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August 16, 2004

Rolling Over Speed Bumps Can Be Addictive

Marty McKeever took the plunge and answered the question, "How will marriage be destroyed, and what part will gay marriage play?" The post was certainly worth Marty's effort to write, and it's worth others' effort to read. However, apart from recommending the essay, something that an opposing commenter, Scott, wrote tied with another aspect of the larger debate that I've been meaning to mention. The following blockquote spans two comments, at the ellipsis, the first part directed at Marty, and the second to another commenter, Jim Price:

If you do not like gay marriage, then don't marry a man. Instruct your kids not to marry the same sex. ...

Grit your teeth all you want Jim, in the end, I win.

Your morals aren't mine, you see, thats your problem. You see the world in black and white only. I'm smart enough to understand gray.

Whether or not you like it, I will be married, to a man and in the end you'll be a George Wallace footnote.

Its harsh but its the truth Jim.

You can type on a message board until your fingers turn blue but I will win, and you know what, heterosexual marriage will survive. I'm sorry you're not smart enough to see through the fundraising doomsday scenarios that you've been fed but keep sending those checks to James Dobson if it makes you truly happy.

You're a speed bump, not a wall.

The personal insults and active belittling of his opposition suggest to me a mindset that won't stop at the equilibrium of "you do your thing, I'll do mine." Indeed, most of Scott's comments to the post at hand include some reference or other (in aggregate) to "the unwashed simpletons in flyover country." The rhetoric may be of mutual liberty, but the language is of the sort that brings into question the worthiness of the other side to possess their share. To the extent that those people continue to have power in one form or another — whether influence or property — in a post–same-sex marriage world, it's easy to imagine Scott and his ilk thinking it not overbearing to impose correction of their errors.

For further exploration of this point, we can turn to no less un-stupid a person than Eugene Volokh:

But in any event, one should acknowledge that the "It doesn't hurt you, so why should you object?" argument omits an important point: The broad array of gay rights proposals would restrict the liberty and equality of those who oppose homosexuality -- and this array is more of a package deal than we might think, since the more proposals the gay rights movement wins on, the easier (generally speaking) it would be for it to win on other proposals.

We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others.

The Marriage Debate blog post that quotes from Volokh's entry also links to his follow-up entries, which branch in different directions. It would seem that there are aspects of grayness quite apart from the dubious accuracy of Scott's assertions about heterosexual marriage's future.

Indeed, the claim of a reasoned complexity of perspective among those who advocate for further normalization of homosexuality is beginning to appear as an easily removed robe. And perhaps those opposing the process can be forgiven for wondering whether the American Bar Association let the cloak slip a little, and prematurely, when it proposed changing its ethics policies in order to ban judges from joining groups that "discriminate" against gays. As the relevant commission leader, Mark Harrison, put it, the object is to "make sure that judges aren't viewed as bigots." What groups would make such a view possible is up in the air. The National Guard? The Boy Scouts? The Catholic Church?

Volokh dubs it "pretty sad" that "[m]aybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality." Sadder still, in my view, is that society's choice between these two paths is appearing more and more likely to be made not on the basis of which tilt is ultimately better for future generations, in the complicated summation of effects, but which group has the power and will to force the wheel and make of the opposition a speed bump — rather than a legitimate marker of a speed limit.

Posted by Justin Katz at August 16, 2004 9:43 AM
Marriage & Family
Comments

Here's and article by Edward Feser in TechCentralStation discussing the precise problem Volokh mentions - Libertarians like to claim that their political philosophy is ultimately neutral between competing moral claims. Feser points out that this is impossible in practice, since political philosophy necessarily based upon a particular view of morality.

In a sense, Volokh's statement is fatuous - our whole system is built on the idea of competing goods: between different individuals and between individuals and the society as a whole. It seems ridiculous to sentimentalize this particular conflict. It is only libertarians who have the idea that one can have complete individual freedom without offsetting costs on society.

Posted by: Mike S. at August 16, 2004 10:55 AM

I agree that Scott's attitude towards the issue is 'erroneous', to say the least. The issue cannot be thrown away as simply 'one's morals over another'. There are competing goods and, as Volokh said, the debate over the issue does include a 'package deal', of sorts.

