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February 24, 2005

An Analogy That Doesn't Work

I promised to respond to two critics, so I'll just point out two things about a comment from Michael to my "Matters of Consistency" post. Michael writes:

So any line of argumentation that comes down on the side of SSM is following a preference to a predetermined conclusions but any line of argumentation that comes down against SSM is following reason? I don't understand how you can't see the prejudice in that sentiment.

I'm tempted to acknowledge that I do see the prejudice: the prejudice of the right against the wrong. But that would require a stronger stand than I take. For now, it's enough to note that I did not use Michael's language of absolutes (e.g., "any").

This whole thing began with Jack Balkin's list of options from which the American judiciary could choose in order to reach the goal of same-sex marriage. Although there are degrees to which the demand is held as uncompromising, balancing between the end and the means is the problem at the heart of SSM advocacy. In order for same-sex marriage to be a right that the Supreme Court can recognize, it must be argued as if nothing new is being granted. As even Balkin admits, there is the "completely honest" approach, and there's the "misfit" argument. Seeing all as legitimate indicates that the conclusion is predetermined.

Michael then offers an explanation that we've all seen before, because it's essentially the anti-miscegenation case:

Suppose the state, in an attempt to protect marriage, realized that marriages were significantly more stable if people married within their profession, and thus the state found a compelling interest to ban inter-professional marriages. Everyone is treated equally; they can marry anybody they want from their own profession. There is no physical discrimination because men, women, blacks, whites are all treated the same. The "cannot" here is universal. But what about the "want"? Let's say you want to marry a nurse but cannot because you are a writer. And she, likewise, cannot marry you. You can either choose to marry someone else, someone you want to marry significantly less, or you can change your relgion. There's no discrimination because every profession is treated the same and the government is not telling you cannot get married because you are a writer, only that you can only marry another writer.

Interested readers can find all sorts of discussion about why this sort of example isn't relevant to the same-sex marriage issue. (Search for "miscegenation.") Of particular note is that Michael applies the SSM advocate's marital objective — stability — to the example, not marital objectives to which I subscribe (mainly procreation and raising children). More to the point, he ignores a central statement from my "Whatever Works" post: Unlike anti-miscegenation laws, unlike Michael's hypothetical, with SSM, homosexuals and heterosexuals have exactly the same range of options.

Posted by Justin Katz at February 24, 2005 9:58 PM
Marriage & Family
Comments

Except under anti-miscegination laws, the options were unreasonable. Yes, blacks could marry, as long as they married other blacks. Whites could marry as long as they married other whites. What makes it untentable is that it denied people the right to marry people of different races (who the love, are attracted to, and want to make a life-long committment) because the status quo believe such relationships were wrong.

The flip side is that, yes, gays and marry non-gays and non-gays can marry gays. But it is untenable to deny gays the right to marry people of the same gender (who the love, are attracted to, and want to make a life-long committment) because the status quo believes such relationships are wrong.

Just because you don't want to discuss the parallels with anti-miscegination laws because they point out the inherent bigotry doesn't mean the parallels aren't apt.

Posted by: Res Ipsa at February 25, 2005 12:22 PM

But there are two big ways in which the parallels are not apt:

1. Interracial couples are generally capable of reproduction, while same-sex couples are not.

2. Interracial couples are capable of engaging in the type of sexual intercourse which results in reproduction, even if they are infertile, while same-sex couples are not.

It is not enough to make parallels between one situation (interracial marriage) and another (same-sex marriage). You must also argue why the DIFFERENCES between the two are not significant. I know, some SSM supporters do make such arguments, but why thus do so many keep jumping back to the clearly inferior argument about there being no difference between interracial marriage and SSM?

Posted by: R.K. Becker at February 25, 2005 4:42 PM

Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point. Throwing out straw arguments that are completely unrelated to the legal statue of marriage does not make the argument work. My example is related to the legal requirements of marriage.

Posted by: Res Ispa at February 25, 2005 4:47 PM

Oh, of course, you're going to fall back on that "but some opposite-sex couples don't reproduce either" argument. Still a big difference, because no same-sex couples are capable of reproducing through sexual activity. What I'm saying is that because of this, the argument that the prohibition against SSM is perfectly analagous to the prohibition against interracial marriage falls apart. Yes, the link between marriage and reproduction may not be rigidly legally encoded, but it is a big leap to say that it should be abandoned totally, and SSM does this because it in essence extends the meaning of consummation to include acts which never result in reproduction, anywhere, anytime.

Posted by: R.K. Becker at February 25, 2005 5:41 PM

But reproduction is not a legal requirement for marriage. Consummation is not a legal requirement for marriage. That some religious people believe it is about procreation does not mean it's the law or make it so. While it may shape the church's cultural meaning of marriage, we don't live in a theocracy that requires states to follow the cultural traditions and beliefs of the church when creating LEGAL rights.

Thus, until we reach the point that reproduction and heterosexual sex are a requirements for marriage, the comparison to mixed-race bans stands.

Posted by: Res Ipsa at February 25, 2005 5:51 PM

Oh, that would be so much easier if the idea of marriage as between opposite sexes were merely a tradition of the church rather than a universal human cultural tradition.

Obviously, the question of whether or not you can make legal loopholes for an idea is different from determining whether or not the idea is culturally wise.

To say that consummation and reproduction are not absolute legal requirements for marriage is a far cry from saying that the link between them has not been legally recognized. Marriages are frequently annulled because there has been no consummation.

What we're seeing here is an argument that because a link has not been rigidly enforced, it therefore should not exist at all.

Posted by: R.K. Becker at February 25, 2005 6:37 PM

Theres such a huge differnce between descrimination over an unrelated distinction, and MAKING a distinction that is so clearly relevant.

RI: Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point

Of course there is no coercive "requirement" to reproduce, or even to show the ability to do so in anything but the most abstract sense -- one man one woman. But in that same abstract sense, opposite sex couples ALWAYS reproduce -- and same sex couples NEVER do. This is such a vastly more important distinction than "skin color" that i'm suprised you even have the courage to say "straw man" in the next sentance. It's truly baffling.

