Printer friendly version

January 20, 2005

Parenthood: All About Me!

Marriage Debate Blog links to a piece in the Washington Post that, in a way typical of the mainstream media on such topics, focuses on the "controversial" aspect of the story in such a way as to skirt deeper problems. It's about gay men paying for children to be created using their own sperm, donated/purchased eggs, and female fetus-carrying units (known colloquially as "surrogate mothers"). Put aside the gay aspect; put aside the implications of wealthy men paying thousands of dollars to twentysomething women for use of their body parts; and see if you can spot the consideration not considered, not able to be obscured with appeals to consent and individual choice, and given but the merest of allusions in the entire piece:

But most of the time, the single gay executive said, becoming a father using his sperm and eggs donated by a 24-year-old woman he met once in a downtown Starbucks to create embryos that were implanted in the uterus of a 22-year-old surrogate mother he barely knows, absolutely seems like the right thing to do.

It was, he said, the culmination of increasingly urgent soul-searching that accelerated as he hurtled toward 50.

I suppose everybody who hasn't yet reached the age is "hurtling toward 50," but it sounds as if this child will — if he or she is lucky — have a nearly 70-year-old single father attending his or her high school graduation. There's a housekeeper and a nanny, but no other parents in the picture at all. Says the father to be: "I want somebody to love me and I want somebody to love."

These articles don't provide enough information (with sufficient credibility) to react too boldly, but there's definitely enough to justify lip-pursing. The father claims that he's "tired of being the star of the show," and he's counting on this leading him "in a different direction." But what about the child? Think first of the role that this child was created to play and second of his or her (apparently) complete isolation apart from this man.

Probably, this "single gay executive" is an extreme example — currently, anyway — but an echo seems inevitable throughout the practice. An ethical mire that requires the involvement of multiple women to fulfill the role of birth mother in order to create children artificially for men who are likely to be older and whose relationships are not geared toward the creation of human life is, well, it's beyond comprehension. Yet, somehow the nation's second paper of record manages to give its piece the feel of a free advertisement for the company of the woman who said the following:

I started off as a single mother by choice, and I don't think my child suffered for it.... I'm a believer in nontraditional families. I think families come in all shapes and sizes.

I, I, I, I.

Posted by Justin Katz at January 20, 2005 12:03 AM
Marriage & Family
Comments

Two aspects of this:

Two women are being exploited for money. It's an anti-prostitution (the baby is wanted, the sexual gratification is not). Where are the feminists on this one? When money is concerned does anything go?

Has this single gay executive, Scott really thought about the reality of having to be with a child -- has he recently been in the company of children of any age -- but especially 2 and 3 years olds? The story is full of selfishness on the part of the Scott and the "because I could" justification for immorality -- and no reflection on the responsibility for raising a child.

Posted by: Patrick Sweeney at January 20, 2005 10:28 AM

And he's certainly under no obligation whatsoever to provide an acceptable answer when the child inevitably asks "Why don't i have a mommy like everyone else?"

"Because i just don't like girls -- you'll get over it honey."

Posted by: Marty at January 20, 2005 11:03 AM

My own seven-year-old son knows he has a birthmother - somewhere. My husband and I certainly didn't pay anyone to give birth to
him; she did that on her own. Neither she nor her child's father showed much interest in actually raising a child, however, which is why he spent most of his first five years in foster care.

My experience of parenthood is that it eclipses being married as the most 'other'-directed experience I've ever had. Hardly 'I,I,I'.

Posted by: Robert at January 20, 2005 12:24 PM

This is, of course, an extreme example and certainly not isolated to the gay community. I don't have stats but I'd wager that there are more aging heterosexual men who have children too late in life than gay men who pay for surrogates. Michael Douglas comes to mind, but he's only one famous example.

Yes, it is selfish. But infertile couples do this all the time and nobody blinks. At 50 it is a problem. At 30?

Posted by: Michael at January 20, 2005 12:34 PM

And he's certainly under no obligation whatsoever to provide an acceptable answer when the child inevitably asks "Why can't you and daddy get married like everyone else?"

"Because most people want to shame us because we don't fit into their ideal -- you'll get over it honey."

Of course, it's much much more complex than that and I don't support SSM on that civil-rights basis. But it is fun to comment on his level.

Posted by: Mark Miller at January 20, 2005 1:00 PM

Mark -
a few days ago, my son was talking to me about what he'd learned in school that day about the Civil Rights Era, and the resistance many people had had to the goals of people like King, Randolph and Rustin (and Fannie Lou Hamer, for that matter). I explained that some people are very resistant to change, and some of the reasons why that is. I added, "Did you know that there are people today who think that Daddy and Poppa shouldn't have been allowed to adopt you - or even get married to each other?" The look of baffled surprise on his face was eloquent.

Posted by: Robert at January 20, 2005 1:08 PM

Daddy and Poppa???

Posted by: Marty at January 20, 2005 1:16 PM

Ah yes, the wisdom of babes. Look, I mean absolutely no animosity toward your son, about whom I know nothing, but a child whose parents gave him vodka with dinner each night might be equally baffled that others object.

It seems to me that the tendency to idealize the innocence (or ignorance) of people who are baffled by a great deal in the adult world has had much to do with the deteriorating state of our culture.

Posted by: Justin Katz at January 20, 2005 1:22 PM

He also doesn't understand why (some) people in 1960 thought allowing black people to vote would accelerate the "deteriorating state of our culture."

To compare my being allowed to adopt and raise a child with feeding him vodka at dinner is so deeply revealing of how you feel about it that no comment by me could possibly amplify it. In my father's youth, many people - civilized and decent by the standards of the time - would have been equally adamant that interracial marriage would, if allowed, do the same thing. I am not claiming that that you believe that; I am proposing that in twenty or thirty years, your views may seem equally curious. Again, not arguing from inevitability - Loving vs Virginia wasn't inevitable, either.

Posted by: Robert at January 20, 2005 2:02 PM
To compare my being allowed to adopt and raise a child with feeding him vodka at dinner is so deeply revealing of how you feel about it...

Oh baloney. I did no such thing. I chose that comparison precisely because the subject's objectionable nature would be obvious to both of us. The point is that a child's bafflement at objections to a part of his daily life, no matter how eloquent a particular adult might find it, is utterly irrelevant to the question of whether that part ought to be socially acceptable, let alone equivalent to the ideal.

Sheesh. Why is this ploy so popular on your side of the debate?

Posted by: Justin Katz at January 20, 2005 2:21 PM

Justin -
the word 'casuistry' comes to mind.
The comparison was yours; if I use it
in a manner you find disagreeable, it
remains a fact that I did not conjure
the image out of the ether.

As far as 'this ploy' - I am not aware that
I am in the habit of using ploys. I have
no illusion that I am going to change your
mind on this topic; I am attempting to
demonstrate that there is opposition to your
position that is not based in selfishness
(I, I, I) or a 'Marxoid' desire to destroy
bourgeois society. I want my son to grow up knowing that he has parents who love him, care about him, and want him to have a long and happy life.

To reiterate the point you so adroitly dodged, I believe that in years to come, opposition to adoption by same-sex couples will look to contemporary thought much the same way opposition to interracial marriage looks to us now - and for many of the same reasons. Predictions that social change will lead to a deterioration of society occur in every generation - argued with sincerity, conviction and passion. I believe you possess all three qualities. I still disagree.

Posted by: Robert at January 20, 2005 2:59 PM

Please know, Robert, that I write this without heat: I didn't "adroitly dodge" anything. I simply didn't see any reason to respond to complete speculation of a sort that is often used to win an argument through the imagination's retrospect. It may very well be that people of the future believe as you predict; even if so, however, that does not mean that they will be correct.

I'm not sure how much effort to devote to unraveling our miscommunication on the comparison. I made a comparison related to the perspective of children that I thought we would both find disagreeable in its subject to make a narrow point. You attacked me for making a comparison between the two subjects themselves, which I did not do. The only way in which you "used" my imagery was to shift its application in order, presumably, to disqualify the tangential point.

Posted by: Justin Katz at January 20, 2005 3:08 PM

Sheesh, I didn't mean to start this. One small post and ....

Robert: While I would be considered a gay-rights supporter, I happen to feel that the SSM debate is much more complex that just saying it is about denying ones civil rights. Marriage is a civil right as it is currently and has always been defined by being opposite sex. Marriage was never defined by being same race. The interracial ban was just that .. a ban. There is no effective "ban" on SSM. SSM is a change in the traditional and historical definition of marriage. What should be the focus of the debate is --- is that change warranted ?

Having said that, there are still many arguments on the anti-SSM side (and the pro-SSM side) that are just ... lacking in thought. And my comment was meant to analogize one simplistic and rhetorical argument to ones used by the other side.

Posted by: Mark Miller at January 20, 2005 4:10 PM

Gentlemen,

Well, I was the boy of a gay relationship (my dad and his...well, let's leave that alone) and lived with them for 6+ years.

It's not something any child, and I don't care what they've been led to say, would ever want or ask for on their own (of course, they're children. You also could get them to agree with you on a question of nuclear physics, simply because they want to please you and because they don't know the subject).

So, Robert, Justin is still right: it's all about I,I,I and not the kids, kids, kids (which is where it should be).

Take it from an adult who used to be a kid who knows whereof he speaks.

Selfish! Oh, so selfish!

Posted by: Aaron at January 20, 2005 4:44 PM

Aaron -
Just to make sure I'm understanding
you correctly:
it would have been better for our son
to have left him in foster care, and
not adopted him?
Before I'm accused of excluding the middle,
those were the facts-on-the-ground choices.
After three years in foster care, we were the
first qualified prospective adoptive
parents to express a desire to adopt him. Every passing year would have skewed the odds further to his disadvantage.

Again - it would have been _less_ selfish to
leave him there, and remain childless?

I can remember a time, not so long ago, when
gay men were accused of being selfish and
immature for forgoing the adult responsibilities of marriage and parenthood. Now it's assuming those responsibilities that provoke accusations of selfishness. La plus la change. . . .

Posted by: Robert at January 20, 2005 5:25 PM

Robert, I'm sorry but let me assure you that you will never be able to "assume those responsiblities [of marriage]" in a relationship with another man. There may be different responsiblities and challenges that you will face, but they are worlds away from the physical, spiritual, and emotional integration of 2 members of the opposite sex. Call it what you will if you must, but it is only "marriage" after the word has been stripped of all traditional meaning.

it would have been better for our son
to have left him in foster care, and
not adopted him?

Now that depends a lot on the foster parents he was already entrusted to (and i'm willing to bet they were sad to give him up). Such situations are truly heartbreaking, and your solution may very well be the lesser of evils. One in a long line of them, it seems, beginning with his original mother and father who should have (and probably did) know better. I pity this boy, and wish you and "Poppa" success at the task you are now charged with. Still, he deserved better -- he deserved the Mother and Father who created him.

Godspeed.

Posted by: Marty at January 20, 2005 6:00 PM


Not writing that at all. Adoption reform is another topic on which folks like former Senator Dan Coats of Indiana have been talking about, urging, for some time.

As the child of a gay father, who grew up (for a time) in a gay household, what I'm saying is that it wasn't ideal. In fact, it was horrible.

Now, not all kids are going to have the same experience that I did (I hope to the Lord not).

Still, it wasn't, and it isn't, ideal. And that should be the standard whether or not your son is doing well with you, poorly with you, or lukewarm.

So, to answer your question: no, it would not be right to leave him in foster-care. But, no, it's not the best thing for him to be adopted by you and a gay man. Likewise, two lesbians, either.

I can write that and mean it, because I, unlike some others here (no offense to them; I'm just being factual) have gone through it.

I love straw man arguments. But, let's deal with them, anyway.

There were many gay men (mostly Baby Boomers, but some older) who had been parents earlier on, had kids, and left them for a gay relationship. They deserve all of the shame they got, and, with hope, continue to get (unless they see the light and change their ways).

Now, it's not at all illogical to argue FOR adoption reform so that more people can adopt and AGAINST gay adoption on the grounds that it isn't the best for kids. There have to be standards for all things, and I'm for them (boy, am I for them, given my background).

So, while I applaud you for adopting your boy, when no one else would, I can still write that it's too bad that we don't have enough man-woman married folks to adopt.

Now, the "responsibility" argument comes into play like this, for me and, ultimately, for all of us: it's society's ultimate responsibility to have, not just strong or happy families, but the STRONGEST and the HAPPIEST families it can muster. Both of these are accomplished with a married man and woman who are raising their biological child.

This in no way negates your sacrifice to raise your son (time will tell if it's the best thing for him, however), but, a statistic of one does not the best public policy make (nor via unconstitutional judicial diktat), nor does it justify redefining what real marriage is.

These are the real issues, and Justin and I will not be distracted from them.

You have a good day, sir.

Posted by: Aaron at January 20, 2005 6:04 PM

The rhetorical dance in this thread is where I first plunged into the SSM debate. A pro-SSM blogger had constructed a cute little syllogism that played on the ambiguity in the word 'parent': It can mean either those who raise a child or those who actually produce the child. Although he was generally a nice guy, this pro-SSM blogger refused to make that distinction, and was offended that I thought it was important.

Here we have the same thing: Justin posts a story about a gay man purposefully paying women to help him create a child, and Robert wants to talk about rescuing orphans. The two situations are completely different.

Posted by: Ben Bateman at January 20, 2005 6:25 PM

Ben,

Good point. Sorry for myself getting (a little) off point.

Words mean things (just ask Orwell; he understood it quite well) and definitions also mean things.

Posted by: Aaron at January 20, 2005 9:49 PM

As the child of a gay father, who grew up (for a time) in a gay household, what I'm saying is that it wasn't ideal. In fact, it was horrible.

Aaron, I'm curious... What specifically about growing up in a gay household was horrible? Some children have a miserable time growing up. Children of divorces (especially messy divorces) often have a "horrible" experience, especially if there is animosity towards one (or both) of the parents. This would, of course, be different than being adopted by loving, stable, monogamous gay parents.

I think if you are going to blanketly say that your life in a gay household was horrible, and set yourself up as an example of why gays shouldn't raise children, we should know at least some of the details of your situation so we can judge if this is primarily a gay-related issue, a divorce-related issue, or a crappy father-related issue.

Posted by: Michael at January 21, 2005 10:24 AM

Both my wife and I grew in families where our parents made sacrifices to stay together and sacrifices to raise kids -- kids full of needs -- and being older siblings we had to diaper, cook, babysit, etc.

This whole interdependency thing -- the sacrifices and the needfulness started with marriage where there was happiness but one gave up the idea of me-first -- and then when we had children, their needs came first.

So this isn't so much a criticism of SSM but of single parenthood where one is obtaining a baby as a payment for services rendered -- and please pray for this child should he or she not meet Scott's expections of value for his $100,000.