The ABA's proposed ethics policy represents much that is wrong with our culture. Though I disagree with those who equate homosexual behavior with immorality, to equate association with individuals/groups who oppose homosexuality on moral grounds with 'bigotry' or supporting discrimination is hypocrisy and counter-productive.

Also, it is true that our whole system is built on the idea of competing goods and finding the balance between different individuals and between individuals and the society as a whole. But it is inaccurate to assert that libertarians believe that one can have complete individual freedom without offsetting costs on society. What libertarians believe is that the government should not be in the business of deciding whether the costs outweigh the benefits and leave the effects to the free market - both in social and economic terms.

Posted by: Mark Miller at August 16, 2004 1:45 PM

"What libertarians believe is that the government should not be in the business of deciding whether the costs outweigh the benefits and leave the effects to the free market - both in social and economic terms."

I don't know whether you read Feser's essay or not, but your statement seems to imply that you haven't, or that you didn't understand his point. The problem is that in the social arena, the destructiveness of bad decisions occurs much faster than the constructiveness of good decisions. It's also more difficult to recover (collectively or individually) from harmful social decisions than it is from harmful economic decisions.

The other problem with your specific statement is that you leave the object unstated - the costs and benefits, and effects, of what? When you are talking about philosophical and moral questions, it is nonsensical to claim that the govenrment can be neutral between various claims. The structure of our government, and the ideas upon which it is founded, are based upon a particular moral and philosophical view of human nature and the proper role and scope of government. It can't truly let these ideas fight it out in the market, since the rules by which it adjudicates the fight are themselves built upon a particular worldview.

A final assumption you are making is essentially a form of begging the question - you (or libertarians like Glenn Reynolds) think that SSM can be tried out without significantly harming the institution of marriage. The implicit assumption is that if SSM was shown to be harmful to marriage, we would be able to reverse ourselves and undo the harm. But what if the decision was not reversible? Or, what if it took 50 years or more to undo the damage done? Is that worth the experiment? I believe you when you say that you would change your mind if you saw evidence indicating that SSM was unhealthy for society, but the problem is that your view of social attitudes and the ability for them to change is unrealistic. Look at Communism - in a sense, this economic and political system failed in the marketplace of ideas. But at what cost? ~100 million dead, a crumbled empire, and millions of people still struggling to overcome its aftermath. (This doesn't even account for those still suffering in China and Cuba.) And there are still many Westerners who defend Communism. My point is not to claim that SSM is going to cause as much destruction as Communism has (although one possibility to think about is how well America will be able to combat militant Islam in the next 50-100 years if marriage is considerably weakened here, and who will do it if we don't) - it is to point out that these types of decisions affect millions of people and take decades or more to sort out the effects of. It is simply not realistic to assert that we will be able to correct ourselves if we find out that SSM is, in fact, harmful to marriage, in the same way that, say, the free market corrects for flawed or harmful products.

Posted by: Mike S. at August 16, 2004 4:35 PM

Another point to the discussion would be the harm to the democratic system should 1 percent of the populace manage to overrule 99 percent.

The institution of marriage in this country at this point is fragile to begin with. More fragile than it was in the European social laboratory (Scandinavia/Netherlands). The proponents of SSM find it convenient to limit the view of marriage rates and out-of-wedlock birth rates to the last 10 or 15 years. This decline in marriage did not happen in a vacuum.

It has as its origins radical individualism that has been around for close to a hundred years now. Individualism is a major marriage killer when the "two shall become one". (That does not mean that a partner in marriage cannot expect some degree of autonomy, but the two need to think of themselves as a single entity.)

Posted by: smmtheory at August 17, 2004 12:59 AM

I didn't read Feser's essay. I agree that the destructiveness of bad decisions occurs much faster than the constructiveness of good decisions except that I would refer to it as negative effects are typically much more immediate than positive effects - such as the effects of war (loss of life) or social policy such as welfare reform. I'm not sure that I do agree that it is more difficult to recover from harmful social decisions than it is from harmful economic decisions. That may be true collectively (as all cases would) but I'm not sure that is applies individually.

