I've never been on the Schwarzenegger bandwagon. Something about his public persona — holding the big cigars in a grin — always terminated the Reagan comparisons for me. With time and interest, I'm sure a compelling narrative could be compiled highlighting the fundamental differences between the heartland American turned upper-midlist actor turned politician and the weightlifting foreigner turned mega-billed actor turned polician.
One needn't agree with my position on same-sex marriage — or share my gut reaction to Arnold the Political Leader, for that matter — to find this statement of principle to be a matter of concern:
MATTHEWS: You would go with the courts?SCHWARZENEGGER: Whatever the Supreme Court, whatever the Supreme Court decides, that`s exactly what I will stay with.
MATTHEWS: And that`s consistent with your philosophy, letting some judges decide, rather than letting all the people of the state decide?
SCHWARZENEGGER: Well, both, the people or the judge. In both cases, I think the important issue here is that it should not be the power of a mayor, for instance, like Mayor Newsom in San Francisco. ... I thought he was overstepping the line, because I thought that this is, again, something that the legislators can do, the people can do, or the court can do, but not individual mayors cannot make up the laws that go along, because, eventually, you have some other mayor in some other town start saying, OK, I think we should hand out guns and ammunitions and we should have free this.
Some readers of the exchange might observe that he said nothing of a governor's power to "make up the laws that go along." I would hope that many more would find it an odd — perhaps delusional — suggestion that the executive alone among the branches of government can set a precedent that undermines democracy and the rule of law. In a system in which the executive and the legislature never fail to back down when battling with the judiciary, it makes little difference whether we call the dictator of law "Mr. Mayor" or "your honor."
Posted by Justin Katz at March 15, 2005 10:38 PMAnd that's just it -- too many people are willing to forget that if it isn't written in the constitution, then its under the jurisdiction of We The People, through our elected legislatures and state governments.
There certainly ARE questions of constitutionality that must be decided by the courts, but these are mere interpretations of specific circumstances that are just not so easily addressed.
But same-sex marriage is completely unaddressed, constitutionally speaking. Nowhere is it written in any amendment, and never before has any amendment been thought to cover same-sex marriage, and the legal precedents about racial bias bear precious little relevance to what we are talking about today. After all, skin color doesn't create new life. Only a man and a woman can do that.
Posted by: Marty at March 15, 2005 10:58 PMBut the California constitution does refer to due process and equal protection. Thus, in interpreting the extent of due process and equal protection, it makes perfect sense that the courts determine whether those constitutional provisions are applied.
Given those state constitutional requirements, it is the duty of the courts to determine with a law satsfies due process and equal protection, even if the law was approved by public referendum. Just as a public referendum backing slavery or segregated schools was not satisfy those constiitutional requirement, nor may the provision of marriage licenses which bar same-sex couples from accessing legal privileges.
Posted by: res ipsa at March 15, 2005 11:34 PMBut the California constitution does refer to due process and equal protection.
Sure, but neverbefore have those things even implied that same-sex marriage would become legal. Never were they intended to mean that, never have they meant that, so to just up and say "now it means that" without any input from We The People is completely unAmerican -- and unConstitutional. This is a power delegated to the People, by the sheer absence of any mention of marriage in the constitution.
If you insist upon making this a Constitutional issue, then so be it -- but the people will be heard. 17 states so far, with more in the pipe. How many more will it take to convince you that We The People deserve to be heard on this issue?
Posted by: Marty at March 15, 2005 11:52 PM"Due process and equal protection"
The 14th amendment did not swallow the constitution. SSM supporters have due process its called the power to vote & they have equal protection (their votes are as valid as anyone else's)
What he's talkiny about is the discredited notion of "substantive due process" wich (go ahead and think about it a minute) is a contradiction in terms. Due "process" is about the process, is says nothing about the outcome.
We aren't talking about the federal constitution, we are talking about the California constitution. And who better to determine whether the laws of California--even those voted on my the masses--contradict the intent of what the California consitution intends??
Are you saying that if California voters decided to legalize slavery, the California courts shouldn't touch it because slavery isn't mentioned in the constitution????
Posted by: Res Ipsa at March 16, 2005 11:27 AMNo Res Ipsa (what irony, its hardly evident)
The judges of California dont have cart blanch to "interpret" anything they like into their constitution- they are bound by the rules of interpretation...
Including if the arguments you have heard so often represent a "rational basis" or not. (the lowest thresh-hold possible to uphold the will of the people)
And the debate will be whether there is a rational basis. The Mass. ct found no basis and trial court judges in NY and Calif., have found no such basis.
Posted by: Res Ipsa at March 16, 2005 11:50 AMI would hope that many more would find it an odd — perhaps delusional — suggestion that the executive alone among the branches of government can set a precedent that undermines democracy and the rule of law.
Sort of like the president deciding, in an undemocratic manner, that the government would no longer be funding research on new embryonic stem cell lines? Because as far as I understand, decisions like that belong to Congress, and always have. And stem cell research has much more popular support than gay marriage does. And yet, the people never got a say. Do you find that odd or delusional?
Posted by: Michael at March 16, 2005 11:58 AMIm asking if you.. Res Ispa, think the arguments you have heard supporting traditional marriage represent a "rational basis" ??
Remember this means exactly what it sounds like it means "rational" - its not even a resonable basis or a resonable man standard.
Nope - Its just "rational"
rational
1 a: having reason or understanding b:relating to, based on, or agreeable to reason:
So, are they?
Posted by: Fitz at March 16, 2005 12:00 PM"And the debate will be whether there is a rational basis. The Mass. ct found no basis and trial court judges in NY and Calif., have found no such basis."
But they didn't even try to look for one, or present one. They just flatly declared that marriage has nothing to do with procreation, which is self-evidently not true historically or legally.
Posted by: Mike S. at March 16, 2005 12:08 PMSo Res, are they?
Posted by: Fitz at March 16, 2005 12:11 PM"Sort of like the president deciding, in an undemocratic manner, that the government would no longer be funding research on new embryonic stem cell lines? Because as far as I understand, decisions like that belong to Congress, and always have."
Decisions like what? The executive branch makes all kinds of decisions about how it will spend money that Congress appropriates. Sometimes Congress objects, and the political process (i.e. back-and-forth between the legislative and executive branches) is used to sort out how the money will be spent. But authority to make that particular decision was well within the appropriate function of the executive.
"And stem cell research has much more popular support than gay marriage does. And yet, the people never got a say. Do you find that odd or delusional?"
First of all, there have been bills introduced in the Senate and the House addressing various aspects of cloning and embryos. And such bills have been introduced (and passed, in some cases) in state legislatures. So the people have had, and will have, their say. Second, there is no evidence that if you ask people whether they think destruction of embryos should be funded with federal taxpayer dollars, that a majority of people agree. There is also no strong moral claim that any research must be funded by federal dollars. You can argue that prudentially, the best way for the research to proceed, or the long-term interests of society to be met, is for the federal government to fund it, but you can't argue that the government has some sort of moral imperative to fund any kind of research.
Posted by: Mike S. at March 16, 2005 12:18 PMI actually believed the Mass. ct. did a find job of explaining why there is no rational basis.
You also have to remember than in Calif., NY, and Mass., there is a slightly higher standard than just a rational basis since sexual orientation is protected by statute in each of those states, creating a potentially higher level of scrutiny.
Still, the Mass. ct found the opponents of SSM were unable to identify a rational basis by the state to discriminate.
Posted by: Res Ipsa at March 16, 2005 12:31 PMNote that the moral debate over embryonic stem-cell research is the due consequence of an Executive decision that the constitution contains a right to abortion, without seeking the will of the people. 30+ years later, nothing is settled culturally.
I think we can expect the same fierce and voilent debate over marriage to continue -- regardless of what the courts decide -- until the people are allowed to express their will democratically.
RI: And who better to determine whether the laws of California--even those voted on my the masses--contradict the intent of what the California consitution intends??
But that's just it, don't you see? You're adding "intent" to what the California Constitution intends -- when it NEVER intended to intend any such thing! If it did, explicitly, it is extremely unlikely that it ever would have been added to the Constitution in the first place!
Why are "We The People" being shut out of the most important cultural decisions of our time?
Posted by: Marty at March 16, 2005 12:38 PM
Because "We the People" have a knack for approving of things like slavery, racial segretation, denying women the right to vote, and preventing people of different races to marry.
When "We the People" decide to ban guns or say churches should pay taxes, I am betting you will be first in line at the courthouse.
Posted by: Res Ispa at March 16, 2005 12:45 PMRes Ipsa,
If enacting an amendment to the U.S. Constitution to give women the right to vote is not the voice of "We The People", what was it?
The 100 years where voters and legislatures continued to ban the practice.
Posted by: Res Ipsa at March 16, 2005 1:07 PMActually, I think it was "We The People" that got tired of the "enlightened few" running roughshod over them without giving them a voice. Just like the "enlightened few" are trying to do now.
