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July 21, 2004

Mrs. Dad

In a comment exchange about discrimination by gender in, yes, that same post, Gabriel Rosenberg writes:

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.

At a certain point, it seems to me, matters of discrimination come down to identity. Can a woman be a husband? A father? Of course not, and in neither case is the inability limited to the matter of procreation. If it is the identity that is under attack, we move toward Prof. Rosenberg's next paragraph:

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.

Ah, how we go 'round and 'round in this debate. Spouses may not be required to be "good male role models" in order to marry, but it is currently the law — rightly so — in most places that one of the two who enter into the relationship culturally most full of the potential to land the members in the central-role-model position of parents be a male role model. Those "some people" who prefer other arrangements are free to make them, but society is "looking for a male role model" in one member of each married pair. Moreover, society would confirm that intention if allowed to vote on the matter.

This would be particularly the case, I imagine, were the question phrased in these terms. Perhaps the public could be made to see the extreme underbelly of the ideology that same-sex marriage will usher in. The example embedded within the professor's quip is of a world in which one cannot impose views about "what certain gender roles should be" because the society demands that we ignore what the gender attributes actually are.

Posted by Justin Katz at July 21, 2004 1:15 AM
Culture
Comments

Can I challenge somebody's marriage now if I don't think the husband is a good male role model?

Posted by: Gabriel Rosenberg at July 21, 2004 10:36 AM

No, but perhaps you could if you didn't think the husband were a male at all. The "good" adjective falls to the cultural range of approval and disapproval, being a mushy judgment that the law is not particularly well suited to regulate.

Posted by: Justin Katz at July 21, 2004 10:45 AM

But the role model is essential. If I thought the man were too effeminate, and was really only modeling a female role that would be problematic.

Posted by: Gabriel Rosenberg at July 21, 2004 10:51 AM

Perhaps for you. Frankly, I'm not inclined to entertain your "if," because it is clearly not your position. Thus do academics drift off into theories that address a world in which we do not live.

If you felt marriage should exclude effeminate men, you'd be free to argue and petition to exclude them. I don't believe you'd get very far with it, however, and I for one — in the real world, holding the opinions that I actually hold — would speak against your proposal.

Posted by: Justin Katz at July 21, 2004 11:12 AM

Exactly. Just as I am speaking against the status quo requirement that there be a male in the marriage. And just as I would speak against a proposal to limit civil marriage to people of the same religious faith (although I would not object to the same proposal regarding marriage under certain religions).

Posted by: Gabriel Rosenberg at July 21, 2004 11:32 AM

But "speaking against" is not the tenor of your previous comments. You asked whether you can challenge a marriage now, by which I took your meaning to be a declaration that a marriage is not legitimate under the law. As is common practice among those who take your position on this issue, you're slipping between what is and what you believe should be, which has direct implications for how the change can legitimately be made.

(This seems related to what Ben Bateman called the "is-ought" gap.)

Posted by: Justin Katz at July 21, 2004 11:43 AM

I agree there is an important distinction that should be made between is and ought. There currently is a requirement (in 49 states and DC) that a marriage consist of a man and a woman. I do not think that ought to be the case. If the reason to keep that as the case is the need for gender models, then I definitely object. For to have gender models implies there is a model of what somebody ought to do based solely on their gender. I don't think the goverment should be proscribing such gender roles. (I don't object to individuals deciding for themselves or their families such gender roles).

In Massachusetts a marriage consists of the union of two persons. That is the way it is, and I think the way it ought to be. You presumably think it ought to be different, and we are left with pretty much the same discussion as before.

Posted by: Gabriel Rosenberg at July 21, 2004 11:56 AM

"In Massachusetts a marriage consists of the union of two persons. That is the way it is, and I think the way it ought to be."

But did it come to be in the way that it ought? Or is it the way it is simply because 4 people thought as you do and decided that that is the way it ought to be?