I was disappointed that the interviewer didn't ask what happens when the son/daughter asks "Other kids have moms, where's my mom? How come the other dads play basketball, why can't we? (that second question refers what a man does with a 10 year old at as he hurtle towards 60 -- I guess he can hire a personal trainer for his son/daughter)

Posted by: Patrick Sweeney at January 21, 2005 3:02 PM

Michael,

Sure, I'll be happy to do that (divulge some of my life story)the moment that we, all of us here, acknowledge that my personal experience is not the issue, nor is the issue the individual experiences of anyone in a gay family, whether bad like mine or good like others.

In fact, my personal experience is subordinate to the larger question of what is the best family structure for all kids, in general, though it can and does inform my own experiential judgment.

Aaron

Posted by: Aaron at January 21, 2005 7:59 PM

The ultimate status symbol for the aging Gay practicing executive... notice the priority order of his sentiments in the quote... FIRST - "I want somebody to love me..." before "I want somebody to love." (The emphasis was added by me.)

And the egg donor? Somebody the man knows and admires? Nope... just a stranger from a coffee bar. Important qualities? Presumably some sugary frothy flavor of the day swill. Feh! What qualities!!! She probably didn't have enough money on her to pay for her order! How else would he figure she'd go for the money.

He should buy a pony instead.

Posted by: smmtheory at January 22, 2005 1:00 AM

Now, if we could just dissect the selfish (or negligent) reasons heterosexuals have children, unless we believe that every child conceived by heterosexuals is done out of love, a desire to expand the human universe, and the hope of nuturing the next generation.

The reality is that heterosexuals have chidren for lots of selfish reasons. To please their spouse, to save the marriage, because they were drunk, to halt the social pressure, because it's "the thing to do," to get more TANF. Some of those people will rise to the opportunity and many will fail miserably. Why should gays be held to a higher, unreachable standard that heterosexuals have failed to achieve?

Posted by: Dan at January 24, 2005 11:05 AM

Hmmm Dan..... perhaps because they don't bother to at least provide the ideal familial relationsips for raising that child?

Posted by: smmtheory at January 24, 2005 12:39 PM

SMM, but neither do heterosexual parents who adopt, widowed parents, single parents, divorced parents, parents who remarry, parents of different races. But no one questions their "selfish" motives.

Posted by: Dan at January 24, 2005 12:45 PM

Dan,

For the record, the woman quoted at the end of the post, who runs the business in question, is not declared as homosexual or heterosexual (at least that I recall — I haven't reread the piece for this comment). Too often, the habit is to ignore poor thinking because it is done by someone with an identity-related excuse.

So, yes, we must include selfish heterosexuals in our condemnation. But we must also realize that part of the importance of heterosexual marriage is to maximize the self-sacrifice among couples that can generate children accidentally or in a momentary lapse of bad judgment. There's a difference in how we should treat them and people who go out of their way to be selfish, as it were.

Posted by: Justin Katz at January 24, 2005 12:46 PM

Dan,
Perhaps I was or my term familial relationships was too subtle for your understanding. I meant a mother and father figure; and the standard I would hold same sex couples to is NOT a higher standard than opposite sex couples, it is the same standard. Divorced or single, the standard I would hold gay practitioners to is NOT a higher standard than I would hold the non-gay practitioner to, it is the same standard. Heterosexual marriages DO provide that as opposed to same sex marriages. Remarried or inter-racial opposite sex couples would also provide the mother and father figure that children thrive best with. Same sex couples do not provide that. THAT is what I meant by ideal familial relationships. Married opposite sex couples are preferable to unmarried opposite sex couples. Non-gay practicing singles are considerably more likely to provide the opposite sex parental figures at a later date than gay practicing singles. See, not a higher standard, the same standard.

Posted by: smmtheory at January 24, 2005 11:58 PM

The comments made by those opposed to adoption by same-sex couples are pretty specious. Define for me just what married heterosexual couples provide that a same-sex couple cannot. A member of each gender? Do mothers and fathers all act the same way? The married mothers and fathers that I know all are different and it's impossible to contend that they all model what anti-gay adoption folks seem to believe that they model just because they're of the opposite sex and married. For example, I know lots of married heterosexual fathers who still kiss their teenaged sons and call them "honey" or "sweetheart". Somehow I doubt that this fits the construct of masculinity that many of the posters here believe that fathers somehow provide in an opposite-sex relationship.

Just having a man and a woman does not mean that kids are going to see ideal behavior modeled. In fact, same-sex couples, who have to be motivated to be parents in ways that straights are not, are likely to be more committed parents than a lot of married heterosexuals, who fall into parenting by accident or because it's the "thing to do".

Posted by: Lee at January 25, 2005 8:45 AM

I don't know, Lee. It seems to me that it is at least as unlikely that heterosexuals will "fall into" adoption. Childbirth, yes, which is a central reason why it is important to keep procreation intrinsically linked with marriage in our culture, but not adoption.

That mothers and fathers behave differently from family to family is a reasonable thing to note, but it's also largely superfluous. In general, men and women are different, and the complete equation of their relationships with each other to those of homosexuals is a denial of that reality. I'm not opposed to gay adoption, although I believe that married couples ought to be favored in the process, and I don't support same-sex marriage. But it seems to me that gay advocates' tendency to argue that an extra father can replace a mother, or vice versa, stands as evidence in the debate, not part of it.

This is now the second time that I've heard speculation that a father's using the pet names "honey" and "sweetheart" probably conflicts with the "construct of masculinity" that those who oppose the movement prefer. Is this something that gay advocates have convinced each other represents a strong argument? It's kinda ridiculous.

Posted by: Justin Katz at January 25, 2005 9:31 AM

Justin,

I'm not sure that it's "superfluous" that men and women, husbands and wives, are very different from family to family. You haven't addressed the issue - nor has any other poster - of just what it is that only a married man and woman can supply a child. A model of marriage? In a lot of cases, the model presented may not be all that pretty (divorce etc). And what is it that the child should see? Love, commitment, mutual caring, partnership? Two men or two women can supply those same qualities. If the answer is "a child needs to see how a heterosexual marriage works," the child will see that reflected all around him/her from relatives, friends, in popular culture. Heterosexual marriage is everywhere!

If the answer is "well, women teach what it means to be feminine and men teach what it means to be masculine" then my earlier point about heterosexual men who kiss their teenaged sons and call them "honey" or "sweetheart" is quite valid. It shows that those who look at gay families as not ideal are clinging to rigid models of masculinity and femininity that simply are cardboard caricatures of what it "means" to be a man or a woman, and what qualities men and women are "supposed" to teach their kids.

So, again, just what is it that same-sex couples cannot provide? Saying a mother/father is not sufficient. Just what qualities etc are lacking that cannot be ably supplied? That's why I made my point about fathers calling their kids honey. The argument that two fathers will not be able to provide the emotional intimacy that mothers supposedly provide is a straw horse - and is belied, in fact, by the behavior of many heterosexual fathers!!

Posted by: Lee at January 25, 2005 10:28 AM

Well, this has been the rhetorical strategy on the radical side all along, hasn't it?

So, again, just what is it that same-sex couples cannot provide? Saying a mother/father is not sufficient.

Say I take the bait and begin listing every dynamic of marriage — an institution rooted in biology and developed over millennia — that I can bring to mind. You'll just take every point that I can raise and find some way to dismiss it, with varying degrees of plausibility. That's how this game has worked, and it puts the onus on the wrong side.

Particularly since you're not willing to offer the same comprehensive litanies on your end. Note how my language of "an extra father can replace a mother" transformed into "emotional intimacy." Are you willing to say that men and women are interchangeable? If so, then it seems to me that ought to be a central point in your rhetoric.

Instead we get this demand that supporters of a traditional family model be able to articulate all of the particulars of a relationship structure that reaches all areas of human life and arguably requires a certain mystique to function.

Another stratagem is to compare the "not all that pretty" to the ideal. Even if it is the case that heterosexual spouses and gay partners only separate (or are otherwise "not pretty") in equal measure, this point of yours dissolves as a wash.

The man-woman-child construct represents a continuity across our nature and our culture. From biology to tradition, heritage, it's central to our society. Now, if you want to argue that same-sex couples are "close enough," then I've already said, fine, but with married opposite-sex couples receiving the treatment that they deserve as the relative ideal. But if your argument is more in keeping with a radical constructionism that holds, in its arrogance, human beings as capable of rewriting their society based on the comprehension of a given generation, I suggest that you make that plain.

Posted by: Justin Katz at January 25, 2005 11:13 AM

What you are missing is any evidence that in adoptive situations, children flourish in a non-biological mother/father home and don't flourish in other settings. There's not any social science data to back that up. Thus, we are waging a policy debate based on fairly Freudian ideas of masculinity and femininity and not on any other real basis. If you are going to make a legal preference, you need more than Freudian psychobabble on gender identity development.

Posted by: Dan at January 25, 2005 11:23 AM
If you are going to make a legal preference, you need more than Freudian psychobabble on gender identity development.

Well, no. If we're going to make a legal preference, we need enough of our society to believe the policy to be correct, whatever citizens' individual reasons. This is part of the broader disagreement — the problem, in my view. We're talking society-defining stuff, here, and one side is dictating not only what requires evidence, but what kind of evidence counts.

There are all sorts of specifics that we could discuss — regarding the individual studies, the definition of "flourish," and so on. But the fact remains that it is the job of those encouraging change to convince the general public not only that "social science data" doesn't capture a distinction that people feel to exist, but that it captures data contrary to their common sense.

Posted by: Justin Katz at January 25, 2005 11:42 AM

I would note that common sense would say African American children should be raised by African American parents, but you dismissed that suggestion as racist when offered by someone else. One person's "common sense" is another person's discrimination, as you have already aptly illustrated.

Posted by: Dan at January 25, 2005 11:58 AM

Justin,

There's no placing the onus on the "wrong" side here. There is the argument that men and women provide unique things to children and I've tried to think of those "unique" things and suggest that they're not as unique as you think.

Marriage as rooted in biology? I don't think so quite honestly. It is a religious/legal institution that has changed quite a bit over history. At various times, it was used to cement alliances between families and provide economic security for women, as well as control sexuality. It has assumed different forms, and served different purposes, in different cultures. Nothing innate about it. Is it good? Absolutely.

So, again, what can't two men or two women provide kids that only a man and a woman can? I'm not saying that married couples don't provide great things to kids - they do! But I don't think that what they provide is unique. The contentions of supporters of the "traditional family" seem rather formulaic. You can't say that men and women uniquely provide something but then refuse to specify what that is.

Lee

Posted by: Lee at January 25, 2005 12:03 PM

Dan,

One person's "common sense" is another person's discrimination, as you have already aptly illustrated.

Of course. That's why these are society-defining issues and often subjective. Do we want to be a society that believes skin color and other physical qualities of race represent an overarching quality of the individual such that familial segregation is a virtue? I'd say no. Do we want to be a society that believes itself sufficiently wise as to erase a natural and traditional family structure in a way requiring the implicit belief that men and women are interchangeable? I'd say no.

It strikes me as interesting that a worldview that believes people should be raised by parents of the same race doesn't also hold that people biologically determined to perpetuate their species with a member of the opposite sex needn't be raised by parents of the same biology. To turn Lee's rhetoric to different ends, what can black parents provide that white parents can't?

Posted by: Justin Katz at January 25, 2005 12:15 PM

Justin,

Gay kids typically grow up in heterosexual households that cannot meet their needs; few parents (although it's getting better) can cope with their kids' minority sexual orientation (which is what being gay/lesbian is) and nurture these kids well.

Gay parents most likely will support their kids regardless of their sexual orientation; most expect their kids to be straight and certainly can help them in dealing with adolescent issues around sexuality and dating.

As for the black/white issue, minority kids growing up in white households will face special identity issues, in all likelihood. Hopefully, white parents are prepared to help their kids in this regard. It certainly doesn't mean that white parents can't raise minority children, or vice versa, or that they're not equally good parents. But we digress...

Posted by: Lee at January 25, 2005 12:21 PM

Lee,

You can't say that men and women uniquely provide something but then refuse to specify what that is.

I didn't say that. In fact, I said that it's silly to demand lists of the benefits provided, given the context and history of the argument. My contention is that the male-female relationship is, itself, unique and aligned traditionally and biologically with marriage and parenting.

It has assumed different forms, and served different purposes, in different cultures. Nothing innate about it.

But you're glossing over the single most conspicuous commonality across history: marriage's male-female nature. As well as the second most (and related) conspicuous commonality: marriage's importance to family, both for the present generation and for future generations — lineage and all that.

Posted by: Justin Katz at January 25, 2005 12:24 PM

How about this Lee,

1) The sense that their family is sort of ordinary
2) The foundation of how to relate to somebody of the opposite gender
3) The hope that there may one day be a younger sibling biologically related to both of those parents
4) The possibility of being taught how to honor both a mother and a father

Justin is right that the burden of proof that same sex marriage offers the same ideal environment is on people who want to bring it about. The argument about what marriage was in the past precludes the ability of society and culture to have been learning through out all of history to this point in time. That is a dodge at best, and reeks of dishonesty at worst for somebody who might claim to be a knowledgable social engineer. Do you claim all that marriage has been in the past was unnecessary to and has no bearing on our understanding of what marriage means today?

Posted by: smmtheory at January 25, 2005 12:29 PM

"Justin is right that the burden of proof that same sex marriage offers the same ideal environment is on people who want to bring it about."

Given the legal nature of "burden of proof," I would argue the burden would be on people who want to discriminate in the ability to contract and those who want to deny legal rights. It is not on those bringing the claim to prove they deserve the right, the burden is on those who want to restrict the right.

Therefore, if you want a social policy that favors one form over another, the burden is on the "state" who wish to maintain the status quo that some harm will come about to justify discrimination.

Posted by: Dan at January 25, 2005 1:00 PM

Interesting points, smmtheory!

So here we go:

1. The sense that their family is sort of ordinary. This is highly problematic. What about children of mixed race couples, or minorities of all kinds, racial or religious, growing up in communities without people similar to themselves? I think children of same-sex couples relate to their families as ordinary until they have to confront the prejudices that many people have against their families. If feeling ordinary is the standard, you'll have to prevent, or disfavor, a lot of types of people from having kids.

2. Relating to someone of the opposite gender. The few studies out there suggest that this isn't an issue. Moreover, there are lots of ways of relating to the opposite gender. Some parents teach their kids very rigid gender roles, while others teach their kids that both genders are equal. You'll see very different ways of relating to the opposite gender, depending on the values taught at home. Finally, gays and lesbians know how to relate to the opposite gender; many of us have even dated such people!

