some people might prefer to find a person who is a good role model as a human being--a person who models what a human being should do, and not what certain gender roles should be.
If you find the term "life mate" creepy perhaps you would prefer soul mate, or spouse, or even husband. Why should a man be prohibited from finding a husband? Personally I prefer the hebrew word "b'sheert". In any case we provide consequences to legal family relationships. One of the consequences of the sibling relationship is that you cannot subsequently marry. Yes that is discrimination based on family relationships, and some might argue that you shouldn't legally recognize the sibling relationship--as some argue you shouldn't legally recognize the marital relationship--but I disagree.
I think there is some misunderstanding about the last point. Either I do not understand you or you did not understand me. I was noting that the marital relationship also has certain legal consequences. One of those consequences is that if you are married you cannot marry another until the first marriage is dissolved (through death, divorce, or annulment). I have no problem with the recognition of such a relationship having certain legal consequnces. Anybody asking to have the law recognize a marital relationship similarly must have no problem with there being consequences. They might disagree as to what those consequences should be, but they agree there are consequences. So such a requirement has more to do with what consequences marriage has, as opposed to whom one may marry.
Posted by: Gabriel Rosenberg at July 15, 2004 3:44 PMTen comments based on a post with my name on it.
Very cool.
A few points:
Mike, why am I not allowed to view homosexuality as morally different than polygamy ? Why can you say that there is great difference between the legitimacy of interracial marriage versus same sex marriage but when I say that there is a difference between same sex marriage and polygamy you throw up your hands.
You once wrote that your belief in the immorality of homosexuality is based on your view of theology, human nature and your personal experience. (or something like that) OK. But then you absolutely refuse to consider the possibility of someone having a different view. It just seems foreign to you.
The truth is that while you may not agree but it is not totally unreasonable to view homosexual behavior as morally and ethically different than polygamy or incest.
But you keep asking the same questions:
- if gays can marry, then why not multiple partners ?
- if gays can marry, then why not multiple partners ?
- if gays can marry, then why not multiple partners ?
I've repeated the answer time and time again.
Because I believe that the number of people involved being two is a more significant part than the opposite sex of the partners.
I'm allowed to have that opinion just as you are allowed to assert that legitimizing gay relationships is akin to legitimizing incest or polygamy.
I'll have to read the article you posted but I'm already leery of the argument that gays view marriage differently than straights. But I'll read it.
Justin - "But what if one cost of "legitimizing gay relationships" proves to be legitimizing incestuous or polygamous relationships? What must be shown, to avoid this question, is that something inherent in the differing relationships presents a natural stopping point for social and legal thinking."
----- I think that the natural stopping point is 2 people.
With regard to behavior, that is an interesting question but one that I feel we've done before. Basically, we have differing views on whether entering into a romantic relationship with a member of the same sex can be categorized as a 'behavior'.
c matt - your amendment would be fine with me. I also agree with your comments about the slippery slope arguments. I didn't mean to say they have no value - but that there is a place to say that the slope can be stopped and in this case, I don't happen to think that legitimizing gay relationships is on the same slope as polygamy or incest.
Chuck - let's at least acknowledge that SSM is a big change in marriage law. It may be justified but even a gay rights supporter like me doesn't feel this is a no-brainer.
I guess this makes eleven ... and with my name ...
Posted by: Mark Miller at July 15, 2004 4:06 PMDear Mark:
You say, "SSM is a big change in marriage law. It may be justified but even a gay rights supporter like me doesn't feel this is a no-brainer."
Admitted. And frankly a lot of the current controversy and acrimony could have been avoided if legislators had been a little more accomodating of Gay couples early on and creating a legal equivalent called "civil unions" or whatever, as long at the legal benefits and responsibilities are the same.
Would civil unions be an example of "separate but equal?" Perhaps. I've heard Gay people argue that "The black civil rights movement taught us that separate is rarely, if ever, EQUAL." That may be the case, if we're talking about water fountains, lunch counters, and schools. But we're talking about legal benefits here, and I could easily live with a "civil union," as long as it allows my partner and I to file a joint tax return and designate each other as beneficiaries under Social Security. That's really ALL I'm concerned about, even though Justin doesn't seem to believe me.
Posted by: Chuck Anziulewicz at July 15, 2004 4:35 PM"Why can you say that there is great difference between the legitimacy of interracial marriage versus same sex marriage but when I say that there is a difference between same sex marriage and polygamy you throw up your hands."
You've hit the head on the nail. The truth is interracial, homosexual, polygamous, bestial, incestuous relationships are all equally distinguishable. Another way of saying this is that homosexual couplings are no more or less logically related to polygamous, incestuous or bestial ones on the one hand than they are to interracial relationships on the other.
Both sides play this game: The pro-gay side says Loving v. VA logically demands gay marriage, but gay marriage doesn't logically demand, P.I. & B. The anti-gay side says homosexual relationships are wholly distinguishable from interracial ones, but homosexual relations logically lead to P.I. &B.
The truth is homosexual relations are as equally distinguishable from P.I. & B. relations as interracial relations are distinguishable from homosexual ones.
Or, the only thing that homosexuality logically has in common with P.I. & B. is that they all have been frowned on by tradition. But guess what, so equally have interracial relations been condemned by tradition. The only thing that logically connects homosexual relations to P.I. & B. also logically connects them ALL to interracial couplings.
"Mike, why am I not allowed to view homosexuality as morally different than polygamy ?"
You are. I just want to know how/why you do. If all you have is "I just do", then I don't see how you can convince anyone else that your position is correct.
"Because I believe that the number of people involved being two is a more significant part than the opposite sex of the partners."
But what are the reasons for that belief? How do you argue to convince people that this is an important distinction? I don't see how you can decry the slippery slope argument, and then turn around and offer no basis for it's lack of validity.
----
"but the ability to procreate is not how the line is being drawn... Nor do I believe that gender is being used merely as a convenient, if inexact, proxy for the ability to procreate."
Well, I suppose it depends upon what you mean by 'being used'. Obviously prior to 30 or so years ago gender was considered not just a proxy for the ability to procreate - it was considered fundamentally linked to it. And marriage was considered fundamentally linked to gender and procreation.
"Historically I believe that the man-woman criterion of marriage was based on gender roles. That women could give birth was part of that role, but did not itself define the role. Of course, that women could give birth was also used as a reason to exclude women from the bar."
The question is whether gender 'roles', as you call them, are intrinsic or imposed by the society. Clearly there is nothing intrinsic about being female that prevents one from being a good lawyer. But there is something intrinsic about the ability to bear a child, and to create a child together, in the biological roles men and women play. Denying that marriage is (or should be) closely linked to such intrinsic roles is a very foolish thing to do.
Posted by: Mike S. at July 15, 2004 5:04 PM"I could easily live with a "civil union," as long as it allows my partner and I to file a joint tax return and designate each other as beneficiaries under Social Security. That's really ALL I'm concerned about"
Well, you are in the minority of those supporting SSM, I think. If that's all that was at stake, we'd be talking about changing the tax code, not the definition of marriage.
Posted by: Mike S. at July 15, 2004 5:07 PMJustin - "But what if one cost of "legitimizing gay relationships" proves to be legitimizing incestuous or polygamous relationships? What must be shown, to avoid this question, is that something inherent in the differing relationships presents a natural stopping point for social and legal thinking."
I can tell you the exact stopping point from a legal perspective: gender based classifications receive heightened scrutiny while numbers based classifications do not.
When asked to distinguish between interracial couplings & same sex couplings, a common answer offered by anti-gay folks -- and a good one -- is the 14th Amendment. The 14th Amendment's equal protection and other clauses clearly prohibit race based classifications. The legal test that is used is "strict scrutiny" and invariably, laws subject to strict scrutiny fail.
Under present jurisprudence, gender based categories are also "suspect classifications" but are subject to "intermediate" (as opposed to "strict") scrutity (in the real world: the law may or may not be struck).
When categories receive no suspect classifications, they get a rational basis review, (which means that the laws almost always get upheld). Number based discrimination get rational basis review.
Thus, there is just as much logical legal distance between race (misceg.) & gender (homo) on the one hand and gender (homo) and number (polyg) on the other.
Some may argue that it's "sexual orientation" (gays) not gender (men or women per se), that is really being discriminated against. In a way I suppose, this is correct. But "sexual orientation discrimination" *technically* receives no heightened scrutiny (even though Romer and Lawrence would seem to indicate that it does). It is better established that gender based classifications receive intermediate scrutiny and the ban on same sex marriage is clearly a gender based classification.
Thus, if a court wants to recognize gay marriage AND wants to prevent further slide down the slope to polygamy, it would be best for them to analyze the case under the rubric of "gender discrimination."
Posted by: Jon Rowe, Esq. at July 15, 2004 7:29 PMPerhaps gays should show that thier "orientation" is truly "immutable" and petition to have that category added to the 14th Amendment before we start tinkering with the bedrock institutions of society in the name of "civil rights".
Fact is, orientation is NOT immutable, and there is no "test" for it, so it cannot be held in the same constitutional esteem as race, origin, gender etc.
(PS: before you freak out out the mutability of religion, remember that it is enshrined in the First Amendment for that specific reason)
Posted by: Marty at July 15, 2004 9:30 PMIt’s amazing how these SSM discussions slip and slide across a broad range of different topics. The start of the thread was on polygamy, incest, and bestiality (PI&B), so I’m going to try to stay with that.