Posted by: Marty at February 25, 2005 7:47 PM

It's a distinction that has NOTHING to do with the legal instution of marriage. It is no different from making distinctions based on race since neither the ability to procreate or race are part of the legal requirements for marriage in the United States. While it is a distinction, it is not a distinction that matters when it comes to determining whether the state should bar people from the legal privileges of marriage.

Posted by: res ipsa at February 25, 2005 9:36 PM

You do realize, don't you, Res, that your arguing like this only serves to add validity to "slippery slope" arguments, which SSM proponents are otherwise trying so hard to belittle?

Posted by: R. K. Becker at February 25, 2005 9:56 PM

I can live with that risk. I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.

Posted by: res ipsa at February 25, 2005 10:31 PM
I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage.

But it not merely a legal question. (And the legal discussion must resolve, first, whether the courts are empowered to impose such changes.) It's surely inadvertent, but there's a whiff of oligarchy underlying such arguments.

At its most civil (in the government sense), the legal status of marriage is what citizens say it is through the laws that they develop through their representatives. SSM advocates like to pretend that there's some objective and inviolable LAW, but unless we are drifting toward a sort of judicial theocracy in which judges must interpret (or define) cosmic truth, that's simply a fantasy.

So, if it's true that the people are empowered to define the legal status of such things as marriage, then by necessity they can apply their votes however they want and for whatever reason, whether religion or sciencism. It's easy to declare that we must "focus on the legal issues," because in a legalistic arena we can square all sorts of circles. This is especially true at a time when repeated overreach of the judiciary has made a muddle of basic legal principles.

The bottom line, however, is that the pro-SSM side can't focus on the law, because their objective requires mushy concepts such as love, choice, and commitment, and because the law properly read requires them to take their case to the people — a group whose opinion they do not want.

Posted by: Justin Katz at February 25, 2005 10:45 PM

"I can live with that risk."

Okay, but next time you hear an SSM opponent arguing that it will lead us on the slippery slope toward polygamy or sibling marriage, the arguments that you've made put you in a very poor position for trying to refute him.

"I just think it is important to remember that this is a legal question and we need to focus on the legal issues, not get sidetracked into religoius arguments that have nothing to do with the legal status of marriage."

Well, as Justin well puts it, it's not just a legal issue. Nor are the arguments against it merely religious ones, as much as you would like to reduce them to that. (Have I given you even one religious argument, Res? I happen not to be religious). The bigger question is whether SSM will harm society more than it helps it.

Posted by: R.K. Becker at February 26, 2005 12:29 AM

That is just so FUNNY when this happens. First we hear "there is no slippery slope", then we get arguments that lead directly down the non-existant slope, then, when feet are finally held to the fire: "I can live with that risk." IOW: "I want what i want what i want and i dont care how it may affect anyone else but me!"

Sorry kiddo, I'm not prepared to live with the risk that you just acknowledged is very real, after denying that it existed at all.

Posted by: Marty at February 26, 2005 9:54 AM

On an intellectual level, there is a slippery slope to pretty much every argument. The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time. That's a slippery slope.

On the same token, the slippery slope of SSM is that the state will be forced to recognize polygamous relationships, relationships between siblings or relationsips between humans and their pets. Sure, it is a slippery slope, but that doesn't meant that all discussion should stop just because some slippery slope can be identified.

It's a bit of a red herring--sort of like using loaded terms like "judicial activism"--and therefore is a risk woth taking to argue a specific point.

Posted by: res ipsa at February 26, 2005 10:21 AM

marriage is not a random set of legal rights and responsibilities that the goverment gives away to this group or that at liesure. It is a cultural institution that govermant promotes.
As in "Promote the GENERAL welfare"
It is general - not specific as to each individual or group.
And goverment (did not create it) but only promotes it.
and it does so because it is in the welfare of the people (generally speaking to do so)

Posted by: Fitz at February 26, 2005 12:45 PM

Res Ipsa said:

"The slippery slope, for instance, of insisting marriage is connected to reproduction is that the state will require fertility testing before handing out marriage certificates and that the state (or more likely, the church) will annul marriages of people who don't have children within a specific period of time."

Let's apply a little bit of common sense to this argument shall we? Which is more practical and cost effective for the government to enforce - 1) that all spouses be of the opposite sex regardless of fertility, or 2) mandatory fertility testing and monitoring for every married couple?

Posted by: smmtheory at February 26, 2005 1:03 PM

RI, no red herrings here:

If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.

And when there is no distinction made between a single person and a married person (because to make such a distinction would be "unfair"), the institution will officially be dead. People will still have the ceremony, but it will be legally meaningless.


Posted by: Marty at February 26, 2005 2:12 PM

If you're saying that the opposite sex distinction is not important enough to be upheld, then you'll have little to no basis for upholding distinctions based on age, consangunity, or quantity -- nor even (and perhaps most importantly) singlehood.

I'm sorry but the slippery slope argument is a classical logical fallacy (cf. http://www.fallacyfiles.org/slipslop.html)

I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow. Age: we have age laws for hundreds of things, military service, driver's licenses, alcohol consumption, etc. Consanguinity: we feel that familial relationships should be limited to one, that is, if I have a sister (one familial relationship) I cannot form another familial relationship with her (by taking her as my wife). Polygamy: we value monogamy and polyamory is a practice, not an orientation.

None of these have anything to do with whether or not two unrelated men can marry each other.

Posted by: Michael at February 26, 2005 2:36 PM

Michael,
You can't turn around and say polyamory is a practice not an orientation when you've been saying all along that homoamory is an orientation not a practice. If you compare stuff, you need to compare the right stuff. Mono-gamy to poly-gamy, not mono-gamy to poly-amory. Do you understand the distinction?

Posted by: smmtheory at February 26, 2005 2:51 PM

Michael,

You have read this, have you not?

http://www1.law.ucla.edu/~volokh/slipperymag.pdf

The slippery slope argument may not be as fallacious as we've so long been told. I think there's a good case to be made that the line between a slippery slope argument and a cause-and-effect argument can be very thin.