3. Relatedness of siblings. Well, there's the possibility of using the same sperm donor/surrogate again. People often adopt siblings.

4. Honoring both a mother and a father. I don't think this will ever diminish. Most children will be born to married couples consisting of a mother and a father. Treating other types of families equally will do nothing to diminish this. This is more of a religious precept than something "necessary" for a child's well-being.

Lee

Posted by: Lee at January 25, 2005 1:00 PM

Dan is absolutely right as a matter of law and this is why, in fact, we have civil unions in Vermont and SSM in Massachusetts. Courts as triers of fact have examined all the rationales proferred by the state (complete with cross-examined witnesses) and found the rationales lacked reasonableness.

The argument that we have to maintain marriage as opposite-sex only because that's how it's always been doesn't wash. Using the same argument, we'd still ban interracial marriages and women would lose their independent legal identity upon marriage. Both same-race marriage and the erasure of women's independent legal identity were long thought to be essential elements of marriage. Over time, law and mores changed, thank God.

Lee

Posted by: Lee at January 25, 2005 1:08 PM
Therefore, if you want a social policy that favors one form over another, the burden is on the "state" who wish to maintain the status quo that some harm will come about to justify discrimination.

I wasn't aware that adoption is a right. Of course, phrasing things as "rights" has worked well for radicals, because it upends the process of legislation. The public need not be engaged to make new law; the new law is declared to already exists so intrinsically as to invalidate explicit law.

Posted by: Justin Katz at January 25, 2005 1:16 PM

Justin,

It is very true that adoption is not a right. What is important is the child. But what so worries me is that many conservatives are looking to score an ideological point at the expense of children - by arguing, for example, that married couples should receive a preference in adoption, even though there are far more children in need of a loving home of any kind (singles, same-sex couples etc) than there are adoptive parents (let alone married adoptive parents) interested in adopting. The result is that more children will grow up never knowing the love and security that comes with a family - because conservatives wanted to "save" them from families that they disfavor.

Posted by: Lee at January 25, 2005 1:32 PM

Lee,

Yes, "here we go" — picking off the examples. Neat and tidy, each independently addressed. As I've alluded, though, we're talking culture and worldviews, here, not discrete instances of logical construction. How else can one argue simultaneously that the norm of birth to married parents will maintain the honoring of mother and father, but that it is only prejudice that defines mother-father parentage as ordinary?

Finally, gays and lesbians know how to relate to the opposite gender; many of us have even dated such people!

Adults' ability to interact is irrelevant. The point is that it is a behavior learned through experience, not one that same-sex parents can adequately explain to children in the abstract. To simplify, a boy will not be able to see his mother in other women if he has two fathers. You might suggest that this could be a good thing (sexism) or inapplicable (single father), but again, that's a wash because homosexuals are immune to neither trait.

Your second comment above nicely captures the underlying problem of the rights-based rhetoric. In the first paragraph, you've got the courts deciding, unilaterally, what defines "reasonableness" — in contravention of majority sentiment. That sounds like judicial oligarchy, to me. In the second paragraph, you dismiss tradition and experience of society not written explicitly into law (or even when it is written explicitly into law) because society has sometimes had wrong notions. Well, by your argument, we'll cease to ban polygamy, incest, or whatever further permutations individuals may think to claim as rights.

Posted by: Justin Katz at January 25, 2005 1:34 PM

Lee,

How does giving one family type a priority diminish the number of prospective adoptive parents? For one thing, why wouldn't that, directly and more broadly, encourage adults who wish to adopt to construct their lives toward the ideal?

Posted by: Justin Katz at January 25, 2005 1:38 PM

Justin,

Mother-father parentage IS ordinary and I've never asserted otherwise. It's how the overwhelming majority of children come into existence; nothing will ever change that. Having dad-dad and mom-mom families will not magically undermine that, unless you assume that there is something so attractive about gay parenthood that heterosexuals by the millions will suddenly themselves look for a same-sex mate to raise children with.

As for seeing one's mom in women that men look to date, it seems to be you definitely are Freudian in your outlook. I'm not up on psychology so I don't know if heterosexual men look for their mothers in future wives...

As to your final point, I'm a lawyer and I'd suggest that you read our Constitution again. Courts don't exist as tools of the majority. In our system of government, they pass justice, and protect minorities from the tyranny of the majority. "Loving v. Virginia" utterly flouted existing majority sentiment at the time (and for some years afterward) - should the Supreme Court have upheld bans on interracial marriage because the majority vehemently opposed it?

Lee

Posted by: Lee at January 25, 2005 1:47 PM

But placing a preference for married couples is infringing on everyone else's ability to enter into an adoption contract. Since I assume we are talking about state-sanctioned adoptions being required to prefer married couples, than you have an equal protection argument because the state is creating preferences--one could even say, taking affirmative action--in how they provide services and contract.

If we are talking about private adoption, than you are suggesting a very anti-conservative suggestion, which is to force private companies to abide by a state-imposed preference system.

Posted by: Dan at January 25, 2005 1:51 PM

I'll take Dan's argument even further. Mandating married couples affirmative action in public adoption will be utterly devastating to waiting kids - these are the kids who typically are hardest to place because they're older, of a different race, perhaps differently abled, and/or have "issues" because of past abuse and/or multiple placements in foster homes.

The private adoption system probably has an informal preference for married couples because of both agency policy and, often, birthmother preferences.

Posted by: Lee at January 25, 2005 2:01 PM

Lee,
Why are you assuming that the majority favored proscription of interracial marriages? Where is your data for making this assumption?

Posted by: smmtheory at January 25, 2005 2:17 PM

smmtheory,

I don't have the cite handy but I've read a number of accounts showing that a majority of Americans opposed the Loving decision at the time it was issued.

Brown v. Board of Education likewise was opposed by a majority at the time

Posted by: Lee at January 25, 2005 2:26 PM

So you are saying that a referendum was put on ballot asking what the public thought about the ruling? That's funny, I don't remember that issue ever being on a ballot I voted.

Posted by: smmtheory at January 25, 2005 2:30 PM

No, smmtheory, it was through public opinion polling. Our system of government does not provide for referendum to decide every little issue; government by referendum just provides a means for majorities to run roughshod over minorities

Posted by: Lee at January 25, 2005 2:33 PM

Lee,

I second Smmtheory's question and add this consideration: the Lovingses had been married in another state. Progress was being made.

I'd also suggest that you consider the likelihood that the case's use to further the cause of gay marriage would have been seen, at the time, as a very strong argument for continuing to work legislatively. What future inconceivables is further court action making more likely?

s for seeing one's mom in women that men look to date, it seems to be you definitely are Freudian in your outlook.

You're missing my point. I wasn't talking about dating, specifically, but of all interactions with women. Echoes of Sting: "Think of your own mother/dancing with her invisible son."

As to your final point, I'm a citizen and I'd suggest that "self government" is a hollow ideal if judges need only find a way to rephrase new law in terms of "rights."

should the Supreme Court have upheld bans on interracial marriage because the majority vehemently opposed it?

I haven't thoroughly research the contemporary atmosphere, but I'd say, yes, probably. Not because I think those laws anything other than a dehumanizing throwback to darker times, but because the ruling made judicial tyranny that much more likely.

Mandating married couples affirmative action in public adoption will be utterly devastating to waiting kids - these are the kids who typically are hardest to place because they're older, of a different race, perhaps differently abled, and/or have "issues" because of past abuse and/or multiple placements in foster homes.

You haven't yet explained why having criteria for ranking prospective parents diminishes the number of them.

Posted by: Justin Katz at January 25, 2005 2:34 PM
a majority of Americans opposed the Loving decision at the time it was issued

That's not the same thing as opposing interracial marriage, FYI.

Posted by: Justin Katz at January 25, 2005 2:35 PM

The criteria creates a disincentive to consider adoption because "I'm not married, so I probably don't stand much of a chance of getting a kid." That perception exists already, to some extent, because it is assumed that married couples are already getting a preference. Only in Maggie Gallgher's world, it appears, do married couples believe they are somehow disadvantaged.

So some bureaucrat, faced with married couple affirmative action, is going to tell applicants, "We have to consider married couples first, so there is no way you will make it to the top of the list" and "We think you'd be a great parent and this child really needs you, but we are mandated to look for a married couple first."

Posted by: Dan at January 25, 2005 2:44 PM

Okay Lee,
Now go back and answer this question specifically. Why are you assuming that the majority of citizens favored proscription of interracial marriages? Where is your data for making this assumption? Keep in mind that I'm not asking why a majority did not favor the ruling in the Loving v. Virginia case.

Posted by: smmtheory at January 25, 2005 3:39 PM

From a book by Harvard Professor Randall Kennedy:

A Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of southern whites.

In another story about polling data:

73 percent of Americans approve of interracial marriage. In a 1958 Gallup poll, when the question was posed only to whites, just 4 percent supported mixed marriages.

Posted by: Dan at January 25, 2005 4:03 PM

Okay, now a rhetorical question that I don't really expect an answer to. Do ALL lawyers and judges think that the only way to achieve justice in through litigation and/or judicial caveat?

I'll look for your cites Dan. I sure hope they have information available on the exact question(s) used in these polls. Interracial marriage, while not prevalent in my youth was not uncommon, even in Texas.

Posted by: smmtheory at January 25, 2005 4:15 PM

"Do ALL lawyers and judges think that the only way to achieve justice in through litigation and/or judicial caveat?"

I imagine there are some lawyers who don't believe that, but the essence of lawyering is delving into the legal meaning of the law and understanding its consequences. So if there is the perception that the law is unfair or unequal, than it is the responsiblity of lawyers and judges to resolve or reconcile that inequity.

The law exists to avoid the tyranny of the majority. Left to its own devices, the majority would move slowly toward social change and lord its power over minorities and viewpoints that are out of favor. Slavery would be intact, schools remained segregated, and interracial marriages banned if left to the tyranny of the majority. Therefore, the law exists to balance out that power.

Posted by: Res Ispa at January 25, 2005 4:55 PM
Left to its own devices, the majority would move slowly toward social change and lord its power over minorities and viewpoints that are out of favor.

Yeah. It's a good thing we had the Plessey and Dred Scott decisions! And perhaps someday we'll achieve a society in which local town governments can't force religious imagery on the 0.00000001% of citizens who are offended by a statue in the park.

The point is that "equality" is a subjective term, involving a judgment of circumstances under which people are similarly situated. That isn't a judgment that can be made through law alone, so lawyers and judges are really applying their own worldview to the law. That's not their domain and devolves into tyranny of the favored minority.

You've got a strangely restrictive (to modern libertarianism) view of why the law exists. Law, according to m-w.com, is just "a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority." The frightening thing about your reasoning is that you've consolidated our entire system of government — branches, balance of powers, separation of powers, federalism, which in total is what protects individuals, minorities, and majorities — into "law" and then put that "law" under control of the judiciary.

Posted by: Justin Katz at January 25, 2005 5:13 PM
The law exists to avoid the tyranny of the majority. Left to its own devices, the majority would move slowly toward social change and lord its power over minorities and viewpoints that are out of favor. Slavery would be intact, schools remained segregated, and interracial marriages banned if left to the tyranny of the majority. Therefore, the law exists to balance out that power.

This 'tyranny of the majority' phrase is thrown about a lot, but it's basically meaningless. We don't have a strict democracy - it's representative. And if the minority is capable of convincing enough people that it's views are correct, and voting accordingly, then it's not a tyranny. The majority party switches every 30-60 years in this country.

Slavery would not still be intact - we fought a Civil War over that, remember? And amended the Constitution to ban it? And schools remained segregated for a long time after Brown - it wasn't until the legislatures got involved in the '60s that there was any significant changes. (It may or may not be the case that Brown provided important moral support for desegregation of schools, but that is a separate question of whether the question is properly decided by the courts. Everything that is unfair is not automatically unconstitutional.) It's also ludicrous to claim that interracial marriages would be banned in 2005 if the Supreme Court hadn't ruled the way it did in Loving.

Basically what you are saying is that judges rule, and then the society just follows along? How is that not judicial tyranny? Did Lincoln just follow along with Dred Scott? Did people just acquiesce to Roe? How do Lee, Dan, or Res Ispa propose to keep bans on polygamy based upon the rationale used by the Mass. SC? Or do you all support polygamy?

Posted by: Mike S. at January 25, 2005 5:57 PM

The law of unintended consequences is one law the SCOTUS cannot strike down, try as it might.

The Courts are not there to decide cultural issues. That is what the legislature and executive - the elected branches subject to voting - are for. The Court's job (as any lawyer should know) is to interpret the law as written, not make it up as it goes along following the whim and fancy of the latest fads (eg, Roe v. Wade). What's more, the Mass court did not pass on ANY of the arguments as triers of fact (Highest courts only answer questions of law, not fact, otherwise they would violate trial by jury). Yes, perhaps you should read the Constitution - Courts are supposed to interpret it, not amend it by judicial fiat and ridiculous penumbras. The Constitution says not ONE WORD about SSM (and SSM is not a privacy issue, as it is asking the PUBLIC to recognize the relationship - you can't have it both ways). For example, note that slavery WAS NOT abolished by the courts or Constitution, but by the democratic process of Amendment. The later cases relied upon an AMENDED constitution to strike down other laws.

As for the burden of proof - can you guarantee that changing the definition of marriage, which has been part of society since before law itself, to the one you propose, will not have a detrimental effect on our corner of civilization?

See, the Constitution and "legality" and rights are all an illusion when it comes to the reality of what makes civilization work. The argument you really need to address is will this screw up civilization? And to convince those of us who look back on 10,000 years of history and see male-female unions as the bed rock of society, you have to convince us not under some infantile 200 year old piece of paper, but against the backdrop of known history that SSM is an improvement.

Posted by: c matt at January 25, 2005 6:41 PM

SSM supporters predicate their case on a fallacious (but unfortunately widely held) assumption: that in any proposed change to a complex system, no matter how radical and untried, the burden of proof is on the OPPONENTS of the change to prove that it is harmful to the system, rather than on the PROPONENTS to prove that it is not harmful.

To those who believe this assumption, could you please defend it in general logistic terms, not through a one-sided diet of examples (ending slavery, interracial marriage, women's suffrage, etc.---none of which were as lacking in historical record as an androgynous definition of marriage)

Posted by: R.K. Becker at January 25, 2005 10:47 PM

I would have responded sooner, but I was attending my Criminal Law class.

Res Ispa said:
"I imagine there are some lawyers who don't believe that, but the essence of lawyering is delving into the legal meaning of the law and understanding its consequences. So if there is the perception that the law is unfair or unequal, than it is the responsiblity of lawyers and judges to resolve or reconcile that inequity.

