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July 21, 2004

A Cataclysmic Assumption

The previous post was, in part, in response to this comment from Chuck Anziulewicz:

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. ...

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.

Chuck is wrong about the intent and, I'd wager, reception of my suggestion that homosexuals are not excluded from marriage. It isn't a laugh line; it's a sincere argument. What did make me chuckle, however, was the way in which he faulted Medved for oversimplification and then proceeded to oversimplify the mechanism of personal formation. Do many components of identity really come down to a decision?

Not to equate them, but the only three that I can immediately draw from my own experience have been to become a non-smoker, not to run away from an increasingly certain commitment to my then-girlfriend/now-wife, and to allow myself to believe in God. Note, however, that all three of these decisions were made as an adult and were renunciations of aspects of my identity into which I'd slipped during my formative years.

I can't speak for Michael Medved, but as far as I'm able to say, the point to which Chuck has failed to grant any credence is that many of those who oppose same-sex marriage really do privilege the family type indicated by marriage rather than the sexual relationship of the spouses. We really are defending an institution rather than a prejudice. We are not saying that homosexuals should marry people of the opposite sex (although it would make for an interesting discussion), but that they can. It's a legal question of discrimination, and a social question of priorities.

Posted by Justin Katz at July 21, 2004 12:25 AM
Marriage & Family
Comments

There are only two foods on planet "XYZ", peanuts and corn. Either will generally allow the inhabitants to thrive. However, the rulers prohibit the eating of corn because it is used in a sacred ritual. Unfortunately, to a small 5% of the population, eating peanuts is deadly. But the rulers are unconcerned because all of the inhabitants have the same eating rights.

Posted by: Joel Thomas at July 21, 2004 12:59 AM

Joel,

A perfect encapsulation of your view of the situation, which is probably why I find it to be inapplicable as written. For two quick points:

  • The "sacred ritual" is in place for reasons other than simply sacred tradition, and it is every bit as crucial to the long-term survival of XYZ's inhabitants as eating itself.
  • Those with peanut allergies are free to eat corn. They just can't get the peanut-crackers that the rulers provide to anybody who commits to eating peanuts.
Posted by: Justin Katz at July 21, 2004 1:12 AM

I've often wondered why it is that effiminate men who are attracted to other men are not also attracted to butch lesbains, who appear to meet the same criteria for attractiveness. Or why a demure lesbain mgiht not find an effiminate man just as attractive as a masculine woman? Things that should go together like peanut butter and jelly.

Also, when i see pictures of nightclubs full of tanned shirtless athletic and obviously successful men happily dancing with each other, i cannot help feel sorry for all the lonely single women i meet at my church... something is terribly wrong here, when we can so easily neglect our responsibility to the opposite sex.

Posted by: Marty at July 21, 2004 10:14 AM

Michael Medved's comment is not that original either. It was used in the 1940's through 1960's when interracial prohibitions were challenged. It's not discrimination, they said. Blacks can still marry and whites can stil marry. They just can't marry each other. Everybody is equally prohibited from marrying somebody of a different race.

Posted by: Gabriel Rosenberg at July 21, 2004 10:33 AM

Prof. Rosenberg,

Well, apart from the difference in emphasis between "equally prohibited" and being "equally enabled" (to marry somebody of the opposite sex), your argument by racist-conflation still doesn't hit the mark. Nobody argued that uniformly black marriage was not marriage.

Group 1 could marry, and group 2 could marry; members just couldn't marry somebody from the other group — discrimination. In the current debate, the point is that group 2 cannot marry among themselves because their pairing does not capture the essence of marriage — definition.

Posted by: Justin Katz at July 21, 2004 10:41 AM

Sorry Justin, I don't buy the "by defintition" argument.

Posted by: Gabriel Rosenberg at July 21, 2004 10:43 AM

Well, that's a convenient way for you to skip the substance of my point by running with the one-word summary with which I tagged it.