"When you are talking about philosophical and moral questions, it is nonsensical to claim that the government can be neutral between various claims."
—-------- Mike, it is nonsensical to claim that government policy canNOT be neutral between various claims. What about divorce ? Does the legal acknowledgment of divorce mean the government approves of it - thinks it is a good thing ? What about smoking ? What about out-of-wedlock births ? What about religion ? What about foreign policy ? Of course, government policy is not neutral about everything but it is neutral about some things. This neutrality is representative of the belief in individual freedom with regard to certain behaviors. FYI - The US is not a Totalitarian regime (despite the claim of some leftists)

"The structure of our government, and the ideas upon which it is founded, are based upon a particular moral and philosophical view of human nature and the proper role and scope of government. It can't truly let these ideas fight it out in the market, since the rules by which it adjudicates the fight are themselves built upon a particular world view."
—--------- Wrong again. In many cases, it does allow for "fighting it out in the market" - we call it capitalism. Yes, the ideas and structure upon which our government is founded is based on a specific moral and philosophical view of human nature but sometimes that view is 'leave it alone'. I think you are misunderstanding the difference between our structure of government and the one we fought to gain our independence of.

Finally, the 'fear factor' argument is old and actually, not very relevant. The truth is that with freedom come change, responsibility and also, chaos - for the simple reason that not all people will be responsible. One can argue that all freedoms - racial, religious, sexual, economic, etc. have caused harms. Is our culture better off since we have allowed interracial marriage or since the civil rights movement ? Is sports better off now that we have free agency ? Will education be better off if we eliminate affirmative action ? The point is that cause-effect is not the real issue in debate here. It is whether "marriage" is legitimate for same sex couples - whether it is fair or the right thing to do.

"Look at Communism - in a sense, this economic and political system failed in the marketplace of ideas. But at what cost? ~100 million dead, a crumbled empire, and millions of people still struggling to overcome its aftermath."
—-------- Come on. I'm not fan of Communism but to blame it for 100 million dead, etc, etc. is just as fair as blaming capitalism for everyone malnourished or who dies without proper health care in this country.

"... although one possibility to think about is how well America will be able to combat militant Islam in the next 50-100 years if marriage is considerably weakened here, and who will do it if we don't"
—------- Congratulations. You win the award for hyperbolic rhetoric.

"It is simply not realistic to assert that we will be able to correct ourselves if we find out that SSM is, in fact, harmful to marriage, in the same way that, say, the free market corrects for flawed or harmful products."
—------ Again, nice rhetoric - but the real question remains - what constitutes "harm to marriage" in definitive and tangible terms ? Is there any scenario in your view where legitimizing same sex relationships could not 'harm marriage' ?

Posted by: Mark Miller at August 17, 2004 10:22 AM

Mark,

As tends to happen naturally, over the course of long-running exchanges, I think you've begun to respond too quickly to the discrete points that Mike is making. When doing so accompanies accusations of "misunderstanding the difference between our structure of government and the one we fought to gain our independence of," a little correction might be in order.

You write:

Wrong again. In many cases, it does allow for "fighting it out in the market" - we call it capitalism. Yes, the ideas and structure upon which our government is founded is based on a specific moral and philosophical view of human nature but sometimes that view is 'leave it alone'.

Mike didn't say that our government doesn't allow "fighting it out in the market." He said that it "can't truly let these ideas fight it out in the market," by which he meant, from the previous sentence, "the structure of our government, and the ideas upon which it is founded," including "a particular moral and philosophical view of human nature and the proper role and scope of government." Clearly, allowing areas of "leave it alone" would require that there be some limit to "the proper role and scope of government."

This is why I sometimes wonder what other people's sense of folks like Mike and myself is; what you thought he was saying apparently didn't jar sufficiently against what you might expect him to say for you to avoid accusing him of saying just about the opposite.

Moving on toward engaging in the debate, let me respond to this:

The point is that cause-effect is not the real issue in debate here. It is whether "marriage" is legitimate for same sex couples - whether it is fair or the right thing to do.