Posted by: smmtheory at March 16, 2005 1:11 PMRes
So you dont believe our arguments are even rational. (much less resonable, or cogent, much less winning)
I dont know why you hide behind the Mass. courts reasoning. (or lack of it)
The Idea of trying to ensure children are raised by their Mothers & Fathers strikes you as an irrational public policy.
And all those people in all those states are irrational bigots also...(for believing it)
And the Supreme court must follow that reasoning also I suppose?
Why do you bother with Justins page?
I dont spend time trying to convince irrational bigots that they are wrong (but I dont believe the majority of people are irrational)
Why dont you just come out and say you think we are irrational? (and must be animated by anumus & bigotry -like Mass. Ct. said)
Why dont you just say that you think the traditional definition of marriage is the equivalent of the segregated south?
Is it because even you dont really believe it?
"The Idea of trying to ensure children are raised by their Mothers & Fathers strikes you as an irrational public policy."
That's an irrational public poilcy, since there is no basis for finding that children raised by same-sex parents would be harmed. Also, if this were the state's interest, why isn't divorce banned and adoption banned.
Posted by: Res Ipsa at March 16, 2005 2:10 PMSo you do find our strongest argument to be irrational?
And you base this on a lack of social science when it comes to marriage?
{Oh by the way the lack of what you find to be consistancy througout the law, does not make a particular public policy irrational)
Posted by: Fitz at March 16, 2005 2:17 PMThe question once again is is it "rational"
Not weather you agree with it, or if it maintains consisitancy, or even if its reasonable...
No...just wether its "rational" or not?
I.E. does it make any sense or is it just complete crap.
Are you saying it a crappy argument?
You seem to be...
(are you a lawyer?)
Im just trying to pin you down because I want to make sure I understand how you think
(or if you do)
"Also, if this were the state's interest, why isn't divorce banned and adoption banned."
It is in the state's interest for divorce to be restricted (certainly more than it is currently). It's also in the individual's interest to be able to extricate themselves from abusive marriages. So, we should tighten divorce laws. But, as far as I know, the divorce laws were loosened by legislatures, not by judges.
Adoption is the next best alternative when a child cannot be raised by his or her biological parents.
Posted by: Mike S. at March 16, 2005 2:27 PMSince the significant social science data never considers same-sex couples, it is all but irrelevant to the discussion of whether there is a rational basis.
Again, if we created policy based on social science research and found that a rational basis, we would outlaw divorce, we would take away the children of single parents, and we would ban adoption since none of them survive the rational basis of children being raised by their biological, married, mother and father.
Posted by: Res Ipsa at March 16, 2005 2:28 PMNo Res,... your being obtuse
(i.e. willfully ignorant)
The social science data on children of single parents is not irrelevant. It highly rational when it comes to what we adopt as public policy.
We could outlaw divorce if the voters want or promote married couple adoption (wich we do) and its all based on "rational" arguments
I'll give you another shot to prove your self.
(now stop being obtuse)
Is it rational...?
Is this a rational basis for a public policy argument...?
Carefull now Res...
This effect the rulings of every court in the country, its sets a new standard for rationality in crafting public policy & it has implications all the way to the supreme court....
Now...
Is it a rational public policy?
Fitz, if you are being raised by two people of the same-sex in a committed relationship, then you aren't being raised by a single parent, thus the research--with its many flaws and gross oversimplifications--is irrelevant.
Posted by: Res Ipsa at March 16, 2005 2:44 PMWhat research?- you seem to know more than Im implying.
The question stands
Is it rational?
As I've said at least three times, no it is not rational.
Posted by: Res Ipsa at March 16, 2005 2:50 PMThe question is NOT - Do children raised is same sex households fare better or worse than opposite sex households?
No..
The question is.. Is limiting marriage to men and women in order to insure children born to them will be raised within a household with their natural mother and father?"
Is that a "rational basis"?
The burden of proof is on you
NOT on the state and people to prove it is rational but for you to prove that it is irrational. Get it
(your not a lawyer are you?)
Once again
Is it rational?
Yes thats three times you have called everones argument, nothing more than irrational bigotry.
I thought Id give you a 4th chance.
Is it a rational basis?
And if not why not?
"Is limiting marriage to men and women in order to insure children born to them will be raised within a household with their natural mother and father?"
For it to be a rational basis, it needs to rely on something more than "it's what the Vatican believes" or "it's what my Uncle Joe" believes. It needs to based on "something." In this case, the social science data does not support your rational basis because that's not what the data says.
So, yes, there is no rational basis. Whether you are a bigot will be decided by others at another time. That your arguments are irrational is true, when using the compass of judicial review.
The question is.. Is limiting marriage to men and women in order to insure children born to them will be raised within a household with their natural mother and father?"
Is that a "rational basis"?
No. It is not. If a man and a woman are married, then a child born to them is likely to be raised by them regardless of whether some other same-sex couple happens to also be married. There has to be some explanation for how allowing same-sex couples to marry will cause other married couples to abandon their children.
In addition I would note that Judge Kramer observed that the marriage prohibition should be subject to strict scrutiny as it makes use of gender classifications. Perez is binding in California.
Posted by: Gabriel Rosenberg at March 16, 2005 3:13 PMSo your obviously not a lawyer,
you have rushed to the "experts" to find out what peoples common sense tells them already (except yours of coarse)
I guess now your a social scientist
Did you know that 93% of prison inmates were raised in households without fathers?
That there is more of a correlation than income or race.
But since your a social scientist (or an expert on the data) you can draw your own conclusions about wether a correlation is a causal connection?
Hell.. If the data is acurate and the study well conducted...Maybe it means that...
Children raised in gay households with twice as many fathers are twice as likely not to go to jail.
Right?
Your being an obtuse sophist.
The "compass" of judicial review and "social science" are merely terms to throw around until someone does what you want (and they probably wont after this political drubbing)
So you believe that we are all "irrational" and our arguments have no basis...huh.
I guess the conversation is fruitless.
You've already decided.
But what of the children, what of the family, what of the NEED of you for your mother & father, (and for others)what of Scandanavia..
Do you really want to conduct this experiment.
Are you really that inhumane..
(somehow I still dont believe it)
Not inhumane at all. That's why I believe same-sex couples (and the children of those couples) should have the protection of our laws.
Posted by: Res Ipsa at March 16, 2005 3:21 PMFitz:
>The question is.. Is limiting marriage to men and women in order to insure children born to them will be raised within a household with their natural mother and father?"
Is that a "rational basis"?
That is not a rational basis, for the following reasons:
1) Same sex couples cannot conceive children by themselves, even if they are allowed to be legally married.
2) There is no rational reason to believe that heterosexual couples with children will get divorced because same sex couples are allowed to get married.
3) Gays and lesbians who have had children currently raise children in same-sex led households, even if they aren't married.
4) It is arguable that legalizing SSM will result in FEWER children being raised in same-sex led households. Here's why:
Due to the widely held beliefs that homosexuality is immoral and wrong, many people who are natually lesbian and gay attempt to "cure" themsleves by marrying (or just having sex with) the opposite sex. If they have children in these marriages and later divorce to enter same sex marriages that are more appropriate for them, then the children may spend raised at least part of the time in a same-sex led household.
On the other hand, is SSM is legalized and the stigma against them is removed, then gays and lesbians won't attempt to cure themselves with insincere hetersexual relationships. The long-term result is FEWER children in same-sex led households and a HIGHER percentage of children with mothers and fathers.
Posted by: Dancar at March 16, 2005 3:28 PMFitz:
>Did you know that 93% of prison inmates were raised in households without fathers?
That doesn't mean that 93% of prison inmates were raised in households with two same-sex parents and you know it.
If you have a study on people who were raised in same-sex led households, then let's hear it. But single parent housholds are a completely different thing and those stats are not relevent to this discussion.
Posted by: Dancar at March 16, 2005 3:35 PM
It dosent have to be a perfect rationale, it does not have to withstand all possible scrutiny (even muddled ones above)
You dont have to find it compelling or even reasonable...
just rational... thats all, just wether or not its a rational argument for the state to base its policy on..
So Dancer, I put the question to you..
Are our arguments rational?
Ipsa tried that "relevant" line with me before.
Your not judges and no court (or reasonable observer) would consider data on the breakdown in the family and its dire consequences "irellevant"
If the purpose of marriage is to make sure that children are born to and raised by their natural mother and father, then ALL social science data is relevant.
We are talking about the health of all society and the standards we set..for what we publicly endorse, celebrate, and subsidise.
Read my posts again and figure out if you get the point.
Posted by: Fitz at March 16, 2005 3:48 PMIf the purpose of marriage is to make sure that children are born to and raised by their natural mother and father, then ALL social science data is relevant.
And ALL the social science data will not replace the need to explain HOW allowing a same-sex couple to marry will CAUSE a child to be raised by someone other than his or her natural parents. Without any such explanation (even a bad one) we cannot possibly say that argument is a rational argument for limiting marriage to oppposite-sex couples.
