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January 27, 2005

I Thought Religion Didn't Belong in Law...

The record-setting comment discussion to my "Parenthood: All About Me!" post has taken various turns across the SSM-debate landscape. In doing so, it has exposed a very interesting consideration. Michael, of Third of the Month, wrote the following, while explaining why restriction by gender, alone among the criteria for marriage, is "arbitrary and capricious":

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.

Further discussion has clarified that Michael isn't talking simply about the physical, ahem, uniting, but rather — although he hasn't used the term — a more spiritual unity between spouses. Now, I'm in no way suggesting that marriage — or any form of intimate relationship — doesn't or shouldn't aspire to and work toward this spiritual level of oneness, but it's clearly not a provable quality in a relationship. In part for that very reason, it's also a blatantly "religious" notion.

The claim that Michael has now made explicit, but that has always underlain the rhetoric from his side of the debate, appears to be that the law must acknowledge this supernatural quality of homosexual relationships. Not doing so, in fact, represents discrimination, because the legal marriages into which Michael is already permitted to enter could not be "unitive." Yet, it is simultaneously out of bounds for the government to acknowledge most citizens' belief that the important unitive quality with which marriage must align is the unique physical and spiritual connection manifest in opposite-sex, procreative marriages.

Posted by Justin Katz at January 27, 2005 6:41 PM
Marriage & Family
Comments

Okay, so this may also be off topic, but let me take it to another example.

Assumptions:
Burden of proof is on the defender (according to the proponents)
It is unnecessary to prove homosexuality (burden of proof would constitute discrimination according to the proponents)

Joe Schmo and I get into an argument and he smacks me across the chops a couple of times. I decide to press charges and I find out it's probably just going to be a misdemeanor due to circumstances, but I want more, so I say but he hit me because I'm Gay! Whoa! Now I get satisfaction, cause a hate crime bumps it up to felony territory and some extensive jail time. What's that you say? I've been married for 12 years? Well, that's just a sham, I'm really Gay. What else? I have 3 children? How else was I suppose to keep up the sham? What next? Sure SSM has been legal for 15 years, but I buckled to avoid the social scorn of being perceived as Gay.

What's wrong with this picture?

Posted by: smmtheory at January 27, 2005 7:47 PM

My knee-jerk reaction to the
question (i.e., what's wrong
with this picture) is to say,
'well, it would never happen.'

A claim of that type would be
subject to legal sanctions if
there were no evidence to support
it. It would be tantamount to me
claiming hate-crime enhancement because
I was black, or Jewish. Unless I could
demonstrate that my assailant _perceived me
as_ black or Jewish, no dice.

In the real world, or at least the
part of it I usually inhabit, hate
crime enhancement applies when there's
some evidence that the crime was motivated
by. . . well, hate. If I'm knocked down,
robbed, and the thief runs away, demonstrating
that would be difficult. If I'm knocked
down and kicked while the assailant shouts
derogatory terms relating to a specific
group, well, that's different.

For what it's worth, in San Francisco (where
I work) gay men are sometimes robbed or
assaulted for reasons unrelated to their
(real or perceived) group identity. Surprise -
those crimes are _not_ prosecuted as
hate crimes.

Posted by: Robert at January 27, 2005 8:03 PM

Your offtopic example is tempting -- i just deleted three paragraphs :P

But the ball is in Michaels court.

Posted by: Marty at January 27, 2005 9:07 PM

Detour alert! Heh.

>> The claim that Michael has now made explicit-- that the law must acknowledge this supernatural quality of homosexual relationships.


The Massa Court would replace marriage with this very notion. The substitution is based on a template of adult relationship that is practiced by a tiny minority [11.5%] on the fringes of the homosexual population.

It is largely defended on the basis of negative developments experienced in our marriage culture -- such as unilateral divorce, extramarital births, abortion, and so forth. Rather than conserve the marriage idea and revitalize the social institution by leaning toward the positive experience of those who succeed in marriage, the SSM call is an embrace of devolution.

The trend of man-man and woman-woman buddy marriages is forseen in the current same-sex households that are counted as proto-SSM today. These arrangements very often consist of occassional lovers or former lovers who have open relationships. This template would suite buddy marriages between heterosexual partners.

In Ontario, for example, SSM came about as a result of making common law relationships gender-neutral. Licenses were not the issue. The door openned by making a same-sex household and declaring a mutually loving commitment.

The devolution of marriage has been happening and it is plausible that this will be excelerated and made irreversible with the enactment of SSM.

After a couple of decades of negative results, there is increasing willingness to reconsider the ease of unilateral divorce. But that option would not be available if the supposed right that SSM advocates espouse was to be enacted and removed from the realm of public policymaking -- even should society experience the negative outcomes that are now foreseeable.

>> Not doing so, in fact, represents discrimination, because the legal [man-woman] marriages into which Michael is already permitted to enter could not be "unitive." Yet, it is simultaneously out of bounds for the government to acknowledge most citizens' belief that the important unitive quality with which marriage must align is the unique physical and spiritual connection manifest in opposite-sex, procreative marriages.


For what its worth, I do think that SSM advocates who make these assertions are sincere and some of the more thoughtful appeals are deeply moving.

And that's all the more reason to dispassionately search for solutions through legislation that at least can be adapted with societal experience. While I am skeptical that the template for SSM will ever be embraced as a new norm for the homosexual population, I am also of the opinion that it is a template that might gain a foothold and benefit those who find themselves on the margins between the broader society and the gay community.