First, the context of the discussion is on what’s likely to happen in United States law---not how we personally feel about the subject. We may all agree that PI&B are bad things, but that’s irrelevant. As Lawrence and Goodridge have made clear, our opinions don’t count for much. Unless the political branches can muster the will to take action, the only opinions that will matter on the future of SSM or PI&B are those of the judges on the state supreme courts and the US Supreme Court.
In trying to predict what the courts will do, we must regretfully shed centuries of assumption that judges will behave as they should, interpreting the law in accordance with the will of the people rather than imposing their whim on it. The US Supreme Court in particular openly refused to respect its role for the past forty years or so. There is no reason to believe that it will start worrying about the consent of the governed any time soon.
So let’s look at what those people write. Here is a paragraph by Justice Kennedy from the Lawrence opinion:
“It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code."”
This paragraph makes an excellent example of the PI&B point. The logic works equally well for any consensual sexual practice you can think of. The foundation of the SSM movement seems reflected quite well here: None of your morals matter. Religion, “conceptions of right and acceptable behavior,” respect for the family, “profound and deep convictions accepted as ethical and moral principles.” None of that matters. In the mind of Justice Kennedy, which is one of few minds that actually influences the future of the law, the public’s moral convictions are utterly irrelevant to whether a statute is constitutional.
With an explicitly amoral starting point, it’s no surprise that Kennedy struck down the sodomy statute. He cannot discover by logic alone a reason to allow it.
This should come as no surprise to a student of moral philosophy. It’s called the is-ought gap: You cannot derive a moral conclusion from any quantity of factual statements. To derive a moral conclusion, you must have at least one moral premise. Kennedy has eliminated all moral premises about sex as mere sentiment, so of course he cannot rationally allow the criminalization of sodomy.
The PI&B point is really a very simple point of logic: Justice Kennedy and a majority of the US Supreme Court has rejected traditional sexual morality as a justification for the criminalization of homosexual acts. We also have traditional morals against PI&B. If the statutes prohibiting those were challenged, I don’t see how the court could respect those morals in PI&B cases when they rejected them in Lawrence. And once all the moral premises are gone, then there is no way for the court to uphold any sexual moral distinction embodied in law. It’s logically impossible.
You cannot draw morality from logic. If the logic of the high court demands that we cannot keep our moral traditions in law, then our law will have no morality at all. PI&B are all moral distinctions in law. As long as the judges wield unchecked power, and as long as they reject traditional sexual morality as a justification for laws, then the prohibitions on PI&B are on their way out of the law.
If you disagree with this, please explain what premise of sexual morality the court can start with to uphold prohibitions on PI&B. Everything I read from the courts—the people who matter—is that there are no moral premises on sex. We can’t use the traditional ones, and we sure as heck aren’t making any in the present. Of, if you prefer, you can try to jump the is-ought gap and explain how we can start with no moral premises on sex and still arrive at a moral conclusion. Good luck. You’ll need it.
Posted by: Ben Bateman at July 16, 2004 1:49 AMMarty,
"Fact is, orientation is NOT immutable, and there is no 'test' for it, so it cannot be held in the same constitutional esteem as race, origin, gender etc."
So said the person who believes the Earth to be flat. Even homophobes as blatant as John Derbyshire have come to believe otherwise -- (in terms of the voluntariness, mutability of the orientation).
BTW, the First Amendment doesn't apply to private transactions. The Constitution might explain why "religion" is a civil rights category demanding "no government discrimination," but if "immutability" is a prerequisite for categories banning private discrimination, religion clearly fails this test.
And there are other already recognized civil rights categories that are clearly not immutable: Disability -- yes, many covered disabilities are mutable and result from a matter of behavior and choice (and some immutable disabilities like paralysis and AIDS result from behavior and choice). And Pregnancy: That's a civil rights category that is both behavioral and mutable.
Homosexuality is as immutable as handedness. That's the proper category in terms of understanding homosexuality's "existence." There is no more "proof" or "test" for handedness's immutability as there is for homosexuality's.
Posted by: Jon Rowe, Esq. at July 16, 2004 9:29 AMBen,
Whether we must have gay marriage and whether government is allowed to prohibit consensual behavior between adults are two different, albeit related questions.
Point of fact: Polygamous "relationships" as opposed to "marriages" are, as far as I know, legal almost everywhere in the US. If Jack, Janet, and Chrissy want to live together in some sexual/romantic threesome, they can so do. They just can't get married. Polygamy is a public act.
Animals have no recognized ability to contract, thus there can never be a "marriage" between humans & animals. But whether you are allowed to have sex with them is another Q. Keep this in mind: Before Lawrence, Texas voluntarily got rid of their bestiality laws, but kept their prohibitions on "sodomy."
Incest is illegal for two reasons: 1) The potential biological defects that inhere in incest offspring. And 2) the fact that incest is so closely connected with abuse of children.
But you are right: Traditional morality is not a good enough reason for limiting freedom. If it were, government would be able to make sex between the races illegal.
Posted by: Jon Rowe, Esq. at July 16, 2004 9:37 AM20 comments and counting.
Mike - here is how I perceive you:
Person X: I believe in A.
Person Y: Why do you believe that ?
Person X: Because of B and C.
Person Y: What are your basis for B & C ?
Person X: I feel that D applies.
Person Y: Why do you believe that ?
......... and so on and so on .....
(get the picture ? - you'd be person Y)
How about if I turn it around on you ? Mike, why do you feel gay marriage will have more costs than benefits ? Please define exactly what the costs are ? Please define exactly why you believe those will be the costs ? And then tell me what is the basis for why you believe what you believe. OK, I'll be waiting.
And do you even read what I say ? I've acknowledged to you at least 10 times that I feel that SSM is a change in the definition of marriage and I am not totally sure that change is warranted. But I do believe that we should move towards legitimizing gay relationships (in the legal sense) and most of my comments on this blog refer to what I consider poor arguments by SSM opponents (i.e.: the procreative model).
Obviously I haven't been very persuasive or even clear or rational to you but it isn't for lack of trying and your assertion that I don't explain my reasons is both disingenuous and annoying - at least in my view.
Chuck - I understand the separate but equal argument made by SSM advocates. I'm just not sure that appropriately applies to 'marriage' in this case.
Ben - How's this for irony - I agree with what you said. What I mean is that I agree that the primary debating point around this issue is based on morality. I don't happen to agree with you about homosexuality being immoral but I absolutely understand your argument. The difference between our ideologies is that I'd apply your argument to PI&B but not H. Can you explain that to Mike ?
Posted by: Mark Miller at July 16, 2004 9:57 AMFlat Earth, that's very clever of you. Fact remains, i see people changing their sexuality for a variety of reasons -- meanwhile their activists keep insisting that it's impossible.
It seems to me that if sexuality can and does change, this whole "marriage equality" business is hogwash. Gays are as free and welcome to marry as straights -- under equal conditions -- someone of the opposite gender.
Remember, two halves do not always make a whole. Only two OPPOSITE haves do that...
Or is it merely a coincidence that every single person under the jurisdiction of the constitution cane into being from precisely the union of one man and one woman?
Posted by: Marty at July 16, 2004 10:00 AM"Mike - here is how I perceive you:
Person X: I believe in A.
Person Y: Why do you believe that ?
Person X: Because of B and C.
Person Y: What are your basis for B & C ?
Person X: I feel that D applies.
Person Y: Why do you believe that ?
......... and so on and so on .....
(get the picture ? - you'd be person Y)
How about if I turn it around on you ? Mike, why do you feel gay marriage will have more costs than benefits ? Please define exactly what the costs are ? Please define exactly why you believe those will be the costs ? And then tell me what is the basis for why you believe what you believe. OK, I'll be waiting."
I've said before that I think that marriage is intrinsically connected to children. This is because one man and one woman are necessary and sufficient to produce a child, and because the child needs both of his parents - if that is not possible we make do with various other arrangements, but that is the goal. We have already weakened that connection, largely to our detriment as a society, through contraception, widespread abortion, widespread extramarital sex, and no-fault divorce. But the connection is still quite strong. If we change the definition of marriage to include same-sex couples, then we will be officially saying that marriage is unrelated to children, because same-sex couples are inherently incapable of producing a child. The only arguments to this are a) that marriage is not* intrinsically connected to procreation or b) that calling same-sex couples married will not change or weaken that connection. I find neither of these explanations convincing.
*This argument can take the position that marriage has never been intrinsically connected to procreation, or that it has in the past but isn't now, or that it has in the past, is now to some degree, but shouldn't be so considered. The last is the only semi-plausible argument, but it is pure folly to argue that such a radical change in society would be a good thing.
"And do you even read what I say ? I've acknowledged to you at least 10 times that I feel that SSM is a change in the definition of marriage and I am not totally sure that change is warranted. But I do believe that we should move towards legitimizing gay relationships (in the legal sense) and most of my comments on this blog refer to what I consider poor arguments by SSM opponents (i.e.: the procreative model)."
My main complaint is that you don't seem to acknowledge the huge risks involved in changing the definition of such a fundamental social institution as marriage, and that you don't make any arguments as to why the benefits for 'legitimizing gay relationships' outweigh those risks aside from saying that you don't think homosexual behavior is immoral. The only benefits I see to the society at large for recognizing gay marriage would be that those gay couples that have children would (possibly) be more likely to stay together, which would be better for those children. This is a pretty small benefit (a few thousand families) to trade for the possiblity of many more thousands or millions of children being born out of wedlock.