Posted by: Gabriel Rosenberg at March 16, 2005 3:52 PMBy seting the standard that all family forms are inharently equal and to say anything less is irrational animus.
Yeah..
Posted by: Fitz at March 16, 2005 3:57 PMThe Idea of trying to ensure children are raised by their Mothers & Fathers strikes you as an irrational public policy.
Fitz,
This is not an irrational policy. In fact, it is in the interest of society that children are raised by their mothers and fathers.
What is irrational are the arguments that link banning SSM and ensuring children are raised by their father and mother. The arguments fall under a few classic logical fallacies.
The first is classic "question begging": Banning SSM ensures that children will be raised by their fathers and mothers, therefore to ensure that children are raised by their fathers and mothers we should ban SSM. This tells us nothing, other than you think that there is a link between the two.
And even Kurtz can't show a causal link between the two. Let's look at some examples: SSM in Scandinavia has caused more children to be born to unwed parents. This is the causal fallacy of "joint effect". In fact, both may be caused by changes in welfare policies.
Basically, it is rational to want to ensure that children are raised by their fathers and mothers, but you need to come up with a rational argument as to why banning SSM acheives this goal. The lack of rationality has nothing to do with justification of governmental interest in seeing children raised by their parents; it has to do with the lack of rationality connecting the two.
Posted by: Michael at March 16, 2005 3:58 PMFitz:
Yes, the arguments against SSM are irrational because none of them connect to the stated goals:
1) "The institution of marriage will be destroyed." No, it won't. They is no logical reason to believe that heterosexuals will get divorced or stop marrying because of legal SSM.
"But look at Scandanavia!" Marriage rates may be dropping there, but no one has rationally explained how this is caused by SSM.
2) "Every child deserves a mother and father." True, but as I explained in my previous post, SSM would not threaten this goal. In fact, it may further it.
3) "There is no tradition of SSM." So what? There was a tradition of salvery for a long time, but there were some very rational reasons for letting that tradition die, so that's what we did. There is also no tradition of the Internet or email, but that doesn't make them immoral.
The argument that is rational for some people is "My religion teaches against it." If your religion prohibits SSM, then you don't have to enter one. But this country was founded on the value that the governemnt should not impose the views of a religion on those who don't practice it.
Posted by: Dancar at March 16, 2005 4:03 PMBy seeting a standard (or underminding one further) that says all family forms are inharently equal.
Duh..
Posted by: Fitz at March 16, 2005 4:04 PMGabriel,
Simple. Since a child cannot be produced by parents of the same gender, then one of that child's natural parents will always be missing from the familial relationship. That is how it causes a child to be raised by somebody other than its natural parents.
When the natural two parent family is called a anumus and arguments supporting it are called completeley irrational (by our very goverment)this weakens the asteem and importance ALL people recognize as rational
Just like what has happened in Scandanavia.. less marriages, children, and children living in households with both parents.
The only way this can be PROVEN is when enough people axcept the correlation to be a causal connection.
Kind of like the effects of divorce on children is now widley excepted as negative.
(but it took 30 years of research and suffering to "prove" it)
Sorry Im not so inhumane that I want to treat society like my personal petri dish
Posted by: Fitz at March 16, 2005 4:17 PMSMM, second marriages and adoptions also cause children to be raised by someone other than their natural parents, so do we have a rational basis to prohibit those too.
Posted by: Res Ipsa at March 16, 2005 4:19 PMOh Res you Legal Genius
No ones chalanging the validity of those laws as unconstittional based on discrimination...
Silly
Try and remember your..
#1. standards of review,
#2. who has the burden of proof.
#3. What is being challanged
The state has the burden of proving it has a rational basis for its denial of equal protection (it we assume it is a rational basis argument). It is possible that, instead, it is intermediate scrutiny or strict scrutiny, which makes the task even more difficult.
Posted by: Res Ipsa at March 16, 2005 4:28 PMBut the burden is only a rational basis
you seem to have created some new standard of beyond all possible shadow of a doubt - PROVE - the exact causal connection or your irrational, and OH all other social policies have to be inspired by the same logic or its illegitimante--you cant say that its irrelavant-- standard of IMPOSSIBLE review.
Sorry the traditional family is just to important a foundational institution.
See you in court!!(and at the polls)
Posted by: Fitz at March 16, 2005 4:33 PMSMMTheory:
So it is OK for someone with children to get divorced and marry someone else of the opposite sex, even through the result is still that the children are not living with both the natural mother and father.
Posted by: Dancar at March 16, 2005 4:34 PMBy seeting a standard (or underminding one further) that says all family forms are inharently equal.
Duh..
Duh?
Is this the basis of your "rational" argument? That if I don't agree with your premise, I'm wrong?
It is now up to you to explain why stating that not all family forms are "inherently equal". Please define "inherently" and then explain why, rationally, the government has in interest in denying one child a chance to have married parents (say that of two gay men) and granting another one that chance.
Posted by: Michael at March 16, 2005 4:35 PMFitz:
If SSM is made legal, that doesn't mean that everyone will do it.
The majority of children will continue to be raised in traditional families. There's no rational reason to believe that this would change due to legal SSM.
Think of it as a rule utilitarian argument
By saying that all family forms are ihariently equal, that any combination of two people is just as good as any other combination - And calling anyone who thinks otherwise as being an irrational bigot (look at the Gavin Newsom editorial in the boston globe for an example)
We make it impossible to defend the traditional family as superior AS A MATTER OF CONSTITTIONAL LAW (thats what your saying, its irrational for the goverment to endorse that at the exspense of any other)
Thats how it weakens the family...simple..duh.. just like in Scandanavia
Imagine it a generation in (not that it will take that long)
So see ya in court (and at the polls)
This is it guys, the last decisive battle in the culture wars.
Gabriel wrote,
"There has to be some explanation for how allowing same-sex couples to marry will cause other married couples to abandon their children."
And Dancar wrote,
"2) There is no rational reason to believe that heterosexual couples with children will get divorced because same sex couples are allowed to get married."
I don't know why you SSM supporters think that it is valid to keep throwing this particular argument out there. We SSM opponents have said, ad nauseum, that we aren't saying that existing marriages (and, by extension, existing heterosexual families) are likely to be harmed (at least in large numbers) by the enactment of SSM. For the sake of argument, I'm willing to stipulate that no currently existing marriage will be dissolved due to the enactment of SSM.
What we keep repeating, and what you keep ignoring, is the claim that future heterosexual relationships will be affected by changing the legal definition of marriage. Specifically, enacting SSM will officially enshrine in the law the concept that marriage has nothing to do with procreation and the subsequent raising of the procreated children. I suppose it is more accurate to say that you argue that marriage is already severed from procreation (or perhaps that it should be). Obviously this is patently false historically - at best you can argue that the severance has effectively been in effect for 40 years or so.
There are two basic aspects to this argument: the contraceptive aspect and the divorce aspect. I will leave the contraceptive aspect out of it for now except to note that contraception is not 100% effective - heterosexual pairs using contraception, or not intending to get pregnant, do, in fact, get pregnant, whereas homosexual couples will never get pregnant.
But in the case of divorce, we've done the experiment, and the results are conclusive: divorce in the absence of physical abuse or extreme psychological abuse (i.e. at least 2/3 of all divorces) is highly damaging to children. So is living in single-parent households, especially when the single parent is the mother, which is the majority of such households. The adults of the '60s and '70s collectively decided that their individual freedom was more important than their children's needs, and by extension than society's needs. So, we should endeavor to reduce the number of divorces. Likewise, we should endeavor to reduce the number of children living in single parent homes. The more children born out of wedlock, the more children that end up in single-parent homes, or in homes lacking one or both of their biological parents. Enacting SSM will send the message to people that marriage and procreation are unrelated to each other, which will obviously lead to more people having children out of wedlock.
The point is, even if you think marriage and procreation are unrelated to each other, you should striving to make the connection stronger, if you put the interests of future generations first.
Dancar's point 4) is kind of interesting, but a) we have no idea how many gays & lesbians are producing children via temporary heterosexual unions, and b) the number of heterosexuals far outnumbers the number of homosexuals, so any effects that changing the definition of marriage has on heterosexual couples will swamp those on homosexual couples.
Posted by: Mike S. at March 16, 2005 4:48 PMRes Ipsa and Dan,
What do your arguments have to do with how I answered to Gabriel's question about how a same gender marriage causes a child to not be raised by both its natural parents? I just answered his question. You cannot introduce new parameters after the question to disqualify the answer. He didn't ask for a linkage to divorce or adoption or remarriage. I'm not surprised that you want to prohibit that stuff also if you can't have your way, though. It's a typically childish reaction.
SSM, we are questioning why it matters. If you throw it out, I assume you are arguing it is a rational basis or a legal reason to deny SSM. If that's why it matters in this discussion, then we are merely pointing out the limitations of your argument.