Are you suggesting that the effects of same-sex marriage are irrelevant to the debate? Can even the possibility of social collapse get "old"? That's an interesting view, and if held by the majority of SSM advocates, I think they ought to be more honest about it. I suspect that is, in fact, an opinion held by many who support SSM, inasmuch as it is a tacit belief underlying many "progressive" causes over the past century or so. (Although, of course, most who hold it prefer not to think about it.) If, according to their worldview, the Constitution (arbiter of all things "fair and right") proves to be a death pact, well, there's nothing for it. On with progress!

If you truly do believe that the effects are irrelevant (and that is an actual question that I have), it would seem similarly irrelevant to respond to this:

Again, nice rhetoric - but the real question remains - what constitutes "harm to marriage" in definitive and tangible terms ?

This could go 'round and 'round. What constitute "harm"? This constitutes harm. But cause-effect is not the real issue in debate here. As is frequent among supporters of SSM — because if it isn't the only reason for their position, it's emotionally the strongest — you've restricted the "real" debate to an isolated question — one that you consider beyond debate.

Well, fine, I'll answer the "real" question:

Is "marriage" legitimate for same sex couples; is it the fair or right thing to do?

No. It is not legitimate if it is at odds with the purpose of the institution, and it is neither fair nor right to reformulate that purpose if doing so will precipitate the further errosion of the institution or otherwise harm society — including the effects of the manner in which it comes about.

Posted by: Justin Katz at August 17, 2004 11:06 AM

"As tends to happen naturally, over the course of long-running exchanges, I think you've begun to respond too quickly to the discrete points that Mike is making."

I, too, am sometimes guilty of this. I often think after posting that I should have taken more care to be more specific, and to make the post shorter and/or more coherent, but due to contraints of fatigue and time (plus the fact that it's simply a post in the comments section of a blog) I don't (or can't).

Nonetheless, I, too, frequently get the feeling that Mark is not responding directly to what I write, but is responding in a general sense to some subset of the comments I've made in this blog and in emails. It probably is inevitable, but it does make communication more difficult.

Mark said,

When you are talking about philosophical and moral questions, it is nonsensical to claim that the government can be neutral between various claims." —-------- Mike, it is nonsensical to claim that government policy canNOT be neutral between various claims. What about divorce ? Does the legal acknowledgment of divorce mean the government approves of it - thinks it is a good thing ? What about smoking ? What about out-of-wedlock births ? What about religion ? What about foreign policy ? Of course, government policy is not neutral about everything but it is neutral about some things. This neutrality is representative of the belief in individual freedom with regard to certain behaviors. FYI - The US is not a Totalitarian regime (despite the claim of some leftists)

OK, perhaps I should have rephrased it to say that government cannot be neutral between all claims. Or perhaps that it cannot be fully disengaged from any particular moral question. The point is that in many cases the absense of a law implies, at a minimum, a condoning of that particular activity (Webster's defines condone thusly: : to pardon or overlook voluntarily; especially : to treat as if trivial, harmless, or of no importance ). This relates to what Feser calls "positive rights". People naturally look to the law to accord with their sense of right and wrong, and they learn concepts of right and wrong from the law. This has become especially true in our overly-legalized society. The following is a quote from an article in the Washington Post magazine on the blogger who got fired from her Capitol Hill job for posting her sexual exploits on her blog:

"The country is taken aback by moral relativism in all of its forms," Yankelovich says. "To me, the best way of thinking about it is that people are now free to say: 'I didn't do anything wrong. I didn't break the law.' An earlier generation, my own generation growing up in the United States, would say, 'What has the law got to do with it?' The usual model for societies is that they have a very thin layer of law and a very thick layer of social morality. What this expressive individualism has done, as an unintended consequence, is weaken that layer of social morality to the point where it's almost disappeared."

I guess I would claim that the only things that the government can truly be neutral about are things that are of lesser importance.

I think your list of rhetorical questions don't make sense unless you explain the particulars: "What about religion?" Well, what about religion? I assume you mean to say that the government is neutral between different religions in an official sense. But why is this so? It is because the founders put a very high priority on protecting individual conscience. And that idea derives directly from a Judeo/Christian understanding of God, man, and man's obligation to God. The Islamic understanding of these things is quite different from the Biblical one. Thus the important issue is the freedom of conscience; the less important issue is which particular beliefs your conscience leads you to follow (i.e. whether you are a Baptist, an Episcopalian, or a Muslim).