"Obviously I haven't been very persuasive or even clear or rational to you but it isn't for lack of trying and your assertion that I don't explain my reasons is both disingenuous and annoying - at least in my view."
I didn't say that you weren't trying, just that you weren't providing arguments that were based on anything besides what you feel. Perhaps the argument is there and I don't see it - if so, I'm asking for a clearer explication. But if all you can do is repeat yourself, then I'm going to remain convinced that you don't have any basis for your assertions other than your instinct. Perhaps that's the case, or perhaps I'm wrong, but that's the situation.
"Ben - How's this for irony - I agree with what you said. What I mean is that I agree that the primary debating point around this issue is based on morality. I don't happen to agree with you about homosexuality being immoral but I absolutely understand your argument. The difference between our ideologies is that I'd apply your argument to PI&B but not H. Can you explain that to Mike ?"
This argument is not solely about the morality of homosexual sexual behavior, which I thought you had acknowledged at some point, but which you routinely dismiss or ignore in your arguments. Let's say for the sake of argument that homosexual sexual behavior is not immoral in and of itself. But if we stipulate that and then I argue that changing the definition of marriage to accommodate homosexuals will still cause great harm to the institution of marriage, what is your response?
Let me turn the issue around for a minute: if marriage is not designed in large part to ensure that babies are taken care of by their biological parents (with all the subsequent ramifications), and is primarily focused on the needs or wishes of the two adults involved, how does a society ensure that its children are cared for and raised properly? If we take the African American community as a case study of what happens when marriage is drastically weakened, doesn't that give an indication that marriage is crucial to the well-being of children? This is not an argument that SSM will harm marriage, which will result in harm children and communities (obviously, if SSM doesn't harm the institution, then children won't be harmed). The point I'm trying to make is that marriage is intrinsically tied to children.
The other point of the African American analogy is that this change was brought on in large measure to a change in the welfare laws which essentially provided incentives against marrying and in favor of single mothers having more children. Being a single mother in and of itself isn't immoral, but the changes implemented to accommodate that situation had wide-ranging effects. The definition of marriage wasn't changed, but social attitudes towards it changed. Obviously there were other factors involved as well, but few people deny that welfare had a lot to do with it. If something as apparently innocuous as providing money to poor single mothers can have such a strong effect on marriage, don't you think it likely that changing its very definition will have effects that are at least as strong? Part of the problem with this discussion is that it tends to center on legal aspects to the exclusion of cultural and sociological ones. But the legal aspects can't be separated from the other aspects, because marriage is connected to so many areas of life. I haven't read Jonathan Rauch's book, but from what I've heard about it its the only reasonable case for SSM - either it will be good for the whole society or it won't. You can't argue that it's legally necessary and ignore what the larger societal effects will be.
Posted by: Mike S. at July 16, 2004 11:31 AMJon:
If you work from the premise that procreation is not an essential characterisitc of marriage, then you are correct that there is really no basis for not allowing SSM.
But procreation is an essential characteristic. Marriage exists for the benefit of offspring, not the partners. Why would two (or three or however many) adults need marriage to arrange their affairs? Wills can take care of passing benefits, laws can be changed to allow designation of signifcant others for whatever reason or to get tax breaks, etc. But marriage is needed for raising children. The infertile or "i don't want children" couple really don't need marriage. They may take advantage of it b/c they ontologically display procreative capacity, but, really, why do they need it? Why not just have a loving, lifetime commitment? Why the piece of paper? If its the legal benefits, then change the laws regarding the legal benefits. You don't even need civil unions - just file a "significant other designation", and amend the laws to allow the benefits to go to the person so designated. Perhaps not you, but why do so many others demand a public recongition of a change in marriage, when, in reality, they will never be able to be part of it? (Sorry if it sounds harsh, but redefining "dog" to include felines does not make a cat bark or fetch).
Posted by: c matt at July 16, 2004 1:12 PMI highly recommend that everyone read Kay Hymowitz in City Journal. The closing paragraph:
"Alongside the familiar anthropological truth that marriage comes in many forms is another truth you don't hear about so much: different kinds of marriage—not to mention non-marriage—mold different kinds of individuals. The Founders envisioned a very specific sort of institution, one that would nourish a republic of equal, self-governing citizens. The evolution of marriage over the past 40 years has undermined that vision. Gay marriage threatens to sabotage it even further."
http://www.city-journal.org/html/14_3_gay_marriage.html
It's a brute fact that the changes wrought in marriage over the last 40 years are diminishing our capacity to be a self-governing, free society. We need to correct many of these changes, not further them by instituting SSM.
Posted by: Mike S. at July 16, 2004 1:20 PM"If we change the definition of marriage to include same-sex couples, then we will be officially saying that marriage is unrelated to children, because same-sex couples are inherently incapable of producing a child. The only arguments to this are a) that marriage is not* intrinsically connected to procreation or b) that calling same-sex couples married will not change or weaken that connection. I find neither of these explanations convincing."
I do find a) convincing. There can be marriage without procreation and can be procreation without marriage. If you want to legally link marriage to procreation (or having dependants) then I suggest a separate legal status for couples who are married but do not have children. I am not convinced that the inability to have children should prevent a couple form getting a marriage license. To my knowledge, throughout history, the ability of OS couples to procreate has never prevented anyone from marriage.
"My main complaint is that you don't seem to acknowledge the huge risks involved in changing the definition of such a fundamental social institution as marriage"
I've heard the risks and I am not convinced that they are legitimate (such as Kurtz's numbers). I have acknowledged that it is a significant change.
"... and that you don't make any arguments as to why the benefits for 'legitimizing gay relationships' outweigh those risks aside from saying that you don't think homosexual behavior is immoral."
Then you haven't been listening (or reading, in this case). I have explained many times that I think that legitimizing same-sex relationships is just (as in fair) and that there will be social benefits for those with children and the mutual care giving - the same benefits there are for OS couples. Where we differ is in the significance of the risks and whether those risks should justify permanent prevention.
"This is a pretty small benefit (a few thousand families) to trade for the possibility of many more thousands or millions of children being born out of wedlock."
I've already said that an increase in the number of out-of-wedlock births as a result of legitimizing gay relationships makes no sense to me. And the statistical proof is not exactly conclusive. But I am willing to see - let's see what happens in MA and VT.
"This argument is not solely about the morality of homosexual sexual behavior, which I thought you had acknowledged at some point, but which you routinely dismiss or ignore in your arguments."
What are you talking about ? That I acknowledged that homosexual behavior is immoral ? Doubt it. What do I routinely ignore or dismiss ? Clue me in.
"But if we stipulate that and then I argue that changing the definition of marriage to accommodate homosexuals will still cause great harm to the institution of marriage, what is your response?"
My response will be based on HOW you argue that changing the definition of marriage for SSM will cause great harm to the institution.
".... if marriage is not designed in large part to ensure that babies are taken care of by their biological parents (with all the subsequent ramifications), and is primarily focused on the needs or wishes of the two adults involved, how does a society ensure that its children are cared for and raised properly?"
Huh ? How does 'marriage' ensure that its children are cared for and raised properly ? (FYI - there are many married couples who do not care for or are not raising their children properly). The institution of marriage has been around long before the legal incidents were included as part of it.
"Being a single mother in and of itself isn't immoral, but the changes implemented to accommodate that situation had wide-ranging effects. The definition of marriage wasn't changed, but social attitudes towards it changed. Obviously there were other factors involved as well, but few people deny that welfare had a lot to do with it. If something as apparently innocuous as providing money to poor single mothers can have such a strong effect on marriage, don't you think it likely that changing its very definition will have effects that are at least as strong?"
I'm also not a proponent of welfare - but I fail to see how welfare relates in any way to this issue. I agree with you that welfare has ultimately hurt families, children and our social and economic culture. But I fail to see how that has any relationship to this debate.
"I haven't read Jonathan Rauch's book, but from what I've heard about it its the only reasonable case for SSM - either it will be good for the whole society or it won't. You can't argue that it's legally necessary and ignore what the larger societal effects will be."
I've stated many times that I don't think legitimizing gay relationships via marriage or something else will damage the institution of marriage - but most of that has been in a defensive posture to defend the assertion. I actually think it will be good for the whole society because it will help those with children and it would provide the same societal standards and expectation (marriage, commitment) for gays as there currently is for straights.
Let's be honest Mike - this is about the normalization of homosexual behavior in the culture (in the legal sense). While SOME of the arguments about polygamy and consensual incest are the same as for homosexuality, I think that the normalization of those is a net detriment to society whereas I don't feel the same way about homosexual behavior.
Posted by: Mark Miller at July 16, 2004 3:57 PMI've been chewing on the various comments above while I've mowed, painted, and moved, and I'll post a general response (with specific references) when I've got some time to spare, but I wanted to jump in and juxtapose two points from Mark's most recent comment:
1. "How does 'marriage' ensure that its children are cared for and raised properly ? (FYI - there are many married couples who do not care for or are not raising their children properly)."
2. "I actually think [SSM] will be good for the whole society because it will help those with children and it would provide the same societal standards and expectation (marriage, commitment) for gays as there currently is for straights."
Are we to assume that marriage is only helpful to children of homosexuals?