Posted by: Res Ipsa at March 16, 2005 4:59 PMAlso, you guys have it backwards: Michael says, "Basically, it is rational to want to ensure that children are raised by their fathers and mothers, but you need to come up with a rational argument as to why banning SSM acheives this goal."
You phrase it as if SSM already exists, and banning it is some sort of proactive change to increase the number of children raised by their biological parents from the current level. But the argument is that the number of children not raised by their biological parents is too high right now, and that SSM will make that number worse in the future. I don't think stopping SSM will greatly improve the situation (although the high-profile nature of the discussion, which was forced on us through the pro-SSM actions, is probably good in that it's causing people to think more explicitly about the importance of marriage) - I think that enacting it will make a bad situation worse.
Posted by: Mike S. at March 16, 2005 5:02 PM"Specifically, enacting SSM will officially enshrine in the law the concept that marriage has nothing to do with procreation and the subsequent raising of the procreated children."
The problem is THERE IS NOT PROOF. Should we deny equal protection based on what we think might happen, even if we have no proof. Since you assume that people marry because of procreation--an assumption again not based in proof or fact--you've made a giant leap that all of that disappears if a tiny portion of society is given equal protection under the law.
It's not enough to say "well, we can't let black people marry whites because we think it will ruin white families." You have to have more than some mights, and maybes, and coulds wrapped up in discrimination and prejudice.
Posted by: Res Ipsa at March 16, 2005 5:04 PMDancar,
"So it is OK for someone with children to get divorced and marry someone else of the opposite sex, even through the result is still that the children are not living with both the natural mother and father."
No, it is not OK. It should not be legal for someone to get divorced just because they feel like it. Prior to no-fault divorce laws, this is the way it was. We can work out the details, but we definitely need to strengthen marriages, partly by modifying the laws.
Posted by: Mike S. at March 16, 2005 5:07 PMThe problem is THERE IS NOT PROOF. Should we deny equal protection based on what we think might happen, even if we have no proof. Since you assume that people marry because of procreation--an assumption again not based in proof or fact--you've made a giant leap that all of that disappears if a tiny portion of society is given equal protection under the law.
This might be an argument in favor of changing the marriage laws, but it isn't an argument that it's OK for judges to decide the law should be changed.
I don't have to show that "people marry because of procreation", all I have to do is show that marriage is intrinsically connected to procreation, and that this connection is important to society. That is self-evident - the vast majority of children are produced in marriages, and those that aren't are generally worse of than those that are. Those are simply facts.
When you claim that marriage is not intrinsically related to procreation, do you ever envision what life would look like if that were true? That would mean that there is no correllation between births and marriages. Or between social or psychological outcomes of children and marriage. If I take your argument at face value, it says that it makes no difference whatsoever to the child or to society at large whether children are born in or out of wedlock. I cannot imagine how you could think that was true, either on the available evidence, or by imagining the future where people think it makes no difference whatsoever whether children are born into or out of wedlock.
It's not enough to say "well, we can't let black people marry whites because we think it will ruin white families." You have to have more than some mights, and maybes, and coulds wrapped up in discrimination and prejudice.
The racial comparison is so tired, and so irrelevant. If my position is that marriage is intimately connected to the producing and raising of children, then there is nothing inconsistent about saying that bans on interracial marriages are unjust, but that bans on same-sex marriages are not. The couples racial characteristics have nothing to do with their ability to produce and raise children - the only reason for those laws was racial animus. But same-sex couples cannot procreate - the reason for banning same-sex marriage is that marriage is tied to procreation, not because I have some irrational animus towards gay couples. It's like saying that because I deny that the doctor-patient privilege applies to two buddies, I have an irrational animus against buddies. Their relationship is simply not a doctor-patient relationship - it's not animus on my part, it's logic.
Posted by: Mike S. at March 16, 2005 5:28 PMI don't have to show that "people marry because of procreation", all I have to do is show that marriage is intrinsically connected to procreation, and that this connection is important to society.
But is marriage inherently connected to procreation? And does prohibiting same-sex partners from marrying do harm or good to families?
The way this argument is being framed, it limits the scope of procreation to natural births and puts it solely in the context of marriage. I would argue that marriage is inherently connected to raising a family, regardless of how the child got there. This is why we let financially capable but infertile couples use IVF and why we let childless couples adopt children that have been abandoned by single mothers, who otherwise might be raised in less than ideal situations. It's because marriage is the ideal circumstance to raise a family. Because "procreation" in this sense isn't really the actual act of conceiving but the act of raising a family; otherwise you should be advocating for all children born out of wedlock to be immediately removed from their parents and placed into more "ideal" family structures.
While you see it as blatantly obvious that allowing SSM will cause harm to future children and families I see it as blatantly obvious that the banning of it would cause harm to future children and families; that all banning SSM does is make homosexuals feel like inferior people, especially younger gays coming to grips with their sexuality (which will lead to sex and drug use due to depression) and makes children raised by gay parents less protected legally than children of married heterosexuals. Banning SSM forces compassionate governments to find other ways of dealing with gays which ultimately will weaken the entire institution further.
Posted by: Michael at March 16, 2005 6:04 PMLaid Bare
Marty: “Why are "We The People" being shut out of the most important cultural decisions of our time?”
ResIpsa: “Because "We the People" have a knack for approving of things like slavery, racial segregation, denying women the right to vote, and preventing people of different races to marry.”
What a remarkable exchange! On that logic, why bother calling them judges? Why not just call them benevolent oligarchs? Or we could buy them little faux military uniforms and call them generalissimos.
If you really believe that the people are ignorant, stupid, and evil, then why tolerate any kind of democracy or voting? Is it just an opiate for the masses, something to soothe us while our benevolent masters run things behind the scenes?
What the Words Mean
ResIpsa: “You also have to remember than in Calif., NY, and Mass., there is a slightly higher standard than just a rational basis since sexual orientation is protected by statute in each of those states, creating a potentially higher level of scrutiny.”
That argument cuts two ways, at least in Mass. The Goodridge opinion relied heavily on the states Equal Rights Amendment, which specifically forbids sex discrimination. So you could say that this made the case easier.
But the trouble with relying on the Mass ERA is that it was enacted in 1976, well within living memory and partly within the reach of modern information searching. Opponents of the Mass ERA listed many possible problems with it, and SSM was on that list. Mass. ERA supporters ardently insisted that those concerns were ridiculous, and that the ERA could never be interpreted to require SSM.
My logic is simple: The only reason any given string of words has special force as part of any constitution is that some group of citizens or their representatives voted for those words. That’s the only thing that makes those words special.
The conservative view of constitutions is that the words in a constitution mean what the voters intended them to mean.
The liberal view of constitution is hard to describe—perhaps intentionally. As best I can determine, the ignorant, bigoted voters (the people themselves or their representatives) vote on some set of words. And what those voters thought those words meant is completely irrelevant. Getting the voters to approve a constitutional amendment is apparently some meaningless, antiquated bit of ceremony left over from an earlier age. The important part comes after the voters have had their say, when the judges tell the voters what the words actually mean. The voters may have thought that the words meant X, but the judges know that the words actually mean Y.
This is a special rhetorical technique reserved for interpreting constitutions. You can’t use it in a typical conversation, or even in an ordinary legal dispute. I’m often tempted, though.
How Consitutional Law Could Me Save $992 a Month
For example, suppose that my office lease says that I must pay my landlord “$1000 per month.” After studying the mental processes of eminent liberal jurists, maybe some month I should try paying only eight dollars. My landlord might object, of course. I’ll be ready with brilliant legal insights gleaned from the majorities of Goodridge, Roper, and other recent cases.
“You may think that I have to pay you a thousand dollars every month,” I’ll explain to the landlord. “But you’re just interpreting the lease at its surface level. We should consider how times have changed. We should consider the rent that other tenants pay in other buildings. And most importantly, we should consider alternate understandings of these words.”
“For example,” I’ll go on, “you assume that ‘$1000’ means a thousand dollars. But that’s just one restrictive, decimo-centric way of reading it. I prefer to interpret it in a more modern binary mindset, where the number ‘1000’ would be expressed in the old decimal system as ‘8’. So here’s my check for eight dollars.”
My landlord might sputter for a while and issue all sorts of threats and profanities. But his most interesting response would be to point out that he believed that ‘1000’ meant a thousand, and had he known that it meant something else he wouldn’t have signed the lease. “Too bad,” I’ll respond sympathetically while suppressing the triumphant sneer that half the US Sup Ct must struggle with daily. “You really should have chosen your words more carefully.”
Is that how we should read constitutions, ResIpsa? The people vote on the words, and then the judges twist the words to mean something that the people obviously never intended?
An Old Temptation
You don’t have to dig very far to see that this is simply a ruse to conceal an attack on democracy. And ResIpsa has been admirably blunt in saying that it’s all the people’s fault. If they weren’t so ignorant in refusing to vote the right way, then our betters wouldn’t have to resort to this kind of subterfuge of enacting the ‘correct’ law in the guise of discovering it in a constitution.