Posted by: Mike S. at July 21, 2004 2:41 PM

Ideally, the legislature should have provided the equal protection. So in that sense it did come about the way it ought to have. Given that the legislature did not do so, it was the respnsonsibility of the court to determine not what they would have things be, but rather whether the law was conforming to the requirements of the Massachusetts Constitution. They determined--I believe correctly--that it did not do so.

Posted by: Gabriel Rosenberg at July 21, 2004 3:10 PM

It's quite a little game, we've got going with this issue. Let's just say that I await the day that supporters of "gay rights" don't believe a particular decision in their favor to have been obligatory.

A legal system in which the Massachusetts Constitution can be seen as having mandated a right to marry a person of the same sex all along is, I submit, a useless system of judicial whim.

Posted by: Justin Katz at July 21, 2004 3:19 PM

Let's just say that I await the day that supporters of "gay rights" don't believe a particular decision in their favor to have been obligatory.

I don't think the Lawrence decision was obligatory (as written). I agreed with J. O'Connor's concurrence. There is a current case in Massachusetts seeking to allow town clerks to marry out-of-state couples. If the judge were to rule that this is indeed the case. I would disagree.

Also bear in mind that I did not suggest that the Massachusetts Constitution mandated a right to marry a person of the same sex "all along". I think that once marriage in Massachusetts became egalitarian and the Constitution provided that equal protection could not be denied based on sex, then at that point the legislature could not constituionally prohibit SSM. You might disagre with some reasoning, but it is not a useless system of judicial whim.

Posted by: Gabriel Rosenberg at July 21, 2004 3:36 PM

The problem Mr. Rosenberg fails to address and continues to ignore (Rowe brushes it aside as well) with respect to "gender" roles in marriage:

Mr. Ronseberg wants a model human being. Problem is, there is no such androgenous "model human being". Human beings come in male and female. That is the norm. Real marraige requires one of each. What Mr. Rosenberg is really arguing for is that humanity should be androgenous in their thinking and action, even though they are not in their biology. In other words, separate our "humanity" from our biology. A rather dangerous experiment; please keep it confined to the ivory tower - do not try this at home.

Posted by: c matt at July 23, 2004 11:09 AM

That is not the case at all. Human beings come with all sorts of diversity. I'm not saying that diversity doesn't exist or should be ignored. I'm saying that we should be hesitant to use gender to define legally enforced roles. I would rather judge people as individuals. Gender is part of who an individual is, but just a part. There is much more to an individual than gender. You may think men and women have different roles in society, and they should not deviate from them. But please keep that sexist practice confined to your house, and away from mine.

Posted by: Gabriel Rosenberg at July 23, 2004 11:32 AM

That's a nice layer of additional opinion to C Matt's point, Doc:

You may think men and women have different roles in society, and they should not deviate from them. But please keep that sexist practice confined to your house, and away from mine.

C Matt made reference to what the genders are, not the necessity that they do not "deviate" from their "different roles." So if you're allowed, in the interest of rhetoric, to twist other people's arguments around and smack them with the label "sexist," what would be fair in return?

I've noticed that you don't seem inclined to linger on the androgeny point. Why is that? Because it sinks your constructed debate before it even begins, both practically and in the area of public opinion?

Posted by: Justin Katz at July 24, 2004 9:36 AM

You know I think that the nature of gender may very well be key to this issue.

I would never make the mistake of some leftist social constructionists by arguing that "gender" doesn't really exist, that it's a complete construct.

There are biological (natural) as well as sociological aspects to gender. Yet, there are also "natural deviations" to gender as well. And that's what homosexuality just might be.

All human beings are default female and don't become male until a complex hormonal process that doesn't begin until a few weeks after conception. This leaves room for a lot of natural "errors."

Even in nature, there are species who reproduce asexually, -- some having both male & female private parts -- and I even saw a special on a type of fish (I do believe it was a fish) that spontaneously changes it's gender from female to male.

My point is, while certain gender norms seem to be natural and thus ought to be accepted, there are also natural deviations which also ought to be accomodated.