Your comment about divorce addresses precisely the issue we are talking about - when the government changed the laws to allow no-fault divorce, people interpreted that to mean that their personal needs or desires were more important that others' (namely, their children's or societies' at large). And we've had a subsequent rise in the number of divorces. Which means that the law cannot be neutral towards divorce - it either discourages it or encourages it. Likewise, changing the definition of marriage is not really being neutral - as Volokh said, it would be favoring the concept that gay individuals freedom, or their need for social acceptance, outweighs any risks to the institution of marriage as a whole, and the rights of those who oppose SSM on moral grounds to refuse to recognize such unions.

Posted by: Mike S. at August 17, 2004 12:22 PM

Mark,

Sorry to skip around, but rereading through some of this thread, it seemed to me that a point ought to be made regarding something that you wrote way above:

What libertarians believe is that the government should not be in the business of deciding whether the costs outweigh the benefits and leave the effects to the free market - both in social and economic terms.

One thing that the ABA's proposed change of policy illustrates is that many of those pushing for "government neutrality" on matters related to homosexuality — enough, and powerful enough, that they can define the movement — are determined to rig the "marketplace of ideas" in their favor, as well.

Posted by: Justin Katz at August 18, 2004 10:55 AM

Justin and Mike,

"Nonetheless, I, too, frequently get the feeling that Mark is not responding directly to what I write, but is responding in a general sense to some subset of the comments I've made in this blog and in emails. It probably is inevitable, but it does make communication more difficult."
------ Fair enough - I won't deny that my reactions may be based on Mike and I's past exchanges rather than being specific to the most recent comments made. Another strike against my blog existence.

"OK, perhaps I should have rephrased it to say that government cannot be neutral between all claims."
---- First, let's be clear that we are talking about specific *laws* and not government, as an complete entity. If you would have said "all laws cannot be neutral between all claims", then I'd agree but I'd say that some laws are morally neutral.

Or perhaps that it cannot be fully disengaged from any particular moral question.
----- Again, I'd say that specific laws can be disengaged from moral questions. Not all laws or our entire legal system - but some specific laws and rights.

"The point is that in many cases the absence of a law implies, at a minimum, a condoning of that particular activity (Webster's defines condone thusly: : to pardon or overlook voluntarily; especially : to treat as if trivial, harmless, or of no importance ). This relates to what Feser calls "positive rights". People naturally look to the law to accord with their sense of right and wrong, and they learn concepts of right and wrong from the law. This has become especially true in our overly-legalized society. The following is a quote from an article in the Washington Post magazine on the blogger who got fired from her Capitol Hill job for posting her sexual exploits on her blog:"
------ The issue here is to what degree. Of course, the magazine had the right to fire her for 'moral' reasons. (I would say she was fired for lack of common sense) But, as we've discussed before, there has to be lines. Can a company fire someone for having a no-fault divorce or having an abortion ? The ultimate issue in our debate is what category homosexual behavior should fall into. I believe that 'normalizing' it is harmless and ultimately trivial. That doesn't mean that people should not be able to oppose it or publicly condemn it but from a legal/civil perspective, I do not think that the societal costs or effects of its 'legality' justifies legal discouragement.

Now, I'll admit that SSM is different because 1) it does represent a significant change in marriage law and 2) the fact that its imposition, in most cases, has been based not on legislatures giving legal acknowledgment where there was none previously but on judicial rulings on the constitutionality of existing laws.

I've acknowledged the legitimacy of the concern about the manner in which the SSM issue has come. I believe it is very different than the Lawrence sodomy case (to me, that ruling was a no-brainer) and I have some doubts as to whether current marriage law clearly does discriminate against same sex couples.

But overall, for me, this is about *whether* same-sex relationships should be legally acknowledged.