Posted by: R.K. Becker at February 26, 2005 3:42 PM

None of these [age, consanguineous, or polyamourous, etc] have anything to do with whether or not two unrelated men can marry each other.

You'd be right, if not for the legal precedents that are being set in your quest for same-sex marriage. Nearly ever single justification your side has to offer applies equally to the person who thinks they've been discriminated against by age, consanguinity, polyamory, or singlehood.

If this is a matter of fairness, as claimed, then the only "fair" solution is no special "marriage status" at all. You're either single with kids or single with no kids, in the eyes of the law.

Posted by: Marty at February 26, 2005 4:12 PM

>> None of these have anything to do with whether or not two unrelated men can marry each other.

This also shows the weakness in the conflation of sexual orientation and sex classification that is espoused by some, but hardly most, SSM advocates.

As with closely-related combinations, the same-sex combination is unmarriagable due to too much sameness. But that traditional objection would be put aside if the radical individualism of SSM were to be elevated above the marriage idea itself.

1. Closely-related combos are deemed unmarriagable largely by virtue of the traditional line drawn around family, as Michael suggested, but also due to concerns about significant problems in reproduction. Note that the answer to the question of which related combos are too closely related varies across jurisdictions.

2. Concerns have been mitigated in some jurisidictions which have additional requirements for cousin combinations, for example -- one of the individuals must be beyond reproductive age or confirmed as surgicially sterilized. Same-sex combinations -- related or not -- are presumed to be nonprocreative and thus would not be burdened by these additonal requirements. But why is the line drawn around those with previous familial relationships that happen to be closer than second-cousins?

3. The actual medical science behind the concerns about reproduction have been shown to be well-founded but not nearly as significant as once thought. Also, unrelated combinations known to carry the high risk of passing on specific physical deficiencies are considered marriagable without additional requirements.

The man-woman criterion of marriage builds-in the presumption of sexual relations *and* procreativity -- even in the negative sense as per additional requirements on cousin combinations.

If the tradition (or 'social construct') of family bonds is considered to be more fragile today than in the past -- as per elevated rates of family dissolution and nonmarital births and blended-families and cohabitation -- then the traditional line drawn around familial relations is highly vulnerable. That line would be breached for the purpose of avoiding undue burdens on the individualized choice of one person to marry another person -- regardless of degrees of affinity.

Likewise with the increased prevalence of sperm and ova donation. How could society maintain useful lines that stand to be breached increasingly if unknowingly? Cue the diversionary SSM argument about infertile couples and the absurdities of invasive means legislated by the people's representatives.

The legalistic logic of SSM taken to its appalling ends would reveal that the argument against a brother-sister combo is no more compelling than that against any combo of unrelated men. All that would be left is the authority of the Constitutional amendments to repudicate, or head-off, the Court.

The enactment of SSM would separate procreation from marriage in the most fundamental way. If there is a right to marry the person of one's choice regardless of the man-woman criterion and the presumption of procreative combinations, then it is hard to see how there would be any closely related combinations who are too closely related.

In fact, buddy unions between closely-related persons (in loving and committed but nonsexual relationships) could become quite popular. But these would not be marriages any more than same-sex combos can be considered to be marriages. They are substitutes that vary in form.

Again, the replacement of marriage would be the outcome. If enactment of SSM is not the very end of the slippery slope, it would provide the hard push over the cliff's edge.

The marriage idea itself would be subsumed. This would lead to the eventual dispersion of the utility of marriage policy. An individual's choice, rather than the social institution, would be deemed more benefitial to society and thus society will guard that choice rather than benefit the social institution of marriage.

Posted by: Chairm at February 26, 2005 5:28 PM
I can think of many reasons that each one of those distinctions can be maintained if we remove an opposite sex disctinction and wouldn't necessarily follow.

That you can think of reasons to maintain distinctions is immaterial. The more relevant point is that the rhetoric being employed to bring about SSM doesn't allow those distinctions to be drawn.

If SSM advocates were pursuing their ends through legislation, then maybe you'd have an argument, but through the courts — declaring a right to exist beyond the reach of legislation — not a chance.

Posted by: Justin Katz at February 26, 2005 5:52 PM

Chairm,

Some additional thoughts related to the issue of genetically-related marriages.

If marriage is held to no longer be primarily about procreation, then what grounds would there then be to deny a marriage license to two cousins, or even siblings, on the assumption that they even intend to have children?

By severing the link between marriage and procreation, it could then be argued that any denial of a license based on a couple's greater likelihood of having children with birth defects is making an assumption about that couple's intentions which is not only not the state's business, but is irrelevant to the question of marriage anyway.

It is not so far fetched to imagine then hearing arguments like this:

"Marriage is not a license to have children. It isn't even about having children. Besides, siblings or cousins are equally capable of having sex and giving birth to children without getting married. To prevent this from happening, should we then also just prevent siblings and cousins from seeing each other at all, to prevent any chance of such children being born, whether deformed or not? If a brother or sister, or two cousins, love and care for each other and want to be together, what basis is there for the government or society to deny them this right on the assumption that they are planning something which has nothing to do with marriage anyway?"

The mechanism of argument sounds familiar, doesn't it?

Posted by: R.K. Becker at February 26, 2005 6:27 PM

Heh, all these scenarios are great fun: if the prohibtions against siblings and cousins marrying are largely due to procreation, what on EARTH would those prohibtions have to do with two gay brothers? Not a darned thing, so they must be struck from the law. Afterwards, will only same-sex siblings be allowed to marry, while opposite sex cousins cannot? What a strange twist of sexual orientation discrimination THAT would be!

All we're looking for here, RI, Michael, is a simple and pure Principle that will allow us to say "we'll go this far, but no further, on principle".

