Swamped as I am, I still couldn't let Glenn Reynolds's post on the politics of same-sex marriage go without comment, mainly because of this:
I think that gay marriage is good for everyone. Marriage is a good thing, and I don't see any reason why it wouldn't be just as good a thing for gay people as for straight people. Judging from the gay couples I know, it would be a good thing -- and I'm entirely at a loss to understand why people think gay marriage somehow undermines straight marriage. But to get there, you need to make that case, not just accuse opponents of being closedminded-biblethumping-bigotsoftheredneckreligiousright.
Now, of course, I agree entirely with Prof. Reynolds's suggestion that advocates of SSM can't just declare the other side invalid and move from there. Nonetheless, as one who has followed the SSM debate closely, who has read Glenn Reynolds closely, and who has analyzed both together, I have to object that I've never seen Reynolds "make the case." To be sure, he could reply that it isn't an issue about which he's overly intent, but then, one might wonder how jeers at the Pope on the issue fit into that lack of interest. What, really, is the difference between accusing opponents of being fanatics and just acting as if opponents don't make any points worth considering?
In this one, narrow, respect, I agree with an update that Reynolds made to his post, quoting Harvard law professor Bill Stuntz as follows:
It seems to me that the gay marriage debate today is the price we pay for Roe v. Wade a generation ago. Roe sent a message to a sizeable fraction of Americans, and the message was: your views don't count. Not "you lose," but "you don't even get to make an argument." I think the rush to constitutionalize marriage is very, very bad in a host of ways and on a host of levels, but it's hard to criticize the religious right for reaching for the weapons the other side used to crush them. Like you, I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument) that produces compromise and progress instead of polarization and regress. It'd be a nice change.
It's possible (though not likely) that Prof. Stuntz is referring to an aspect of the fight against SSM that I've yet to encounter, but it seems to me that he neatly slides over a distinction that ought to be important to one who deals with law. How is seeking to pass a Constitutional Amendment — with all of the arguments, political calculations, and actual votes involved — anything like "the weapon" of bringing about the same effect through litigation? Not to exaggerate, but that's a bit like calling strong homeland defense measures "reaching for the weapons the [terrorists] used."
Perhaps I'm just worn out and of limited faculty after dealing with a roomful of twelve year olds all day, but I simply cannot understand how reasonable-sounding men of the Ivy Hall can write such things as this:
I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument) that produces compromise and progress instead of polarization and regress.
With all due respect, what concept of this issue's history has slipped beneath Professor Stuntz's perch? The Supreme Court's right-to-sodomy finding? The Massachusetts Supreme Judicial Court's decision that same-sex marriage already exists within the law? The various mayors et al. who've grabbed the refracted spotlight by taking matters into their own hands? The multiple lawsuits around the country seeking to repeat Massachusetts or to invalidate the federal Defense of Marriage Act and all of the various corresponding state statutes and amendments?
How in the Founders' names, in short, does the professor find marriage's defenders as the offensive — polarizing — side? Following on that, through what tinted lense does it appear that a failure to define marriage by vote will put an end to the attempt to do so through legal argument?
Maybe I've been too quick to assume that certain commentators are slyly working to pacify reasonable supporters of a Federal Marriage Amendment in order to allow the SSM activists to sneak through the judicial system. Maybe they just aren't able, or willing, to assess the actual, objective positioning of the two sides.
Posted by Justin Katz at September 13, 2004 7:28 PM"I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument)..."
What the does he think passing an amendment entails, if not a political debate?
Posted by: Mike S. at September 13, 2004 8:57 PMP.S. There's supposed to be a 'bleep' after the 'What the'.
Posted by: Mike S. at September 13, 2004 8:59 PMIt's stunning, actually. And it's of a piece with the link Reynolds has enthusiastically provided to a pro-SSM outfit whose graphic depicts right-wing crazies taking scissors to the Constitution. By what insane stretch of reason is seeking to advance one's cause by a specifically Constitutional procedure tantamount to shredding said Constitution? There's no logic in it whatever, and I remain flabergasted that reasonable people can be so obtuse.
Posted by: Sage at September 13, 2004 10:12 PMThinking in Present Tense
Glenn Reynolds: "I think that gay marriage is good for everyone. Marriage is a good thing, and I don't see any reason why it wouldn't be just as good a thing for gay people as for straight people."
This beautifully illustrates that a major difference between the sides is in their time horizons. Glenn is considering the issue entirely in present tense. He looks around and sees SSM as benefitting everyone, so there's no reason not to do it.
Let's recast that in terms of abortion: It's good for the women who want abortions, and the people who don't want abortions aren't required to have them, so they shouldn't care. So how can anyone oppose abortion?
Conspicuously missing from both analyses are the unborn, who have no say in the matter. None of us were aborted, and none of us were born into a society that takes marriage so lightly that it sees no difference between OS couples and SS couples. We aren't the ones who will suffer for our mistakes.