As Justin wrote, moving on toward engaging in the debate, let me respond to these:

"Are you suggesting that the effects of same-sex marriage are irrelevant to the debate? Can even the possibility of social collapse get "old"? That's an interesting view, and if held by the majority of SSM advocates, I think they ought to be more honest about it. I suspect that is, in fact, an opinion held by many who support SSM, inasmuch as it is a tacit belief underlying many "progressive" causes over the past century or so. (Although, of course, most who hold it prefer not to think about it.)
--------- I never meant to say that the effects are irrelevant. My point is and has been in rebuttal to this assertion made by many SSM opponents that the existence of any risk or negative effect is somehow a debate-ender to the tune of "what if it ruins the institution?" followed by "SSM advocates just don't care about negative effects" blah blah blah. This is just meaningless rhetoric - often used by leftists to support their agenda. The same can be said about most changes in law - tax law, welfare reform, education reform, foreign policy, environmental policy, economic policy ... all of these have both short and long term effects on the culture and involve debating points such as "what if it ruins...." followed by " they don't care". The substantive question is whether the costs of the proposed change is outweighed by the benefits. Obviously, we disagree on the societal effect of normalizing homosexual behavior but that is what we are debating. The argument of the mere existence of a possible risk as a debate-ender is fatuous.

"If, according to their worldview, the Constitution (arbiter of all things "fair and right") proves to be a death pact, well, there's nothing for it. On with progress!"
------- I agree with your sentiment here. The Constitution is not arbiter of all things "fair and right" - but it is the governing rule with regard to State/Federal law.

"As is frequent among supporters of SSM - because if it isn't the only reason for their position, it's emotionally the strongest - you've restricted the "real" debate to an isolated question - one that you consider beyond debate."
------- Again, I agree that this does 'restrict' the debate. But I contend that it is SSM opponents that raised the issues of "harm" and "cause-effect".

"Is "marriage" legitimate for same sex couples; is it the fair or right thing to do? No. It is not legitimate if it is at odds with the purpose of the institution, and it is neither fair nor right to reformulate that purpose if doing so will precipitate the further erosion of the institution or otherwise harm society - including the effects of the manner in which it comes about."
--------- A coherent argument. But we don't agree that same sex relationships are at odds with the purpose of marriage nor do I agree that it will precipitate the further erosion of the institution nor harm society. I do acknowledge that the judicial imposition of it is less appropriate than say, the Vermont way of granting legal recognition via the legislature.

Well, what about religion? I assume you mean to say that the government is neutral between different religions in an official sense. But why is this so? It is because the founders put a very high priority on protecting individual conscience. And that idea derives directly from a Judeo/Christian understanding of God, man, and man's obligation to God. The Islamic understanding of these things is quite different from the Biblical one. Thus the important issue is the freedom of conscience; the less important issue is which particular beliefs your conscience leads you to follow (i.e. whether you are a Baptist, an Episcopalian, or a Muslim).
—------ My point is not only is the government neutral between different religions but it is neutral about the role of religion in ones day to day life. In other words, the government does not endorse a specific religion nor does it endorse having any faith in a higher power. I happen to think that the ‘wall’ as some put it, has been taken to a silly level (i.e.: no public display of 10 Commandments) but the truth is that from a legal point of view, there is no difference between atheism and Judeo/Christianity.

Your comment about divorce addresses precisely the issue we are talking about - when the government changed the laws to allow no-fault divorce, people interpreted that to mean that their personal needs or desires were more important that others' (namely, their children's or societies' at large). And we've had a subsequent rise in the number of divorces. Which means that the law cannot be neutral towards divorce - it either discourages it or encourages it.
—----- So what, in your view, was the policy towards divorce before no-fault divorce ? Was it discouraging or encouraging ? I contend that “people interpreted that to mean that their personal needs or desires were more important that others' (namely, their children's or societies' at large)” is nonsense. In a society that puts any value on individual freedom, divorce must be allowed. I think it should be difficult, costly and involve a number of steps, but legally available and without punitive fault.

“Likewise, changing the definition of marriage is not really being neutral - as Volokh said, it would be favoring the concept that gay individuals freedom, or their need for social acceptance, outweighs any risks to the institution of marriage as a whole, and the rights of those who oppose SSM on moral grounds to refuse to recognize such unions.”
—------ Yes and I happen to agree with the concept. Except that it does not ‘trump’ the rights of those who oppose SSM on moral grounds any more than the governments foreign policy trumps the rights of those who oppose it or by saying ‘under God’ in the pledge trumps the rights of atheists.