Some bundle of social supports might be legislated under the umbrella of domestic partnership or civil union that does not exclude caretaking relationships (daughter-father and the like) but remains explicitly distinct from the marriage idea. In my view, which is not set in concrete, this is where the template for SSM comes closest to conforming to mainstream society's understanding of domesticity. Yet, I also understand, that many adult homosexuals would be repulsed by the expectation that they conform to even the new norm proposed by advocates of SSM. Rather than devolve marriage to meet the margins, it seems wiser to evolve same-sex arrangements. That can only take place within the homosexual population through new social constructs that gain support from the broader society.

But the urgent concern and higher priority (in my lifle time at least) is the conservation of the social institution of marriage itself.

Posted by: Chairm at January 27, 2005 9:54 PM

Think about it again Robert, keeping the assumptions intact and without dismissing them. Without any objective way to prove that I am not Gay, the court has shown a tendency to lean toward accepting my claim of being Gay.

Oh, and I can provide hostile witnesses to testify that I made a pass at him. All I was trying to do was pick him up and Joe Schmo just blew up, no screaming, no warning, he just busted up my face. So what if a little perjury is going on. It's beginning to sound pretty bad for Joe Schmo isn't it?


Aside to Marty...
Isn't Hate Crimes one of your pet peeves? I didn't intend to disturb you, so don't think you have to hold back on my account.

Posted by: smmtheory at January 27, 2005 11:01 PM

And what about the poor minor-attracted adult? He is, alas, still in the same position that certain other practioners of paraphilia were in a few decades ago: misunderstood, misrepresented, subject to scorn and opprobium and legal sanction. But the man or woman interested only or mainly in children doesn't choose to be that way. In fact, most of them cannot change, no matter how much they want to. Now, as we have all learned over the past four decades, God doesn't make junk, or evolution doesn't make mistakes, or all of this is merely socialization which we can change at will, or something like that. So, why should the minor-attracted adult be discriminated against? Marriage is no longer a permanent union. Once the medieval, reactionary (that is, Judaeo-Christian) prejudices have been torn down, there would be no reason to keep the minor-attracted adult from having a succession of minor spouses. In fact, isn't redefining marriage to include same-sex relationships just one more long-awaited step, after widespread acceptance of artificial contraception and easy divorce, towards a society where all our relationships are built on love instead of outmoded (that is, Judaeo-Christian) concepts of nature, duty, and responsibility?

And what about the man (or woman) who simply can't be fulfilled by one woman (or man) at a time?

Posted by: ELC at January 28, 2005 9:20 AM

But the ball is in Michaels court.

Wow. I don't know if I'm prepared for all this attention.

Justin, to start, I don't like the word "spriritual" because it usually comes with idiotic new age connotations, but for our purposes lets define a "spiritual unity" as that "it-factor" that makes marriage important. We all know it exists so there's no point pretending that marriage is all about benefits and insurance and crap like that. And there's no point pretending that a bunch of straight college roommates are going to rush off to get married for these "benefits" when most people already can get almost all those benefits from domestic partnerships in which your finances aren't really entangled and you don't have to deal with divorce. Nor are a bunch of father/son relationships going to become marriage because there are already caretaker laws to help people who need it. These are ridiculous claims. And besides, is it really acceptable to deny a certain class of people access to something because the probability of fraud is greater? I mean, really, do we not let poor people into a store because they tend to steal more? No, you let everyone in and take extra provisions to make sure the bad apples don't do too much spoiling.

There is nothing wrong with the government recognizing that a major factor contributing to marriage is a spiritual unity. But, Justin, you say "Yet, it is simultaneously out of bounds for the government to acknowledge most citizens' belief that the important unitive quality with which marriage must align is the unique physical and spiritual connection manifest in opposite-sex, procreative marriages." And of course it is wrong for the government to recognize, in any fashion, the nature of that spiritual unity. That would be tantamount to endorsing a particular religious belief.

All of our disagreement seems to stem not necessarily from whether or not marriage is for children or adults or procreation or benefits or country club memberships or yoking your wife to your forever; marriage is about all of that and none of that, marriage is a complicated, wonderful thing that can't be pigeonholed into any one definition in which all its parts are given similar weights. But the one thing that all marriages have (or should have) in common is their "spriritual unity", this unity of the soul.

You think that this unity can only be true and real between a man and a woman. I believe otherwise.

And this is the crux of the matter. It has nothing to do with childrearing, or procreation, or masculinity and femininity, or biological compatibility, or even sin. This has to do with the disbelief that the love between to men can be as deep and "spiritually" true as the love between a man and a woman. Everything else is rhetorical gravy.

I don't know why I even keep coming back to places like this. It genuninely hurts me to see people, especially Catholics, opposed to my sexuality couch their opposition in such irrational "rational" logic (procreation, etc) when it would hurt much less if they would just come out and say that they don't think the relationship between two husbands can have the same intrinsic value as the relationship between a husband and a wife.

Fortunately we live in a free society. I think marriage will benefit from public acknowledgement that it's main element is "spiritual unity", but I think that if we let one group of people define the nature of that unity, marriage will ultimately suffer.

Posted by: Michael at January 28, 2005 11:41 AM

I must be having a problem with the question.

What is the government's interest in why people are getting married -- unless it is under threat, compulsion, etc.?

Posted by: Patrick Sweeney at January 28, 2005 11:57 AM

Patrick, the Goverment's (ahem, that's "We the People" around here) interest in the institution of marriage is pure survival. To help assure that the next generation of soldiers/citizens/taxpayers is sufficient to advance the even longer term aims of our society, while simultaneously supporting and protecting members of earlier generations as we drift towards the grave.

Michael: You think that this unity can only be true and real between a man and a woman. I believe otherwise.