This thread has exploded in the time I’ve been writing. My advice is to leave aside the arguments about rational basis and similar phrases. It’s a maze with no exit. None of those phrases really mean anything, in the sense of predicting what the next decision will be.
The real issue is very simple: Who decides? Gabriel and ResIpsa apparently think that we’re all a bunch of gibbering idiots whose beliefs should be scarcely tolerated, and certainly not allowed to be law. No doubt many a king has thought the same thing about his subjects. Those of us on the right think that the people should run the country, and are entitled to whatever laws they want. We see the US Constitution as merely the expression of super-majority will that trumps ordinary majority will—not as the free-floating spirit of justice and enlightenment.
It’s a classic debate that goes back for centuries. Monarchy has its advantages. Democracies make mistakes. Perhaps everything will run better if we collect the good, smart people together and put them in charge of everything. If that seems like a good idea, maybe I’ll buy you a one-way ticket to Cuba, North Korea, or Vietnam.
Some claim that Josef Stalin said: “It's not who votes that counts. It's who counts the votes.” In this country we are developing our own counterpart: It’s not who writes the law that decides, it’s who decides what the law means.
We Don’t Want It
In this country, the people decide. Not monarchs. Not apparatchiks. Not generalissimos. We decide. And we don’t want SSM. We never voted for SSM. We aren’t going to vote for SSM. You tell us that some would-be despots in black robes will utter some magic phrases and force us to accept law that we don’t want. Maybe they’ll succeed; they have in the past. Or maybe this time people are paying enough attention to understand and fight back.
What you SSM supporters don’t seem to understand is the deep damage that this sort of judicial tyrrany does to the country over the long term. You’re daring us to tear apart our own legal system to stop your machinations. You’re betting that our desire for self-government is less than our desire to avoid damaging our traditions and institutions.
It’s not a bad bet. You got away with it in Roe v. Wade and the crazy decisions of the sixties. But that was a long time ago, when our traditions and institutions were much more obviously worth preserving. Maybe this time it’ll be different.
Posted by: Ben Bateman at March 16, 2005 6:11 PMI love this one, because it goes to show the fundamental flaws in thinking (or rather, why thinking is not the impetus for the argument):
Since the significant social science data never considers same-sex couples, it is all but irrelevant to the discussion of whether there is a rational basis.
Alrighty, then. I've got this new chemical mixture with the appearance of a glowing green goo. I assert that it is safe to drink it, and the significant research on glowing green goo never considers my glowing green goo. It must be irrational to decline a sip!
Posted by: Justin Katz at March 16, 2005 6:18 PMThis is a diffeence in political philosophy. I trust the courts to protect the interests of the minority and equal protection, more than I am willing to trust the self-interest of voters and legislators.
Does that mean I don't trust democracy? No. What it means is that we need to have a check on the system to make sure that the tyranny of the majority doesn't allow democracy to run amok, trampling on the interests of the minority and disenfranchised. The court, who don't have to be elected and are thus less corrupted by that desire to trample on those interest, are often in a better position to determine the "fairness" or "equity" of the laws.
Your desire to gut the judicial process is, in part, your anger that you may lose power. Were it not for the courts, we wouldn't have made the significant civil rights gains in this country that dragged us beyond segretation and Jim Crow. School segretation, miscegination laws, and a number of other civil rights issues would have lost in a popular vote.
Posted by: Mike at March 16, 2005 6:28 PMWithout any such explanation (even a bad one) we cannot possibly say that argument is a rational argument for limiting marriage to oppposite-sex couples.
Come on, now, Gabriel. I know you've heard the explanations, if even ones that you consider bad are included. You're not going to make us run through the whole exercise again, are you?
Real quick. Even excluding the one from culture (which is too subtle for many, it seems), one can cite a possibility that already has examples (and already has entered the culture in the form of film): As Res suggested, same-sex couples cannot have children together, yet if the model of marriage is to remain the same for everybody (including those heterosexuals who are supposedly not going to be affected), then where are the children going to come from to maintain the marital norm among same-sex couples? They aren't all going to be happy with adopting.
Posted by: Justin Katz at March 16, 2005 6:29 PMBut, ultimately Justin, you have no proof that green goo is dangerous. It could be a health changing, life saving, goo. That's why it needs to be tested and not just snuffed out because red goo or orange goo have shown to be slightly more dangeous than other goo in some research.
Posted by: Res Ipsa at March 16, 2005 6:30 PMRes, you've got this backwards:
Since you assume that people marry because of procreation--an assumption again not based in proof or fact--you've made a giant leap that all of that disappears if a tiny portion of society is given equal protection under the law.
That's not the assumption; indeed, I would disagree with it if it were. The point is that we want people who are procreating or may (intentionally or not) procreate to be married. Within the sphere of the law's ability to make that happen (which is indirect, or else it steps all over itself and does more harm than good), the mechanism is by defining a culturally and legally privileged status for couples that can procreate.
That some will achieve the status without the ability to procreate is acceptible as long as they don't harm the link between the status and its reasoning. (If heterosexual couples that are obviously sterile from the beginning — because they're elderly, for example — harm the standard, it will be done only through their use as a mechanism to make the full break with SSM.) As part of your argument for SSM, you are arguing that the link itself is irrational.
Posted by: Justin Katz at March 16, 2005 6:42 PMMichael,
I hear this a lot:
It's because marriage is the ideal circumstance to raise a family.
I've never heard anybody on your side attempt to explain why this is so. Thoughts?
Posted by: Justin Katz at March 16, 2005 6:46 PMRes,
But I'm not asking your whether you would like to test the goo. (Some tests have found other people's goo deadly.) I'm handing it out to you, saying, "Taste this goo right now. If any problems arise, we'll fix them later."
Is it irrational to decline?
Posted by: Justin Katz at March 16, 2005 6:53 PMJustin,
If your green goo is significantly different from the green goo used in the research, then that research is irrelevent to your green goo.
Therefore, if research comparing children raised in single parent households to children raised with both biological parents doesn't tell you anything about children raised in households with two adults sharing parenting roles.
Posted by: Dancar at March 16, 2005 7:28 PMMike,
Your desire to gut the judicial process is, in part, your anger that you may lose power.
Well, duh, that's what Ben just said: who has the power to decide? What you don't seem to grasp is that you have lost just as much power as Ben (or the Right) has. You have no more influence over the judges decision than anyone else. In this particular instance, you happen to agree with the decision, so it's OK with you. But back in the '20's, the Supreme Court struck down several laws that were designed to protect workers. They did this on the same grounds that are used to justify current liberal-leaning decisions: the found a "right" to contracts implied in the Constitution, which these laws supposedly violated. There is no guarantee that the courts will always rule in your favor - what recourse do you have when they rule against your favor?
Does that mean I don't trust democracy? No. What it means is that we need to have a check on the system to make sure that the tyranny of the majority doesn't allow democracy to run amok, trampling on the interests of the minority and disenfranchised. The court, who don't have to be elected and are thus less corrupted by that desire to trample on those interest, are often in a better position to determine the "fairness" or "equity" of the laws.
But who checks the checkers, if they aren't bound by the text of the Constitution? What is the difference between trusting judges to set social policy and trusting a monarch to rule benevolently and wisely? What constraints are there on judges? Why do you place such faith in 9 fallible people to make the correct decisions? If they aren't constrained by the text and meaning of the Constitution, then they can come up with any rationale they want for their decisions. BTW, I love how you put fairness and equity in scare quotes - that's priceless.
Were it not for the courts, we wouldn't have made the significant civil rights gains in this country that dragged us beyond segretation and Jim Crow. School segretation, miscegination laws, and a number of other civil rights issues would have lost in a popular vote.
This is a cherished liberal myth that bears little resemblance to reality. There's no evidence that such rulings did any good. Even Brown didn't have any practical effects (although I'll grant it may have had good moral and/or propaganda effects) until the legislative branch got involved.
Regardless, it still begs the question: are judges entitled, either by our Constitutional system or morally, to fix every law they think is unjust? Or are they only allowed to strike down laws that clearly abrogate some enumerated right written in the Constitution.
Everybody repeat after me: "Unjust does not mean unconstitutional. Unjust does not mean unconstitutional. Unjust does not mean unconstitutional..."
Posted by: Mike S. at March 16, 2005 7:29 PMBen said,
What you SSM supporters don’t seem to understand is the deep damage that this sort of judicial tyrrany does to the country over the long term. You’re daring us to tear apart our own legal system to stop your machinations. You’re betting that our desire for self-government is less than our desire to avoid damaging our traditions and institutions.
Unfortunately this isn't novel - we fought a Civil War because some people thought that preserving slavery was more important than preserving the Union. Compared to that, disregarding the voters or supporting judicial fiats is small potatoes.
Posted by: Mike S. at March 16, 2005 7:35 PMDan,
The question isn't whether or not we have evidence one way or another. The question is whether it is irrational for you to refuse a change of state (i.e., refusing to eat the green goo) for the reason that there's no evidence about what it will do.