"One thing that the ABA's proposed change of policy illustrates is that many of those pushing for "government neutrality" on matters related to homosexuality — enough, and powerful enough, that they can define the movement — are determined to rig the "marketplace of ideas" in their favor, as well."
------ This is true and I oppose the way in which they are doing that. All I'd add is that people who oppose gay-rights are and have been attempting to accomplish the same thing.

Posted by: Mark Miller at August 18, 2004 12:52 PM
—----- So what, in your view, was the policy towards divorce before no-fault divorce ? Was it discouraging or encouraging ?

I think that divorce laws were more discouraging of divorce prior to the implementation of no-fault laws.

I contend that “people interpreted that to mean that their personal needs or desires were more important that others' (namely, their children's or societies' at large)” is nonsense. In a society that puts any value on individual freedom, divorce must be allowed. I think it should be difficult, costly and involve a number of steps, but legally available and without punitive fault.

I'm not saying divorce should be disallowed, I'm arguing that our current laws make it too easy. What would you say about a waiting period? Say, 2 years? What about requiring both partners to agree to the divorce? What about having stricter requirements for those with children under 18?

The question is one of balancing individual freedoms against societal needs. No-fault laws essentially say that there are no societal interests tied up with marriage, which is obviously not true.


Posted by: Mike S. at August 18, 2004 3:25 PM

"I think that divorce laws were more discouraging of divorce prior to the implementation of no-fault laws."
----- No-fault divorce made it simpler to get a divorce but I don't equate that with encouraging it or even not discouraging it.

What would you say about a waiting period? Say, 2 years?
----- How about one year ? But I agree with the concept.

What about requiring both partners to agree to the divorce?
----- A very bad idea. Requiring both partners to agree gives too much power over the outcome to one person. Maybe I could accept that in the case of a no-fault divorce.

What about having stricter requirements for those with children under 18?
------ A good concept but it depends on the requirement. How about the waiting period being longer for those with children under 18 ?

"No-fault laws essentially say that there are no societal interests tied up with marriage, which is obviously not true."
----- I don't agree. No-fault means only that - that the divorce is not officially legally blamed on the actions of one person or the other. Do you believe "irreconcilable differences" is a legitimate 'fault' ? Also, if you feel that the government should have a larger role in discouraging divorce then it follows to me that that should include pre-marriage requirements such as a minimum 'waiting period' before getting married and/or required counseling. But now we are getting into a lot of government involvement and while I some benefits in this case, a part of me is cringing.

Just as you said "the question is one of balancing individual freedoms against societal needs." - but it's not as easy or simple as it sounds. Can we agree on that ?

Posted by: Mark Miller at August 19, 2004 11:23 AM

"----- No-fault divorce made it simpler to get a divorce but I don't equate that with encouraging it or even not discouraging it."

How can it be made simpler, yet not be, in effect, encouraging it? If the government changed the laws to make it easier to get a first-time home loan, wouldn't you assume that the end result would be more people applying for first-time home loans?

"What about requiring both partners to agree to the divorce?
----- A very bad idea. Requiring both partners to agree gives too much power over the outcome to one person. Maybe I could accept that in the case of a no-fault divorce."

You are then not being neutral vis-a-vis individual desires and the marriage, you are favoring the former over the latter. Why do you not think that no-fault divorce gives too much power over the outcome to one person? Say the husband suddenly decides he doesn't want to be tied down, and want to go date other women. Our current laws effectively allow him to unilaterally end the marriage, which has the effect of saying that his personal desires are more important than his wife's, and than the interests of keeping the marriage together.

"Do you believe "irreconcilable differences" is a legitimate 'fault' ?"

Not unless they are spelled out. It's frequently used now to mean "we fight a lot", or "we don't get along", not "we have fundamentally different views about marriage and raising children."

"Also, if you feel that the government should have a larger role in discouraging divorce then it follows to me that that should include pre-marriage requirements such as a minimum 'waiting period' before getting married and/or required counseling. But now we are getting into a lot of government involvement and while I some benefits in this case, a part of me is cringing."