The law exists to avoid the tyranny of the majority. Left to its own devices, the majority would move slowly toward social change and lord its power over minorities and viewpoints that are out of favor. Slavery would be intact, schools remained segregated, and interracial marriages banned if left to the tyranny of the majority. Therefore, the law exists to balance out that power."

I don't know if you are a lawyer Res Ispa, but it seems pretty clear to me that you believe the judicial branch of government trumps the legislative branch which is an attitude that if widely accepted would be deeply disturbing to me and I am sure to a few others. I can agree with your first sentence about the essence of law practice (delving into the legal meaning and understanding the consequences), but deciding fairness is way out of the jurisdiction (so to speak) of the courts. The courts can decide if the law is enforceable within the framework of the Consitution, but that is as far as they can and should go. The legislature is the body of government assigned the responsibility of fixing the laws. If an amendment to the Constitution was made that gave everybody one get out of jail free card, then the courts would have to abide by that.

I have always been highly suspect about that argument that without the courts there would still be slavery, segregation, and bans on interracial marriage. If that had truly been the case, Congress could have gone right back to the drawing board and come up with air-tight codes to enact the same effect AND be constitutional. That is where the strength of our constitutional democracy comes from. The fact that congress did not do such speaks volumes (to me) as to whether or not the majority of the public really did want to keep those things.

Posted by: smmtheory at January 25, 2005 11:16 PM

Some people need to go back for a remedial civics lesson :-)

The judicial branch is not "trumping" the legislative branch at all. It is a co-equal branch of government and the one that is charged with interpreting the meaning of our laws and the constitution. Nothing more, nothing less. This notion that social issues, alone among all the topics with which the judiciary grapples on a daily basis, are somehow not to have input from the courts has no basis in our constitution or system of government. It's just a demand from angry conservatives.

Left unchecked by the judiciary, God knows what laws some of our lawmakers would impose on us...

As for a much earlier comment that the Supreme Judicial Court of Massachusetts did not act as a "trier of fact" in the Goodridge case, read the opinion again. The majority justices reviewed every possible rationale that the state could offer against SSM and found them quite wanting on a variety of grounds; Massachusetts was not first in this regard either. Courts in Hawaii, Alaska, Vermont, and of course Massachusetts have found the various rationales wanting since the 1990s.

It's truly no surprise. The biggest argument against SSM is that marriage has always been between a man and a woman. Therefore, it has to stay that way. But if you read, say, Blackstone's Commentaries, you'll find the notion that women have no independent legal identity in marriage to be an "essential" element of marriage, one that is timeless and could not be changed without rendering marriage something other than it had long been.

Don't get me wrong. Marriage has served an important function for heterosexuals. It encourages stability etc etc and provides groundrules and protections. But letting gays into the picture really won't do anything to change that, anymore than allowing interracial marriage somehow undermines and subverts marriage (and, opponents of SSM, people really did claim that at the time).

Posted by: Lee at January 26, 2005 8:55 AM
Left unchecked by the judiciary, God knows what laws some of our lawmakers would impose on us.

Not to dispute your heightened understanding of civics, Lee, but I'm not sure that the Founders or, well, anybody expected the judiciary to be the authority on what laws are reasonable. Judicial review, matching laws against the Constitution, essentially compares laws to laws, allowing the judgment that previous legislation forbids recent legislation.

This relates to your subsequent point. "The biggest argument against SSM" is not "that marriage has always been between a man and a woman [and] has to stay that way." Nobody argues that marriage cannot change or be changed. The social argument is that marriage shouldn't be changed, fundamentally, with the rapidity of a political campaign. The legal argument is that marriage has a particular definition, implicit in every relevant law ever passed in the United States, and manipulating that definition is a legislative act, not the domain of the judiciary.

With all due respect, it doesn't leave much room for optimism about your profession's ability to rule the country that lawyers and judges seem to have such a hard time making these distinctions.

Posted by: Justin Katz at January 26, 2005 9:14 AM

Another fallacious argument of SSM supporters:

"They (our opponents) once opposed Change A. Change A produced no problems. Now they oppose Change B. Therefore, Change B will produce no problems either."

Does it need to be stated WHY this is fallacious? Please, SSM supporters, before you use this argument or variations of it, defend it logistically.

Posted by: R.K. Becker at January 26, 2005 9:27 AM

This notion that social issues, alone among all the topics with which the judiciary grapples on a daily basis, are somehow not to have input from the courts has no basis in our constitution or system of government.

Lee, this is where your fundamental misunderstanding of the role of the courts shows (to be fair, it is not necessarily your fault, as many, if not most, in the legal profession share your error). The court is not supposed to "provide input" on any issues, much less its own warped sense of "social justice". The court's role, under the Constitution which creates it, is twofold: (1) how does the law, as written, apply to the facts of this case, and (2) does this particular law comply with the dictates of the Constitution (or constitution, if you are talking about a state constitution). That's it. As you put it, no more, no less. Injecting a judge's own "feelings" and "opinions" into a cultural/social issue is a strict no-no. Unfortunately, that has been lost on the vast majority of citizens, both in and out of the legal profession.

Posted by: c matt at January 26, 2005 10:14 AM
It's truly no surprise. The biggest argument against SSM is that marriage has always been between a man and a woman. Therefore, it has to stay that way.

Doesn't this line of reasoning indicate that polygamy and marriages to minors have more of a claim to being legalized?

When you say, "God knows what kinds of laws our lawmakers would have imposed upon us", you reveal a profound distrust of democracy. What do you think "Government of the people, by the people, and for the people" means? That they don't get to decide which rules they live under?

It seems to me that a fundamental problem in this general discussion stems from the fact that social liberals have become so accustomed to seeking (and receiving) desired changes in the law by appealing to the courts that they can't comprehend any other way of doing things. To try to get at R.K. Becker's questions from a slightly different angle, where does this overriding confidence in the judiciary to make the right decisions come from? And how do we judge whether they have made the correct decision or not? The Supreme Court decided both Plessy and Brown. Both decisions can't be correct - how do we know that Goodridge is correct (or Lawrence)?

Posted by: Mike S. at January 26, 2005 10:25 AM

And that is really what this debate is all about - what are the "essential" elements of marriage?

Permanence? Exclusivity? Fecundity? Complementarity?

If none of those are "essential" elements, then there really are no essential elements, and consequently, there is no such thing as "marriage". Which of these putatively essential pillars can be kicked out from the building called marriage before it completely collapses? As a society, we have removed permanence through skyrocketing divorce, and it has done incredible damage. We have also removed fecundity (at least in the West) through contraception, abortion and low birth rates and have lit the fuse on the demographic bomb that will destroy us. The only two putative columns left are complementarity (which, I have to agree, that if fecundity has gone, there is no logical basis for keeping complementarity) and exclusivity. These are rapidly becoming infested with termites eating away at the bases.

Posted by: c matt at January 26, 2005 10:29 AM

R.K. Becker has asked fair questions that have gone unanswered.

As for the appeal to tradition, in the practice of law is it reasonable to expect practioners to show greater deference to tradition and precedence and less blind faith in the radical individualism that the pro-SSM side intemperantly demands. That the profession has increasingly gotten out of sync with society is as much a problem with the legal community as it is a problem for an open society that depends on the rule of law and the principle of self-government.


>> Left unchecked by the judiciary, God knows what laws some of our lawmakers would impose on us.

Not that anger is the special reserve of those who oppose SSM (including non-conservatives), and not that it is the default positon of any who have commented in this thread, but what's wrong with a little determined resistance in the face of tyranny? And how is your remark remotely relevant to the subject matter here? Looks like a lame attempt to poison the well.

You offer a logical fallacy by switching 'majority' to 'some' elected representatives.

'Some' is not a majority. And a legistlative majority is not the only majority at play in our form of governance that might establish a tyranny.

How do you imagine the Constitution became the supreme law of the land in the first place? Not by the machinations of a simple majority, as you know. Likewise for the ratified amendments.

Do you believe in the inerrancy of the Supreme Court? In any case, how do you respond to Justin's point about how the Court performed on the issue of slavery prior to the Civil War. As President, Lincoln interpreted the Constitution differently and acted accordingly. The subsequent Constitutional amendments on slavery repudiated the Court, but ill-reasoned decisions by the Court later neutralized the amendments the People had ratified. Some of the civil rights decisions made in the middle of the last century were also poorly formed. Not sure that a majority of legal scholars and commentators even bother to defend the impoverished legal reasoning of the Court on Roe v. Wade. In those instances when a Court seeks a policy outcome rather than works to interpret the law, it ceases to be a judicial branch of government.

As for checks on powers, what is your version of liberal means to guard against the imposition of bad laws made by a 5-vote majority on the bench? How is self-governance conserved in a system of co-equal branches? What recourse would you have if the various courts that slimly decided in favor of the SSM argument had gone the other way? It would appear that your social agenda dictates your preference for the majority on the Court.

Posted by: Chairm at January 26, 2005 10:53 AM

Lee: But letting gays into the picture really won't do anything to change that, anymore than allowing interracial marriage somehow undermines and subverts marriage (and, opponents of SSM, people really did claim that at the time).

I keep hearing this, but -- not having been alive at the time -- i'd like to see some evidence that it is indeed true. I'm of a mind to suspect that opposition to interracial marriage had far less (if anything) to do with the alleged subversion of the institution, than it did the adulteration of racial bloodlines. ((more evidence that marriage is inextricably connected to procreation))

I'm not saying you're wrong either, but would like to see the evidence, if you have it.

Posted by: Marty at January 26, 2005 11:12 AM

As for checks on powers, what is your version of liberal means to guard against the imposition of bad laws made by a 5-vote majority on the bench? How is self-governance conserved in a system of co-equal branches?

This is extraordinarily simple to answer, especially in light of the Goodridge decision. Amend the constitution. Goodridge found simply that not allowing SSM violated equal protection under the state constitution. If the legislature wanted to make an exception with marriage, it had to do so formally, in the constitution. I cannot see how this is judicial tyranny. The social conservatives complained because it was going to take them two sessions to get it through the legislature. Interestingly enough, the judges gave the legislature six months before issuing SS marriages; they had six months to get a vote in and get this process finished a year sooner. They sat on their butts. Why? If the people overwhelmingly disagreed with the judiciary then why wait?

You cannot blame the judges for this. They only interpretted the constitution, which is their job. The checks are in place and when it comes to the constitution, the "democratically elected" branches always trump the judiciary. You may not like the way the "people" can overrule the courts, but that doesn't mean they can't.

Posted by: Michael at January 26, 2005 11:17 AM

Michael,

Interestingly enough, the judges gave the legislature six months before issuing SS marriages; they had six months to get a vote in and get this process finished a year sooner.

They had six months in which nothing the legislature could have done would have mattered. Personally, I take the judiciary's offering of a window in which the legislature could rubber-stamp its decision to be an indication of tyranny, not proof that it didn't exist. The judiciary could just as easily have postponed its ruling a couple of years to allow the legislature reasonable time to act in either direction.

But the question was with respect to balance of powers, and what an imbalance we have here! The proverbial "5-vote majority on the bench" isn't even balanced by a simple majority of the legislature. The balance is constitutional amendment! In Massachusetts, that requires two legislatures and a ballot question. That's your idea of balance?

Increasingly, it appears that liberal government theory is headed toward another tier of representation, whereby the people vote for the legislature and executive and those two branches "vote for" a judiciary that ultimately runs the show. (I suspect this will change somewhat, however, when judges begin "finding" and "interpreting" policies that liberals don't like in the various constitutions.)

Posted by: Justin Katz at January 26, 2005 11:37 AM

The arguments against interracial marriage were very similar to those waged against SSM, and by people with the the same political and religious inclinations. Interracial marriage was opposed by Southern, white religious leaders and by conservative politicians. The concern was that marriage would be "lessened" if interracial marriages were permitted.

I think, ultimately, the bigotry was more on the surface so it is difficult to compare. The fact that the same cast of characters leading the charge against SSM have a strong history of opposing gay rights speaks more aboout their agenda than a new-found concern about marriage.

Posted by: Res Ispa at January 26, 2005 11:38 AM

So what, Res, do you make of those under the age of 60 who oppose same-sex marriage? And does the fact that the same cast of characters leading the charge for SSM has a strong history of pushing "gay rights" speak more about their agenda than a new-found interest in marriage?

Posted by: Justin Katz at January 26, 2005 11:44 AM

RI: The concern was that marriage would be "lessened" if interracial marriages were permitted

I'm just asking for a few citations, that's all. It may not be something in dispute, but it keeps getting tossed out there as if it were accepted conventional wisdom. I'm not so sure, and would like to see this claim backed up. If you please.

Posted by: Marty at January 26, 2005 11:51 AM

The analogies to interracial marriage are weak and facile.
#1. The black community itself rejects them overwhelmingly, including their own left leaning leadership.

#2. Any argument about defining the parameters and purposes of marriage is going to bear a passing resemblance to the interracial debates of old.

#3. Nothing about interracial marriage ever challenged the base definition and understanding of marriage.

Posted by: Fitz at January 26, 2005 12:04 PM

As to #2.
Indeed any argument against polygamy or polyandry could be roughly analogized to the debate over interracial marriage.

Posted by: Fitz at January 26, 2005 12:07 PM

Again, Res, you are engaging in (or appealing to) fallacious logic here. Whether or not the people who oppose SSM are the same as the ones who once opposed interracial marriage (and, BTW, I never was opposed to interracial marriage and got into a number of arguments with those who did oppose it, including my own father) is irrelevant to the question of whether SSM will be good or harmful. It tells us ABSOLUTELY NOTHING about the effects of SSM.

Again, here's the fallacy in more general terms:

1. The same people who opposed Idea A also oppose Idea B.

2. They were wrong about Idea A.

3. Therefore, they are also wrong about Idea B.


Again, to Res and all others who continue to think this is an argument, please defend it logically. Or does it have to be explained why it is a fallacy?

Posted by: R.K. Becker at January 26, 2005 12:32 PM

It's a fallacy as far as I'm concerned R.K. I know I have never had a problem with interracial marriages. I didn't fight or argue with anybody about it, just changed my religious denomination is all. That was my idea of social pressure back then, remove tacit approval and financial support. I was in school when desegregation began. I thought that was a great idea also. And I was raised in Texas.

Posted by: smmtheory at January 26, 2005 12:59 PM

But the question was with respect to balance of powers, and what an imbalance we have here! The proverbial "5-vote majority on the bench" isn't even balanced by a simple majority of the legislature. The balance is constitutional amendment! In Massachusetts, that requires two legislatures and a ballot question. That's your idea of balance?

Well, since you put it that way....