Posted by: Justin Katz at March 16, 2005 7:42 PMThank you Justin, I have been trying to press our friends on the rational basis question all day.
Its the crux of their judicial tyranny they are perpertrating.
Legaly it doesent even have to be a good argument, hell it can be a bad argument. It just has to be rational.
MIKE- your theory about how it will be BAD for marriage if we dont let gays marry is about as thin and strained as Ive ever encountered (but I wont say its irational)
Posted by: Fitz at March 16, 2005 7:47 PM>> Without any such explanation (even a bad one) we cannot possibly say that argument is a rational argument for limiting marriage to oppposite-sex couples.
That's arse-backwards. Mike S. and Ben Bateman have pointed to the misdirection. I'll elaborate.
The state acknowledges social institution of marriage, it does not create it, for the purposes of civil law. Marriage is itself the combination of men and women. It is not open to the unisexed combination.
If society wishes to benefit marriage, because marriage benefits sociey, then it can also withdraw or diminish state recognition of marriage should it cease to benefit society sufficiently. Apparently some courts think that is already the case and have decided to replace marriage with something else supposedly more benefitial to society. That is not their decision to make but that's is portrayed as a mere technicality when it comes to the courtcentric view of marriage.
Should the state discard the man-woman criterion, it would cease to recognize marriage itself, and would look to some alternative.
As the Massa Court demonstrated, the enactment of SSM would require explicit replacement of marriage with a vague notion about "committed relationships" that itself may not merit the level of special treatment which has been accorded the social institution that is marriage. This change in social policy is not a court's decision to make. So they rewrote the statutory law and disguised the switcharoo as little more than a judicial redefinition of the term, "marriage".
Just because policymakers have benefited marriage (because marriage benefits society) in the past does not mean that this court ordered replacement would continue to have the utility, let alone the benefits, that marriage has had. With enactment of SSM, state recognition of marrige would be rolled into the new substitute - supposedly - however, this would move the central purpose of marriage to the sidelines. What is the central purpose of the Massa Court's replacement of marriage? To accomodate unmarriagable combinations on the margins of the homosexual community. That has become the central purpose of the Massa Court's "redefinition".
Unisexed combinations are not part of that procreative model. The Massa Court has rejected the procreative model as being something the state might rationally elevate above nonmarriagable arrangements. However, the decision to replace acknowledgement of marriage with state recognition of nonmarriage, is not rightly their decision to make in the first place.
>> Since you assume that people marry because of procreation--an assumption again not based in proof or fact--you've made a giant leap that all of that disappears if a tiny portion of society is given equal protection under the law.
No, not that each and every marriage has children, nor that each and every couple marries for that purpose, but that the state acnowledges marriage because there is a strong societal interest in benefiting the social institution that sustains society.
Until yesterday, it has been axiomatic that there is societal expectation that marriages produce offspring. The SSM argument works hard to ubndermine this axiom by replacing it with an alternative.
That marriage is our procreative model has been backed-up by actual practice since almost all adults marry and almost all marriages do have children. It may be less so today, but only slightly. As recently as thirty years ago, 98% of women married during their reproductive years -- and had children (unsurprisingly); today that seems to have dropped to about 88% but marriage has been undermined by negative trends in nonmarital childbearing, unwed cohabitation, and very loose terms for unilateral divorce.
SSM is the argument that marriage is the shell of its former self so let's just make it official court doctrine and replace marriage with something more vague. In fact, let's base this new thing on a definition that assumes the superior value of a nonprocreative model.
Calling a nonprocreative model, "marriage", does not make it marriage.
No matter what this or that court might do, society will sustain itself through marriage and not through the new fangled nonprocreative notion of "adult relationships" that is hardly even practiced by the homosexual population. The least we might expect of government, at least self-government, is that it not undermine bedrock social institutions.
>> Were it not for the courts, we wouldn't have made the significant civil rights gains in this country that dragged us beyond segretation and Jim Crow.
That comparison doesn't favor the courtcentric route for enactment of SSM. In the case of racial inequality, the country ratified amendments to the Constitution after a civil war. These newly established constitutional provisions were ratified to directly repudicate the pre-war Dred Scott decision of the US Supremes. Subsequent to the amendments, the Court undermined, redefined, whatever, the meaning of those amendments and opened the Jim Crow resistance to justice. And in modern times, the "substantive due process" doctrine that arose with Dred Scott has been reinvigorated as the means to policy outcomes that have increasingly become detatched from the Constitution itself. The greatest gains in civil rights were not won in the courts but in the realm of social policymaking. And where the Supremes did intervene, as in school bussing, they largely became the administrators of policy rather than the interpreters of the law. The record of the Supremes as the saviors of the nation and the protectors of minorities is a decidely mixed bag. Where the Supremes over-reached, it has usually taken The People, and their representatives, to settle matters one way or another.
The utility of the new "committed relationship" standard of some courts will become almost meaningless outside of a courtroom.
Posted by: Chairm at March 16, 2005 7:48 PMGood Job Guys -(very thoughtfull posts)
Im always looking for informative sites and I cant find any on what is going on in Mass, Conn. ect California
I know about Formarriage but its links are mostly to activist sites that dont update and dont give the skinny about whats really happening.
One of my old law school profs is a BIG time activist (Harvard Lesbian) and her latest Law review article is aiming at preserving DOMA so as to preserve what gains they can. (get it)
The big fear I have is that they wont let the people vote in Mass. by not ratifying the amendment a second time.
So, who's got the Skinny?
Posted by: Fitz at March 16, 2005 8:18 PMIm looking to talk political stratagey...
It really nieve to think the supreme's will bat this one out-To much heat for that.
We allow heterosexuals who are medically unable to concieve to get married, despite the fact they they don't fit the "procreative model," and no one wants to chnage this.
We allow heterosexuals with drug & alcohol issues, with emotional issues to get married, despite the very real risk that children produced in these marriages will be raised in a less-than-ideal family environments, or expereince divorce and be raised single parent environment. No one wants to change this either (although some do want to make divorce more difficult).
No one has shown even a theory of how the existance of SSM will effect the behavior of heterosexuals who want to get married and start a family. There is also no evidence that children who are raised in same-sex led households are worse off than children raised in less-than-ideal households with a father and mother (I'm referring to marriages with drug, alcohol or emotional stability issues).
So if the goal is to protect children from being raised in less-than-ideal environments, to ban SSM to prevent small number of children from raised by a pair of married men or a pair of married women while doing nothing to prevent marriage among hetersexuals who would make worse parents (and more likely to be parents due to fact there is a man and woman involved) seems to be aiming at the wrong target.
So if the goal is to protect children from being raised in less-than-ideal environments, to ban SSM to prevent small number of children from raised by a pair of married men or a pair of married women while doing nothing to prevent marriage among hetersexuals who would make worse parents (and more likely to be parents due to fact there is a man and woman involved) seems to be aiming at the wrong target.
And here's where liberalism begins to slide toward the intellectual necessity of totalitarianism. I mean no offense by that, but it's true. Two points:
Oh, and a comment on this:
That [93% of prison inmates were raised without fathers] doesn't mean that 93% of prison inmates were raised in households with two same-sex parents and you know it.
While the notion of rationality is in the air, let's look at this common shuffling. Stipulate that 93% of prison inmates were raised by single mothers. There are two missing qualities here: 1) no father, and 2) only one parent. The possible explanations for the detrimental lack are 1, 2, or a combination of both. How is it that number 2 — all by itself — is taken to be the only rational explanation... so much so that the other two do not constitute a rational basis for a decision (even a "bad" one)?
Posted by: Justin Katz at March 16, 2005 9:37 PMMike (not to be confused with Mike S.) wrote: "Does that mean I don't trust democracy? No. What it means is that we need to have a check on the system to make sure that the tyranny of the majority doesn't allow democracy to run amok, trampling on the interests of the minority and disenfranchised. The court, who don't have to be elected and are thus less corrupted by that desire to trample on those interest, are often in a better position to determine the "fairness" or "equity" of the laws."
That's exactly how they see things in many other countries. China has the National People's Congress. Cuba elects a Parliament. Vietnam elects a National Assembly. Iraq had a legislature under Saddam. Even North Korea, of all places, elects a legislature called a Praesidium. They’re all democracies! Who knew? Here I thought that they were communist dictatorships, and it turns out that their governments look a lot like ours.
As far as I can tell, all those legislatures seem to work pretty much like the US Congress and our state legislatures. They form committees. They discuss issues. They give speeches. They vote.
And I suspect that their deliberations affect national policy in some kind of meaningful way. Most government work involves mind-bendingly dull details. I would expect that the legislators in those groups work hard to figure out just what each region's production quotas should be, and how much tax money should go to the dam project in region X or the highway project in region Y. Those legislators probably wield some measure of real power, just like ours do, to the extent that they can control the fine print of huge government documents.