In other words it may be natural for men to be masculine and enjoy football and breaking things and all that...and we certainly shouldn't try to socialize that away...we also should accomodate that minority of human beings who just don't naturally feel comfortable in such roles, thinking that there is something wrong with them.

Posted by: Jon Rowe, Esq. at July 25, 2004 5:40 PM

Justin,

C Matt twisted--no, not even twisted, put words in my mouth by claiming that what I was "really arguing for is that humanity should be androgenous in their thinking and action." He then made my some snide comments about keeping this "experiment" confined to the ivory tower. I was upse and decided turabout was fair play. I should not have and done so, and I apologize. You are correct that he never claimed that people should not deviate from specified gender roles.

Nor, of course, did I say that humanity should be androgenous. Likewise, my arguments against discrimination on the basis of faith do not imply I think humanity should be atheistic or have one universal religion. That is why I don't linger on the androgeny point, because you are asking me to defend a position I NEVER MADE and with which I do not agree. It is possible to think that gender should not be used as a basis for the denial of equal protection without thinking humanity must be androgenous.

Posted by: Gabriel Rosenberg at July 26, 2004 11:13 AM

Jon,

Accommodate, fine. Opening the doors to marriage, especially through the method currently being pursued, is something quite beyond accommodation; it's an attempt to disallow the admission that there is a preferred norm from which there can be "natural deviation."

------

Gabriel,

To be honest, as I've suggested before, I don't see how you can reach your conclusions without privileging androgeny.

You might disagree with this, but if one believes that the essence of gender (whatever one might believe that essence to be) is captured in the roles of husband/wife and father/mother, then insisting that society must identically recognize couples that choose a "human role model" over either a male or female role model is tantamount to insisting on public presumption of androgeny.

Marriage is a central mechanism for asserting a different presumption. Following your example, our system negates the formation of a similar public slot with respect to religious roles, but neither atheism nor universalism is parallel to androgeny as used in our discussion. Rather, androgeny is akin to the argument that no particular religion is inherently more true than any other. From the point of view of our government, by design, that is the approach to religion (although it's gone too far in presuming atheism to be more true); to mirror that with gender in marriage, particularly since it stands as a change to the existing order, is to promote androgeny.

(I know I'm going around in circles, but I'm trying to convey an idea that obviously offends you while trying to avoid sparking that reaction.)

Posted by: Justin Katz at July 28, 2004 12:01 PM

Justin,

OK. I think I undrestand you better now. If androgeny is akin to the argument that no particular relgion is more true than any other, then I do support the government taking the androgenous position. That does not imply I believe or think others should believe we are androgenous, just as I do not believe that all religions are equally true. Just as I think we should be free to determine for ourselves what is true in theology, I think we should be able to determine what the essence of gender is.

For you gender is captured in the essence of the role of husband/wife and father/mother. (I am curious as to what differences you see between those roles). Anyone who sees things differently is taking a different (and in your mind false) position. I assume the same thing happens with regards to religion. You have certain beliefs regarding the divinity of Jesus. I would guess that you believe that others who have different beliefs are wrong. That they have different beliefs, though, does not imply they believe all religious beliefs are just as true.

I am advocating government neutrality on the religious issue and on the issue of the meaning of gender.

Posted by: Gabriel Rosenberg at July 28, 2004 12:56 PM

Gabriel,

Interesting that you should write this:

I am advocating government neutrality on the religious issue and on the issue of the meaning of gender.

As a point of fact, I consider myself an advocate for that very cause. I would not, for example, support an initiative to force all women out of the workplace upon the birth of their first children or into the workplace when those children have grown. I would not support funding for mothers to teach their daughters to sow, nor legislation requiring fathers to be present at youth athletic events.

In short, I'm happy to note that, as far as I know, the government is entirely neutral toward the "meaning" of gender. (The one exception might be judicial bias toward the mother in cases of divorce, but the law must acknowledge reality when it must, and perhaps doting fathers should work to make divorce less easy a procedure.)