I do in fact think that this is an equal balance of powers. We aren't talking about taxes or transportation or Rockefeller drug laws; we're talking about an equality clause in a constitution. If the justices found that barring SSM violated a mere law, the legislature could fix it easily, in a short amount of time. That's what the judiciary spends most of their time and energy on. So in most circumstances, these co-equal branches will be balanced to satisfy your apparent definition of balance.

But they found that it violated the fundamental equal rights of its citizens as guaranteed by the state constitution, not some mere law. The people better have a damn good reason and be absolutely sure of themselves if they are going to make constitutional exceptions. A two-session plus ballot process certainly makes sense.

Posted by: Michael at January 26, 2005 1:01 PM

Opposition to interracial marriage was couched in religious terms: the Bible says such relationships are wrong. Opposition to SSM is couched in religious terms: the Bible says such relationships are wrong. While there may be some who would still argue that the Bible doesn't permit interracial marriages (Bob Jones, for one), that view has now been tossed aside like most bigoted concepts. Advocates for SSM believe that in 40 years, the same will happen to religious objections to SSM.

When I say "the same" I am not talking about the exact same individuals, but religious and political conservatives generally.

Posted by: Res Ispa at January 26, 2005 1:05 PM

Don’t cast your pearls before swine.

Obviously they are not interested in logic, or compassion, or what is in the best interest of society or its children.

I wrote several posts on Justin’s page awhile back concerning the appeal of Marxist ideology on gay activists and the gay mind.

One offshoot of this thinking is what I call “confuse and conquer”
The point is not to make a point or even win an argument, but to fill the air with illogic and pap until you have hopelessly muddled the argument (If you begin to lose it)

They tried that, now they have given up.

Posted by: Fitz at January 26, 2005 1:07 PM

That's what I'm talking about Res. When my church leader tried to tell me that the Bible forbid interracial marriages, and I could see in black and white that it was in fact something totally different, I went elsewhere. I look in the Bible now, and I still see that homogamous relationships are not allowed by God. Where does that leave your argument?

Posted by: smmtheory at January 26, 2005 1:09 PM
[The judiciary] found that it violated the fundamental equal rights of its citizens as guaranteed by the state constitution, not some mere law.

The problem is that, as we've been discovering for the past 40 years, anything can be phrased in terms of "fundamental equal rights." The imbalance has arisen in the judiciary's decision to make elite social preferences a constitutional matter.

Posted by: Justin Katz at January 26, 2005 1:13 PM

Michael, the pro-marriage side did not sit on their butts for 6 months, sir.

You would grant the legislative initiative to the Court rather to the People and their elected representatives. More, you would grant the first move to the judiciary in amending constitutions. This is the inverse of our form of government as enshrined in the text and form of the US Constitution and the state constitutions. It is also against the spirit of self-governance.

By a single vote the Massa court discarded marriage and replaced it with its own favored version of adult relationship that society, through the state, would be permitted to sanction. We can argue over whether that decision was well-reasoned or if the related opinion on possible legislation was plausible, but the court's replacement of marriage was no mere interpretation of the law and the state constitution.

Suppose that one vote in the court's majority had gone the other way, for whatever reason. What recourse would have been open to the proponents of your cause if not legislation by a simple majority? To develop domestic partnership in California, for example, no state constitutional amendment has been required.

Besides, in Massa the tactical obstructionists prevented a timely opportunity for the People to vote on a state amendment. Not once, but twice. Not just after the Massa Court's lawmaking, but prior to it as well.

Your remarks on this matter add to the weight behind the call for ratification of an FMA.

Posted by: Chairm at January 26, 2005 1:18 PM

Michael

When the MSC ruled marriage to be a violation of the equal protections clause of its states constitution it was necessary (by operation of law) to declare the concept that children are best raised by their mothers and fathers as having “no rational basis”
That laws based on supporting traditional family arrangements were merely “irrational animus”.

I have every confidence that if the people of Mass. Are given an opportunity to vote on this they will defeat gay “marriage” as they have in every other state.

The fact that they have been forced to do so, is itself based on unconstitutional judicial interpretation. Believe it or not, just because any given judiciary has the right to “interpret” the constitution does not mean that every interpretation is right. (or human or fair or within their power)
(Indeed – If not what keeps your state from “interpreting” away your ability to vote, or speak, or own property or to even live.)

Posted by: Fitz at January 26, 2005 1:25 PM

I love this talk of "elites" imposing their worldview on "average, common sense folk". More sophistry from conservatives. As if justices can't come from the middle class or even the poor (heck, look at Clarence Thomas...)

As for Fitz's comment that interracial marriage didn't challenge the "nature" of marriage, plenty of people back then did feel that they were.

Smmtheory says that he could read the Bible and see that it is wrong about interracial marriages but sees that the Bible is "clear" about opposing same-sex marriages. I'm Jewish and plenty of religious figures in my religion say that the Bible is anything but clear on this matter. Why should we legislate your religious viewpoint into law? My religious viewpoint (and that of a lot of Christians for that matter) is quite different and reads the Bible quite differently.

I'd love to know how opponents of same-sex marriage view the demise of coverture -- the ancient common law doctrine that mandated that women lose their independent legal identity upon marriage. No ability to contract, or hold property. Eventually, starting in the 1800s (and not fully ending until the 1970s, when married women could finally get credit in their own name), judges and legislatures whittled away the doctrine, even though at one time a marriage without coverture was not thought of as marriage.

Posted by: Lee at January 26, 2005 1:27 PM

So, no SSM supporters, including Lee or Res, want to try to logically defend the fallacy I mentioned, and which they keep engaging in.

Apparently they're just hoping that by continually using it, people will somehow not see how fallacious it is.

Again, forget about SSM. Forget about interracial marriage. For right now, we're talking in general logic. Please explain how demonstrating that the same people who opposed Idea A also oppose Idea B thus demonstrates that if Idea A worked, then Idea B will also.

Or are we divided into two neat and distinct groups of people, those who are right 100.00 per cent of the time, and those who are right 0.00 per cent of the time?

Posted by: R.K. Becker at January 26, 2005 1:54 PM

R.K.

No one (at least not I) am making the argument you accuse me of. I'm not writing about whether SSM will work or not (at least not in these posts right now). Instead, I'm simply pointing out that opponents of interracial marriage at the time (many of them) claimed that such marriages were not in fact real marriages and that allowing them would destroy the institution of marriage -- just as opponents of SSM are claiming that allowing SSM will destroy matrimony. Furthermore, I'm noting that majorities at the time of both landmark court rulings (Loving and Goodridge) opposed those rulings (although I would also note that at least a plurality of Massachusetts citizens supported the Goodridge ruling)

Posted by: Lee at January 26, 2005 2:05 PM

Lee,

Absolutely hilarious that you should cite Clarence Thomas as evidence against the "sophistry from conservatives" in decrying "'elites' imposing their worldview on 'average, common sense folk.'" Priceless.

As for your religion- and coverture-related points, they strike me as little more than an attempt to redirect the topic in irrelevant ways. On the first, the question isn't whether we should "legislate [our] religious viewpoint into law," but whether the judiciary should be empowered to legislate law contrary to it. And if you want to go down the coverture tangent, note that I've already been there.

Posted by: Justin Katz at January 26, 2005 2:25 PM

Lee,
I made the point about the Bible to refute a statement that declared I was one of those "same old white supremacists" that opposed interracial marriage, not to suggest that my interpretation is the only interpretation. But if you persist in arguing that way. The theological history of the Catholic Church goes back as far as the Jewish theological tradition and has been built upon the same foundation. Where they divurge in their understanding of the theological significance of homogamous relationships to marriage is within the last generation. I suspect, though I don't have any data to prove it, that this is due to the exodus of the Jewish believers and the attempt by some of the Jewish sects to stop the bleeding, i.e. making it more palatable in order to please the masses rather than to please God.

Posted by: smmtheory at January 26, 2005 2:26 PM

So then, Lee, what's the relevance of this to the issue, if not to appeal to the belief that "if they were wrong before, they're wrong now", which is, in a nutshell, the fallacy I described? You may not be directly making that argument, but you're certainly implying it, or at least appealing to it. I do think that you know that the argument is fallacious.

Posted by: R.K. Becker at January 26, 2005 2:32 PM

And speaking of "Why should we legislate your religious viewpoint into law? My religious viewpoint...", do you as a Jewish person believe that Israel should abandon the Jewish faith when making laws relevant to their nation? If not, then please don't try to peddle that pap here.

Posted by: smmtheory at January 26, 2005 2:36 PM

The problem is that, as we've been discovering for the past 40 years, anything can be phrased in terms of "fundamental equal rights." The imbalance has arisen in the judiciary's decision to make elite social preferences a constitutional matter.

I agree with Lee on this one; you completely denegrate the entire argument by refering to these ideas, descisions, judges, etc, as elite. If you don't want the left to characterize SSM opponents as religious yokels, don't fall into the same traps.

Second, you're being extraordinarily biased when you say that anything can be interpretted as a "fundamental equal right". Many have been correct to point out the rights of women in this debate. If we were to rely solely on tradition to inform our opinions, women would be significantly less independent than they actually are today. Just because you think some judges are too loose with their interpretations doesn't mean they actually are.

Third, if it's not the judges' job to figure out what a fundamental constitutional right is, who's is it? I'm putting aside for a second the issue of whether or not the Mass SJC decision was right because we are really addressing the issue of whether it was in their right to decide. It doesn't matter if they made the correct decision, the point is that the did make it, and that it was in their job description to do so. You might personally feel that they made a bad decision or that they are finding rights where there shouldn't be any, but that is why we have the ability to amend our constitution. The idea of equal rights so fundamentally important to a free society that it should be extremely difficult to take one of those rights away.

Let's say that some form of abortion has been permissible in our society since the dawn of time; if a court today found that legalized abortion violated an equal rights clause in a state constitution (ie, they found a right that wasn't previously, traditionally recognized), who's side would you be on? Would you be complaining that the legislature's power doesn't balance out the courts? Or would you be heralding the courts for protecting a class of citizens that has heretofore been denied human dignity and be damn happy that the legislative process to amend the constitution requires so much effort that the people have to take great pains and be damn sure that they want to go back to killing babies?

Posted by: Michael at January 26, 2005 2:44 PM

As I asked earlier, Michael, if one vote had gone the other way on Goodridge, how would your side have responded?

Would you have mounted a campaign to amend the state constitution? Or bundle legal benefits as per California's legislature? If yes to either, then, why was that not undertaken prior to Goodridge as a preferred route to the social policy outcome you espouse?

Posted by: Chairm at January 26, 2005 3:10 PM

Let's say that some form of abortion has been permissible in our society since the dawn of time; if a court today found that legalized abortion violated an equal rights clause in a state constitution (ie, they found a right that wasn't previously, traditionally recognized), who's side would you be on?

Its interesting that you have given me this opportunity.
The truth of the matter is (the facts on the ground) is that the pro-life movement has been advocating for merely a repeal of Roe v Wade NOT a imposition of fetal rights across the entire country.
In this case your question of “who decides” is both the traditional and correct (constitutionally) one = the voters of those respective states
(a position we have always maintained)

Since neither a right to abortion or a right to same gender “marriage” is in the constitution. The answer is obvious- Its up to the people

Posted by: Fitz at January 26, 2005 3:13 PM
If you don't want the left to characterize SSM opponents as religious yokels, don't fall into the same traps.

Oh please. The word "elite" does nothing but illustrate my perspective. Clearly making "social preferences a constitutional matter" would have the same practical import if prefaced with "their." In contrast, when the left raises the "religious yokels" characterizations, it accompanies the argument that their opinions are therefore invalid.

you're being extraordinarily biased when you say that anything can be interpretted as a "fundamental equal right"... If we were to rely solely on tradition to inform our opinions, women would be significantly less independent than they actually are today.

Yeah, and if we relied on judicial rulings to "inform our opinions" women might be so independent as to, I don't know, kill their children when half out of the womb for no reason but convenience or something. Seems to me you're in R.K. Becker's court now (i.e., dealing with the fallacy).

if it's not the judges' job to figure out what a fundamental constitutional right is, who's is it?

Somehow I thought such figuring out was one of the central purposes of our entire system of government. You might have forgotten, but I'm a big supporter of the Federal Marriage Amendment, in part to begin putting the judiciary back in its place.

And again, the inability to make distinctions, here, is astonishing. First:

The idea of equal rights so fundamentally important to a free society that it should be extremely difficult to take one of those rights away.

I agree. But with same-sex marriage, nothing was being "taken away." A right to include a fundamentally different relationship type under the header "marriage" did not previously exist in Massachusetts or, really, anywhere throughout history. That's why it's scandalous that the courts are flipping the onus; constitutional amendments aren't meant to be reactive to the judiciary, rather the opposite is true.

Second:

Let's say that some form of abortion has been permissible in our society since the dawn of time; if a court today found that legalized abortion violated an equal rights clause in a state constitution ... would you be heralding the courts for protecting a class of citizens that has heretofore been denied human dignity

I'm not going to take up the hypothetical, because it's clearly an attempt to drag me into a fight of theoretical hypocrisy in an imaginary world that I don't inhabit. But boy, that "human dignity" phrase is far reaching — all the way from official recognition of a romantic relationship to official protection of one's life!

Posted by: Justin Katz at January 26, 2005 3:14 PM

I agree with Lee on this one; you completely denegrate the entire argument by refering to these ideas, descisions, judges, etc, as elite. If you don't want the left to characterize SSM opponents as religious yokels, don't fall into the same traps.


Lame…
Religious yokels is a pejorative term meant to defame and insult an opponent.
Elites on the other hand is merely a reference designating the academic and media select who have been championing this issue. (as the wide scale popular repudiation of gay marriage recently proves….numerically this is a select (hence) elite opinion as apposed to a popularly held one.

We cant possibly “fall into the same traps” when it is not even a similar “trap”

Posted by: Fitz at January 26, 2005 3:24 PM

""The idea of equal rights so fundamentally important to a free society that it should be extremely difficult to take one of those rights away.""

I noticed this one to Justin.
Rather than an inability to make distinctions, I would characterize this as evidence of delusional thought.
Its so important to them to cast themselves as “victims of an oppressive society” that they start believing things are fundamental “civil & human rights” that have never been considered such.

Either that or he’s hoping on seizing a moral high ground that he doesn’t have.

Posted by: Fitz at January 26, 2005 3:47 PM

Michael,

Shirley Jackson would have liked the question you posed in your last paragraph.

I really couldn't answer a question like that without first asking whether or not mankind would even have developed to this point had such a situation been universal. In fact, let's use Jackson's example instead. Let's suppose stoning was universal in every culture throughout history (after all, 'The Lottery' has been used in schools for years to encourage kids to dismiss arguments based on tradition).