Posted by: Marty at February 27, 2005 12:18 AM

I appreciated Becker's and Marty's arguments, because they have been carefully thought through and dealt with clarifying some concepts.
On a small aside, one thing I see very frequently is the conflation of homosexuality to homo orientation. Human sexuality is not equal to sexual orientation. The first encompasses the second. Human sexuality is the full aggregate of a person´s psychology (both conscious and unconscious), their intellectual thinking, their attitudes, their values, their desires, their dysfunctions, their emotions, and their behaviors about sex/body/intimacy. It is like equating a button on your computer to the entire computer. Furthermore, the concept of "orientation" itself has been thoroughly dumbed down for the masses. "Attraction" is a very complex psychological subject. When people say John Doe is attracted to other men, this "attracted" can mean very complex psychological problems, there are a great variety of "attraction" feelings (there isn't just one type of attraction), there are complex feelings that generate these so-called "attraction" feelings, etc. Part of the legitimizing of homosexuality is based on the following logic: "John Doe" feels a certain type of attraction, therefore this attraction must be valid, simply because it is a type of attraction that has a sexual component to it. Which is a great fallacy, but a standard in a culture where any form of sexual pleasure is promoted as good and as overriding everything else.

Posted by: Alessandra at February 27, 2005 7:21 AM

Res Ipsa: "reproduction is not a legal requirement for marriage."

"Thus, until we reach the point that reproduction and heterosexual sex are a requirements for marriage, the comparison to mixed-race bans stands."

Et cetera.

RI's argument demands the impossible: We can't oppose SSM until we somehow require reproduction as a prerequisite to marriage. Shall we equip county clerks with crystal balls, asking them to peer into the future and determine whether a given couple applying for a marriage license will in fact produce a baby? Shall we require married couples to promise every few years that they're trying to get pregnant? Shall we demand pre-marriage visits to the doctor to see whether all the tubes are connected correctly? How much cost? How much benefit?

RI's puff of rhetorical sophistry isn't meant to be taken seriously. It's meant to avoid what many marriage defenders see as the core of the whole debate: Marriage is about producing babies. The state needs babies to survive. Ergo, the state has a legitimate interest in marriage.

Let's consider RI's argument from a different perspective: The state imposes requirements for getting drivers' licenses. You can't be blind, for example, and get an ordinary drivers' license. If you try, the clerk at the DMV will give you an identification card of some sort, but not a normal drivers' license.

Is this scandalous discrimination against the sight-impaired? The state discriminates against the blind. Isn't it shocking?

But wait! With RI's argument we can prove that this is evil discrimination forbidden by the Constitution! It's easy!

The vile defenders of the drivers' license status quo disingenuously claim that we don't give drivers' licenses to the blind because receiving a normal drivers' license is connected somehow with driving, which the blind can't do safely.

But this is nonsense. We can decisively prove that receiving a drivers' license has nothing whatsoever to do with driving a car. And we can do it using tried-and-true pro-SSM logic:

Driving is not a legal requirement for receiving a drivers' license. It's true! Try it some time. Go to your local DMV and ask the clerk if she will issue licenses to people who swear that they will never operate a motor vehicle. Ask her if she checks up on people after issuing the drivers' licenses, to see if they're still driving.

And it gets worse: Not only do the DMV clerks cruelly and irrationally discriminate against the blind on this flimsy pretext about driving, but they issue those same licenses to others who also are not safe to drive, though for less obvious reasons. The DMV doesn’t demand a medical exam before issuing a drivers’ license, even though there are many hidden conditions that could render someone an unsafe driver.

If marriage were really related to procreation, then the state would screen out the infertile by requiring an expensive medical exam. And drivers’ licenses were really connected with driving, then the state would require an expensive medical exam searching for every medical condition that might make someone unsafe on the road.

But back in the real world, we live under real-world constraints. Governments must do cost-benefit analysis just like everyone else. We don’t have magic crystal balls to know whether a given couple will in fact have children, or whether a given drivers’-license applicant will in fact drive. We can’t afford expensive medical tests to determine fecundity—or reliability behind the wheel.

Instead, we use cheap heuristics: If you can’t pass the simple DMV eye exam, then we’re quite certain that you can’t drive safely. And if you’re a same-sex couple, then we’re quite certain that you can’t reproduce. Others may slip through the cracks. We live in an imperfect world. In the world of government policy, if you’re going to destroy every rule with the argument that it doesn’t perfectly achieve its aim, then we won’t have any rules left at all.

Posted by: Ben Bateman at February 28, 2005 7:57 PM

Brilliant analogy BB. But playing the devils advocate, what about the actual "driving test" that everyone has to take before they get a lisence? Where they actually drive around the block...

Also, on a somewhat related theme, i remember hearing of a sherrif who granted a pistol permit to a blind man. The sherrif said that under the Second Amendment, there was really no way he could refuse to issue the permit.

Just food for thought.

Posted by: Marty at February 28, 2005 8:09 PM

Oh, I forgot to mention: You can get a license to practice law without ever actually practicing law---or ever intending to. The same is true for every professional license.

You can also get a hunting or fishing license without intending to hunt or fish. ("I'm sorry, sir. I have to take away your fishing license. You haven't caught enough today.")

Is there any license or certification issued by any government that requires that you actually do whatever the license is designed to allow you to do? There are doubtless a few. But the overwhelming majority of licenses issued by governments reflect the recipient's ability to do something, rather than his intent to do it. Marriage is no exception.

Posted by: Ben Bateman at February 28, 2005 8:11 PM

Marty: On the driving test, you could tell the instructor that you're driving the car only to get the license, and then you'll never do it again.

I would hate to analogize that to marriage, for propriety's sake. (Though it's pretty funny to think about.)

And it isn't entirely fanciful to talk about someone holding a drivers' license but never using it. I've heard of such people who live in the big cities and use public transportation all the time.

Posted by: Ben Bateman at February 28, 2005 8:15 PM

Of course, this all presumes that one accept the hypothesis that marriage is about producing babies. If that were the only reason exists--or even the primary reasons exists--wouldn't the state attach some legal requirements to fulfill that goal? Yet it doesn't.