Regardless of our own personal opinions, the State (That's "us" again) has determined that male+female unity contributes significantly to advancing the interests stated above. This is not generally so for same-sex unions, which may even work against them (rare exceptions noted).

Posted by: Marty at January 28, 2005 12:29 PM

Michael,

I'm sorry it pains you to read rational arguments when you believe the true motivation comes from irrational arguments, but you are mistaken. In keeping with the Catholic view that body and spirit aren't separable aspects of the human whole, I don't see the rational and irrational (perhaps "suprarational" would be more accurate) as separable aspects of the truth to which our society should adhere.

Consider your suggestion that the crux of the matter "has nothing to do with childrearing, or procreation, or masculinity and femininity, or biological compatibility, or even sin." To the contrary, it is clear by my language — language that I've taken great care to construct — that, for example, the procreative quality of the "rational" view of marriage is intrinsic to the suprarational view of the unity.

I may be missing something, but it appears to me that you're not holding the arguments for same-sex marriage to the same standard. Consider:

there's no point pretending that a bunch of straight college roommates are going to rush off to get married for these "benefits" when most people already can get almost all those benefits from domestic partnerships ... These are ridiculous claims.

So can we dispense with the benefits-based claims of civil inequality, then? The thousand-odd rights that homosexuals don't have? Or this:

No, you let everyone in and take extra provisions to make sure the bad apples don't do too much spoiling.

Would you advocate against no-fault divorce, then, as a precondition to the allowance of same-sex marriage? Adultery laws? I've said before that the equation might well change for many of SSM's opponents were these on the table.

of course it is wrong for the government to recognize, in any fashion, the nature of that spiritual unity. That would be tantamount to endorsing a particular religious belief.

Then why is it a foolish argument to suggest that homosexuals can already form the male-female bonds of which marriage has always consisted? You brought up the fact that you cannot have a "unitive" relationship with a woman, you know.

marriage is a complicated, wonderful thing that can't be pigeonholed into any one definition in which all its parts are given similar weights. But the one thing that all marriages have (or should have) in common is their "spriritual unity", this unity of the soul.

That sounds good, but it's contradictory to your view of the government's right to "recognize, in any fashion, the nature of that spiritual unity."

If it makes you feel better, however, I will come out and say that relationships between members of the same sex cannot have "the same intrinsic value as the relationship between a husband and a wife." Unless you adhere to a patently false view of men and women as interchangeable (which, as a homosexual, you clearly do not), the only context in which the "intrinsic value" could possible be the same is Relativism, which I reject as corrosive of our society.

Posted by: Justin Katz at January 28, 2005 12:36 PM

I'll say it too Michael. A two-husband relationship (and by extension a two-wife relationship) cannot possibly have the same intrinsic value as a husband-wife relationship. But I don't think that is what you really truly wanted to hear.

Posted by: smmtheory at January 28, 2005 1:19 PM

Just to chip in (or is that piling on?), it's a simple thing to note that while two halves make a whole -- greater than the sum of it's parts -- not just any two halves will do. It takes two opposite halves.

Posted by: Marty at January 28, 2005 1:27 PM

I'll stipulate that government has an interest in the continuity of its population in the aggregate.

But where is the government's interest to promote, restrict, or prohibit the marriage of Ken and Barbie, Ken and Keith, or Barbie and Betty based on their motives (materialist, spiritual, religious, or nihilist, etc.)? (again, aside from fraud, threat, compulsion, etc.)

As a Catholic in agreement with the Church teaching on marriage, I hold and profess it is defined by human nature and not by a one judge's vote in one state's judiciary. One might as well vote to make pi = 3.

Posted by: Patrick Sweeney at January 28, 2005 1:39 PM

Patrick, the government does not restrict those marriages, it merely provides no incentives or official recognition of them. Officially, they are neither discouraged nor encouraged -- unlike opposite-sex unions, which are officially encouraged for the previously stated reasons.

Posted by: Marty at January 28, 2005 1:47 PM

In keeping with the Catholic view that body and spirit aren't separable aspects of the human whole, I don't see the rational and irrational (perhaps "suprarational" would be more accurate) as separable aspects of the truth to which our society should adhere.

But our society isn't Catholic. Many people can and do separate the rational (or practical) from the suprarational. And it can easily be argued that a homosexual in a heterosexual relationship is, by nature, disordered but a homosexual in a homosexual relationship is ordered. It depends on how you view the nature of homosexuality. You obviously view it as a disorder in and of itself. But it is not for Catholics (or protestants or atheists) to judge how that suprarational unity is defined. Which is why the argument, from a legal standpoint, has focused on the "rational" or "practical" aspects, ie procreation or the intrinsic ability to procreate. But then the sterility argument comes in and we're back to the nature of man to defend the rights of sterile heterosexuals to marry but not homosexuals. So are we to base our laws upon the natural philosophies of Aquinas to which not all of us subscribe?

So can we dispense with the benefits-based claims of civil inequality, then? The thousand-odd rights that homosexuals don't have?

No, that is still a serious problem. I merely meant that the benefits that two college roommates would practically marry for (which is primarily health insurance or gym membership rights) are provided by domestic partnerships whereas the benefits of being in a long-term relationship (inheritence, social security, hospital visitation rights) are not. (And I will right up front concede that it is *possible* for two college roommates to want inheritence rights or maybe hospital visitation rights but let's be reasonable here...)

Would you advocate against no-fault divorce, then, as a precondition to the allowance of same-sex marriage? Adultery laws? I've said before that the equation might well change for many of SSM's opponents were these on the table.