Others of us who are not inclined to give such weight to mathematical principles and legalistic arguments will continue to believe that there's a notable difference between saying that two groups can marry except to each other and saying that one form of relationship is not marriage. That's why we're supposed to be able to vote on matters of significance.

Posted by: Justin Katz at July 21, 2004 11:07 AM

From Prof. Rosenberg's link:

"marriage cannot exist apart from the law"

That is patently false. The Catholic Church has it's own definition of marriage that is independent of the civil definition (which sometimes leads to conflict). And of course people got (get) married before (in places where) there was (is no) such a thing as the rule of law.

In any case, it still begs the question of who gets to make the decisions regarding such definitions - judges or the legislative branch?

Posted by: Mike S. at July 21, 2004 11:33 AM

I'm sorry. I guess I just missed the substance of your argument. I thought the definition was the substance. Can you please rephrase the argument without resorting to the "definition" of marriage?

Do you support states being able to vote by majority rule on whether to prohibit interracial marriages or interfaith marriages? Certainly those are matters of significance.

Posted by: Gabriel Rosenberg at July 21, 2004 11:36 AM

No Mike, that is not patently false. As I mentioned in my post, the distinction there is between civil law and ecclesiastical law. In both cases marriage is part of the law. I don't believe people do get married where there is no law. (Are they married or just shacking up? What's the difference if there is no law?)

As for who makes the decision. I would say the legislative branch, subject to the restrictions of the constitution.

Posted by: Gabriel Rosenberg at July 21, 2004 11:43 AM

No, Justin. No one is allowed to eat corn, including those allergic to peanuts. Corn is sacred, not to be touched by the mouth. Everyone is permitted to eat peanuts, but the 5% who eat peanuts will die. But all have the same right to eat.

Posted by: Joel Thomas at July 21, 2004 12:14 PM

Prof.:

Can you please rephrase the argument without resorting to the "definition" of marriage?

The substance is not, as your post seems to indicate, that definition is decisive, but that there is a notable difference between the two issues that you cite in your effort to use the stench of racism to cause those with whom you disagree about SSM to evacuate their positions. My point pertains to the difference between two forms of distinction.

Let me redirect using an observation about your post: it seems to me that you gloss over the difference between a statutory definition and the statute itself. "For the purposes of this statute, a highway is a street or road" is separate from a law stating that "a highway robbery shall be subject to X and Y."

Do you support states being able to vote by majority rule on whether to prohibit interracial marriages or interfaith marriages?

No, and I reject, out of hand, your continued attempts to conflate these issues with SSM. For reasons that I've explained in proximate posts.

Posted by: Justin Katz at July 21, 2004 12:30 PM

I am not saying the two issues are the same. But you said we are supposed to be able to vote on matters of significance. I am merely pointing out that you do not think that is true in all circumstances. Naturally we disagree as to whether a majority vote should be able to determine the issue on this matter, but that is not due to some underlying principal about being about to vote on matters of significance.

Fine, there is a notable difference between the two issues. I agree wholeheartedly. I am trying to examine the issue of SSM and whether the discrimination is justified and you say there is no discrimination. There clearly is discrimination, and just because that discrimination is embedded in a defintion does not make it justified. Other considerations might make it justified, but then we must deal with those other considerations.

Posted by: Gabriel Rosenberg at July 21, 2004 12:59 PM

"I don't believe people do get married where there is no law. (Are they married or just shacking up? What's the difference if there is no law?)"

Well, I don't have detailed knowledge, but I'm pretty confident in asserting that people get married in, for example, tribes in Africa, where they don't live under what we in the West would consider the rule of law. I suppose the question hinges then on how you define whether a society lives under the rule of law or not. But the differences between marriage and shacking up are obvious - there are cultural rules regarding marriage, such as that another man should not sleep with a woman who is married to someone else. And the children of the man's wife are presumed to be his. Etc., etc.