Marriage protects children, but there is actually clearer evidence that the legal state of marriage is much more about protecting property than it is about creating babies. While marriage creates rights which protects children, more of the rights that marriage protects legally is property.

Posted by: res ipsa at February 28, 2005 10:35 PM

Gee, i wonder for whose sake all that property is being protected?

Posted by: Marty at February 28, 2005 10:41 PM

Is there any license or certification issued by any government that requires that you actually do whatever the license is designed to allow you to do? There are doubtless a few. But the overwhelming majority of licenses issued by governments reflect the recipient's ability to do something, rather than his intent to do it. Marriage is no exception.

Ok, then why do we let post-menopausal women get married? There is no way, short of a miracle, that she will reproduce. And if we're relying on miracles, then I maintain that, she and I have equal ability to do so.

Also, if you are infertile, you would be capable of reproducing but fertility isn't a box you check on the marriage license.

Thirdly, we revoke licenses for people who drive or hunt irresponisibly. Are we to revoke licenses for people who don't procreate properly? Either too much or not enough? What about people who procreate outside of marriage? Should we punish them like people who drive or hunt without licenses?

Posted by: Michael at March 1, 2005 12:18 PM

Michael said:

"What about people who procreate outside of marriage? Should we punish them like people who drive or hunt without licenses?"

It was my impression that we do. Have you not heard of paternity suits?

Posted by: smmtheory at March 1, 2005 1:02 PM

Social Stigma has always been a good deterrent as well, until recently. Now that that has been lost, perhaps we should discuss "civil stigma"?

Posted by: Marty at March 1, 2005 1:14 PM

"Ok, then why do we let post-menopausal women get married? There is no way, short of a miracle, that she will reproduce."

Sometimes a woman produces a child, and then later marries the child's father. I think it has happened once or twice in the past few decades ;).

Further, it's quite difficult to say exactly when a woman can no longer produce a child. Adriana Iliescu, a 66-year-old Romanian woman, is currently pregnant with twins:
http://news.bbc.co.uk/2/hi/europe/4133693.stm

The story notes that a 65-year-old Indian woman gave birth last year. We can predict that future technological advances will make it possible for women to give birth at even older ages. Menopause may not mean much if a woman can freeze her eggs, have then fertilized outside the womb, and then have it implanted back in her womb. It won't be long until a woman's capacity to reproduce is limited only by her body's ability to withstand the pregnancy---and even that assumes that the woman must carry the child for it to be 'her' child. Bring in a surrogate mother and even a dead woman can have a child, if you go by genes.

"And if we're relying on miracles, then I maintain that, she and I have equal ability to [reproduce]."

Extending female fertility is clearly on the technological horizon. Generating eggs from men or sperm from women is not. But if it ever is, then the same-sex marriage debate will be completely different.

To be technical, I see 'same-sex' and 'opposite-sex' as mere placeholders for the important distinction, which is potential for procreation. Suppose that some scientist claims that he can generate sperm containing a woman's genes. Then we can talk seriously about same-sex marriage, but only for female couples.

Having older opposite-sex couples marry still affirms that ideal as a matter of public morality. It's like when they catch some old ex-Nazi who butchered thousands in concentration camps during WWII. From one perspective it's pointless to lock up a doddering old man who obviously can't hurt anyone. But the law doesn't take that view. The law usually locks up those old men, or even executes them, to affirm the ideal that murderers must be punished for their crimes.

"Thirdly, we revoke licenses for people who drive or hunt irresponisibly. Are we to revoke licenses for people who don't procreate properly?"

We once did something similar. I understand that adultery is still technically a crime in a few states. And we once imposed strict requirements on divorces, with adultery being one of the easy cases.

"What about people who procreate outside of marriage? Should we punish them like people who drive or hunt without licenses?"

We once had some very stiff laws punishing everyone involved in an out-of-wedlock birth---including the child. Now, as smmtheory notes, we mostly just punish the father, and we do so in astonishingly harsh ways.

Posted by: Ben Bateman at March 1, 2005 2:04 PM

>> Since the ability to reproduce is not--not ever has been--a requirement for marriage, there is no reason to argue that point.

Actually, the birth of a first child has been a marker for confirming a "trial marriage" in some traditions -- not just in other cultures but also in colonial America. The presumption of procreative sexual relations (cohabvitation, sharing a bed, and having children) is also part and parcel of the custom of common-law-marriage. But that is an interesting rabbit hole that can be flagged but is probably not worth exploring here, I think.

Posted by: Chairm at March 1, 2005 3:05 PM

Michael, I think you may have meant to include same-sex pairs in the category of sterile combinations. That is, where unprotected sexual relations cannot be reasonably expected to produce offspring.

Most SSM advocates would not suggest that, like infertility, homosexuality is a medical condition that ought to be corrected. Usually a couple is not considered to be experiencing infertility until they've tried for a couple of years. And very often cases are resolved without technical interventions.

To make fertility a prerequisite for a marriage license, the state would promote premarital sexual intercourse and trial marriages (i.e. cohabitation). This would mean that marriages could be confirmed only with the arrival of a couple's first child. The state might issue licenses for trial marriages and impose periodic looksees and looming deadlines, I suppose.

As it is, paternity is triggered with the arrival of a child. And paternity does not bestow marital status.

The sexual relations between men and women is intrinsic to fertility and to the medical condition of infertility. Same-sexed couples can not become fertile; their sexual relations are sterile even if each of the individuals is capable of reproducing with the opposite sex. In this sense a unsexed couple is as sterile as an individual acting on his or her own.

--

To return to Michael's point: Among SSM advocates there is a perceived overlap with unmarriagable unisexed couples and marriagable, but sterile, couples. In other words, they see sterile man-woman couples as exceptions that are accomodated within the procreative model. And they demand that moving that line is thus negotiable.