And the equation would also change if an FMA also was required to remove no-fault divorce while banning same-sex marriage, a position that I would like to see tried since I find it more consistent with "protecting marriage". I believe that there are more heterosexuals out there who would prefer to be allowed a quick divorce than would like to sacrifice that luxury to ban gays from marriage. But personally, I'm against easy divorce; I believe marriage should be for life. (You may forget this, but I am Catholic. As in go to church (nearly) every week Catholic.)

Then why is it a foolish argument to suggest that homosexuals can already form the male-female bonds of which marriage has always consisted?

I don't quite understand this. It's foolish because by nature homosexuals can't form that bond.

That sounds good, but it's contradictory to your view of the government's right to "recognize, in any fashion, the nature of that spiritual unity."

No, not at all. It's fine for the government to recognize that it is that "spiritual unity" that is essential to marriage (and remember I hesitated to use the word spiritual from the beginning). But it is up to the individuals involved to recognize what that unity consists of. You, as a Catholic, think of it as being of one nature, a Buddhist another, an atheist or wiccan yet another. Marriage is for two people to become one; in the eyes of God for our religious lives and in the eyes of the law for our civil lives. It is *not* up to the government to decide or regulate the nature or impetus behind that joining.

If it makes you feel better, however, I will come out and say that relationships between members of the same sex cannot have "the same intrinsic value as the relationship between a husband and a wife."

Thank you. I wish everyone would be upfront about that point instead of insulting our intelligence by saying stupid crap like "I value homosexuals as equal individuals I just don't think they should marry." But my question now is, what right do you have, in any legal sense, to judge the intrinsic values of my relationship and deem whether it's worthy of marriage?

Posted by: Michael at January 28, 2005 2:56 PM

Fortunately, Patrick, we don't live in the Vatican, so our laws and policies are not controlled by the teachings of the Catholic church.

Posted by: Res Ispa at January 28, 2005 2:57 PM

But I don't think that is what you really truly wanted to hear.

Well, of course not. I'd like to hear that you support SSM. And I'd also like a pony. But since I live in a tiny apartment in New York, I think I'm just going to continue to be disappointed....

Posted by: Michael at January 28, 2005 3:01 PM

Michael,

It is *not* up to the government to decide or regulate the nature or impetus behind that joining.

Well, that certainly contributes to the argument that marriage will expand unto meaninglessness.

Many people can and do separate the rational (or practical) from the suprarational. And it can easily be argued that a homosexual in a heterosexual relationship is, by nature, disordered but a homosexual in a homosexual relationship is ordered.

Without a doubt. But the argument often put forward on behalf of same-sex marriage is that my rational arguments are somehow invalidated by the fact that I see them as of a piece with suprarational beliefs. At the same time, you're relying on an entirely suprarational principle in order to explain why it is discriminatory that homosexuals can — civilly — only enter into marriages with people of the opposite sex.

As you write, it "is *not* up to the government to decide or regulate the nature or impetus behind that joining." Whether you could or could not be spiritually unitive with your wife, that is the relationship denoted by the term "marriage." Now, you're free to advocate for change, but it would be a legislative change, not something mandated by existing law.

And for the record, I would also say that "I value homosexuals as equal individuals I just don't think they should marry." Your conflation is between valuing people as individuals and valuing people as part of a couple.

Posted by: Justin Katz at January 28, 2005 3:13 PM

As a Catholic then Michael, does it not mean anything significant to you that Jesus clarified marriage as being between one man and one woman, or do you just figure that was a false report or misinterpretation? This just for my own edification.

As for the right to judge whether a man-man or woman-woman marriage is not intrinsically as valuable as mine; there has never been and there never will be an amendment to our constitution that regulates my right to have an opinion. I have an explicit interest in the well-being of this nation, so it is my opinion that one man-one woman marriage is the only viable solution to counteract the rampant rate of abortion, the rampant rate of no-fault divorce, the rampant rate of increase of single or no-child marriages, and the rampant decline in number of marriages.

Posted by: smmtheory at January 28, 2005 3:52 PM

SMMtheory wrote
"it is my opinion that one man-one woman marriage is the only viable solution to counteract the rampant rate of abortion, the rampant rate of no-fault divorce, the rampant rate of increase of single or no-child marriages, and the rampant decline in number of marriages."

But one man-one woman marriage is what we have _now_ - as far as I know - and, according to what I've been reading here, the only kind we've had for centuries.
Yet it is the only viable solution to the current problems you've listed?

There's a cognitive leap I'm not making here, unless you were employing a rhetorical device I'm unfamiliar with.

Also - I would never claim that you don't have a right to an opinion. You also have a right to swing your fist. That right ends where my nose begins.

Posted by: Robert at January 28, 2005 5:14 PM

As a Catholic then Michael, does it not mean anything significant to you that Jesus clarified marriage as being between one man and one woman, or do you just figure that was a false report or misinterpretation? This just for my own edification.

I don't believe that Jesus founded the United States of America. Nor do I believe that civil marriage has anything to do with religious marriage. Nor do I believe that people's religious opinions should be allowed to sway public policy when they have no secular backing and as far as I'm concerned I have seen absolutely no convincing sociological evidence, outside of religious tomfoolery, that SSM will impact the rampant rate of abortion, the rampant rate of no-fault divorce, the rampant rate of increase of single or no-child marriages, or the rampant decline in number of marriages.

Marriage-lite options will do all of those things and unless homosexuals are allowed to marry civilly, there will be even more and more ways in which the rest of the population will be able to avoid marriage. Now, if you refuse to recognize any value in allowing gays to legally join their lives in mutual monogamy and the good that that will have on society, you'll see more and more alternative legal contracts arising that heterosexuals might find more appealing than the rigid demands of marriage.