I'll have to give more thought to this, but it just occurred to me that there's an element of the "standards and expectation" argument itself that ties to the cultural damage that SSM can do. In the way in which the various aspects of family life are tied together, part of the social expectation of marriage, both requiring and encouraging long-term commitment, is the presumption toward having children.
What's the next "mom question" when people get married? How long 'till children. If marriage is culturally redefined to "normalize" homosexuality (by which I think most people mean to minimize differences in perception from the norm of heterosexuality), then children don't follow from the marital relationship, and the largest need and motivation for long-term commitment disappears.
To the extent that the expectation remains, society loses the ability to give any preference for adoptive couples of opposite sex. Some will surely see no problem with that (and it ties to a response that I'll make to Prof. Rosenberg later), but one ultimately has to accept an androgenous worldview to make it rational, and such a worldview is manifest nonsense.
Posted by: Justin Katz at July 16, 2004 4:25 PMMM: The institution of marriage has been around long before the legal incidents were included as part of it.
And you are suggesting that this is the case because of the emotional needs of the married adults? This would seem to be the case, considering:
The only arguments to this are a) that marriage is not* intrinsically connected to procreation
MM: I do find a) convincing
So marriage arose long before the legal incidents were included, and if not intrinsically connected to procreation, how then do you explain its very existence?
Posted by: Marty at July 16, 2004 4:42 PMWhile SOME of the arguments about polygamy and consensual incest are the same as for homosexuality, I think that the normalization of those is a net detriment to society whereas I don't feel the same way about homosexual behavior.
It is obvious you feel that way, but the issue is why? Or more precisely, based upon what evidence or argument do you feel that normalization of homosexual behavior through SSM would not be deterimental whereas normalization of polygamous behavior would be. Polygamy has been tried before as an institution and some of those societies have survived - indeed, many would argue "flourished", such as 9th Century Islam and Ancient Greece and Rome. Yet, gay marriage has never been tried, much less tested. What basis for your optimistic "feeling"? Polygamy could reduce incidence of divorce and adultery (one many times being the cause of the other). You could have the benefit of not only a working spouse, but a stay at home parent as well, shared resources, etc.
Posted by: c matt at July 16, 2004 4:58 PM"I do find a) convincing. There can be marriage without procreation and can be procreation without marriage."
But why should the state (why has it in the past) care about recognizing marriages then? What benefit does the state gain by recognizing a particular relationship between two adults?
"I suggest a separate legal status for couples who are married but do not have children."
In principle I'd be open to a compromise between the conservative and libertarian positions: the state will recognize marriages with children, but not others (which can still be recognized in the church, socially, etc., obviously). There are various problems with this, not the least of which is it has no chance of becoming law, but at least it would focus the discussion on the needs of children rather than on the two adults involved.
"I am not convinced that the inability to have children should prevent a couple form getting a marriage license. To my knowledge, throughout history, the ability of OS couples to procreate has never prevented anyone from marriage."
I don't have enough detailed knowledge to know, but I suspect this is a case where you have to distinguish between the law and the culture. The law didn't prohibit non-fertile couples from marrying, but society had the expectation that men and women of childbearing age should get married and have children. And the reason 'old maid' or 'spinster' exists as a stereotype is because society didn't encourage women past their childbearing years to get married (whether they were widowed or never married). I really think that a big part of the problem with this debate is that people's historical horizons are so short - they only go back to 1970 or so. A lot have changes occurred, both in law and in reproductive technology since then. The question is, are those changes permanant? Good for society? Determinative for determining what marriage should be?
Again, I suggest you read Hymowitz's article.
I said, "This argument is not solely about the morality of homosexual sexual behavior, which I thought you had acknowledged at some point, but which you routinely dismiss or ignore in your arguments."
To which Mark replied,
"What are you talking about ? That I acknowledged that homosexual behavior is immoral ? Doubt it. What do I routinely ignore or dismiss ? Clue me in."
No, you acknowledged that the question of SSM involves more than the question of whether homosexual behavior is immoral. In your arguments, however, you are always coming back to the morality question, as if marriage is *only* (or primarily) about legitimizing/defining what is appropriate sexual activity. The point I keep trying to make is that the normalization of sexual activity is a means to an end - stable families in which to raise the next generation of citizens. I understand that the conservative SSM argument is that gay couples (families) will be better situated to reach that end if they are included within the institution of marriage. But as Justin has pointed out many times, same-sex couples cannot produce a child, accidentally or intentionally. If you compare a 20-something heterosexual couple to a 20-something homosexual one, the former has an incentive to get married (either before having intercourse, or before attempting to get pregnant, or after they've conceived). The latter couple only has that incentive if they want to adopt a child - they aren't going to produce a child who needs his parents. In the case where neither couple wants children, then they are closer to being in a similar situation (with the obvious exception that the hetero couple may still end up pregnant). But why should the state care about recognizing their relationships with a marriage license in that case? They are already adults, and presumable functioning citizens. And they can provide for one another via contractual arrangements - they don't need the state to automatically consider their relationship privileged.
Again, I think you have to realize that such situations (living together or married without intending to have children) in heterosexual couples' cases is a very recent phenomenon. The issue comes back to the complex interplay between cultural values, social expectations, and the law. In my estimation you routinely ignore or dismiss this interplay by simply arguing, essentially, that a) it doesn't exist (which is what I take it to mean when you say that marriage is unrelated to procreation) or b) that changing the law will not affect this interplay (which is what I take it to mean when you say that you don't think SSM will result in more out of wedlock births)
"My response will be based on HOW you argue that changing the definition of marriage for SSM will cause great harm to the institution."
I think the reason we go around in circles is because I assume that marriage is intrisically about children, while you don't. I think that SSM will offically sever the connection between marriage and procreation, but you think such a connection either never existed or has been severed already. I don't see any way for us to get around this question - it is so obvious to me that the two are tightly linked that I don't even know how to explain it to you. In fact, I think that those who deny the link, even when they are of good will (i.e. they aren't denying it because of their prior committment to SSM, as in Andrew Sullivan's case), are being remarkably obtuse. I think what bothers me about you in particular, Mark, is that you profess to be a conservative and I infer that you're serious about your faith (although you haven't discussed that directly). From my perspective, the links between marriage and procreation are strongly prevalent in both political conservatism and Jewish theology and practice, and those links are intertwined with important conservative and Jewish principles. It is that cognitive dissonance that causes me to keep trying to change your mind, whereas with someone else I would let it drop after a brief exchange because our starting assumptions are so different.
"I fail to see how welfare relates in any way to this issue."
It was a change in the laws affecting marriage (which I argue was a priori more innocuous than changing the definition of marriage itself) that had a serious detrimental effect on families and children. It is a cautionary tale - fiddling with marriage is more likely than not to cause serious problems. No-fault divorce is another example. It had some benefits for a small number of couples (e.g. women in abusive relationships), but it has caused many larger problems in society. Those two events in and of themselves ought to give anyone serious pause about changing how marriage is defined.
Posted by: Mike S. at July 16, 2004 5:09 PM"I think the reason we go around in circles is because I assume that marriage is intrisically about children, while you don't. I think that SSM will offically sever the connection between marriage and procreation, but you think such a connection either never existed or has been severed already. I don't see any way for us to get around this question - it is so obvious to me that the two are tightly linked that I don't even know how to explain it to you. In fact, I think that those who deny the link, even when they are of good will (i.e. they aren't denying it because of their prior committment to SSM, as in Andrew Sullivan's case), are being remarkably obtuse."
Interesting. The history of marriage has been one that has continually evolved. "Children" certainly is BIIIIIG purpose. "Property exchanges and the connecting of two families" USED to be a purpose in this culture; it no longer is, but remains so in other cultures. Commitment, & caring for your better half, solemnizing romantic love certainly seems to be a purpose.
It's not that procreation has NOTHING to DO with marriage; procreation and child rearing are one of the vital things that maritial law is concerned with. But it's not the be-all, end-all of marriage. As a matter of fact, there are certain marriages that violate the "procreative purpose" as much as gay marriages would that are already permitted.
There are some hetero couples who have no desire to have children and do everything they can to stop it. Well they may change their minds. Or maybe they won't. What if they don't? But nonetheless live a long & happy life together? Are you going to tell me that they have not been "married" in the same sense as a couple who bore a dozen children?
I think we've talked about the infertile. Well the Catholic Church has a saying: Miracles happen. But you know what, there is such a thing as "natural" as opposed to "accidental" infertility. Men or women of child rearing age who cannot bear children are biological errors. Yet all women go thru menopause (should they live long enough). It's part of nature's plan that a 60+ year old women not have children.
Speaking of such, my 60 something Aunt is getting married again: her 4th. No miracle of child birth will happen there: Her future marriage will have as much chance of bearing children as a gay marriage. It seems as if THIS type of marriage violates the "procreation" model as much as a gay marriage would. So why do we permit them?
Posted by: Jon Rowe, Esq. at July 16, 2004 7:34 PMWhy do we permit them? I think it is because they preserve the very model that the State/Culture wishes to promote. That is the model being held up as an ideal for her grandchildren, or nephews and neices and neighbors.
To answer MikeS:
But why should the state (why has it in the past) care about recognizing marriages then? What benefit does the state gain by recognizing a particular relationship between two adults?
I would argue that the State can and does have an interest in recognizing and regulating the particular types of relationships that promote its own survival -- the creation and nurturing of its future citizens/taxpayers/soldiers. And to this end, the State can create incentives for certain family structures, and discourage others that it finds detrimental. Those who argue for a "privatization" of marriage seek to deny this state interest.