So what's the difference? How do those other legislatures differ from our own? It's subtle. It comes up on big questions, where passions run high. On those questions, the legislatures are not the final authority. Instead, the Real Power gets involved: the president-for-life or central council of the communist party. If the legislature gets it wrong, then the Real Power sends it back and tells them to try again—kinda like we do it.
I bet that those leaders would angrily deny that their countries aren’t democracies, or that they don’t have any faith in democracy. They love democracy! It’s just that sometimes democracy runs amok. It gets a little out of control and needs a friendly nudge in the right direction. And it’s best for that friendly nudge to come from someone who is above the political process, someone who doesn’t have to worry about getting re-elected, someone who isn’t corrupted by politics and money, someone who is in a better position to determine the fairness or equity of the laws. Someone like Fidel Castro, Hugo Chavez, Kim Jong Il, or (until recently) Saddam Hussein.
There’s your managed democracy, Mike. Our country has a group instead of a single president-for-life. Our Real Power wears black robes and has the Ten Commandments on the wall; I bet their group wears more standard business attire and has pictures of Lenin, Stalin, and Mao on the wall. And our system is inferior in at least one respect: It’s inefficient. In the other countries, the Real Power will usually tell the legislature how to vote beforehand, which avoids confusion, delay, and potential embarrassment. In our system, the legislature has to produce a law and then wait for months or years to find out whether the Real Power will allow it. It’s a needless waste of time.
I’m not being entirely facetious here. Most despots do not see themselves as monsters. They usually genuinely want what’s best for their country. They start with precisely what you said, Mike: Their country needs solution X for problem Y. The people simply don’t understand that solution X is the right way to go. But that just shows how stupid or uneducated the people are. Once we’ve educated them properly, they’ll understand what a good idea it is. But for now, for the good of the people, we must ignore their ignorant, biased views and give them what we know to be best.
And sometimes they’re right. Sometimes the strongman can accomplish things that a democracy cannot, especially in war. That’s why Europe had kings for so many centuries: The king was the guy who could make quick, firm decisions and lead the army. That’s why the Constitution names our president as Commander in Chief.
Sometimes the strongman can build great public works projects that would be impossible in a democracy. You want us to look at the great things the US Sup Ct has done in the past: “Were it not for the courts, we wouldn't have made the significant civil rights gains in this country that dragged us beyond segregation and Jim Crow. School segregation, miscegenation laws, and a number of other civil rights issues would have lost in a popular vote.” If we were the guests of Kim Jong Il, I’m sure that we would get precisely the same kind of presentation:
“Look at the great things I have built! None of that would have been possible without my leadership. Look at my nuclear missiles! Look at my grand palaces, and my mighty army! Without me, North Korea would be an impoverished irrelevant backwater, conquered by one of its neighbors long ago. Under my leadership, the world trembles when North Korea speaks! The world sees our armies, and trembles! They call me a monster, but they know nothing of all that I have done for my people! Without me, they would be nothing.”
He would believe it, too. He wouldn’t talk about the prison camps, the indoctrination as education, or the general suffering and poverty under his heavy-handed rule. He either doesn’t notice them, or doesn’t consider them his fault.
The US Sup Ct believes that it’s engaged in noble work when it forces its views on us about capital punishment, racial discrimination, homosexuality, abortion, etc. It doesn’t think about the 47 million babies killed since Roe v. Wade. It doesn’t care about flipping the bird to the majority of an entire state’s voters, as it did in Romer v. Evans. It doesn’t care about the long-term effects on the country of telling the voters that they have no voice in the country’s most important issues.
Everyone likes democracy when it gives them what they want, Mike. The question is how you respond when it doesn’t. You’re completely wrong when you tell me: “Your desire to gut the judicial process is, in part, your anger that you may lose power.”
I’m not like you, Mike. I’m not obsessed with my own power. My primary goal is not winning on specific issues. I want to see the country thrive, and I believe (based on overwhelming evidence) that countries do best, overall, on the long term, when the people’s representatives have the absolutely final say on any given matter, whether they express that view in ordinary legislation or as a constitutional amendment. I trust the American people, Mike. You apparently don’t.
SSM imposed by judicial fiat will harm the country. It will harm us by demolishing an age-old social institution and casting the next generation into unfriendly and untested waters. And it will harm us by giving the voters a firm thumb-in-the-eye and telling them: Your votes don’t count. You don’t run this country any more. Shut up and go home. The council of nine will tell you what the law is.
Fitz, nobody knows how this will shake out politically. Right now the battle to watch is over the filibuster rules in the Senate. If we win that, maybe we can put some honest pro-democracy types on the court, and maybe that would eventually fix the problem. Maybe.
My personal recommendation is to amend the US Constitution: “On a two-thirds vote of each house, the Congress may remove any federal judge from office, and may vacate any decision of any federal court.”
It’s drastic, I know. But I don’t see any other way to stop these thugs from turning this country into another managed democracy.
Posted by: Ben Bateman at March 16, 2005 9:42 PM"No one has shown even a theory of how the existance of SSM will effect the behavior of heterosexuals who want to get married and start a family."
Of course the theory has been shown - you just refuse to acknowledge it.
Posted by: Mike S. at March 16, 2005 9:46 PMJustin:
Of course I don't believe that the government should break up families, except in cases when children are clearly in danger (instead of "emotional instability" I should have said "emotional or physical abuse"). And it doesn't take a very liberal reading of the First Amendment to see that you can't take children from parents simply because of religious or political beliefs. And forced steralization is certainly an infringement of civil rights.
But to say that the danger that a small number of children might be raised by married adults of the same sex is so great that we must pass a Constitutional amendment to prohibit same sex couples from ever getting married, while doing nothing to prevent marriages among heterosexuals who are likely to be terrible parents is just hypocritical.
You wrote:
"Stipulate that 93% of prison inmates were raised by single mothers. There are two missing qualities here: 1) no father, and 2) only one parent. The possible explanations for the detrimental lack are 1, 2, or a combination of both. How is it that number 2 — all by itself — is taken to be the only rational explanation... so much so that the other two do not constitute a rational basis for a decision (even a "bad" one)?"
The question of how well children raised by two adults of the same sex do compared to those raised by a mother and father and those raised by only one adult is certainly a valid question. But it is not answered by studies comparing only single-parent families with mother-father familes.
While I don't know the answer to that question, my guess is that a healthy, stable mother-father family is better for children than a same-sex coupel family. Therefore, I don't have a problem with favoring mother-father couples of same-sex couples in adoptions (an exception would be if one of the same-sex partners is a blood relative. If the biological parents are deceased, I would favor a willing relative with a same-sex partner over strangers for adoption.)
Mike S.:
If you are referring to the "separation of marriage and procreation," then I have to ask, are couples who love each other and want to have kids going to say "the gays are getting married, so let's not get married and instead we'll just have some kids and then go off our separate ways"???
Posted by: Dancar at March 17, 2005 1:09 AMDan,
Well, part of the complaint against the SSM movement is that it's trampling over the mechanisms meant to protect our rights by helping to cement a precedent whereby defining issues in terms of somebody else's rights allows the judiciary to rule as it desires. Suppose children come to have a right to the best possible shot at living a life as modern tolertantos (i.e., ultra-tolerant people); suddenly the already-watered-down religion clause of the First Amendment isn't such a clear thing. (You wouldn't keep a child with parents whose religion required them to cut off a finger for every lie, would you?) Sterilization is even worse; show me where the right to carelessly create children is located in the Constitution. Much less more prominently so than the right of children not to be brought into a less-than-ideal environment.
I have to ask, are couples who love each other and want to have kids going to say "the gays are getting married, so let's not get married and instead we'll just have some kids and then go off our separate ways"???
It won't be that conscious a decision. If marriage is not "about procreation," then those couples won't see their children as a reason to get or stay married. And as I've done before, I have to emphasize that the essential purpose of marriage is to keep parents together even when they go through periods of not believing that they love each other any more — maybe even dislike each other. If the standard is keeping together couples in love, then I daresay we don't need any institution at all.
Posted by: Justin Katz at March 17, 2005 6:00 AMWhat Justin said...
Posted by: Mike S. at March 17, 2005 9:36 AMJustin:
I've never heard anybody on your side attempt to explain why this is so. Thoughts?
Really? Probably because most gay activists are also leftists or anarchists. There is much lamenting in the radical gay community that due to their liberal machinations in the 80s, it's made it easier for conservative gays to come out of the closet. We ruin their idea of a radical "other" culture for gays, mainly because we don't want it. Sure, we love to listen to Cher, but that doesn't make us socialists.
Marriage is important for so many reasons. And I don't need to convince you why that is the case in general terms. Nobody should have a child out of wedlock. But everybody should have the chance to raise one; you may think it is for selfish reasons but, be it biological or societal, people have an innate desire to have children that goes beyond mere adult self-centeredness because it is really the innate desire to pass something on to the generation. Some of your commenters have repeatedly referred to infertile couples as "broken" as a reason why we allow adoption or IVF. Nonetheless, their desire to have children, raise children and impart their value systems is not hindered by society even though they are "broken".