I'm wary of such government programs, too (such as the Bush administration's initiative), but the fact is that the state has an interest in supporting marriage and families. Those who want less government involvement need to push for more social support for marriage. But some modest requirements would not be too intrusive, I think. A minimum waiting period actually sounds like a good idea. The counseling is a bit more complicated, but I wouldn't rule it out. I do think that any religious leader who performs a marriage should require some counciling, though.

"Just as you said "the question is one of balancing individual freedoms against societal needs." - but it's not as easy or simple as it sounds. Can we agree on that ?"

The originial question, as I understood it, was whether the government can truly be neutral with respect to marriage law and gays. As Volokh put it, "We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- ... But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable..."

My reading of your responses leads me to think that at the very least, you have not offered a convincing argument that Volokh (or Feser) are wrong. In fact, your statement that "it's not as simple as it sounds" could be read as agreeing with my central point - that the "regime of optimal liberty" doesn't really exist (in the sense that Vokloh means it).

Posted by: Mike S. at August 19, 2004 2:28 PM

How can it be made simpler, yet not be, in effect, encouraging it? If the government changed the laws to make it easier to get a first-time home loan, wouldn't you assume that the end result would be more people applying for first-time home loans?
—--- Point taken. I guess I mean to say that I don't think the law was meant to explicitly 'encourage' divorce but you can't get around the fact that making it easier certainly sends that message.

Why do you not think that no-fault divorce gives too much power over the outcome to one person? Say the husband suddenly decides he doesn't want to be tied down, and want to go date other women. Our current laws effectively allow him to unilaterally end the marriage, which has the effect of saying that his personal desires are more important than his wife's, and than the interests of keeping the marriage together.
—---- Say the husband is philandering and abusing the wife and children but doesn't want to end the marriage because it will be costly and who doesn't want to have their cake and eat it too. In that case, his personal desires should not trump those of the suffering wife/children and ultimately - society. That is a simple (and common) example why you cannot require both people to sign off on a divorce.

"Do you believe "irreconcilable differences" is a legitimate 'fault' ?"
Not unless they are spelled out. It's frequently used now to mean "we fight a lot", or "we don't get along", not "we have fundamentally different views about marriage and raising children."
—---- I agree that it should be more spelled out - but I also think in *some* cases that the 'fundamental different views' or 'we don't get along' could be legitimate cause for divorce. I guess I don't want the government requiring that couples stay married when they don't want to. But it should be discouraged and not made easy.

I'm wary of such government programs, too (such as the Bush administration's initiative), but the fact is that the state has an interest in supporting marriage and families. Those who want less government involvement need to push for more social support for marriage. But some modest requirements would not be too intrusive, I think. A minimum waiting period actually sounds like a good idea. The counseling is a bit more complicated, but I wouldn't rule it out. I do think that any religious leader who performs a marriage should require some counciling, though.
—---- No argument here.

My reading of your responses leads me to think that at the very least, you have not offered a convincing argument that Volokh (or Feser) are wrong. In fact, your statement that "it's not as simple as it sounds" could be read as agreeing with my central point - that the "regime of optimal liberty" doesn't really exist (in the sense that Vokloh means it).
—----- I agree that the "regime of optimal liberty" doesn't really exist. Any freedom has costs. Freedom to marry who you want when you want has costs. Freedom to end a marriage has costs. Freedom to limit procreation (birth control) has costs. The question is where to draw the line between freedom and what is ultimately best for society. Tough decisions and I don't claim to have all the answers - and that is my point about "... it's not as easy or simple as it sounds".

Posted by: Mark Miller at August 19, 2004 5:03 PM

"—---- Say the husband is philandering and abusing the wife and children but doesn't want to end the marriage because it will be costly and who doesn't want to have their cake and eat it too. In that case, his personal desires should not trump those of the suffering wife/children and ultimately - society. That is a simple (and common) example why you cannot require both people to sign off on a divorce."

I'd say you've described a 'fault' divorce, not a 'no-fault' one.

Posted by: Mike S. at August 20, 2004 12:34 PM

From what I wrote earlier:

"What about requiring both partners to agree to the divorce?
----- A very bad idea. Requiring both partners to agree gives too much power over the outcome to one person. ***Maybe I could accept that in the case of a no-fault divorce.***

Posted by: Mark Miller at August 20, 2004 1:15 PM