I'd agree to the extent that where paternity and unmarriagable combinations overlap, there is an area for policymaking that takes into account the best interests of children in such scenarios. Hence the need for society to explore forms of "civil union" (not necessarily a marriage-like status but perhaps a bundle of legislative fixes for specific problems) that are distinguishable from marriage and do not presume sexual relations.

It took more than a few years for society to establish the marriage idea and to shape marriage laws and traditions. It may take some time to sort out how unmarriagable combinations benefit society, if they do, and how society might benefit such combinations, if it can do so through the state. But the first priority, in my view, is the conservation of the man-woman criterion and the strengthening of the social institution of marriage.

In the meantime, I think Ben Bateman's approach to Michael's valid point makes a good deal of common sense.

Posted by: Chairm at March 1, 2005 3:12 PM

To be technical, I see 'same-sex' and 'opposite-sex' as mere placeholders for the important distinction, which is potential for procreation. Suppose that some scientist claims that he can generate sperm containing a woman's genes. Then we can talk seriously about same-sex marriage, but only for female couples.

Actually, the technology is no less far along than increasing the age of fertility. It's just that some people don't like the idea of somatic nuclear transfer because it's colloquially refered to . And by the way, I create millions of sperm every day with a woman's genes: my mother's. You fuse one of my sperm with the sperm of my partner, through in a de-nucleated donor egg and bam, you've got the offspring of two men. Heck, I'm sure you can convert a sperm into an egg with some basic hormonal regulation; you just have to figure out what genes to turn on and off.

See, if you're going to even bring technology into this debate, you have to worry about time-frames. Why should we artifcially extend the fertility of a woman (which is not what nature intended) and not try to make two men create offspring? Just because the technology is not immediately possible, doesn't mean it won't be. And if we can argue slippery slope in one dimension, why can't we argue it in the other?

And to address Chairm, why do alternatives for gays, like civil unions, have to exclude presumption of sexual relations? Is *that* what makes a marriage a marriage? Does this really all boil down to not wanting to recognize gay sex to be as emotionally, spiritually and socially unifying as straight sex?

Posted by: Michael at March 2, 2005 12:21 PM

Michael -
to believe that gay sex as 'emotional, spiritually
and socially unifying' would require them to abandon enormous planks of their cohesive world view.
It reminds me (and I understand that this is a potentially inflammatory comparison) of the drive in the waning days of the Confederacy to draft slaves into the army. One CSA leader objected that, if 'negroes' made good soldiers, everything they'd been fighting for was a lie. The distinction is that the CSA was fighting for its very existence; the opponents of SSM are fighting to maintain the status quo. They may believe that the stakes are as high in this fight; I cannot claim that they do.

But in essence, Michael - no, they do not want to so recognize. Quentin Crisp once wrote that he saw 'homosexuals' as the people who sat on the banks of the river, watching, while the 'real' people were out in the river swimming. It would appear that that point of view is not as extinct as Mr. Crisp.

Posted by: Robert at March 2, 2005 12:48 PM

Michael: "Heck, I'm sure you can convert a sperm into an egg with some basic hormonal regulation; you just have to figure out what genes to turn on and off."

I suspect that it would be a trifle more complicated than that. If it were so easy to do, then I'm sure that people would be doing it.

"Why should we artifcially extend the fertility of a woman (which is not what nature intended) and not try to make two men create offspring? Just because the technology is not immediately possible, doesn't mean it won't be."

You misunderstood me. I didn't say that I oppose that kind of research. I said that if a same-sex couple could produce a baby, then it would dramatically alter the terms of the SSM debate. My understanding is that nobody has any idea how to do that. But if that's incorrect, then please enlighten us.

Posted by: Ben Bateman at March 2, 2005 1:31 PM
Actually, the technology is no less far along than increasing the age of fertility. It's just that some people don't like the idea of somatic nuclear transfer because it's colloquially refered to [as cloning].

It's not just colloquial - it is cloning. Somatic nuclear transfer was coined because people think cloning is immoral, and the supporters of so-called therapeutic cloning are trying to play word games to get around those objections. But if you explain to people what actually occurs during SCNT, and what is created as a result, they object to it. What is objected to is not the name - it's the process.

And by the way, I create millions of sperm every day with a woman's genes: my mother's.

Do you think you could be a little more disingenuous, Michael? When Ben said, "with a woman's genes" he meant, "with the full and complete genetic cohort of the woman, and nothing else", and you know it.

You fuse one of my sperm with the sperm of my partner, through in a de-nucleated donor egg and bam, you've got the offspring of two men. Heck, I'm sure you can convert a sperm into an egg with some basic hormonal regulation; you just have to figure out what genes to turn on and off.

That's a remarkably inaccurate and imprecise statement for a supposed scientist to make. Currently we have no way of converting the DNA in a sperm into the form it takes in the nucleus a female egg. So the 'bam' you're talking about is not even on the foreseeable horizon, even if it may be theoretically possible. The whole point is that we currently have no clue which genes to turn on and off, nor do we have the technology to do so.

And to address Chairm, why do alternatives for gays, like civil unions, have to exclude presumption of sexual relations? Is *that* what makes a marriage a marriage?

Yes, sexual relations between a man and a woman are a necessary component of a marriage. That's why we have the word "connsumate".

Does this really all boil down to not wanting to recognize gay sex to be as emotionally, spiritually and socially unifying as straight sex?

It's not a matter of wanting - it's a matter of recognizing reality. Calling something what it is not, especially something as crucial as marriage for the health of both individuals and the society at large, is a recipe for great harm, if not catastrophe. Robert's assessment is quite right, from my point of view. The stakes, in fact, are as high as the stakes in the Civil War. We are still experiencing the aftereffects of slavery and the Civil War today, and we will experience the effects of decisions we make now regarding marriage for decades, if not centuries.

Posted by: Mike S. at March 2, 2005 2:09 PM

>> why do alternatives for gays, like civil unions, have to exclude presumption of sexual relations? Is *that* what makes a marriage a marriage? Does this really all boil down to not wanting to recognize gay sex to be as emotionally, spiritually and socially unifying as straight sex?