Perhaps you mean to say that in Western society, a couple is not considered married unless sanctioned by the state. I suppose that has a lot of truth to it, although I think it's not axiomatically true.

Posted by: Mike S. at July 21, 2004 2:37 PM

No, I think this is just an issue of semantics. What does one mean by rule of law. I'd say a tribe does have laws and you specify some of them. Another man cannot sleep with a woman who is married to someone else is what I would consider a law. (This is especially true if there are some consequences for a man who does sleep with a woman who is married to someone else). Likewise, that any of the children are considered his I would consider a law provided there is some consequence to this.

So what I mean is that a marriage is only a marriage if it is recognized as having certain consequences. Now it follows that if it is going to have consequences, there must be some rules for determining whether a couple is actually married. In the case of civil marriage, we are concerned with consequences that are specified in our civil law. And the rules for determing whether a couple is married are specified in our civil law. In the case of a religious marriage, we are concerned with consequences and rules of determination that appear in religious law. In the case of a tribal marriage, they are rules that I would say form part of tribal law, etc.

Posted by: Gabriel Rosenberg at July 21, 2004 2:54 PM

Gabriel, a mathematician is free to invent definitions on the fly. A court is not. It's supposed to interpret the words of others, at least under an old-fashioned theory about the people controlling their government.

So saying that the "definition" of marriage excludes SS couples is another way of pointing out how the courts are outrageously abusing their power and ignoring what the people want---both what they want today and what they have always wanted in the past.

There's an old math joke that 1+1=3 for sufficiently small values of 3. You can define your own little math universe any way you want.

But when the people and their representatives say that 1+1=2, then a court cannot "interpret" that to mean 1+1=3. There is a limit to what can legitimately be called interpretation of the law, and the Goodridge court has gone way, way beyond it.

Posted by: Ben Bateman at July 22, 2004 2:52 AM

Forget about the courts, for a second. What I was explaining was that the legislature decides on definitions it wishes to use. Therefore, the fact that a definition discriminates does not end the matter as to whether there is a denial of equal protection. It is no use to say "it is the defintion that discriminates and not us" or "the constitution cannot require the legislature to do the impossible and it is impossible to have two women marry by definition". The it is because the legislature, like the mathematician, can determine what the definition is.

Just as the definition of a governor as being a man who rules over a state would not end debate as to whether a woman could run for governor. I think it would be entirely proper for a court to step in and say that the legislature may not restrict the position of governor to men.

Posted by: Gabriel Rosenberg at July 22, 2004 10:39 AM

"Also, when i see pictures of nightclubs full of tanned shirtless athletic and obviously successful men happily dancing with each other, i cannot help feel sorry for all the lonely single women i meet at my church... something is terribly wrong here, when we can so easily neglect our responsibility to the opposite sex."

Maybe we need to import males from China to fix that problem.

Posted by: Jon Rowe, Esq. at July 22, 2004 3:09 PM

Gabriel: "the legislature, like the mathematician, can determine what the definition is."

No, the legislature isn't free, either. It has voters to answer to and centuries of legal thinking to harmonize with, especially on fundamental terms. It has to write laws in the same language that everyone else uses. Language is a relentlessly democratic thing. The legislature's words, to be intelligible, must harmonize with the way that people use those words.

The key phrase here is “fundamental term.” I doubt that a mathematician could, as a practical matter, radically redefine terms such as “set,” “zero,” “number,” or “null.”

Your example about “the definition of a governor as being a man who rules over a state” is inapposite because that isn’t the definition of a governor. The word “governor” has an objective meaning in the English language, and that meaning doesn’t include a sex requirement. In Texas, we had a woman as governor quite early in the twentieth century, long before any courts had the idea that they ought to enlighten us on matters of sex by taking away our right to vote.

I fully understand and agree with your point on technical terms, because I work with them all the time, as I imagine you do. The Congress is quite free to define legal terms such as “Qualified Family-Owned Business Income” or “Foreign Base Company Services Income.” It does that kind of thing all the time to form a complex system of rules that will produce the desired outcome.