The irony of all of this is that I wouldn't be surprised if it's the pro-marriage advocates that, in an attempt to keep completely unscathced, end up destroying marriage more than the gays who have just as much reverence for it as you do.

Posted by: Michael at January 28, 2005 5:20 PM

Dodged the question, Michael.

Posted by: Justin Katz at January 28, 2005 5:22 PM

I might be departing from the majority opinion of my peers here, but:

I have seen absolutely no convincing sociological evidence, outside of religious tomfoolery, that SSM will impact the rampant rate of abortion, the rampant rate of no-fault divorce, the rampant rate of increase of single or no-child marriages, or the rampant decline in number of marriages.

SSM will not have a significant impact on these negative indicators. SSM is the inevitable result of them.

Stopping SSM will not reverse the negative trends that are currently destroying marriage. But before we can turn the titanic, we must first STOP its forward progress. Perhaps it's already too late... we should have listened to the "slippery slopers" long before their prophecy was proven correct.

Posted by: Marty at January 28, 2005 6:08 PM

Marty, that's my thinking, as well.

Michael,

So the only SSM can stop the sky from falling?

You mischaracterize the alternatives that explicitly and in form would be distinguishable from marriage.

Posted by: Chairm at January 28, 2005 6:39 PM

Michael: "Nor do I believe that people's religious opinions should be allowed to sway public policy when they have no secular backing."

Wow! Then why allow the Jesus freaks to vote at all? Keep those religious nutcases away from the ballot box unless they prove that they're thinking rationally! (Which is to say, they should have to prove that they're thinking like you.)

"I don't believe that Jesus founded the United States of America."

You're right. Instead, this country was founded on the principle that governments derive their just powers from the consent of the governed. When did the people of Massachusetts consent to SSM?

"I wouldn't be surprised if it's the pro-marriage advocates that . . . end up destroying marriage more than the gays who have just as much reverence for it as you do."

Where are these gays? Can you point to any prominent gay figure who has called for a strengthening of marriage (e.g. elimination of no-fault) in conjunction with SSM? The vanguard of SS couples getting married seemed to have pretty consistently 'open' relationships. But maybe you can provide a counterexample.

Posted by: Ben Bateman at January 28, 2005 7:00 PM

Robert said:
"There's a cognitive leap I'm not making here, unless you were employing a rhetorical device I'm unfamiliar with."

No problem Robert, it goes like this...
Traditional marriage offers the highest rate of natural birth when compared to same sex marriage and unmarried couples. With more traditional marriage, more births would happen; with enough more births that provides a counter to the number of abortions. Granted it's likely that approximately 50% of the abortions are performed on married women, but if rearing children is made more attractive, then that could be reduced. If raising children becomes more attractive, then that counters the lowered birth rate. That also provides a negative feedback loop on the abortion rate. With an atmosphere more conducive to traditional marriage and families, that reduces stress on marriages thereby reducing divorce. Reduce divorce by enough and then no-fault divorce is needed less and can eventually be replaced by a more equitable system.

You may think all of that sounds rather idyllic and difficult to achieve, but I'm fairly certain it would gain wider acceptance than trying to push same sex marriage.

Posted by: smmtheory at January 28, 2005 10:15 PM

With an atmosphere more conducive to traditional marriage and families, that reduces stress on marriages thereby reducing divorce.

smm, I have always thought this is true, but can you attempt to describe to me how barring same-sex marriage makes an atmosphere that is *less* conducive to traditional marriage?

Dodged the question, Michael.

Justin, I did not dodge the question. I believe that I made it clear in other posts that religious marriage is marriage for God and civil marriage is marriage for the state. While I would love to see the Church change its stance on gay marriage and homosexuality in general, I don't think that that will ever happen. However, it is irrelevant to the civil debate. Now, if you want to get me to say that Jesus was wrong, I'm not going to say that. I do, however, feel as though same-sex marriage can be consistent with the teachings of the church, as well as a good thing for society and gays in general.

Where are these gays? Can you point to any prominent gay figure who has called for a strengthening of marriage (e.g. elimination of no-fault) in conjunction with SSM?

Jonathan Rauch, for one. But I believe that calling for SSM is enough to strengthen marriage, at least as a first step. When marriage is available for everyone, all marriage-like options will slowly fade, because the only reason they came into being in the first place was for homosexuals.

Posted by: Michael at January 31, 2005 11:35 AM
When marriage is available for everyone, all marriage-like options will slowly fade, because the only reason they came into being in the first place was for homosexuals.

It's an interesting line of thought, but what others have been trying to point out is that marriage is "available for everyone." That domestic partnerships (or whatever the name) diminish marriage is in part attributable to the reality that homosexuals have failed to culturally define them as their "marriage-like option." Now, having built the bridge part way between "committed adult relationship" to "marriage," some of them are insisting that theirs will be the only relationship type to cross a finished construction.

Maybe. Or maybe other relationship types (e.g., progressive couples, immediate family couples, polygamists, and so on) will continue to demand domestic partnerships. Or maybe those other relationships will just slip into the new meaning of "marriage."

The fact that heterosexuals have entered into arrangements despite their "only reason [for] being in the first place was for homosexuals" seems to me suggestive of the third possibility at least as much of the one that you prefer.

Posted by: Justin Katz at January 31, 2005 12:00 PM

Michael said:
"smm, I have always thought this is true, but can you attempt to describe to me how barring same-sex marriage makes an atmosphere that is *less* conducive to traditional marriage?"

Michael,
I seems to me that this is your POV, and I don't think I can describe it let alone believe it.