Same-sex couples have historically offered nothing to the benefit of the future citizens of the state, and while childless opposite-sex couples offer little -- they do not break the very model that the state has decided is in its best interest to promote.
PS: Hurry up and post something new Justin, i think we're all getting tired of hammering on this one ;)
Some quick responses.
Mike & Jon: Be careful about overstating the extent to which opposite-sex couples decide to remain forever childless. My understanding is that my parents had no intention of having children, at least not in the foreseeable future from the date of my conception. Moreover, the sperm and egg that became me overcame multiple barriers to do so.
Furthermore, my recollection from previous research is that only about 1% or fewer of couples trying to conceive children prove sterile. "Infertile" and "sterile" are significantly different conditions.
As for why even sterile couples can marry, Marty had it right. Part of the power of the institution of marriage derives from its simplicity. If the object is to have couples marry before they begin having children, some sort of fertility test, or even further regulation, will act as a disincentive. Additionally, for elderly couples, the importance of the mutual care aspect of marriage raises a few notches in importance.
I think I've mentioned before that I'd be (a little) open to a suggestion of civil unions for all, becoming full marriage upon childbirth or adoption. Two prohibitive detriments to such a system — on top of the fact that nobody is suggesting it — would be (1) that it makes children a means to the end of procuring further benefits (see also, welfare) and (2) it necessarily disconnects the combined forces of law and religion toward the encouragement of marriage, because it would seem likely that most Churches (especially mine) would insist on their marriage ceremonies occurring at the "civil union" stage. Again, the simplicity and breadth across the culture are crucial to the institution.
---------
Jon,
Interesting that you should mention "the connecting of two families." What do you suppose that entails, ultimately?
-----------
Marty,
I'm working on it. I should (should) have another post expanding on this one later tonight. Tomorrow, the moving begins in earnest. Monday, I'll be back to normal (albeit the busy version of normal).
Posted by: Justin Katz at July 16, 2004 9:39 PMJon: “Incest is illegal for two reasons: 1) The potential biological defects that inhere in incest offspring. And 2) the fact that incest is so closely connected with abuse of children.”
It’s interesting to see the reasons people list for opposing incest. I had always thought that it was only about birth defects. But under SSM logic that’s an inadequate reason: SS couples and the infertile should be able to marry incestuously. You claim that it’s associated with child abuse; I’ve never heard that before. Gabriel has a peculiar theory about the specialness of sibling relationships that he thinks will ensure the prohibition of gay incest.
Mark: “Ben - How's this for irony - I agree with what you said. What I mean is that I agree that the primary debating point around this issue is based on morality. I don't happen to agree with you about homosexuality being immoral but I absolutely understand your argument. The difference between our ideologies is that I'd apply your argument to PI&B but not H. Can you explain that to Mike ?”
I like arguing these points with you, Mark. We agree on so much, and yet we pursue this small elusive difference that leads you to support SSM and me to oppose it.
I think you misunderstand my argument. I’m saying that once you cast aside traditional morality in a constitutional analysis of restrictions on homosexuality, you can’t arbitrarily bring it back for restrictions on PI&B. If they’re going to act rationally, either our judicial overlords will let us base our laws on traditional sexual morals, or they won’t.
More likely they won’t act rationally, and they’ll resurrect traditional morality to stop anything they don’t like, then toss it aside to allow anything they like. In that case, the only thing preventing the legalization of PI&B is the judges’ personal sense of how icky specific sexual practices are.
You cannot draw a principled line between homosexuality and PI&B. It’s unpleasant to think about it too hard, and I apologize if the following is too explicit for some, but in these times we can’t be dainty about the survival of our civilization. As I understand your thinking, Mark, if a man inserts his member into a rectum for sexual pleasure:
1) if the rectum belongs to a goat, then the act is horrible and should be a crime, but
2) if the rectum belongs to a man, then the act is not a crime, and is instead an act of love so special and profound that we must consider it essentially indistinguishable from the act that produces new human life.
I don’t see any way to sustain that distinction. If sex is about pleasure and not reproduction, then why does the participant’s species make such an enormous difference? And don’t bring up any traditional morality or will of the people. You’ve rejected all that to get Lawrence and Goodridge. Please explain from pure logic why homo-species sexual pleasure is OK, but hetero-species sexual pleasure should be a crime.
For me, the distinction is easy. I’ve got popular support, moral tradition, and the importance of reproduction. But you seem to reject all those. When you put yourself under that enormous handicap, I don’t see how you can sustain any moral distinctions among types of consensual sex. You cannot jump the is-ought gap.
BTW, in case it’s relevant to your response, the Texas statute that Lawrence struck down made no distinction between SS sodomy and OS sodomy.
Historical Infertility?
Mark: “To my knowledge, throughout history, the ability of OS couples to procreate has never prevented anyone from marriage.”
Until very recently in a historical sense, very few women lived past menopause. Hysterectomies were incredibly dangerous. They didn’t know much about biology. Even today, it’s very difficult to know whether someone is truly infertile. So it’s kinda silly to talk about the history of the infertile. Aside from eunuchs (who I bet historically could not marry), it’s only in modern times that we can point to otherwise healthy people who can be conclusively identified before the fact as completely sterile.
Let’s see what happens
Mark: “I've already said that an increase in the number of out-of-wedlock births as a result of legitimizing gay relationships makes no sense to me. And the statistical proof is not exactly conclusive. But I am willing to see - let's see what happens in MA and VT.”
This reminds me of the old joke about the general addressing his troops: Many of you may die in this battle, but that’s a risk I’m willing to take.
What is it all about?
Mark: “Let's be honest Mike - this is about the normalization of homosexual behavior in the culture (in the legal sense).”
Be careful there, Mark. You’re almost implying that Mike is being dishonest about his motives.
As a factual matter, from the anti-SSM side it isn’t just about the normalization of homosexuality. It’s bigger than that. If our country and culture are to survive and stay strong for another hundred years, then we need children. That’s what I think this is all about. A substantial number of Americans want to choose sexual pleasure over life. I say that morality demands that we choose life over pleasure.
Infertility
We’ve worn a deep rut on the infertility argument, but I never know who has heard what. Here is an argument that tickles my late-night brain:
One form of the infertility argument is that if marriage is “about” procreation, then it should be strictly limited to couples who can and will actually procreate. Then we hear that SS couples must be able to marry because they are in so much in love. So shouldn’t SS marriage be strictly limited to SS couples who are actually in love? And shouldn’t we automatically divorce SS couples who are no longer in love?
It’s difficult to prove love, you say? No more difficult than infertility! For love you can get testimony from friends and neighbors. For infertility you need a doctor and medical tests.
The ridiculous logic of the infertility argument can prove all sorts of silly things. If you want another example, I can also demonstrate that the requirement to get a driver’s license are not “about” screening out bad drivers.
Posted by: Ben Bateman at July 17, 2004 2:35 AM"You cannot draw a principled line between homosexuality and PI&B. It’s unpleasant to think about it too hard, and I apologize if the following is too explicit for some, but in these times we can’t be dainty about the survival of our civilization."
P,I, & B, & Homosexuality each wholly distinguishable phenomenon. The only thing they have in common is being frowned on by tradition. But equally has interracial couplings. Thus, homosexuality is no MORE logically related to these things than are interracial couplings. The bottom line of my point is examine each on a case by case basis.
"As I understand your thinking, Mark, if a man inserts his member into a rectum for sexual pleasure:
1) if the rectum belongs to a goat, then the act is horrible and should be a crime, but
2) if the rectum belongs to a man, then the act is not a crime, and is instead an act of love so special and profound that we must consider it essentially indistinguishable from the act that produces new human life."
Yeah, I'd say that the distinction between Man & Beast is pretty profound wouldn't you? Again, not meaning to harp on the interracial comparison, but it is entirely relevant here: During the Loving case, some antimisceg. used to argue, "why don't you just marry a monkey?" Your analogy is equally insulting.
If what the man & man, and man & goat have in common is that they are non-procreative, well, so too is heterosexual oral sex non-procreative. And that's practiced by about 90% of the sexually active population. In fact, oral sex is naturally and morally indistinguishable from anal sex: The mouth was no more designed by nature or God to be a procreative sex organ than the anus.
"BTW, in case it’s relevant to your response, the Texas statute that Lawrence struck down made no distinction between SS sodomy and OS sodomy."
You have it exactly backwards: the Texas statute ONLY outlawed same-sex sodomy. That was O'Connor's entire reason for voting against it. The statute in Bowers outlawed both and O'Connor was in the majority in that case. She didn't want to contradict her position so she argued the statute violated equal protection by making the exact behavior legal for one group of people but illegal for another.
Posted by: Jon Rowe, Esq. at July 17, 2004 10:49 AMYeah, I'd say that the distinction between Man & Beast is pretty profound wouldn't you? Again, not meaning to harp on the interracial comparison, but it is entirely relevant here: During the Loving case, some antimisceg. used to argue, "why don't you just marry a monkey?" Your analogy is equally insulting.
That is very interesting news Mr. Esq. While arguing the supposed biological basis for their condition, homosexuals will always point to the rare instances in the animal kingdom, implying -- and often stating outright -- that we are all "animals" after all, and it's therefore perfectly "natural".
If that is the case, and this is "evidence", then what does it say that my retreiver humps my leg, and my cockatiel masturbates on my knuckles? If we are, after all, only animals...