But the government should not be neutral toward the importance of children's being raised by their two biological parents, inasmuch as is possible. It ought, also, to privilege the form of family that gives children a child's sympathy for the two genders of his parents — however those parents construct their roles — because whatever their meaning might be, those genders are plainly different, and the vast majority of citizens correctly believe that they manifest differently in the roles of parent and spouse.

Posted by: Justin Katz at July 30, 2004 10:02 AM

But the government should not be neutral toward the importance of children's being raised by their two biological parents, inasmuch as is possible.

But how does SSM take a child from their two biological parents.

because whatever their meaning might be, those genders are plainly different

But religions are plainly different as well. I cetainly think that one's religious beliefs will impact how one views the roles of parent and spouse. And yet despite that, I would not have the government using religion to privilege one family over another family.

In fact, many different traits will impact how one takes on role of parent or spouse. Why is it so important for there to be a parent of each gender? Why can't a woman find a wife?

Posted by: Gabriel Rosenberg at July 30, 2004 11:20 AM
But how does SSM take a child from their two biological parents.

How do two people of the same sex have mutually biological progeny?

But religions are plainly different as well.

Yes, and they are different from gender — not the least in the fact that there're no clauses in the First Amendment declaring that "Congress shall make no law respecting an establishment of gender norms, or prohibiting legislation on their basis." In this country, society is free, in every sense of the word, to determine that marriage — the joining of one man and one woman with a cultural presumption of children and family — is to be privileged.

We can go around and around with this, but I'm simply not going to accept your presumption that the attribute of male or female is simply another quality that affects how one fulfills the role of parent. In fact, I don't accept your blanket use of "parent" rather than "father" and "mother," believing that very slip of thinking to be among the detriments of the movement that you support.

That, indeed, is the radical rejection of millennia of cultural experience that same-sex marriage represents, dismissing so many compounded subtleties of biological truth and societal evolution that asking the importance of the existing standard amounts to a rhetorical parlor trick. As quickly as I could pluck reasons from the mountain of institutional nuance, you could dispose of them, and in the end, we'd be left with a pile of discrete superfluity and a defeated institution.

Wrote Melville of Emerson:

I could readily see in Emerson, notwithstanding his merit, a gaping flaw. It was the insinuation that had he lived in those days when the world was made, he might have offered some valuable suggestions.
Posted by: Justin Katz at July 30, 2004 11:43 AM

How do two people of the same sex have mutually biological progeny?

They don't. Now can you answer my question of how SSM takes a child from their two biological parents? It seems prohibiting SSM is not necessary for the government to value children being raised by their two biological parents.

Yes, and they are different from gender — not the least in the fact that there're no clauses in the First Amendment declaring that "Congress shall make no law respecting an establishment of gender norms, or prohibiting legislation on their basis."

OK. That's one difference. A difference of "is" and not of "ought". Of course in Massachusetts there is a clause that says equal protection may not be denied on the basis of sex, but I'm more interested in the "ought" aspect. Should the government respect established gender norms. I do not believe so, because I think that we should each be free to establish for ourselves what gender means to us.

I apologize for what you consider parlor tricks, but I'm doing my best to explain why I can think gender is very real and important, and yet not want it to be a factor in determining the validity of a marriage. That is my primary concern here. I'm trying to make it clear that I am not arguing that gender is insignificant or unreal, and I'm not sure that is understood.

At the same time, I'm generally trying to better understand your position. Why is the use of "parent" so detrimental? Rest assured I'm not trying to score rhetorical points here. Not that I would do that anyway, but in this case this post is buried and we are likely the only ones still following it. I sincerely want to better understand your position, and to help you understand mine. I might dispose of your reasons, but at least I would understand them.

By the way, I'm not offering suggestions to God. I fully understand the God made us with gender differences. I do not wish it to be any other way, and I thank God for making me who I am. That does not imply, though, that I think those differences ought to be used to prohibit marriage.

Posted by: Gabriel Rosenberg at July 30, 2004 3:16 PM