1. What are the chances that mankind would develop to anywhere near the cultural level we are at today anyway?

2. What are the chances that NO culture over ten thousand years would stop engaging in the ritual?

You're talking about a hypothetical. Obviously, stoning and legalized abortion are NOT essential to human cultural development and survival. If they were, we would be talking about a completely different world, one where you and I would not even be thinking anything like we think now, to say the least.

The problem with judges today is that in overruling a tradition that is thousands of years old and universal, they are assuming that all those years of human history and experience are inferior to their own intellect. That the fact that we have not had SSM anywhere before is merely due to ignorance, not experience. In this they are merely gambling. They don't know this any more than anyone else does. Yes, this attitude is elitist, even if some of them may not realize it.

Posted by: R.K. Becker at January 26, 2005 3:51 PM

But the equality argument is the moral high ground. Ultimately, this is a battle that will end up in the courts because the public will be so zealous in their desire to stop SSM, they will go overboard. That's why Lawrence got to the Supreme Court, why Romer v. Evans got to the Supreme Court, and why ultimately prohibitions like Ohio's will end up in federal court. They are so extreme, they have to be reigned in as part of the checks and balances role the courts play.

In court, these "the Bible says its so" arguments just aren't going to wash because we don't live in a theocracy. Instead, SSM advocates will rightly focus on equality issues. Marriage is a legal contract. It is a legal situation. And because legal rights--and not just social ideas--are at stake, equality arguments will prevail.

Posted by: Res Ipsa at January 26, 2005 3:54 PM

Marriage is neither thousands of years old or universal. Polygamy was the norm in the Bible. The western idea of marriage is actually a fairly recent concept, and created to control wealth. Slaves were not allowed to marry, poor people were not allowed to marry. Only elites got married, and that was done to control property, not as part of some universal bond.

Posted by: Res Ipsa at January 26, 2005 4:00 PM

Becker

The truth is we do have experience with same sex "marriage" ..

Having only been tried for 10 or so years in scandanavia- it has already gutted the instittion.

Posted by: Fitz at January 26, 2005 4:02 PM

"Interracial marriage was opposed by Southern, white religious leaders and by conservative politicians."

So, how do you explain the fact that Oregon strongly voted in favor of preserving the traditional view of marriage?

Posted by: Mike S. at January 26, 2005 4:07 PM

Res Ipsa

Speaking as an Attorney I can say unequivocally you are correct. This (duh) will end up right at the feet of the Supreme Court. In case you haven’t noticed you have put us in a win win situation.

Go ahead and put all your confidence in the courts, and on a inflated sense of the word equality.

Posted by: Fitz at January 26, 2005 4:17 PM

"But the equality argument is the moral high ground."

What, exactly, is the 'equality' argument? We're not talking about an individual right, we're talking about state recognition of a particular relationship. Surely you don't think that any relationship between two individuals should be recognized as equal to any other by the state? And I've yet to see a cogent argument as to how the 'equality' argument cannot be expanded from SSM to all kinds of other arrangements. In fact, some SSM supporters are candid about their beliefs that it should be so expanded. Which, by definition, pretty much destroys the institution of marriage (formally in the law, and by extension in the society at large). If that is your position, you should be up front about it, and not pretend that you can use the 'equality' argument to enact SSM, but nothing else.

But first I'd like a concise description of what the 'equality' argument actually entails.

(One note on the comparison to Loving: Virginia actually told the Lovings that they had to leave the state - they were actively punished for getting married. But as far as I know there aren't any explicit bans on same-sex 'marriages'. If a gay couple wants to get married, commit their lives to each other, live together, etc., nobody is going to come to their house and arrest them, or tell them they have to move to another state. The state just won't recognize that union as being a marriage.)

Posted by: Mike S. at January 26, 2005 4:30 PM
The western idea of marriage is actually a fairly recent concept, and created to control wealth. Slaves were not allowed to marry, poor people were not allowed to marry. Only elites got married, and that was done to control property, not as part of some universal bond.

I don't know how to even respond to a statement so full of obvious falsehoods. The 'western' idea of marriage may have been manipulated in certain circumstances to control wealth, but the one-man-one-woman concept was not "created" for that purpose. It derives from the Bible. So unless you mean to say that 2000 years is "recent", I have no idea what you're talking about.

Even if I took your argument at face value, what relevance does it have to SSM? Are you saying that those who oppose SSM do so because they are trying to 'control wealth'? Whose wealth? And how is it controlled now, but won't be if SSM is legalized?

Posted by: Mike S. at January 26, 2005 4:36 PM

Res,

Granted that there have been a lot of variations in marriage over the years, but one thing that has been universal is the idea that it is between men and women. There is no record of any long-lasting cultures in which marriage was understood to be between any two persons regardless of gender. Those sometimes cited as exceptions (e.g. the Native American berdaches) were, on examination, not exceptions to the rule, but exceptions which prove the rule.

Why? Why have there been no examples of cultures that we know of in which marriage was defined totally androgynously? (And don't say that's not what's being proposed today; it is) Is it simply because none of them ever thought of it? Were they just so much less enlightened than us? Or has something changed which makes it workable now where it wasn't before? If so, what's the change?

I notice you still have not attempted to logically defend the fallacious argument you were using previously.

Posted by: R.K. Becker at January 26, 2005 4:41 PM

Mike

I hope I pointed out before - the point is not to win an argument or make a point, or do what is best for society or the individual or future generations.

What thay do is try and confuse their listener with almost any acusation or theory in an attempt to hopelessly muddle the argument.

Posted by: Fitz at January 26, 2005 4:41 PM

If we have routed all opposition guys then there are a few things I really could use some help on.

Who knows of a site or location for receiving accurate timely information on how the battle is proceeding in Massachusetts Legislature.

(vis a vie the constitutional amendment)
And how to help.

Its (obviously ) one of the pivotal events that controls both sides strategy.
I cant get good Info at the standard marriage sites

Posted by: Fitz at January 26, 2005 5:00 PM

Above, I said,

It seems to me that a fundamental problem in this general discussion stems from the fact that social liberals have become so accustomed to seeking (and receiving) desired changes in the law by appealing to the courts that they can't comprehend any other way of doing things.

Lo and behold, Paul Starr (an editor at the American Prospect) agrees with me!

Posted by: Mike S. at January 26, 2005 5:04 PM

Fitz,
Have you tried http://www.formarriage.org/? They list all the states under current events.

Posted by: smmtheory at January 26, 2005 5:28 PM

Oops, that should have been "they list all states under a 'State Update' tab.

Posted by: smmtheory at January 26, 2005 5:30 PM

But it hasn't been man and woman. In the Bible, marriage was man and woman and woman and woman.

There is also a bigger logic argument. To say, "well it's always been that way" isn't really an answer. That's like defining a word by parroting the word back. Times change, institutions change. There was a time when "it's always been that way" when women didn't get an education. There was a time when "it's always been that way" that people sat in front of fires and wrote with bark, but we don't live that way anymore.

Laws and legal concepts can accommodate change.

Posted by: Res Ispa at January 26, 2005 5:36 PM

Are you in fact contending that change is always good Res Ispa? Are you in fact contending that the changes that have brought us to the current tradition of one man + one woman were not a good change because you want to turn back the clock to before the tradition became one man + one woman?

Posted by: smmtheory at January 26, 2005 5:55 PM

RI: But the equality argument is the moral high ground.

Sure it is -- and it was won long long ago my friend! Marriage in the U.S.A is availible equally to all citizens, with only a few minor exceptions: Men and women of all races, religions, creeds, sexual orientations, etc etc are allowed to marry under the EXACT same terms as all other citizens. There is precisely NO marriage discrimination based on sexual orientation taking place anywhere in this country -- they don't even ask on the marriage license!

But let's look at those minor exceptions:

1. Age -- society has determined that you must reach a certain "age of consent" to be married in the eyes of the law.
2. Marital Status -- society (that's shorthand for 'We The People' btw) has determined that you cannot marry if you are already married to a living person.
3. Consanguinity -- society has determined that you cannot marry someone too closely related to you by blood.
4. Gender -- society has determined that marriage must be between members of the opposite sex.

My question for you, or any other SSM supporter, is this: How is it that #4 is the LEAST important of these restrictions? "Arbitrary and capricious" was the language used in Goodridge, i believe... but is it really more so than #1-3?

Is age-of-consent somehow less arbitrary than gender? And how exactly is consanguinty even remotely related to same-sex couples? And traditionally, polygamy is no big deal... certainly the number 1 is just as arbitrary as, say, 7...

You want equality, it's already here. I suggest you embrace it. Or at least admit that it's not the "moral high ground of equality" that you're after, but a special dispensation based on an "orientation" that no one is even paying attention to...

Posted by: Marty at January 26, 2005 5:57 PM

I am arguing marriage will indeed survive, despite the "sky is falling" concerns. Not sure why SSM advocates have more faith in heterosexuals and marriage than you do. There's not a SHRED of evidence that the institution will be harmed.

Posted by: Res Ipsa at January 26, 2005 5:59 PM

"In the Bible, marriage was man and woman and woman and woman".

Good trick with the words there, Res. Where's the lesbian marriage in the Bible? Ruth and Naomi?!

Polygamy has existed far more than androgynous marriage. Granted.

And you still haven't answered WHY we have no examples of cultures in which marriage was defined as between any two people? Or what prevented such a simple idea from being conceptualized? Or what recent change has made SSM workable where it wasn't before. (Either it wasn't workable, or nobody thought of it---which is it?).

So, let me get this straight:

As I said earlier in this thread, you and other SSM supporters believe that in regard to any proposed change to a complex system, no matter how radical and untried, the burden of proof is on the OPPONENTS to prove that it is harmful, rather than on the PROPONENTS to prove that it is not.

Defend this with logic, NOT with a one-sided diet of examples.

And if you believe this in regard to culture, do you also believe it in regard to the environment, the economy, the ecology...or, on a smaller scale, to letting an amateur try to fix your computer?

Or is culture not a complex organism? Or have we all figured out exactly how it works?

Anyway, please give me a logical defense of why the burden of proof should be on opponents (rather than proponents) of any proposed change to any system whose complexity exceeds man's current knowledge.

Posted by: R. K. Becker at January 26, 2005 6:17 PM

I meant polygamy was how marriage was depicted in the Bible. So it hasn't been a man and a woman, but a man and many women.

Posted by: Res Ipsa at January 26, 2005 6:38 PM

RI: There's not a SHRED of evidence that the institution will be harmed

You mean besides all those gay and feminist activists who have been openly working to destroy the institution for decades* -- yet who all of a sudden seem to be its biggest supporters?

Yeah... i guess they finally came to their senses and admitted they were wrong all along, huh?

(* I'll be happy to quote the evidence, if you really want me to. But it will only infuriate you further, having no legs left to stand upon...)

Posted by: Marty at January 26, 2005 6:53 PM

My question for you, or any other SSM supporter, is this: How is it that #4 is the LEAST important of these restrictions? "Arbitrary and capricious" was the language used in Goodridge, i believe... but is it really more so than #1-3?

1. Age: This is neither arbitrary nor capricious. It is generally recognized that children cannot and should not make large decisions on their own. They cannot get certain licences, enter into contracts, etc, without parental consent. Nor is the age federally set. Some states let 14 year olds marry. If a state set an age limit for marriage eligibility, that would be capricious and arbitrary.

2. Marital status: Civil marriage is a contract between two people. There are many other instances in which people who sign contracts are not allowed to enter into the same contract with someone else.

3. Consanguinity: There are well-documented medical reasons why this is forbidden, as is sex with close members of your family. We do not let the blind drive. This is neither arbitrary or capricious. You will also not that the closeness of the relationship is not federally mandated.

4. Gender: Civil marriage is a contract between two people and if they fill all of the above criteria (which are not arbitrary) why restrict by gender? Marriage may be "about procreation", it may be "about love", but in practice it is about extending and forming and joining families (and if it's not then what is it about??). And by restricting my choices of viable partners to women, because I cannot have a unitive relationship with one, you are in essence barring me from marriage. Not because I'm not old enough to make these decisions, not because I'm already married, but because the majority of people don't like the person I would choose to create my family with.

And that, sir, is arbitrary and capricious.

It doesn't matter if there isn't a sexual orientation question on the marriage license, the inequality results from the requirements which are in and of themselves not discriminatory.

Posted by: Michael at January 26, 2005 8:04 PM

Res,

I apologize for implying that you worded it as you did to be purposely ambiguous as to whether you meant polygamy or lesbianism. I'm sure you didn't.

Still, I wish that you or another SSM proponent would logically defend the general burden-of-proof assumption you hold without resorting to a one-sided diet of examples (or explain why you don't believe that you do hold it, and perhaps I'm wrong to believe that all SSM proponents hold it).

What I mean by one-sided diet of examples....for instance, an example on my side would be if I used Communism, or the Reign of Terror, or the failure of numerous utopian communities throughout history---that would be an equally one-sided diet. General logical arguments only, please.

Posted by: R.K. Becker at January 26, 2005 8:08 PM

Michael,
You cannot in fact prove that you are Gay. If necessary, you could in fact prove that you are a male or female. How can you prove discrimination if you cannot prove that you are in fact Gay?

Posted by: smmtheory at January 26, 2005 8:22 PM

Michael,

You fail to make a good case why any of the other three are not 'arbitrary and capricious'.

1. Age. It is not at all arbitrary and capricious that adults can't marry toddlers. It IS arbitrary and capricious that, if a state has a marriage age of 16, a more emotionally mature 15-year-old could not get married while a less emotionally mature 16-year old could.

2. Marital status. It is indeed arbitrary and capricious that three people can not MUTUALLY agree to marry while only two can.

3. Consanguinity. No longer arbitrary and capricious if SSM were legalized. The genetics argument would be of zero value in arguing against marriage between two gay brothers. You'd be back with a distinction based on gender again. But then, even a ban on brother-sister marriages would be arbitrary and capricious if the two could not bear children anyway.

Sorry, but ultimately #4 is no more arbitrary or capricious than #s 1, 2, or 3.

Posted by: R.K. Becker at January 26, 2005 8:28 PM

Michael gave it the old college try:

1. Age: This is neither arbitrary nor capricious. ... Some states let 14 year olds marry. If a state set an age limit for marriage eligibility, that would be capricious and arbitrary.

So you're saying that setting the age at 14 IS arbitrary and capricious? Are you actually agreeing with me???

2. Marital status: Civil marriage is a contract between two people. There are many other instances in which people who sign contracts are not allowed to enter into the same contract with someone else.

Civil Marriage is a contract between two people only because "WE (the people)" say so. Same as we say it is between to people with opposing genetalia... Certainly there is no fundamental human right insisting it only contains two persons...