Posted by: smmtheory at January 31, 2005 12:44 PM

>> When marriage is available for everyone, all marriage-like options will slowly fade, because the only reason they came into being in the first place was for homosexuals.

The first part of that sentence is highly speculative. On what do you base your prediction?

The second part again mischaracterizes the way that domestic partnerships can be formulated without being dominated by the gay lobby. For example, there are millions of grandparents raising grandchildren -- many of them with one of their grandchildren's parents in the home. There are other examples.

That the gay lobby successfully pushed for special arrangements is not evidence that society sees such arrangements as marriages. The issue has now been raised and alternatives will be sorted out. The gay lobby will have to share the stage as society seeks out legislative consensus on how far to go in supporting unmarriagable partners. To that extent I imagine that we agree: domestic partnerships will be designed with a wider range of participants than just gay couples. This has every opportunity to include factors that distinguish such domestic arrangements from the social institution of marriage.

Posted by: Chairm at January 31, 2005 2:30 PM

To the question,

"As a Catholic then Michael, does it not mean anything significant to you that Jesus clarified marriage as being between one man and one woman, or do you just figure that was a false report or misinterpretation?"

Michael replies, "Now, if you want to get me to say that Jesus was wrong, I'm not going to say that."

That looks like a dodge to me. Does that mean you think He was wrong, but you're not willing to say it? Or that you're not sure if He was right or wrong? Or that whether He was right or wrong is irrelevant? What?

Posted by: Mike S. at January 31, 2005 4:08 PM

The first part of that sentence is highly speculative. On what do you base your prediction?

I base it on some employers in Massachusetts pulling DP benefits since gays can marry. I see a logical extension of that to mean that a lot of other marriage-like arrangements between people who are marryable will drop.

Look at it this way: do you want lots of people to get married or don't you? There's obviously something special about marriage that everyone here wants to survive. I am a conservative when it comes to the value of marriage as a social institution. Which means I want to conserve marriage, not preserve it, like many people who claim to want to protect "traditional marriage" and "families".

If you want marriage to have a monopoly on monogamy, you can't lose customers. Gays want to get married and if you don't let them they're going to find their own brand of monogamy. On the surface you're probably saying, great, let them! I've seen a lot of people (straight and gay) who say let gays come up with what works for them and leave marriage to the straights. But they're probably going to come up with a decent monogamy model. And some other people are going to try that brand out and like it better than marriage. And then someone's going to come up with another different brand, and so on, until "traditional marriage" is only used by a select few. So if you want to hold onto the monogamy monopoly you have to market yourself to the people who might rather look elsewhere if given the opportunity. And that's the key: given the opportunity. The trick is, you don't give them the opportunity to come up with something new.

The relationships that most gays want is not the radical open relationships you might stereotypically associate with gays, as perpetuated by are very vocal leftist radicals, or like polygamy or polyamory; it's actually a lot like what you're trying to protect, a typical two-parent family. So if you can accept that a gay monogamous relationship is more similar to a straight marriage than it is dissimilar, why not accept them into the fold, so to speak?

Certainly civil marriage is going to have to have more of a secular flavor than you're original product but if you start being picky about who you're going to let in, you're going to lose your marketshare. Now maybe you don't care about that, but think back to conservative v. preservative. You can conserve a habitat and keep it functioning as closely to its the natural form or you can preserve it behind glass in a museum, beautiful, ideal but utterly useless...

Posted by: Michael at January 31, 2005 4:19 PM
But they're probably going to come up with a decent monogamy model. And some other people are going to try that brand out and like it better than marriage. And then someone's going to come up with another different brand, and so on, until "traditional marriage" is only used by a select few.

Ah, let's welcome the marketplace into this discussion. "Redefine the brand for us, or we'll be forced to help others to define a competing product."

Your timing's good, though, because I just posted some thoughts about why it won't work.

Posted by: Justin Katz at January 31, 2005 5:14 PM

Michael,
I just don't understand how you formulated your marriage philosophy. As the Author of all life, God would probably have a better idea than anybody else of how to keep a society flourishing. In order to have our society flourish, I tend to think that it ought be apparent that it would be necessary to model marriage after God's model of marriage. Anything less than that would most likely produce stagnation at best. We should be talking not about conserving or preserving marriage, but about whether or not the object is to conserve society or to grow society. In economic models, growth is always the sought after effect. The same is true of society.

Posted by: smmtheory at January 31, 2005 11:26 PM

Michael, not to get offtrack here, but i'm conducting an unscientific poll on a related issue:

Yes or No: Should the Supreme Court strike down Roe v. Wade?

Posted by: Marty at January 31, 2005 11:37 PM

A poll of one Marty?

Posted by: smmtheory at February 1, 2005 12:04 AM

Yes or No: Should the Supreme Court strike down Roe v. Wade?

That's a tough one. Probably. Although the decision itself was very well-balanced between a woman's right to privacy and the state's interest in pre-natal life. I'm not sure if you ever actually read it but it only says that the woman has a right to make a decision up until the first trimester. I don't know what happened along the way that people think they have a constitutional right to partial birth abortions. But then again, I'm not really immersed that much in the debate because it hurts my head to think about all the logistics, and the best way of going about making it illegal. I mean, even the Church up until the past couple of centuries thought it was ok to abort before the first trimester. I think the best way of going about it is to slow down on legislation and work toward policies wherein abortions aren't considered as necessary as they are right now, and then strike it down. But some people are impatient.

Posted by: Michael at February 2, 2005 10:04 AM
I mean, even the Church up until the past couple of centuries thought it was ok to abort before the first trimester.