Glenn's argument presumes that everyone is so shortsighted that they don't care what happens to some kid who hasn't been born yet. It's easy to deduce SSM from that very libertarian premise, but most conservatives don't agree with it.
Send $50 and an SASE for your own Yale Diploma
Glenn: "I'm entirely at a loss to understand why people think gay marriage somehow undermines straight marriage."
This is the point on which the two sides of the SSM debate have the hardest time understanding each other.
Glenn has a JD from Yale. (A J.D. or juris doctor is what non-lawyers would call a law degree. It allows you to take a state's bar exam and become licensed as a lawyer.) I don't have a JD from Yale. I want one, and I bet lots of other people do, too. So I propose that Yale start issuing JDs to anyone who mails them a check for $50 and an SASE.
Would Glenn object to this? On his logic, I don't see how. Why would my Yale JD undermine his Yale JD? He would still have one. He would still know just as much law. Why would he deny others the benefits of holding a Yale JD?
Let's not misunderstand the analogy: It is true, of course, that receiving a Yale JD is in part recogition for having fulfilled a specific course of study, whereas obtaining a marriage requires no particular effort. But that comparison disintegrates under consideration. After six years of law practice, I guarantee that I know much more about law and have spent far more time studying it than any newly-minted graduate from Yale Law School. So if getting a JD from Yale is simply a matter of effort or knowledge, then I should get my Yale diploma any day now.
JDs from Yale are valuable not because they represent work performed, but because they represent intellectual potential. Before law school, Glenn took a test of legal aptitude and got an exceptionally high score. Yale took him not because of his accomplishments, but because of his potential. Being accepted to Yale Law School identified him as having the potential to perform great intellectual feats in law.
Yale can't estimate legal potential perfectly. Not everyone who is admitted to Yale Law School in fact has the potential to be a great legal thinker. But the correlation between Yale JDs and intellectual potential is pretty high. Mandating that everyone can get a Yale JD would spread destruction in several directions. It would destroy the informational value of a Yale JD: Currently it is a fair estimator of someone's potential in law; after the mandate it would not. More importantly, the mandate would also destroy Yale Law School itself, both in function and reputation. If everyone can get a Yale JD, then that degree has no meaning or significance.
The same principles apply in marriage: It's a question of potential. Most OS couples do not have the potential to become giants of legal thinking, but they have another potential that is less rare though perhaps more important: They can produce a child. Done responsibly, this can be a wonderful thing. Done irresponsibly, it can be a moral tragedy.
Taking Reproduction Seriously
Marriage is limited to OS couples because only OS couples have the potential to produce children. Is that so complicated? Not all OS couples have that potential, and not all with the potential will use it. (Not all Yale Law School graduates actually have the potential to become great legal thinkers, and not all those with that potential will use it.) But identifying a couple as OS is a pretty good measure of likelihood that that couple will produce a child, just as identifying a lawyer as holding a Yale JD is a pretty good indicator of aptitude for law.
Deep down, SSM is not really about gays or specific sexual practices. It is about our country's attitude towards reproduction. I say that reproduction is important, both positively in terms of perpetuating our country and society, and negatively in terms of avoiding the suffering of yet-unborn children. Identifying and distinguishing couples as potentially procreative is a vital first step in taking reproduction seriously.
Those who support SSM don't seem interested in reproduction. They don't seem to see any importance in producing a new generation of citizens and taxpayers. (As the Europeans are discovering, at a minimum we need children to become workers whose taxes will fund our Social Security benefits.) SSM supporters seem agnostic or fatalistic on whether future children will suffer because of our actions today. SSM supporters focus on the short-term happines of those alive today. They don't like to talk about the future.
Perhaps Glenn wouldn't really care if Yale Law School started handing out diplomas for $50. After all, he has a teaching job already and several articles to his name. He doesn't need that credential any more. It's not him, but the younger Yale graduates who will suffer---and Yale Law School itself. So why should he care? He's got his. In a self-centered, present-tense worldview, I suppose that makes sense.
Posted by: Ben Bateman at September 13, 2004 11:00 PMThe same kind of analysis goes for his thinking on aging and biotechnology. Who could be against being healthier in their old age? And who could be against living a longer life? The questions of what happens to people born into a society suddenly dominated by senior citizens goes unaddressed. Likewise questions of how such a society will view children.
Posted by: Mike S. at September 14, 2004 10:06 AMI've quit visiting Instapundit page. I couldn't see the point in continuing to look there when there is no opportunity for comment other than a private email to him. So much for "public" or even "political" debate on that blog. Of course he hasn't heard any political debate on it... he's not listening!
I can thankfully say that my state's senators both and my representative all voted for the FMA the last time around. I'm going to send them a message that I expect them to do the same the next time it comes up.
Hey Glenn Reynolds, if you didn't see that, don't bother opening your eyes!
Ben:
That has to be one of the best arguments/analogies I have seen yet. PS - what's the address for that SASE to Yale?
Posted by: c matt at September 15, 2004 5:28 PM
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