This distinction between man and beast is Profound, but still subject to abuse by those who advocate in the interest of thier baser instincts. Insulting indeed.
Posted by: Marty at July 17, 2004 12:43 PM
Ben:
The difference between homosexuality and the various perversions that you want to compare it to, is that nature (or God) designed homosexuality for a reason. This has already been explained to you, at Gabriel Rosenberg's blog (Changing the Laws of Marriage, April 16) by commentator Trey (his comment June 3) and you haven't told us what you think of his explanation.
Justin, I know you're fed up with me. So I'll just step aside and let you guys continue.
But Ben, do comment on Trey's explanation for the "moral good" of homosexuality, as it is central to the discussion.
"That is very interesting news Mr. Esq. While arguing the supposed biological basis for their condition, homosexuals will always point to the rare instances in the animal kingdom, implying -- and often stating outright -- that we are all 'animals' after all, and it's therefore perfectly 'natural.'"
Yes the animal kingdom is replete with instances of homosexuality -- it's far from rare. Doesn't mean much to me as we don't derive our standards of morality by observing animals in the wild, and acting as they do.
But you have it backwards: Folks like you used to argue: "Homosexuality is so unnatural that even animals never do it." And then when confronted with evidence otherwise you argue, "since animals practice homosexuality, it's 'animalistic' something only animals, not humans would do."
BTW, as far as I know, no incest taboo exists in the animal kingdom. Or if it does, it certainly ain't universal
Posted by: Jon Rowe, Esq. at July 17, 2004 1:38 PMJon, I didn’t say that the PB&I aren’t distinguishable in any way. The question is whether they’re morally distinguishable. So far as I can tell, you haven’t even tried to explain what the moral difference is. Yes, there is a difference between man and beast. Why should that matter morally? Princeton Professor of Bioethics Peter Singer sees no reason for it, and derisively calls it “speciesism.”
And I specifically have no interest in whether the analogy is insulting. Whether you find some statement offensive has no relevance to its truth.
On Lawrence, you’re right, Jon. The statute was limited to SS conduct. My mistake.
As a separate factual point, incest avoidance is a documented force in the reproduction of most animal species. One biologist I read correlated the amount of incest avoidance in some specific type of bee to the degree of genetic kinship. A bee was twice as resistant to mating with a parent as with a sibiling, etc. Google “incest avoidance” to get an idea of what’s out there.
Back to the main point, I still haven’t detected a moral explanation, Jon. “Man and beast” isn’t very illuminating. Specifically why is there a moral difference between bestiality and homosexual sex? (Again, I’m not saying that there isn’t one; I’m saying that you can’t make one without moral premises on sex.) What are your starting principles on sexual morality that allow homosexuality but forbid bestiality and incest? Why, why why? I see nothing underneath the SSM supporters’ aversion to bestiality or nonreproductive incest except the gut sense that it’s icky.
Trey’s Explanation of the Moral Importance of Homosexuality
Arturo: I remember the thread you’re referring to on Gabriel’s blog quite well. As Trey suspected, I got busy and didn’t have the time for a proper response. Then that thread lost momentum, and then I got tired of the personal attacks I was receiving there. As I explained at considerable length here, there are certain conditions for this kind of conversation, and those at that blog seemed to have minimal interest in maintaining them.
So I’m glad you brought it up, Arturo, because Trey’s post there was very interesting, and I’ve regretted not getting back to him on it. Sorry about the length of what follows, but Trey has some important ideas here that deserve full discussion:
“The “moral good” of Homosexuality
. . .
What comes from homosexuality that provides a ‘moral good’ to society and individuals in relation to that which heterosexuality provides, i.e. procreation? In a word: non-procreation.”
I really respect Trey for this, because most SSM supporters aren’t insightful enough to see that they’re proposing non-reproduction as morally good. And he has a very coherent theory about it:
“Most arguments about heterosexuality and procreation make biological assumptions that are not true, mainly that procreation is the good, when it fact its not procreation alone, but procreation that results in viable, reproducing, productive adults. You can reproduce a hundred kids but if none make it to adulthood, or make it severely hampered in one way or the other, it does society, genetics or individuals no good.”
No argument on that basic biological / mathematical point.
“Societies, both human and animal, have biological and social mechanisms that help to that end. Some individuals forgo reproduction either through biological strictures (same-gender attraction, sterility, behavior) or social strictures (cultural norms and traditions) in order to help the rest of their kin (or society) produce viable, productive adults. In the natural world this is seen in species as extreme as bees and naked mole rats to species of birds in which one sibling in a brood forgoes reproduction for most or all of its life and assists its siblings in care of offspring, to many mammals and birds (especially social ones) where some individuals forgo reproduction for extended periods of time and assist the group (hunting/foraging/offspring care/etc).”
I haven’t read about this, but it sounds right. In some situations, it would make sense that individuals would do something other than reproduce to help the overall group in its reproduction. This would be similar to bees or ants in which most of the members never reproduce, and the actual procreation is conducted by a very small minority. But notice that the goal is still maximizing the group’s overall reproduction. It’s just a question of whether the reproduction takes place on a group or individual level.
“Most cultures and societies have had classes of people who did not reproduce and but rather help the ‘greater good’, depending on the society that could be anything from classes like monks/nuns who spent their life in spiritual/charity/other pursuits to classes of medical/spiritual healers in Native American tribes, to strictures of the youngest daughter not getting married (some Latin cultures) in order to help older siblings and parents, to individuals who adopt orphaned children or care for elderly parents, military classes, etc, etc, etc.”
“Perhaps you don’t need ‘homosexuals’ to create such a class, but as a ‘non-reproductive’ sexuality that so many SSM opponents lament, it is a natural fit and a ‘moral good’ that is provided. I don’t think it is an accident that nearly every 50 year old gay man I know has either cared for or is caring for an elderly parent (often an elderly parent that rejected them), or that many gay men/women adopt if allowed, or that gay men and women are over-represented in arts, literature, and even science, and historically often the military professions. These are pursuits that take huge amounts of energy and time that raising your own children precludes often, but helps the greater good and often necessary for it.”
Trey has obviously put a lot of thought into this, and I agree with his basic principle. One can’t deny in the abstract that it would be good for the larger group for some individuals to forgo reproduction and provide some other benefit to their family, community, nation, culture, or species. It would make sense that some kinds of benefits might only come from those who have never reproduced or had sex. And Trey has some very good practical examples of this. I would add Catholic priests as a particularly vivid historical case of people who forgo reproduction in order to be closer to God and thereby spread His message more effectively.
Note that thus far Trey has argued only that these valuable non-reproductive members can exist in theory, and do exist to some extent as a historical matter. As Trey acknowledges, they aren’t the same as gays, who are sexually active in a non-reproductive way. In fact, most of the historical examples of contributing non-reproductive members are specifically not sexually active. Many cultures believed that virgins have special spiritual powers or moral purity, e.g.: Only a virgin can tame a unicorn. So the historical cases are really more about chastity or virginity specifically rather than non-reproduction generally.
“I wouldn’t argue you this as the only ‘reason’ for homosexuality, but it is one of the ‘moral goods’ that a non-reproductive sexuality, as you might put it, would and does provide. I would think that any society that allows, even nurtures, its gay citizens would actually thrive rather than the downfall of society predicted by SSM opponents.”
In the second sentence Trey is making a much bolder and less supportable claim. How many gay citizens actually meet this ideal of “contributing non-reproducer”—or even want to meet the ideal? We can’t determine that from theory. It’s a fact question. And we would expect the answer to change from generation to generation, society to society, etc.
Even assuming that a great many gays strive for this ideal—as I think Trey does—there is also indisputably some point at which there are too many. It would be really bad if everyone were gay. But conceding Trey’s basic point, it would also be bad if we didn’t have any of these contributing non-reproductive individuals. Consonant with Trey’s earlier example of other species, there is a balancing point somewhere the extremes, and it probably fluctuates with circumstances.
Also, Trey slides in that second sentence from “non-reproductive” to “gay,” which is one of the major points of contention: Is it important that these contributing non-reproducers be chaste? The change in vocabulary is no accident, though. Trey has a definite theory on it:
“But, on an individual level, suppressing non-reproductive sexuality only causes greater harm than good. Forcing, either through cultural or religious pressure, gay men and women to marry heterosexually produces only miserable, sometimes deeply pained individuals (husbands, wives and children), in spite of what ‘exodus’ would like us all to believe. Forcing it underground and in deep dark closets only forces a large part of society to live much less productive lives (to say the least). Yet allowing gay individuals to express their sexuality in an open and accepting society, through cultural and legal means and norms, only increases their happiness and thus their productivity. I can tell you that both my productivity and my happiness are magnitudes greater if you compare my closeted, tortured, near suicidal self at 25 to my open, balanced, partnered, adoptive parent self 15 years later.”
“So, there is the ‘moral good’ of homosexuality.”
Kudos to Trey. This is the clearest statement I’ve ever seen of the modern liberal theory of sexual morality: “Suppressing non-reproductive sexuality causes greater harm than good.” That’s the driving intellectual engine behind the SSM movement. It’s the moral premise behind Lawrence and Goodridge, the one that I’ve been trying to draw out of Mark and Jon. (We might quibble over whether “non-reproductive” is vital to the sentence, but let’s leave that aside for now.)