But the Congress cannot redefine the term “income” to turn the federal income tax into a tax on property. Certain basic words have meanings that a legislature can’t change, because the people themselves have determined the meanings through usage and tradition. The definition argument that you find circular essentially amounts to the proposition that “marriage” is one of those words that the people have defined, so government cannot redefine it without their consent.

Throughout history, the inherently democratic nature of language has provided a constant obstacle to would-be despots. Orwell had some brilliant things to say about it. The victors at Hastings had a terrible time trying to impose their French on the English. Leaders in the French Revolution tried desperately to alter their language to meet political goals. Communist governments have proven themselves masters at the art of corrupting language to cement their control over their subjects’ minds. And college feminists have been trying for many years now to impose their ideology via language, e.g. redefining "rape" to include consensual sex in marriage and anything else that makes radical feminists uncomfortable.

Though I'm sure you don't intend it as such, Gabriel, it’s ultimately a powerfully anti-democratic idea to assert that a legislature or court can radically redefine fundamental words. In language, as in law, the people should be the ultimate authority. Any attempt to forcefully defy their authority is both immoral and inherently unstable as a historical matter.

Posted by: Ben Bateman at July 22, 2004 3:37 PM

If the Reagan Administration can define catsup as a vegetable, then the government can define marriage as being between any two adults.

Posted by: Bill Ware at July 22, 2004 4:43 PM

Bill, nobody believed the Reagan Administration when it said that. That's why it's a standing joke.

Posted by: Mike S. at July 22, 2004 4:58 PM

Ben, I agree that ultimate authority under civil law resides with the people. So let's just consider the case there. The people have the ultimate authority on defining marriage. Defining it in such a way so as to discriminate on the basis of sex, I find to be unjust discrimination. Others might find the discrimination justified. Whether or not it is justified must be decided independently of what the definition is. That the definition discriminates is not itself a justification for that discrimination.

As for the governor analogy. You say the objective meaning of governor does not include a sex requirement. But a governor was once by definition male (as indicated by the "or" suffix--A governess was female). Yes that has changed, but if that is the criterion, then so has marriage. One US state and some countries have same-sex marriages. I would say, though, that even before Gov. Ross was elected in Wyoming, any discrimination against women serving as the governor of a state would have been unjustified, the definition notwithstanding.

Posted by: Gabriel Rosenberg at July 23, 2004 11:17 AM

Gabriel, your thinking on SSM is deeply rooted in discrimination. You also say that you agree that the people have ultimate authority over the law.

In your mind, when did the people authorize a legal principle of non-discrimination that is so extreme as to require SSM? If the people have authority over the law, then when did they authorize this radical change to marriage?

Some of the confusion that the pro-SSM side feels about the anti-SSM side seems to come from their deeply held belief that discrimination is wrong, wrong, wrong. It's a fundamental moral principle for them, and they have trouble understanding that a great many of us never accepted it. They want to just assume that the law reflects this principle, but it isn't really there.

And there are good reasons that it isn't there: It's poorly defined, it's applied inconsistently, and it doesn't meet the demands of reality. It's not even a moral principle so much as a sentiment, which is why discrimination law is such a terrifying mass of self-contradictions.

In Goodridge they had the state's ERA to point to. So it only took a small lie to pretend that it required SSM even though its supporters expressly said that it didn't. The bigger lie that SSM supporters are gearing up for is to tell a much bigger lie: That "Thou shalt not discriminate on any basis, ever!" is written in invisible ink somewhere in the US Constitution, visible only by the pure of heart. (It's probably right next to the abortion clause and the no-prayer-in-schools clause.)

I don't remember you ever clearly stating your view on SSM under the US Constitution. Are you in favor of adding more invisible ink?