3. Consanguinity: There are well-documented medical reasons why this is forbidden, as is sex with close members of your family.

Please explain how these reasons are remotely relevant to same-sex unions...

And by restricting my choices of viable partners to women, because I cannot have a unitive relationship with one, you are in essence barring me from marriage.

So says you. I am personally not convinced that you cannot have a unitive relationship with a woman, only that you yourself are convinced of it.

not because I'm already married, but because the majority of people don't like the person I would choose to create my family with.

Actually, it is physically impossible for you to create a family with the person whom you would choose. That, you see, would require a "unitive" relationship (of some sort or other) with a member of the opposite sex.

It doesn't matter if there isn't a sexual orientation question on the marriage license, the inequality results from the requirements which are in and of themselves not discriminatory.

So there's inequality here, but no discrimination -- is that what i'm hearing? Funny, cause that's what I'VE BEEN SAYING ALL ALONG! Same-sex unions ARE NOT, and CANNOT ever be "equal" to opposite sex unions. That, my friend, is why marriage doesn't concern homosexuals. Never did, never will. That is, unless you can force the term to mean something other than what it means.

Orwell would be proud. Huxley already is.

Posted by: Marty at January 26, 2005 8:37 PM

So says you. I am personally not convinced that you cannot have a unitive relationship with a woman, only that you yourself are convinced of it.

Well I'm personally not convinced that you have any ounce of caring or humanity in your entire body.

Do you think that people just wake up one day and say, "oh, let me be gay today"? Or do you think that we've given up too easily? Or do you think we just like to be deviant and piss all you pious straight people off? Because I can tell you firsthand that it is not a joyous romp through the park.

Do you think I chose to ostracize myself from friends and relatives for shits and giggles? Do you think it was fun telling my mother? Don't you think that if I could have had a unitive relationship with a woman that I'd have picked it over this? You don't think that a majority of us just want to live a normal life, one that we assume we will have from the day we be come concious of society? Perhaps you can dismiss the depression, the vomiting, the weightloss, the alcohol and drug abuse escapism, the self-loathing, and the abject misery as "convincing myself". Perhaps you can choose to believe that I could have a unitive relationship with a woman even a lot of this was going on when I was in one. Perhaps its easier for you to believe that we're all just a bunch of deviant narcissists so you can make ridiculous, thoughtless arguments without an iota of consideration or sympathy for our condtion.

Well I am not a deviant narcissist. And for you to dismiss the motivation of gays so easily is disgraceful. I'd take Justin's procreation argument over this asinine non-discrimination argument any day because at least he seems to value human dignity. If you lost a child in an accident, how would you like it if I said that I wasn't personally convinced that you were grief-stricken, only that you'd convinced yourself that you were. Because I could argue that point with as much philosophical weight as you can argue yours.

In my opinion, you are a dispicible person. You can believe that I should remain celebate; you can believe that I shouldn't get married or raise kids; but you cannot tell me that I can actually have a meaningful spousal relationship with a woman.

Posted by: Michael at January 27, 2005 10:18 AM

Why would you assume that i have no personal first-hand experience on the matter? Just so you can call me a despicable person?

No matter. But do me a favor, if you don't mind:

Tell me why you are incapable of having a meaningful relationship (spousal, sexual, intimate, romantic, whatever) with a woman.

Posted by: Marty at January 27, 2005 11:08 AM

How does not being personally convinced that somebody is grief stricken translate into not being personally convinced that they can prove they are gay? How are we suppose to distinguish "Gays" from "Heteros" Michael? A blood test? A DNA test? Without even approaching any argument about whether or not it is deviant, could you in a court of law where we are held to believe that only the facts matter, how can you prove that anybody is gay?

Posted by: smmtheory at January 27, 2005 11:53 AM

smmtheory gets to the heart of a question that has bothered me for some time now. Because if SSM is supposed to prevent tragic marriages like the McGreeveys, then it certainly makes sense to legislate that SSM will only be open to gays, and OSM will only be open to straights.

Take for example one of our other 4 restrictions: If i am already married to one person, but engage in a marriage with another, then the second marriage is fraudulent and will be null and void. Likewise, if i were to try to marry another man who is dressed in drag, even if we fooled the folks at the courthouse and the minister, that marriage will also be found fraudulent and made void. Well, except in Mass.

By the same token then, under any situation where same-sex couples are allowed to marry -- out of deferrence to homosexuality -- then wouldn't a same-sex union where one or both parties were actually heterosexual be considered fraudulent? Or an opposite-sex union where one partner turned out to be gay? Wouldn't that be grounds for an automatic annullment, rather than a divorce proceeding?

What do you think?

Posted by: Marty at January 27, 2005 12:11 PM

Tell me why you are incapable of having a meaningful relationship (spousal, sexual, intimate, romantic, whatever) with a woman.

For the exact reasons that a straight man is incapable of having a meaningful relationship (spousal, sexual, intimate, romantic, whatever) with another man.

How does not being personally convinced that somebody is grief stricken translate into not being personally convinced that they can prove they are gay? How are we suppose to distinguish "Gays" from "Heteros" Michael?

The same way distinguish the grief-stricken from the not grief-stricken; a, because of self-identification and b, their actions are consistent with said identification. And I must clarify something, Marty didn't say that I couldn't prove I was gay; he said that he wasn't convinced that I was incapable of not being gay. There is a huge difference.

smmtheory gets to the heart of a question that has bothered me for some time now. Because if SSM is supposed to prevent tragic marriages like the McGreeveys, then it certainly makes sense to legislate that SSM will only be open to gays, and OSM will only be open to straights.

This conversation is slowly creeping into the absurd. Why would it matter? Wouldn't each marriage be held up to the same standards no matter of the sexes? And who is defrauding whom? In the case of the McGreeveys, it was one of the spouses who was defrauded. That is very different than in, say, marriage of a citizen to an immigrant, in which the government is being defrauded (that is, both partners know it isn't a real marriage). But there are standards used now to prove that it is a real relationship and those wouldn't change; ie, do you know sufficiently about each others lives, do your friends consider you in love, etc.

If we have SSM, then everyone will be able to marry the person of their choosing so honest people will continue to be honest and fraudulent people will continue to be fraudulent. There is absolutely no reason to legislate that gays can only marry gays and straights can only marry straights.

Posted by: Michael at January 27, 2005 1:17 PM

Enabling SSM doesn't magically make this - "everyone is still able to marry the person of their choosing so honest people will continue to be honest and fraudulent people will continue to be fraudulent" - happen any more than keeping things the way they are. That if-then statement is a fallacy.

So let's be honest here. If it can't be proved that a person is gay, how can it be proved that there is discrimination on the basis of that person being gay?

Posted by: smmtheory at January 27, 2005 1:39 PM

For the exact reasons that a straight man is incapable of having a meaningful relationship (spousal, sexual, intimate, romantic, whatever) with another man.

Who says they can't -- the straight man? I'd ask him the same question. "Why not?"

And just because you say you can't is not an acceptable answer. You and i know perfectly well than men are capable if intimate relations with all manner of animal, vegetable, or mineral. But there's a big difference between "can't" and "doesn't want to / isn't worth the effort". Hence my question.

Posted by: Marty at January 27, 2005 2:10 PM

This conversation is slowly creeping into the absurd. Why would it matter? Wouldn't each marriage be held up to the same standards no matter of the sexes?

So you're saying that it would be no problem if two straight men wanted to "marry" each other, and that this would/should be perfectly legal under a SSM regime?

Posted by: Marty at January 27, 2005 2:18 PM

If two straight men want to get married, than they should be welcome to. I don't believe there will be a long line of straight men looking to experience the social scorn of being perceived as gay, but they would be welcome to get married.

There are already man/woman "sham" marriages, so why not SSM "sham" marriages.

Posted by: Res Ipsa at January 27, 2005 3:06 PM

That's among my favorite arguments from your side, Res, because it exposes where your emphasis lies when it comes to gays' claims and the health of marriage as an institution:

There are already man/woman "sham" marriages, so why not SSM "sham" marriages.

Hey, it's already possible, so why not double (or probably more than double) the opportunities? It could be an indication that I'm more prone to think of underhanded possibilities, but I remain amazed at the limited window through which same-sex marriage advocates view the surrounding issues. Why would straight men who formed a marriage contract of convenience "experience the social scorn of being perceived as gay"?

Even if we presume the persistence of such social scorn (which probably depends on where you live), being married in the eyes of the law doesn't require people to act married. They don't even have to wear wedding bands. I suspect that many such men (and women) won't be shy in the least — perhaps the opposite — about admitting their working the system.

Posted by: Justin Katz at January 27, 2005 3:20 PM

What you are suggesting by the way of straight/straight relationships is part are the devolution – devaluation of marriage that is inevitable with the introduction of SSM.

As marriage comes to be thought of as merely a legal right (due to your continued advocacy) people (roommates, close friends, relatives ect.) will rightfully try and obtain the benefits of the institution (Especially when things like Social Security benefits and insurance survivor benefits and health insurance are in play –big $$$$)
Indeed this is already happening in corporations that offer domestic partner benefits- people are coming in with their - (roommates, close friends, relatives ect.) to sign them up for the bennies.
If gay marriage becomes more pronounced – the separation of marriage from its traditional institutional setting will only speed this transition.
That’s what happens when you upset social norms and start viewing things as merely a matter of rights and benefits.

Posted by: Fitz at January 27, 2005 3:23 PM

Which brings us right back to this thread where Masschusetts attorney David Fried proclaims that SSM will allow us to discriminate against the unmarried even more effectively, thereby making these new so-called "sham marriages" even more likely!

But on what basis could anyone consider them "sham" anyway?

Posted by: Marty at January 27, 2005 3:33 PM

Justin.

Not only won’t they necessarily be scorned - but current marriage law doesn’t require (nor has it ever) that married people live together in order to receive its legal recognitions (for obvious practical reasons – work, separation, relocation ect.)
Imagine the possibilities – when some of the large $$$ benefits come into play.
All this of coarse will further the call for opening up such benefits (or eliminating them completely) and such calls will make very real sense in the light of SSM. How do you argue against Mother/Son caregiver relationships (of witch there are millions) or brothers who live together after a divorce (with or without custodial children) or close roommates who are pooling resources and emotional support.
Oh it’s a killer all right – they just wont/cant admit it.

Posted by: Fitz at January 27, 2005 3:35 PM

Res Ispa,
Maybe you can answer my questions since I can't seem to get any other proponent to answer them. If it can't be proved that a person is gay, how can it be proved that there is discrimination on the basis of being gay?

Posted by: smmtheory at January 27, 2005 3:39 PM

Justin - Res Ipsa (what a Ironic handle)

Its always interesting to note...
Before the introduction of no fault divorce (and the subsequent skyrocketing divorce rate of the 70"s)
One of the most common refrains/ploys was....

"What dose someone else's divorce have to do with your marriage?????"

Accompanied with calls of "PROVE IT"

Posted by: Fitz at January 27, 2005 3:46 PM

Most discrimination law is based on the perception of the perpetrator. If you are perceived to be Jewish, you can be the victim of religious discrimination even if you are a Baptist. Same if you are pereceived to be disabled, even if you aren't.

Therefore, if the state discriminates against you because it perceives you are gay--even if you aren't--than it would be actionable.

You are right that, ultimately, preventing same sex marriages is not so much discrimination based on sexual orientation, but discrimination based on not wanting two people of the same sex to get married. The policy, however, has a disparate impact on gays and lesbians--who are the predominate group in same-sex relationships--and it is that group being denied the right to contract or obtain benefits based on the unjust classification

Posted by: Res Ipsa at January 27, 2005 3:59 PM

Res Ipsa
Reds Ipsa
And of coarse its not "discrimination" at all if the State has a rational basis for dong so.

Posted by: Fitz at January 27, 2005 4:05 PM

Of course there is the rational basis test, the test that Mass. justices--appointed primarily by Republicans--proved was missing.

Posted by: Res Ipsa at January 27, 2005 4:07 PM

Sorry...

Res Ipsa
And of coarse its not "discrimination" at all if the State has a rational basis for the public policy at issue. .

Posted by: Fitz at January 27, 2005 4:09 PM

Res Ipsa

“proved” was missing?

“Proved” it to who’s satisfaction
(other than yours,…. apparently)

I for one…remain unconvinced

Posted by: Fitz at January 27, 2005 4:14 PM

So let's be honest here. If it can't be proved that a person is gay, how can it be proved that there is discrimination on the basis of that person being gay?

I believe I told you it could be proved, to the same level that you can prove anything. If you want me to admit that I can't empirically verify it 100%, I will but I don't see what the point of that is. I can't prove to you that I'm gay any more less than I can prove to you that you love your wife. I can only give a statement of facts about my life in relation to my sexuality and you can draw a theory based on that.

And just because you say you can't is not an acceptable answer. You and i know perfectly well than men are capable if intimate relations with all manner of animal, vegetable, or mineral. But there's a big difference between "can't" and "doesn't want to / isn't worth the effort". Hence my question.

Wait a second, Marty. What are you getting at? I never used the term "intimate". I used "unitive". If you mean intimate as in I can f*** any animal, vegetable or mineral, you're entirely off-base. Sure, I could (as in am physically capable of) have sex with a mule. Or a woman. I guess I could (as in am physically capable of) having an emotional/spousal connection to a woman. I could have any number of the individual associations usually involved in marriage with a woman. But you're asking me to, in a comment box, define the nature of love, intimacy and sexual attraction. Well that, Marty, I can't do. You're trying to pull me into some idiotic philosophical trap and it's just not worth my time anymore.

Acually, no, I'll tell you what. I'll answer your question to the best of my ability when you tell me why there is a God. Just because you say there is does not constitute an acceptable answer. See, there's a big difference between "is" and "probably is / has to be / can't not be". Because that's the level if philosophical idiocy you've brought this down to.

Posted by: Michael at January 27, 2005 4:34 PM

Well then Res Ispa,
Would you kindly explain to me how the "State" can "perceive" somebody as gay? It is not that the "State" is saying no because you are gay, the "State" is saying no because you are the same sex, or you are too closely related, or you are not old enough. None of that involves a "State" being able to "perceive" anything. It involves the applicant being able to prove they qualify.

Posted by: smmtheory at January 27, 2005 4:36 PM

Would you kindly explain to me how the "State" can "perceive" somebody as gay? It is not that the "State" is saying no because you are gay, the "State" is saying no because you are the same sex, or you are too closely related, or you are not old enough. None of that involves a "State" being able to "perceive" anything. It involves the applicant being able to prove they qualify.