That idea that Trey stated is precisely what I oppose at the moral level about SSM, and I suspect that opposition to it is what motivates most SSM opponents. Civilization was built on the suppression of sexual impulses. If we reproduced like lions—with the males all fighting until one remains, who then mates with all the females—then we would probably still be hunter-gatherers. We would also still be in the stone age if we reproduced like many species of monkeys: Everybody has sex with everybody else, and the males with the most potent sperm sire the most children. Marriage is the most successful expression of the idea that humans are on balance happier when they choose to restrain themselves sexually.
There are inevitably cases like Trey’s in which that principle produces individual tragedies. That’s true with every restriction on human behavior. As Trey illustrates with his biological examples, the question is not whether each member of the group is comfortable or happy; it is the overall reproduction and survival (and perhaps happiness) of the group. That question is best addressed by the political branches of government, not through the courts, and certainly not as a constitutional principle.
But it’s best not to tackle all of SSM in a single post. This thread is like the one that prompted Trey’s post: It’s mostly about the argument that Lawrence and Goodridge will lead to the legalization and legitimization of other sexual practices that today we find abhorrent. So let’s talk about that.
As I wrote earlier, it is logically impossible to derive a moral statement from a collection of mere observations about the world. That’s the is-ought gap.
The Lawrence decision eschews traditional morality as a basis for upholding a law, but then concludes with moral statements like: “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.” In making such a moral statement, either 1) the Court truly has no moral premises, in which case its moral conclusion is illogical, or 2) the Court is working from some moral premise other than traditional morality, and hasn’t told us what that premise is. I think Trey has revealed it. Their hidden premise is: The suppression of sexuality (or at least non-reproductive sexuality) does more harm than good.
The problem with that hidden premise is that it isn’t naturally confined to the acts that gays ordinarily engage in. Lots of people have other non-reproductive sexual impulses. Why limit the principle to gays?
Trey wants to have sex with a man, and denying him the ability to freely do so left him “closeted, tortured, and near suicidal.” Freeing him from those restrictions has made him happy and enabled him to contribute to society, including raising a little girl. That’s a great argument for why society should accept Trey’s homosexuality.
The trouble is, lots of other people can make the same argument. The pedophiles feel the same way. So do the bestialists. So do the polygamists. So the people who want to marry incestuously. They all have sexual feelings that the majority disapproves of. They all feel repressed and unhappy in exactly the same way that Trey once did. They would all make much larger contributions to society if only we would accept their sexuality.
I don’t make this argument to score a rhetorical point. I just want logical consistency. Suppose an SSM supporter were to say, “Look, I really do think that everyone should be free to express their sexuality, no matter how disgusting it seems, as long as they can do it safely. But it’s politically dangerous to express that openly right now, so we’re keeping it quiet.” I would respond: “I disagree with that, and I’ll oppose it as government policy. But at least you understand what you believe.”
I suspect that the real leaders behind the SSM movement do understand the consequences of their beliefs, but the rank-and-file supporters do not. The rank and file believes, against all logic, that their principles will somehow stop at homosexuality and go no further. I see no explanation for that but self-delusion.
Posted by: Ben Bateman at July 17, 2004 7:32 PMBen,
Great comment; I think I'll incorporate it into a large post (or multiple-entry posting) about the issue that this thread has seeded. Unfortunately, I think I lingered a few minutes too long in a freshly polyurethaned house to put it all together just now. Hopefully walking the dog will clear my head sufficiently, because I won't have Internet access until Monday.
However, I wanted to note, here, that Trey's argument is very similar to something in one of Andrew Sullivan's books (which, of course, I've packed away). You raise one of the central problems with it: that gays, themselves, don't necessarily seem inclined to conform with the demands.
From the point of view of society — how such roles can be encouraged — it would seem that marriage, being one institution with an evolved purpose, would be counterproductive. Consider, for example, Trey. By mirroring marriage and adopting a daughter, he may be more productive, in some sense, but he is no more able to fulfill non-reproductive adult roles than any other parent of one child.
We also can't discount the possibility that something in the repression and outsiderhood has had more to do with driving homosexuals to the order of such fields as the military, the compassion of care-related fields, and the self-expression of the arts. If that is a factor, then Trey's examples undermine his conclusion; homosexuals already fill those roles, and changing their relationship with society can shift their focus.
Posted by: Justin Katz at July 17, 2004 9:20 PMThe comments about Judge Kennedy's opinion in the Lawrence case fail to make the distinction between religious (traditional) morality and civil morality based on the Constitution.
Murder and robbery are religiously immoral based on the Ten Commandments and are civilly immoral because they harm our citizens, the victims of these acts.
Having a business open on the Sabbath is religiously immoral, based on the Ten Commandments, but not civilly immoral since this harms no one, in fact most people enjoy the convenience.
In a similar fashion, homosexual activities may be religiously immoral, but they are not civilly immoral since the actions of two consenting adults in the privacy of their bedroom harms none of our other citizens.
Our nation was founded on the basis of life, liberty, and the pursuit of happiness. The government is only empowered to restrict our liberties to the extent our actions harm (take away the liberties of) others. When Judge Kennedy says that the Supreme Court cannot base it's decisions on traditional (religious) morality, this doesn't mean that all our morale principles are cast aside, that anything goes. All our laws based on civil morality remain in full effect. Laws based on religious beliefs that have no civil justification are unconstitutional.
Polygamy is civilly immoral since it results in the denigration of the women involved. It is not in society's interest to condone the harming of women by granting the status of marriage to these arrangements any more than it would be to enact laws promoting sadomasochistic behavior. In either case "consent" of the parties involved has nothing to do with it.
Beastality is civilly immoral since the animal has no say in the matter.
Incest is civilly immoral due to the genetic deficiencies that may result and this often involves a stronger member of the family taking advantage of a weaker one. This later can be true in polygamous situations as well, where a family arranges for their barely nubile daughter to marry an older man.
Homosexual marriage, by contrast, is civilly moral since society is not harmed by it and it enhances the lives of the two people directly involved, their family and friends. How can one see the happy faces at these weddings and not realize that this is a good thing?
Ben, your posts beg more questions than they answer:
“Jon, I didn’t say that the PB&I aren’t distinguishable in any way. The question is whether they’re morally distinguishable. So far as I can tell, you haven’t even tried to explain what the moral difference is.”
And why should I have the burden? You have yet to show me why these things are related to same sex couplings to begin with. The only thing I can think of is that they all were frowned on by tradition. Well let’s look at things that were equally frowned on by tradition, thus making them equally related to P, I, & B, as is homosexuality: interracial couplings, heterosexual anal (still kind of controversial) and oral (completely normalized) sex, contraception (ditto), and masturbation. Each of these are logically substitutable for same-sex relationships in your mode of analysis. For instance: “I didn’t say that PB&I aren’t distinguishable in any way” from interracial couplings. “So far as I can tell you haven’t even tried to explain what the moral difference is.” Etc. etc.
I also don’t agree with your insinuation that bestiality is something that is so horrible that it must be a crime everywhere: It’s not. In fact, it was decriminalized in Texas while they decided to RETAIN their sodomy law.
As far as analogies are concerned, a same-sex relationship—precisely because it involves two humans—looks a lot more like a heterosexual relationship than a bestial one. Thus SSR are much closer from a logical point of view to say interracial or infertile heterosexual couples than they are to bestial couples. This is simply an elementary classification that is as objectively true as 2+2=4. Let me try to explain it a different way: If you have three things that grow from the land—oranges, lemons, and crabgrass—and you were to take the orange and ask “which other thing is most similar” the correct answer wouldn’t be a matter of opinion, it would be the lemon. In our mode of analysis, heterosexual relations are oranges, homos are lemons and bestial ones are crabgrass.
As far as incest & nature—it would make sense that animals prefer to mate with non-relative as the same biological problems associated with incest inhere in animal offspring as with humans. Thus evolution would select away from such behavior. But it is still a radically different thing than the human incest taboo. The human taboo says: this is never done. The animal is at most a preference. Put the daughter of a male dog in a room with him. And if she is in heat, he’ll mate with her. This is how pure-breeds are selected.
BTW, if you believe in the Biblical story of creation, then "incest" is NOT something that is always wrong, but only wrong in certain "circumstances."
Bill Ware: In a similar fashion, homosexual activities may be religiously immoral, but they are not civilly immoral since the actions of two consenting adults in the privacy of their bedroom harms none of our other citizens.
9 out of 10 gay cannibals agree!
Posted by: Armin Miewes at July 18, 2004 11:08 AMJohn your oranges lemons and crabgrass analogy works well enough in the case of bestality, but falls short in addressing where the line shold be drawn between homosexuality polygamy and incest. Polygamy and incest do not preclude "normal" heterosexual relations, under which society would find them more tolerable than the sodomitic behaviour at issue in Lawrence. Neither polygamy or incest are inherently an assault on the basic principle that the male and female genetalia belong together.
Anal sex, as you noted, is still pretty much taboo across the board. I would personally put it closer to crabgrass than tangerines.
Or as i like to say:
"The old dirt road is a one-way street"
Marty wrote:
"John (sic) your oranges lemons and crabgrass analogy works well enough in the case of bestality, but falls short in addressing where the line shold be drawn between homosexuality polygamy and incest."
Jon, Marty, what about the distinctions I made in my previous post?? B. Ware
Bill you say that homosexuality is civilly moral because it harms no one but the participants. 4000+ Catholic boys, the Boy Scouts of America, and lovers of religious freedom everywhere would tend to disagree.