Well, just a few centuries ago, people thought the Earth was flat. Their tools for conceptualizing the essence of humanity were limited.

policies wherein abortions aren't considered as necessary as they are right now

What does that mean? Too often, stuff like that is the flowery language used to decorate socialism and free healthcare, with contraceptives for all. Generally speaking, Europe is finding that the results don't match the simplistic expectations.

Posted by: Justin Katz at February 2, 2005 10:14 AM

Well, just a few centuries ago, people thought the Earth was flat. Their tools for conceptualizing the essence of humanity were limited.

Nice one, Justin. So how about homosexuality? Up until recently our tools for conceptualizing the essence and nature of sexuality were limited. With better tools might we change our mind about the nature of homosexual relationships?

What does that mean? Too often, stuff like that is the flowery language used to decorate socialism and free healthcare, with contraceptives for all. Generally speaking, Europe is finding that the results don't match the simplistic expectations.

I don't know specifically; I don't make public policy. I can only make a crude analogy to Prohibition, which was hasty and disasterous. I don't want to get into an abortion discussion. I just answered Marty's question in the most honest way that I could.

Posted by: Michael at February 2, 2005 12:30 PM
With better tools might we change our mind about the nature of homosexual relationships?

Well, I suspect Marty will suggest that you mightn't like society's conclusions when we've got a more thorough understanding of the mechanics of homosexuality. There's a difference between "tools" and "styles."

Posted by: Justin Katz at February 2, 2005 1:39 PM
Although the decision itself was very well-balanced between a woman's right to privacy and the state's interest in pre-natal life. I'm not sure if you ever actually read it but it only says that the woman has a right to make a decision up until the first trimester. I don't know what happened along the way that people think they have a constitutional right to partial birth abortions.

The companion case, Doe v. Bolton, said that abortions throughout pregnancy were legal if it was necessary to protect the mental health of the mother, which effectively meant that abortions were legal throughout pregnancy. The reason some people think they have a constitutional right to partial birth abortions is becase that is in fact what the Supreme Court claimed, and has subequently reiterated in Sternberg.

"I don't want to get into an abortion discussion."

That's understandable, but the same issues underlie the abortion issue and the SSM issue. Namely, what is the meaning and purpose of the law, what mechanisms are the proper ones in our country for effecting changes in the law, and what are the limits of judicial review. The fact that you are unsure of whether Roe should be struck down, purely as a matter of constitutional law and aside from the morality of abortion, indicate that you have rather confused notions about these issues, in my opinion. Which is likely to lead to problems regarding the disposition of the question of SSM in this country.

Posted by: Mike S. at February 2, 2005 1:45 PM

Modus Operedi

1. Force somthing on country through Judicial Fiat
2. Obfuscate over opinion in press
3. Block all attempts to thwart in Senate
4. Stop at nothing to protect Courts activist stance.

Posted by: Fitz at February 2, 2005 3:05 PM

The fact that you are unsure of whether Roe should be struck down, purely as a matter of constitutional law and aside from the morality of abortion, indicate that you have rather confused notions about these issues, in my opinion.

Of course I am confused. It is a confusing issue. I believe that abortion is morally wrong. But I don't think I am confused on how to approach this in terms of legality. That is, how do we legislate morality so that it has the maximum positive effect on society. I think that most people don't advance much farther than Kohlberg's fourth stage of morality. If we make abortion illegal people won't have abortions because it would be breaking the rules, not because they find it inherently wrong. Or they'll do it anyway and suffer the consequences. Which means that, in their mind, all they have to do is convince enough people that it's ok to have abortions and bam! the rules are changed and it becomes ok to have them again. People didn't stop drinking because it was made illegal.

So no, I don't think that considering constitutionality v. morality in making a legal decision is at all a confused position. I am not at all on the fence when it comes to what I think about abortion. I am, however, on the fence when it comes to figuring out the best way to stop the abortion epidemic without causing more problems than we already have.

Posted by: Michael at February 2, 2005 3:14 PM

Oh, and thanks for the timeline clarifications. I'll have to do a bit more research into that.

Posted by: Michael at February 2, 2005 3:14 PM

Getting back to the original topic then, here is another question for you Michael.

How do you respond to the paradox your position imposes between the necessity for law to favor the spirituality aspect of your hoped for marriage law over the oppositely aligned spirituality aspect of a normative marriage law?

Posted by: smmtheory at February 2, 2005 9:08 PM

Thanks for playing along Michael. I can respect the non-answer you gave, but would tie it back to smm's post, immediately preceding my poll-of-one. They are very much the same question. To value the life of the unborn is hard when you ascribe no particular value to the union that created them.

So how about homosexuality? Up until recently our tools for conceptualizing the essence and nature of sexuality were limited. With better tools might we change our mind about the nature of homosexual relationships?

I have yet to see any convincing scientific evidence that refutes the general understanding between men and women that has been the defacto standard for, oh, ever? As far as i can tell, this whole "orientation" business is just another recent social construct. Attraction is very very fickle and subject to the tastes and mores of any particular culture at any particular time. Why is this one (hetero/homo orientation) any less "invented out of human idealism" than any other (race/gender bias)? The fact remains, "heterosexuality" as you call it is the tap-root to the tree of all human life! Compared to which, "homosexuality" will always be substandard -- or "second class" to use the poisonous lingo of your very own activists...

No, we are all just plain sexual. We were all born that way. Attraction tells us little to nothing about WHY we are all born that way -- grandparents and grandchildren do.

Posted by: Marty at February 2, 2005 11:36 PM

Michael,

"But I don't think I am confused on how to approach this in terms of legality. That is, how do we legislate morality so that it has the maximum positive effect on society."