As I have described it, state recognition of the man-woman criterion is not a reaction to the demand that the state affirm homosexuality. It is an acknowledgement of the procreative model that sustains society. There is no sexuality criterion that bars homosexual men and women.

Some here appear to assert that society, through the state, must take an interest in the sexual relations of unisexed combinations. If so, why so?

What is the core of SSM?

Is there a social institution that at its heart is about nonprocreative (but unifying) sexual relations between persons of the same sex? If there is not, should the state create one as the means to affirm homosexual sexual relations?

It seems to me that the result of enactment of SSM would not be to open marriage to homosexual men and women, but to replace state recognition of marriage with state recognitoin of something else. This substitution would lock-in the separation of procreation from marriage and empty marriage of its meaning. (I don't ascribe ill-motive to SSM advocates on this score, but it is the outcome that their reform would make.)

Instead, this alternative could take the form of a state recognized domestic arrangement for which marriagable combinations would be ineligible. Whether or not two men engage in mutually consenting sexual relations in a civil union is none of the state's business. Meanwhile, civil union should not presume sexual relations, for instance, between a grandmother-mother combo raising the mother's children.

It is true that "civil union" has become conflated with marriage-lite options designed to suite homosexual men and women. That, btw, is a reaction to the demand that the state affirm homosexuality. I think it also distorts the utility of civil union.

If the enactment of SSM would mean that state recognition of marriage is to be divested of the man-woman criterion (and the presumption of procreative sexual relations), then, what would be the problem with instead divesting civil union, as an alternative, of the presumption of sexual relations between unmarriagable combinations?

Posted by: Chairm at March 2, 2005 3:17 PM

Same-sex procreation? It's been done, with a mouse anyway, after 450 aborted attempts (dead mutant mice). Chalk it up to feminist adeas of "reproductive rights", but this is the wave of the future for male-intolerant lesbians and emotionally damaged gay men. (an aside: why do you guys have two (three, four, five) different labels if there's no distinction worth making?)

But for all the banter about "gay sex is unnatural" and "no it's not, you bigot", i think we can all agree, that two lesbians pretending to "have children together" with donated sperm, or scientifically devising a way to fuse two eggs or two sperm into a baby is MOST unnatural. We don't even need to debate that, right?

Geez, fertility enhancement is one thing (still arguably immoral), when someone is clearly broken "down there", but when everything is working fine and just as nature intended, it is totally corrupt to try and route your way around the natural way of creating a family just because your emotions make it feel "icky".

Like the old commercial used to say, "It's not NICE to fool Mother Nature!"

Posted by: Marty at March 2, 2005 6:50 PM

Marty -
I don't wish to sound repetitious,
but how was my husband and I adopting
a child in foster care 'fooling Mother
Nature'?
Here's why I ask - it's how we became
parents, you clearly believe we shouldn't have
become parents, so how does this peroration
on unnatural behavior and the 'ick' factor
come into it?

Posted by: Robert at March 2, 2005 7:48 PM

Robert, i think i've answered that before (i too hate to be repititious). What i said above does not apply to adoption obviously. What i said before was that adoption by gay parents is a lesser of evils. One in a long line of them for your kid. You know as well as i do that he deserved better -- he deserved the love of the mommy and daddy that created him.

Better you and Michael than nobody at all, to be sure...

There's nothing unnatural or "icky" about what you did, unless you try to hide the fact that he was adopted like an opposite-sex couple might do (and no, i don't take you for that big of a fool).

Posted by: Marty at March 2, 2005 8:10 PM

Robert,
This adoption thing of yours is starting to look a lot like a chip on your shoulder that you're just waiting for somebody to knock off. When we're talking about procreation, you get mighty defensive of having adopted a child into a homogamous relationship. I'm beginning to wonder why you think there is a need to bristle about it. Not that it's any of my business, but it just makes me wonder is all I'm saying.

Posted by: smmtheory at March 2, 2005 10:59 PM

SMM -
I bristle when people argue that I should not have been allowed to adopt my son, especially when the subtext is that I have, by adopting him, harmed him in some way. You may, at the moment, be speaking of specific methods of becoming a parent, but the thrust of the argument is : men like Robert should not be allowed to be fathers.

If the reasons why this would make me bristle seem obscure to you, I can go into more detail; but that's the gist of it. I have an especial sensitivity to suggestions that, by taking on the responsibilities of fatherhood, I am being selfish. To my relief, that particular trope/meme seems to have subsided for the moment.

Posted by: Robert at March 3, 2005 2:03 AM
You may, at the moment, be speaking of specific methods of becoming a parent, but the thrust of the argument is : men like Robert should not be allowed to be fathers.

First of all, the specific methods make all the difference (viz., the difference between adopting a needy child and creating one via technological manipulation). Second, the thrust of the argument is, and always has been, that children need a mother and a father. As Marty said, we (speaking generally of the anti-SSM commentors here) appreciate the fact that your son is better off with two fathers than with one or no fathers (and we appreciate the sacrifices you and your partner have made to raise him). What we object to is the assertion that there is no difference between: a) a child having his biological parents parents raise him; b) a child being raised by heterosexual adoptive parents; c) a child being raised by homosexual adoptive parents; d) a child being raised by a single parent; or e) a child being raised by the state. There are all kinds of different environments for children, with varying degrees of harm. You refuse to recognize those differences. Repeating the nonsequiter that "[Marty] (or whomever) claims that children do best when raised by their biological parents (with the corollary that SSM should not be enacted), therefore he's saying that I'm a bad person for adopting a son" adds nothing to the discussion.

Posted by: Mike S. at March 3, 2005 10:35 AM

Robert said:

"but the thrust of the argument is : men like Robert should not be allowed to be fathers."

Don't you think it is possible that you are projecting in this case? I never presumed to judge whether or not you should actually be allowed to be a father. You and I may disagree about what would have ultimately been the best for the child, but that is only a difference of opinion. If you assume otherwise that I am judging you then that is unmerited.