Posted by: Ben Bateman at July 23, 2004 4:03 PM

"Some of the confusion that the pro-SSM side feels about the anti-SSM side seems to come from their deeply held belief that discrimination is wrong, wrong, wrong. It's a fundamental moral principle for them, and they have trouble understanding that a great many of us never accepted it. They want to just assume that the law reflects this principle, but it isn't really there."

Or they assume that the law should enforce non-discrimination. Which, come to think of it, sounds a lot like the usual liberal complaint about legislating morality.

On a side note, apropos of the discussion over the 'conservative' case for SSM, this is an example of an argument ( the discrimination one ) based in liberal principles that I understand the underlying basis for, even though I don't agree with the premise.

Posted by: Mike S. at July 23, 2004 5:26 PM

First of all, Mike I'm absolutely fine with my arguments and ideas being labeled as liberal.

Secondly, Mike, you ask about the law enforcing non-discrimiation. I have mixed feelings about this, but I lean toward believing that private groups ought to be free to discriminate on the basis of gender or even race (even though, they generally ought not discriminate on such bases). I get even more torn when I think about whether the government should be able to require businesses with whom they contract to have non-discrimantory policies or whether businesses which cater to "the public" should be required to have non-discrimination policies. Here I tend to lean more towards the, yes, they should be able to require that. In any case, what I try to focus on is what is to me the more clear case of governmental discrimination.

Now, as for the key question asked by Ben:
In your mind, when did the people authorize a legal principle of non-discrimination that is so extreme as to require SSM? If the people have authority over the law, then when did they authorize this radical change to marriage?

As you noted there are differences between states and the federal government, but it sounds like you would prefer I deal with the federal issue. I believe that the people in 1868 established the legal principle that no state should deny to persons within its jurisdiction the equal protection of the laws. I believe they delegated to the courts some authority for determining whether in a particular instance equal protection was being denied. (That delegation is not irrevocable. With a constitutional amendment the people can make adjustments if they believe the courts are abusing or even simply misusing that authority. So ultimate authority still resides with the people.) The court subsequently established guidelines which have undergone changes. Originally the idea was that treating men and women differently was never really a violation of equal protection because:


The civil law, as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood

This idea guided the courts for almost one hundred years. For example in 1912 J. Holmes said:

If Montana deems it advisable to put a lighter burden upon women than upon men with regard to an employment that our people commonly regard as more appropriate for the former, the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference.

Even as late as 1948, J. Frankfurter said:

The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic.

Throughout this time, though, the court still possessed the authority delegated to them by the people through the fourteenth amendment to determine whether a given law violated the equal protection clause. In 1976 the court spelled out a new guideline (hinted at earlier) to decide on matters when the law discriminated on the basis of sex:

To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

Cases have also established that gender may not be used as "an inaccurate proxy for other, more germae classifications", nor was "role" typing permissible. I believe that under these guidelines prohibitions on SSM in most (if not all) states fail to comply with the constitutional mandate that all persons be subject to equal protection of the law.

Those are my thoughts about what the law is, and I recognize that some may disagree that either (a) the courts had the authority to establish those guidelines or (b) that even under those guidelines the state may still discriminate on the basis of sex for determining the validity of a marriage or granting marriage licenses. Even if I am wrong about the way the law "is", I would still argue that the above is the way the law "ought" to be. That is I would support a constitutional amendment clearly prohibiting the state from denying equal protection on the basis of sex unless it was necessary to achieve some compelling governmental objective. And further, if necessary, I would like the constitution to explicitly state that a marriage license may not be denied nor the validity of a marriage challenged on the basis of sex.

So there you have my opinions on the "ought" and the "is". Feel free to disagree with both, but we are in agreement on the people having ultimate authority.

Posted by: Gabriel Rosenberg at July 26, 2004 12:18 PM

"First of all, Mike I'm absolutely fine with my arguments and ideas being labeled as liberal."

I assumed that was the case... ; )

Posted by: Mike S. at July 26, 2004 9:31 PM