This is a different question from whether Roe should be struck down or not. If not, then the legality is obvious - it's contained in Roe and Doe. If so, then we could discuss the practical issues of how, precisely, we should structure our laws (state and federal) regarding abortion.

Regarding SSM, your position is that it is immoral to discriminate against same-sex couples. But the legal question is does the current definition of marriage violate the Constitution? If so, then it's within the Supreme Court's purview to declare the current laws invalid. If not, then the appropriate way to seek your desired ends is to work for a legislative change to the law. Goodridge and Roe both stem from the same philosophy - that whatever the sitting judges think is the correct policy is what the policy will be. The text and meaning of the constitution in question is irrelevant, as is the legal history. Logically, you have to either argue that Roe and Goodridge are bad law, or that they are both good law - you can't support one and not the other.

Posted by: Mike S. at February 3, 2005 1:03 PM

Goodridge and Roe both stem from the same philosophy - that whatever the sitting judges think is the correct policy is what the policy will be. The text and meaning of the constitution in question is irrelevant, as is the legal history. Logically, you have to either argue that Roe and Goodridge are bad law, or that they are both good law - you can't support one and not the other.

I agree with some of this and I disagree with other parts. First of all, I don't think that you can say that it is logical to have to support both Goodridge and Roe or think that both are "good" or "bad" laws, whatever that means. My position would be that the courts had the jurisdiction to make decisions in both those cases; whether those decisions were good is irrelevent. I also disagree with you that both stem from the philosophy that whatever the judges say goes. Judges do not, contrary to some people's opinions, make decisions based on whims. They take into consideration both the constitution and legal history, as well as emerging societal customs. Neither Roe nor Goodridge were decided in a vacuum and I maintain that you can disagree with the judges' decisions and say that they came to an incorrect conclusion, but not that they came to their conclusion in an incorrect manner.

That said, I will now repeat that I think that abortion is immoral and should not be performed. I do not, however, believe that Roe was necessarily a bad judgement. I've gone back and done some more research on what happened after Roe and I think it is tragic; but Roe was good decision, in my opinion, and here is why:

I have faith that humanity will eventually come to the correct conclusions and correct the compromises it has had to have in order to ensure maximum freedoms for all. In that, I think that Roe, in its original form, was a sound judgement. In order to advance women's rights, women needed to gain more control over reproduction. The state, to protect innocents, needed to retain control over protection of unborn children. Roe balanced that out, sacrificing a woman's right to choose to abort her child after the first trimester (although the state could give it to her if it chose) and sacrificing the child's right to life before the end of that first trimester. It was not ideal, but nothing ever is, hence the nature of compromises. If the northern colonists didn't give into the demands of the southern colonists to retain slavery, independence would have never been declared and this country never formed. The founders sacrificed the humanity of blacks for the freedom of Americans from England. History corrected itself, albeit in a rather bloody way, but what would the country be like today if we were all still shackled, without rights, under British rule, or if it came considerably later?

In the case of abortion, radical feminism is already being replaced by a new feminist conservativism, and as society gets more comfortable with women in the work-force then pregnancy won't be considered as threatening towards a woman's business success. Society will eventually correct the mistake it had to made when Roe was decided upon.

So in a sense, Roe was "good law", as you put it, and yet ultimately overturning it will be good law as well.

As for Goodridge, I wish the first gay marriages were performed with legislative sanction, but I don't think that it was "bad law". I think that is good for the country that marriage is considered a right, not a privilege. If it is a privilege, then the government can take it away from any group for any reason it saw fit.

Posted by: Michael at February 3, 2005 3:38 PM

Michael,

I have to say that, although I've understood the mentality, it's a bit disconcerting to read it expressed so matter of factly. The job of judges — the reason it is "safe" to make them so independent (federally, at least) through life-time appointments what aren't subject to election, let alone recurring elections — is that they are meant to handle the law, as it is written. While they are free to interpret the law and can certainly make mistakes, it is beyond not their "jurisdiction," but their design to make decisions based on changing standards.

The mechanism for acknowledging changing standards is through the legislative branch, which is why that is the branch most deliberative and most directly accountable to the people. To empower a handful of largely unaccountable judges to unilaterally identify and bend the law to supposed changes in "emerging societal customs" is a recipe for tyranny.

Posted by: Justin Katz at February 3, 2005 7:32 PM

The mechanism for acknowledging changing standards is through the legislative branch, which is why that is the branch most deliberative and most directly accountable to the people. To empower a handful of largely unaccountable judges to unilaterally identify and bend the law to supposed changes in "emerging societal customs" is a recipe for tyranny.

And I guess that here is where we must agree to disagree, but I'll take one more stab. The legislature, in my opinion, only gives official sanction to changing standards; it very rarely acknowledges them outright on its own. That is because legislature, by their nature, think only of their continued careers. If they make unfavorable decisions, they will be fired. So yes, they are more directly accountable to the people but they are directly accountable to the majority opinion, not the majority practices.

That is why Goodridge was a correct decesion, in my mind. Many people may have held some ideal picture of what marriage was in their mind, but the justices found that, in practice, that wasn't the case. Marriage maybe should be a privilege, but the majority of people weren't treating it that way; marriage may be "about procreation" but the majority wasn't acting like it was. And emerging tolerance for the rights of homosexuals coupled with the "common law" practices of marriage being a undeniable right and separated from religion and procreation, these justices found that the ability to marry someone of the same sex was unfairly being denied gays by the legislative majority who weren't really practicing what they preached (enshrined in law).

By "design" those justices should have stepped in. And ultimately if the people decide that they made the wrong decision, they can always change the law because the constitution always trumps a judge.

Posted by: Michael at February 4, 2005 10:25 AM