Posted by: smmtheory at March 3, 2005 10:42 AM

"the specific methods make all the difference"

Mike S has an excellent point in that post. It's a constant stumbling block in this part of the SSM debate. The anti-SSM crowd sees all kinds of fine distinctions in exactly how a child is created and raised. The pro-SSM side wants to blur those distinctions with the sloppy use of words like 'parent'. If you ask the pro-SSMers to refine their usage, they will immediately become deeply offended, which conveniently shuts off the debate.

If you want to be deeply offended, Robert, go ahead. We can't stop you. But if you want to understand what the other side is thinking, try to get over it and think about what Mike S is saying.

It's a noble thing for firemen to try to put out fires. But it's much better to stop the fires from starting in the first place. It's a noble thing for couples, SS or OS, to adopt the children created by someone else's careless copulation. But it would be much better if we simply had less careless copulation, and strengthening marriage would help with that.

Posted by: Ben Bateman at March 3, 2005 1:22 PM

Ben,
that reminds me of something I said during the ten-week parenting (excuse me, fathering and mothering) training class required of all prospective foster and adoptive parents (fathers and mothers) in my county.
When we were invited to comment on the class, I stated that, in my opinion, _all_ prospective parents (sic) should be obliged to take - and pass - such a class. One of the staff members riposted that, in that case, there'd be far fewer
children in need of foster or adoptive homes.

I could live with that.

Posted by: Robert at March 3, 2005 4:17 PM

Robert, in that course what constituted a pass? And a failure? Did the instructor provide any info about the successful parenting of past graduates over the years the course has been offered?

[Not challenging the merits of the course. Just curious about the exchange you described.]

Posted by: Chairm at March 3, 2005 5:12 PM

Robert,

Interesting. Now, what would we do with those inherent breeders who fail to pass? And what do we do about prospective parents whose ideologies are unhealthy — leading, say, to a lack of complete tolerance for others (e.g., homosexuals) or to a lack of preference for secularism?

Posted by: Justin Katz at March 3, 2005 6:19 PM

I'd be happy just holding people to their vows of "til death do us part" for now... I've heard this suggestion before (hmmm, but only in the SSM and Abortion debates, now that i think of it), but none of the previous generations ever seemed to need parenting classes -- or if they did, no one bothered to say so out loud.

Kinda makes you wonder doesn't it?

Posted by: Marty at March 3, 2005 9:15 PM

This is off topic, but my wife was wondering whether, now that we have Connor's law declaring that killing a pregnant woman and her baby is killing two persons, can pregnant women drive in the HOV lane? Even pro-choice supporters should be behind this, since in their view the "fetus" becomes a "person" when the mother decides she wants it. If the child will help avoid a ticket (or help cut down on the commute time), I bet she'd want it!

Posted by: Mike S. at March 3, 2005 9:57 PM

Well, more or less in order:
Chairm, the class instructors/facilitators
(staff social workers/case workers with
the Department of Social Services) determined
if the class's participants had succeeded
in the class's objectives. One of them
assured me that, if any of the prospective
parents seemed to be having trouble so doing,
they (the instructors) would meet with them privately to help them along. They _wanted_ everyone to meet the deparment's standards for fostering/adopting. And, regarding part participants, they went on to foster or adopt waiting children, so the teachers had some ongoing contact with them. Don't remember much about that part, although a panel of adoptive and foster parents (and one former foster child) did come and speak to the class.

Justin - in my county, the qualities you mention might be considered red flags. E.g., if you adopt a child, you intend to home school, teach Biblical inerrancy, and employ corporal punishment. In Dade County, those might not be red flags, but being a same-gender couple certainly would be. At the moment, this is one area where local control is definitely a factor.
Presumably, if you felt that the SW in charge of your class had denied you unfairly, there are appeals processes, but I have no first hand knowledge of this.

Marty -
regarding past generations, I'm sure you can imagine a few cases where people appear to have been raised by parents with no real idea of what they were doing. If your counterargument that there is no causal link between parenting skills and how children turn out, that's taking the discussion in a new direction. One of the things my husband and I have in common is being late children; he's the fifth child of five, I'm sixth of seven. We both believe that having experienced parents was a tremendous advantage to us growing up; since we cannot give that exact advantage to our son, we're trying to approximate it as well as we can.

Posted by: Robert at March 4, 2005 11:34 AM

We agree here somewhat -- that parenting skills are taught by parents who pass them along to their kids. In an age of rampant divorce and a cultural separation of the idea that parenthood and marriage are somehow intriniscally related, well, neither of us are suprised that suddenly parenthood is something that needs to be taught by a third party.

I'm frightened by what this means for future generations. I hope you are too.

Posted by: Marty at March 4, 2005 6:17 PM

Robert, what were the highlights in the list of objectives of that course? In a nutshell, what did the participant need to demonstrate (skill, knowledge, attitude, and so forth) to graduate?

Posted by: Chairm at March 6, 2005 7:20 PM

Chairm -
I've not been ignoring you. The problem is,
the class was over three years ago, and I
don't want to either a) misrepresent the course,
or b) put forth some generalized babble.

That said - the course was intended for prospective foster and adoptive parents who
would become parents to children currently in
the foster care system. These are typically
_not_ infants, and are usually not in ideal
health. This brings forth a slew of issues
that people becoming parents through the
traditional method do not face. One of the
main lessons (as I recall) was this: "Do not
envision yourself as the rescuers of these
children. You are not the heroes swooping down
out of the sky and snatching them from the
ruins of their miserable, pre-YOU lives."
This was necessary because, in many cases,
these children have been through a lot, and
yet they still wish that they could be with
their birthparents. Thus, they are not initially
(or, in some cases, ever) grateful to the
foster parents who take them on for a short time,
or the adoptive parents who take them on for
the rest of their lives.
Empathy to what they've gone through and a
willingness to help them forward along the
path to growth, maturation and adulthood, and
a willingness to love without expecting much of
anything in return - as I recall it, those were the main things they emphasized.

I hope that helps.

Posted by: Robert at March 10, 2005 3:46 PM