When Joe Schmo is choosing a spouse, he is hindered by age, he is hindered by marital status, he is hindered by consanguity. But he is generally not hindered by gender since almost everyone he would consider marrying is a woman. Joe Homo, on the other hand is hindered by age, hinderd by marital status, hindered by consanguity. But he is very much hindered by gender since almost everyone he would consider marrying is not a woman.

While the state is in the most literal sense saying no because of gender, the only people this is really negatively affecting are gays.

It's like saying that in order to get access the court system you have to pass through a little tiny door. Well, fat people can't get through that door, or if they could they'd end up a bloody, scrapped up mess. Sure, the state isn't discriminating based on fatness because everyone has to go through the same door, but who's being negatively affected here?

Posted by: Michael at January 27, 2005 4:50 PM

Michael says:
"While the state is in the most literal sense saying no because of gender, the only people this is really negatively affecting are gays."

Wrong. Joe Schmo is also negatively affected because he can't marry his best buddy (he doesn't care to have the physical relationship, he just wants the benefits), he's also negatively affected because he can't marry his brother or male cousin (he really, really wants to keep the money in the family). His options are no wider and no narrower than yours Michael. It would be your choice to limit your options to exclude the opposite sex.

Posted by: smmtheory at January 27, 2005 6:02 PM

>> While the state is in the most literal sense saying no because of gender, the only people this is really negatively affecting are gays.

The negative affect is never acceptable. Nunca.

Male-female pair of cousins are unmarriagable in no small part because of the relevance of the gender and their presumed sexual orientation. Thus heterosexual couples suffer.

A few states make allowances for first cousins who are beyond childrearing age or who form a couple in which at least one person is confirmably sterile. Thus potentially fertile couples suffer. As do reproductive aged heterosexual couples.

In some states under-aged women are prohibited from marrying unless a judge decides that there are urgent circumstances (ie the girl is pregnant or has a newborn). Thus suffer couples consisting of underaged women who are not pregnant or are childless.

In some jurisdictions there is a waiting period prior to a couple being permitted to marry with their issued license. This can be waived if a couple consists of at least one person who faces imminent death. Thus healthy couples suffer.

In some states when a marriagable couple 'lives together' they assume marital status in all but the label "marriage". Unmarried couples who explicitly decide not to obtain a license are deemed married by the state -- and they suffer.

I agree that these are nonsense examples. But the discussion here is in danger of drifting into diversions ... well I've no real excuse except a feeble attempt at levity. Apologies for the nonsense. And carry on.

The topic is?

Posted by: Chairm Ohn at January 27, 2005 6:12 PM

Q. And the topic is?

A. Former ziegiests that are starting to look like paper tigers.
(always intellectually -now politically)

Posted by: Fitz at January 27, 2005 6:24 PM

I agree these are nonsense examples

As i recall, the idea of two men marrying each other was a nonsense example, 25 years ago. I can only wonder what will be considered "nonsensical" when my 3 year old son comes of age...

Michael, did you just ask me to prove the existence of God? I can do that with one hand tied behind my back (whether or not you would listen is another question entirely) but will spare the readers of DITL since it is so clearly offtopic.

Posted by: Marty at January 27, 2005 6:32 PM

Admin Question for Justin: why is selecting text for a cut+paste so damn difficult on this site?

Posted by: Marty at January 27, 2005 6:38 PM

Well, this post has slipped into the archives, and the discussion is pretty far removed (in some ways) from the topic of the post itself.

However, Michael's reference to his inability to have a "unitive" relationship seems to me to represent a significant new point for consideration, and I've posted about it here.

P.S. — Marty, I haven't heard that complaint before, nor have I had any difficulty myself. What method do you use to cut and paste?

Posted by: Justin Katz at January 27, 2005 6:45 PM

Actually, I have a problem when I try to click and drag just the little bit of text I want to copy, the whole text previous in the doc gets high-lighted.

Posted by: smmtheory at January 27, 2005 6:56 PM

Same here, i end up copying the whole page into notepad, and then taking the part i want. IE6, in both XP and W2K.

Posted by: Marty at January 27, 2005 7:20 PM

Well, that's beyond my technical know-how. Why don't you just highlight the text you want, hit ctrl-c, go to the input field, and hit ctrl-v?

Posted by: Justin Katz at January 27, 2005 7:41 PM

Marty -
actually, what Michael asked you to do
was 'tell why there is a God', which is
clearly different from 'proving the
existence of God'. Assuming he was choosing
his words carefully (and there's no
reason to believe he wasn't) the question
presupposes the existence of God.

The image of you asking a straight man why
he couldn't fall in love with, live with,
and be sexually, emotionally and 'unitively'
linked with another man is almost worth
the slog through this thread.

Posted by: Robert at January 27, 2005 8:18 PM

Again, I've noticed that SSM proponents here pretend, for the sake of the argument at hand, that in talking about what SSM is going to do we're only talking about straights and gays. Pure, 100% straights and pure 100% gays. When trying to sell skeptics on SSM, why do they pretend that bisexuality doesn't even exist?

Perhaps because they realize that it throws a monkey wrench into the whole argument, and exposes what SSM really entails.

To sell SSM to a skeptical public, we have heard one question repeatedly asked of heteros: "How possibly could two gay men marrying hurt YOUR marriage?"

Now, I think many realize the first problem here: the assumption of pure self-interest on the part of SSM opponents. That the effect on their own particular marriage is all that they are concerned about. In fact, what concerns most who oppose SSM is not how it affects their own marriage, but how it affects the IMAGE of marriage for their children, and others' children, in the future.

So, knowing this, proponents of SSM have tried to frame the arguments in a way that rather speciously suggests that the image of marriage really won't change at all, at least not for heterosexuals.

Thus, the vision of the idealized SSM future is presented something like this: For heterosexuals, the vast majority of the population, the image of marriage will still be as between opposite sexes. Nothing will change for them. For homosexuals, marriage will now be between same-sex couples. They will have an image of marriage where they did not have one before. But their vision won't effect the heterosexuals' vision of marriage at all. They will be two "separate but equal" VISIONS, even though there will be nothing legally distinguishing them. Therefore, heteros, can't you see, your fears are unwarranted.

So goes the image by which SSM proponents hope to lull the public into gradual acceptance of it. And it would make sense---if the world were neatly divided into 100% heterosexuals and 100% homosexuals, with ne'er a crossing over between the two. Then we could maintain the "two separate images" idea.

But there's the little problem of bisexuals. They will cross over between the two camps, and in the process, blur the two visions into one.

As heterosexuals see more and more Hollywood stars, and slowly but surely, more people in their home towns, first marrying one gender, then divorcing and marrying the other gender, the image of marriage will slowly change for all to: Marriage is between two people of either gender.

It is this change in the public image of marriage which is radical, which has no record of success throughout human history (though it requires no Newtonian brilliance or technological innovation to be conceptualized---what can we deduce from this?), and which I believe will have vast unforeseen negative consequences for society.

I'm not saying that most SSM proponents do not favor and want just this androgynized image of marriage for all; we've seen that in this thread. It's just that they know they can't sell it to the heterosexual public that way. Hence, bisexuals have to be kept out of the discussion.

Posted by: R.K. Becker at January 27, 2005 8:35 PM

Marty, yeap -- heck even few years ago! For most of the country I'd even say it was not on the radar until the most recent presidential election. The recency effect is also evident in the perception that civil union (marriage in all but name) is a compromise.

I think I asked somewhere else on this weblog about what the pro-SSM side was ready to do if the Massa Court had gone the other way. I don't recall any effort to launch a campaign for a constitutional amendment to make sexual orientation a suspect class or even a neo-suspect class. But things have been perculating on the adoption issue and on the increasing use of artificial reproductive technologies both of which were focussed on married couples (defacto man-woman) not so long ago. Some of us who have been working on the bigger picture for many years are now falsely accused of being newcomers -- and reactionary and 'homophobic'!

As Fitz suggests, those ziegiests haunt us more and more. Heh.

Justin, good move to start the new thread.

Posted by: Chairm at January 27, 2005 8:35 PM

Just to tidy up:

Robert: The image of you asking a straight man why
he couldn't fall in love with, live with,
and be sexually, emotionally and 'unitively'
linked with another man is almost worth
the slog through this thread.

That's the 100% straight guy, mentioned by RKBecker. Not a conversation i'm likely to have. But as a very "gay" sort of straight guy (heck, who else would hang out in such discussions for so long), i've pondered them deeply, and with difficulty in younger years.

RKBecker: But there's the little problem of bisexuals. They will cross over between the two camps, and in the process, blur the two visions into one.

Not just bi-sexuals who can choose at any given time, but people who can and do change their so-called "orientation" more or less permanently. What does the term "Questioning" mean to sexuality? It means choosing -- trying to make up one's mind. Lots of people do it, some late in life, some early, and some never do. Would McGreevy say that the marriage to his wife was never "unitive"?

I'm no bi-sexual, but to be perfectly honest (i'm far more open-minded than many will give me credit for), only an idiot can't see that of the two, Brad Pitt is far more "attractive" than Jennifer Anniston. An observation that has nothing to do with which one i'd rather sleep with.

Posted by: Marty at January 27, 2005 9:29 PM
only an idiot can't see that of the two, Brad Pitt is far more "attractive" than Jennifer Anniston

Well, now you're talking crazy-talk.

Posted by: Justin Katz at January 27, 2005 10:25 PM

Well, that's beyond my technical know-how.

Fortunately, it's the kind of thing i lose sleep over.

It's caused by
#container {position:absolute}
and only happens after the document reaches 50k or so.

Unfortunately, it's a bug in IE that cannot be fixed without major structural changes to your stylesheet.

As for Brad/Jenn, i'm using the gender neutral 10 point scale. She's a solid 8, but he's an easy 9. So what? :P

Posted by: Marty at January 27, 2005 11:36 PM

Well, if threesomes weren't immoral, and I had my pick, I'd go for Gwen Stefani and Chris Rock.

Posted by: smmtheory at January 27, 2005 11:38 PM

On that note, I think it's probably a good time to let this tangent slip away. Please.

Posted by: Justin Katz at January 27, 2005 11:41 PM

My apologies.

Posted by: smmtheory at January 27, 2005 11:44 PM

It’s interetesting how this “record-breaking” thread came to an end. Every once in a while I see the dozen or so characters writing against gay-marriage in these blogs make the point that they too have homosexual tendencies. I would think that they’re merely lying to buttress their argument, as I couldn’t reconcile this idea with the heterosexuals I know in real life. But maybe there’s something else, something important, going on here. Maybe these dozen or so characters do indeed have nightmares that they will some day wake up with another man at their side. Is this really an intellectual war between the homosexuals and the “waverers,” with the waverers projecting their own sexual issues on to the general heterosexual population?

Posted by: arturo fernandez at January 29, 2005 1:02 PM

Arturo, a different sort of waiverer relevant to SSM is much more prevalent. Less than 12% of the adult homosexual population live in same-sex households. Less than 3% of such couples reside with children and by far most of the children living with such couples are from previously procreative marriages with the opposite sex.

These are probably overestimates given that so many are same-sex households consist of homosexual friendships (perhaps former lovers or intermittent lovers) which may share some aspects with the institution of marriage but which have far more in common with buddy and room-mate arrangements.

The proto-typical SSM arrangement is openly mocked and scorned within the gay community both in word and in practice. Where marriage has been replaced by the SSM template the rate at which same-sex pairs have actually entered into state-sanctioned arrangements is paultry.

What is proposed as the new ideal of SSM is actually practised only on the fringes of the gay community.

If a commentator consistently describes himself or herself as having certain sexual leanigns, whether that is yourself or those who have appeared here, it is a signal of totalitarian thinking to speculate that ALL homosexuals, or 'waiverers' as you might include, ought to be of the same mind on this or any other issue. In fact, betrayal of the 'club' appears to be one of the more malicious allegations used by the politically active gay voices in our society.

Perhaps I've misread your comment. How does your inquiry serve the discussion?

[And in accordance with full disclosure, I'm not homosexual in leaning nor in action. And for decades I've sought out dialogue in various forums -- both online and in-person -- to learn more about the supposed political consensus that is often the basis for the political agenda of SSM advocates. From comments here I'd say that there are many people who disagree with you and yet have greater insights than you would given them credit for.]

Posted by: Chairmohn at January 29, 2005 3:18 PM

Correction -- that's less than 3% of the adult homosexual population reside with children.

About 97% of homosexual men and women live in childless households. And of those children, about 95% are from previously procreative marriages or cohabitations. About 5% were obtained through adoption, fostering-parenting, and assisted reproductive technologies. The adult homosxual population does not practice a form of domesticity that resembles the marriage idea. It is evident few would aspsire to do so.

Posted by: Chairm Ohn at January 29, 2005 3:27 PM

Arturo,
Long ago I acknowledged that I am sexually attracted to anybody that I think looks good. I could, if my conscience were sufficiently lacking, be comfortable with either male or female partner. Long ago, I chose my mate for life of the opposite sex. This is not a sign of waivering. This is acknowledging the truth that sexual practice is by choice alone. This is why I continue to contend that people who practice homogamous relationships made that choice. People who refuse to belief that it was a choice, those who claim that their homosexual attractions are natural, are hiding from themselves. I have no "fear" or "nightmare" of waking up next to a partner of the same sex. If you cannot accept the fact that I am more comfortable with my sexuality than you are, that is your issue, not mine.

Posted by: smmtheory at January 29, 2005 11:13 PM

Retraction - "those who claim that their homosexual attractions are natural" - should have been erased as I believe that sexual attraction of any sort is natural, period. Sometimes I get in too much of a hurry and don't edit properly.

Posted by: smmtheory at January 30, 2005 12:14 AM

Arturo,

This thread came to an end with SSM proponents either unable or unwilling to try to provide a logical defense of two fallacious assumptions which are central to their public arguments:

1. That for any proposed change in a COMPLEX SYSTEM, no matter how radical and untried, the burden-of-proof should be on the opponents of the change to prove it harmful rather than on the proponents of the change to prove it not harmful, even when the proposal is to introduce the change into the entire system rather than just test it in an encapsulated segment.

2. That if a certain group opposed Change A in the past, and now opposes change B (or if the arguments against Change A and Change B sounded similar), that we can logically deduce the harmlessness of Change B from the harmlessness of Change A.

I maintain that both assumptions are fallacious, though they are repeatedly made by SSM supporters, at least implicitly.

Another assumption often made is that the world is neatly divided into 100% heterosexuals and 100% homosexuals, with no mention of bisexuals, even though we all know they exist. Since I believe that it is the public blurring of this line which will be one of the main factors in SSM's leading to cultural failure, this is not a trivial point.

Not to mention the assumption that trying to cast doubt on or make insinuations about an opponent's sexual orientation constitutes some form of argument.

Posted by: R.K. Becker at January 30, 2005 5:18 PM