My concern is not so much with the acts of sodomy, as it is the acceptance and mainstreaming of them into our society. I see no positive benefit that can come of this, other than to improve the self-esteem of the practicioners themselves -- but the harm will affect us all for generations to come.
Bill:
I think I know you from Ed Brayton's blog. Yes, I generally agree with all of what you wrote: it's important that we draw a distinction between "ecclesiastical" as "civil" matters as Madison so eloquently put it. Basing a civil law on notions of traditional Christian morality doesn't sit well in a nation founded on the separation of Church & State. Gov't has got to do better than that.
And different reasons underlie the prohibitions on all of these things. Many folks opposed these things for a variety of reasons: "My Church says it's wrong" or "it's icky." But these aren't legitimate civil reasons. Gov't's got to offer better than that.
Take incest for example: It could lead to defective biological offspring; it's closely connected with child abuse; and having brothers & sisters, fathers & daughters, etc. etc. vying for eachother while living under the same roof can tear the fabric of the nuclear family apart. These are the civil reasons against it. And they are entirely different than the reasons against homosexual relations. "The Bible says it's wrong" or "it's icky" simply isn't enough.
Posted by: Jon Rowe, Esq. at July 18, 2004 6:43 PMBill:
I think I know you from Ed Brayton's blog. Yes, I generally agree with all of what you wrote: it's important that we draw a distinction between "ecclesiastical" as "civil" matters as Madison so eloquently put it. Basing a civil law on notions of traditional Christian morality doesn't sit well in a nation founded on the separation of Church & State. Gov't has got to do better than that.
And different reasons underlie the prohibitions on all of these things. Many folks opposed these things for a variety of reasons: "My Church says it's wrong" or "it's icky." But these aren't legitimate civil reasons. Gov't's got to offer better than that.
Take incest for example: It could lead to defective biological offspring; it's closely connected with child abuse; and having brothers & sisters, fathers & daughters, etc. etc. vying for eachother while living under the same roof can tear the fabric of the nuclear family apart. These are the civil reasons against it. And they are entirely different than the reasons against homosexual relations. "The Bible says it's wrong" or "it's icky" simply isn't enough.
Posted by: Jon Rowe, Esq. at July 18, 2004 6:44 PMBill: There are at least two problems with your distinction between religious and civil morality:
First, positing two different valid moralities leads to moral relativism: the idea that morality is subjective, or just a matter of opinion. Lots of people believe that; I don’t. Moral relativism leads inevitably to the conclusion that morality itself doesn’t exist as an independent subject of discussion because it’s reducible to power. If two men hold differing moral views, then under moral relativism the view that’s “right” (or the view that matters, if you prefer) is the view held by the man with the bigger club.
The alternate view, which I hold, is that there are absolute moral truths, just as there are scientific truths. People often disagree on what they think the truth is, but that’s totally different from saying that there is no absolute truth at all. For example, people may disagree on whether life came about through random events or the design of some creator, but they usually still agree that there is some absolute, objectively true explanation of how life came into existence. We may not ever know what that truth is, but we can still agree that it exists.
So your dual morality idea makes no sense to me. If you mean “morality” in the sense that I mean it, then at least one of your two moralities must be wrong.
Second, your two-moralities view doesn’t work internally. Let’s suppose for argument that there is this called “civil morality” that guides constitutional interpretation. Where did it come from? Can I get a copy of it? Who voted on it? How did it manage to change over time so much more than the actual written Constitution? It sounds like your civil morality is just a nice way of describing the moral intuitions of Supreme Court judges.
Sadly, that may in fact be an accurate way of describing the thinking behind decisions like Lawrence: The judges just announce their personal preferences and call it law. That’s one of my major objections to it. Calling it “civil morality” doesn’t make it any more legitimate or internally consistent than King John’s classic formulation of the same idea: “The law is in my mouth.”
Your examples illustrate this kind of intuitive, ad hoc, and unprincipled moral reasoning:
Polygamy
“Polygamy is civilly immoral since it results in the denigration of the women involved.”
While technically “polygamy” refers to multiple women in a marriage, state laws forbid polyandry (one woman, multiple men) as well. Is that to prevent the denigration of the men? It also prohibits a four-person marriage of two men and two women. Who is being protected from denigration there?
And isn’t it a strange assumption that a marriage of one man with two women would automatically result in denigration of the women? Perhaps it was historically so, but haven’t the liberal elites beaten it into our heads that we mustn’t make any assumptions about gender roles? Maybe a man who married two women gets henpecked twice as much. Who are you to make these assumptions for a diverse nation of millions, blah, blah, blah. (Insert usual liberal gender catechism here.)
Bestiality
“Beastality is civilly immoral since the animal has no say in the matter.”
The only problem with bestiality is that the animal can’t consent? Animal consent is relevant to the law? This will be terrible news to the beef and poultry industries!
Incest
“Incest is civilly immoral due to the genetic deficiencies that may result and this often involves a stronger member of the family taking advantage of a weaker one.”
You’re confusing incestuous sex with incestuous marriage here. I don’t think that incestuous sex is illegal. (Can anybody confirm that?) Only the marriage is illegal.
I tend to agree with you that the point of incest law should be the prevention of birth defects. But others have pointed out some problems with that view: First, at least in my home state of Texas and likely elsewhere, incest follows adoption just as much as it does blood. So some marriages are forbidden even though there is no genetic problem.
Second, there are some non-incestuous marriages in which the offspring will have genetic problems, but the law doesn’t forbid those unions. In fact, I have personal knowledge of a couple that had a child with extensive paralysis and required round-the-clock nursing care at taxpayer expense. They were firmly told that all of their children would very likely have the same problem. So they had another child, who had the same problem. Unless they’ve died, we’re all still paying to care for both of them, and the couple is free to reproduce again.
So which morality should the Court use?
I’m not suggesting that I can explain a single moral theory that can explain all of the laws on marriage and sex. I’m not even saying that such a theory even exists. I’m objecting to the idea that every law must be consistent with “civil morality,” as you call it, which is really just the moral whims of the court du jour.
The judges on the US Supreme Court are not our moral overlords. We pick our laws, not them. It is not their place to tell us that our laws, voted on by our representatives, do not agree with the court’s current feelings about morality.
So I’m not proposing an alternate version of the morality that the court should use to scrutinize the nation’s laws. The court should leave us alone. It should stick to its job of interpreting the law as written, and as intended by those who voted on it. Morality as expressed in law is something that the people should decide, either directly or through their representatives.
Jon: [On distinguishing PB&I from SSM:] “why should I have the burden?”
Because, if you’re an SSM supporter, you’re asserting that your moral views are so wonderfully important and clear that they should bypass the entire democratic process and become law by judicial fiat. I just want the normal legislative process. SSM supporters claim to have found the eternal moral truth about SSM, and they’re going to ram it down our throats whether we want it or not.
If you think that your moral view is so special that I don’t get a vote, then it darn well better stand up to a bit of scrutiny! If you aren’t sure that your moral view can carry a burden of proof, then why do you think it should trample democracy? If you have some doubts, let’s put it up for a vote like everything else!
As for your analogy based on plants, saying that something is closer to something else on unspecified criteria tells me nothing. Which criteria are you going to consider? Germination time? Geographic distribution? Susceptibility to disease?
Before you start comparing different situations, you need some underlying moral principles. That’s what I have a hard time getting out of SSM supporters. Trey is the only person who has given me a clear one: Sexual suppression is bad. That principle does not distinguish SSM from PB&I. What’s your moral principle that mandates SSM, and how does it fail to mandate PB&I?
You say that “different reasons underlie the prohibitions on all of these things” but all I see are ad hoc justifications:
“Take incest for example: It could lead to defective biological offspring; it's closely connected with child abuse; and having brothers & sisters, fathers & daughters, etc. etc. vying for eachother while living under the same roof can tear the fabric of the nuclear family apart. These are the civil reasons against it.”
Like Bill, you’re confusing incestuous sex with incestuous marriage. You’re also making some pretty wild assumptions that don’t seem to be based on anything in particular. With child abuse, what you’re arguing against is pedophilia, not incest. In fact, the stereotype of stepfather / stepdaughter sex that you seem to be thinking of would not be incest.
With tearing the nuclear family apart, I would say that no-fault divorce did a pretty good job of that decades ago, and lots of government employees are busy trying to turn its remaining shreds into confetti. Haven’t you heard that the cutting-edge liberal definition of “family” eliminates any reference to genetic kinship? I’ve already been sharply criticized by some SSM supporters suggesting that there is some important difference between genetic parents and adoptive parents. Now you want to save the nuclear family? You’re about forty years too late.
Also, if you base your moral decisions on assumed harm to specific people, then you run the risk that someone will prove (or claim to prove) that the harm isn’t nearly as bad as you think it is. I’ve got some great examples of that with pedophilia.
Finally, there’s a logic problem with inventing a moral principle to forbid whatever sexual practices the courts disapprove of right now: It doesn’t address the main PB&I point. I’m saying that the principle that actuates SSM supporters it not self-limiting and will, if left unchecked, lead to PB&I. If you propose some other principle that will stop the SSM principle, then you aren’t really denying what I’m saying. You’re just saying that some other principle will stop the sexual liberation juggernaut.
That may well happen. Perhaps we can stop the sexual liberation juggernaut at gay incest (very unlikely), pol