Homosexuals have the same desire and are analogously "broken" in that their chosen relationship is infertile. In many ways our society allows them to "fix" the problem. Some see that as selfish self-centeredness but others see it as satisfying that need that everyone has to propagate society. Like it or not, people feel empty without children.
I don't think you would disagree with me that people who elect to have children out of wedlock are acting irresponsibly. And they are acting irresponsibly because children should be raised in a healthy environment. And that environment is two monogamous parents who are devoted to each other and can pass on their value systems to their children. There are no unique qualities that a father can bring to the table better than a mother (except I'd never want to have to discuss menstration with my daughter, but that's what grandma's for). I learned equally from my parents who shared all responsibilities and who were truly devoted to each other. If no-fault divorce makes life hard on children, think about life where your parents can split up even easier (ie domestic partnerships or no partnerships).
If you substitute "raising children" with "procreation", then your arguments make sense. Since people have more control over when they have children, the procreation link to marriage of the past has been replaced by the more general family raising link. And yet it still remains true. Pure biology makes a family but marriage makes a healthy family. Allowing gays in won't change that fact. But denying them that ability, to raise children and propogate humanity, weakens the healthiness of their families and consequently weakens The Family.
Posted by: Michael at March 17, 2005 10:52 AM"Sure, we love to listen to Cher, but that doesn't make us socialists."
That line cracked me up... ;)
Posted by: Mike S. at March 17, 2005 11:26 AMAnd here I thought it was Babs that they all listened to, or is that only the movies?
Posted by: smmtheory at March 17, 2005 11:46 AM"We ruin their idea of a radical "other" culture for gays, mainly because we don't want it."
Why aren't you more worried that the results they desire from SSM will come to pass, rather than your own?
"There are no unique qualities that a father can bring to the table better than a mother..."
It's not a matter of "better", it's binary. A father cannot be a mother, and a mother cannot be a father. It's as simple as that. You seem to think the importance is due to some specific gender-associated trait (i.e. the father teaches his son how to fix the car, while the mother teaches him proper table manners). But children don't say, "I wish I had someone to teach me how to fix the car", they say, "I wish I had my dad". Even if the mom is an auto mechanic, they still want to have their dad around. And they don't say, "I wish I had another parent so I could have two, but I don't care if the other parent is the same sex as my current parent or not." They want (and need) a mom and a dad.
But if we legalize SSM, we are explicitly codifying the notion that children just need two parents, not a mom and a dad. Every child born has a biological father and a biological mother. Legalizing SSM explicitly says that the child's need to be raised by his biological parents is subsidiary to the desire of one of his biological parents to live with someone else who is not the child's biological parent. No-fault divorce does the same thing, albeit without the same-sex aspect. But at least in that case we maintain a facsimile of the ideal. In the case of SSM we change the ideal to something different.
I'll make myself clear, since I know someone will bring this up: I don't know whether being raised in a single-parent household is better or worse than being raised in a same-sex household. I think it probably depends upon the circumstances - I'm certainly willing to stipulate that some children are better off being raised in a same-sex household than the available alternatives. In some cases it's no doubt better to be raised in a single-parent household than in a remarried heterosexual one (e.g. in cases where the new spouse is abusive to their stepchildren). What I am NOT willing to stipulate is that being raised in a same-sex household is no different from being raised by ones biological parents. Which is precisely what enactment of SSM would say.
Posted by: Mike S. at March 17, 2005 11:50 AMMichael,
What you said here -
"And that environment is two monogamous parents who are devoted to each other and can pass on their value systems to their children. There are no unique qualities that a father can bring to the table better than a mother"
But if we legalize SSM, we are explicitly codifying the notion that children just need two parents, not a mom and a dad.
Yeah, this is a funny line of reason to follow because if parent quantity (two) is more important than quality (blood relation), or even diversity (role models from both sexes), then why the strict adherance to the number two?
The number two is enshrined in marriage for the same reason that one man and one woman are. It's not just "two" that's important -- it's "which two".
It is no mere coincidence that each one of us is the product of a union of exactly two biological parents, nor that one is a male and the other is a female.
Posted by: Marty at March 17, 2005 12:24 PM>>But if we legalize SSM, we are explicitly codifying the notion that children just need two parents, not a mom and a dad.
No we are not. It is legal to raise a child in a single parent household, but that doesn't mean we have codified that single-parent households and mother-father households are equally benifical for children. It is legal for alcoholics and people with violent criminal records to get married, but it is not codified that alcoholics and violent criminals make equally good parents as responsible, ethical parents.
Justin wrote:
"And as I've done before, I have to emphasize that the essential purpose of marriage is to keep parents together even when they go through periods of not believing that they love each other any more — maybe even dislike each other."
I agree with that. However, the existence of childless heterosexual marriages doesn't seem to undermine this purpose. So why is there reason to think that a small number of SSM's would undermine this purpose?
Dancar, you're switching the subject. I wrote that SSM codifies the notion that kids need two adults as parents, not a mom and a dad, and you start talking in nonsequiters (single parents, alcoholics). What else is SSM for, besides saying that two men or two women are no different than a man and a woman when it comes to marriage? And how can that possibly be completely unrelated to a statement about what is best for children?
Posted by: Mike S. at March 17, 2005 2:02 PM"I agree with that. However, the existence of childless heterosexual marriages doesn't seem to undermine this purpose. So why is there reason to think that a small number of SSM's would undermine this purpose?"
Because, the childless heterosexual couple doesn't change the norm of one-man, one-woman marriage, and it embodies the ideal of having both parents in the marriage, even though that particular marriage lacks children.
Posted by: Mike S. at March 17, 2005 2:04 PMWhat I am NOT willing to stipulate is that being raised in a same-sex household is no different from being raised by ones biological parents. Which is precisely what enactment of SSM would say.
But why? Why would it say that? This is where I find the rationality of these arguments break down. Does allowing adoption say that being raised by adoptive parents is no different than being raised by biological parents? Of course there's a difference. In both cases. It doesn't delegitimize marriage nor does it make it any less important to encourage the most number of children to be raised by their biological parents. I just don't see the connection. And your repeated stating of the connection does not make it so.
And the circle of disagreement goes round yet again.....
Posted by: Michael at March 17, 2005 3:12 PMWhy do we let infertile couples marry? It's called equality you dolt. But you arent asking for something equal -- youre demanding something special!
Posted by: Marty at March 17, 2005 7:51 PMSorry for calling you a dolt, but really, this is not too fine a point to make:
The requirements for marriage are miniscule -- we'll let just about anyone do it for almost any foolish reason! They only have to meet the barest minimum requirements of procreativity: a man, and a woman. We don't even care if one or both are gay, infertile, bi-sexual swingers, geriatrics, career criminals, trannys, or surgical eunuchs!
Yet even this basic standard is too high for you -- and so it must be gutted for everyone. Why, because you just don't like girls? Please.
I was born ugly -- equality sucks sometimes, doesn't it?
Posted by: Marty at March 17, 2005 8:07 PMIf it is a violation of equal protection under the law to insist that marriage consist of one man and one woman, as the SSM supporters insist, then there is nothing special about "one" and "one", now is there? No, there is not, it is surely as arbitrary as "man" and "woman".
To argue for SSM is to argue for poly-"marriage". Once "one man and one woman" is destroyed, there is no place to stand beyond that. This is not theoretical, this is fact.
There is already a lawsuit in Utah filed by polygamists, citing _Lawrence_ as precedent. SSM will -- not may -- I repeat, WILL lead to polygamy, polyandry and other multi-adult marriage. The same argumentation shall be used as is seen in SSM: opponents will be painted as hate-filled neo-Klan bigots intent on mandating their religous view. I fully expect to be called a "polyphobe" in some number of years, and not that many when/if SSM is crammed into law by judicial fiat.
There are SSM advocates who assert they will oppose poly-marriage, but on what grounds can they do so? There are, and have been for all of recorded history, societies with poly marriage (unlike SSM). Having jettisoned tradition and the Constitution, on what rock will the advocates of SSM stand up to the demand for poly marriage, other than "I don't like it"? When they are called hate-filled bigots by their former allies in the SSM movement, what will they do? How can they refuse to return the support they were given?
And this will affect the larger society in the inevitable increase in the sexual molestation of children. We have known for years, decades, that step-fathers are much more likely to have some kind of incestous relationship with step daughters. When "families" with two daddies and three mommies become legal, there will follow horrific cases of sexual abuse that will be downplayed by supporters of polymarriage as "isolated examples". More children will be damaged and hurt in the name of personal fulfillment, and the evidence will be swept under the rug in the name of "progress".
But wait, there is more. If limiting marriage to one man and one woman violates equal protection, because "man" and "woman" is arbitrary plus "one" and "one" is arbitrary, the age of the persons is arbitrary as well. Justice Ginsburg is on record supporting an age-of-consent of 12. While it will take longer than the legalization of poly-"marriage", there certainly are organized groups that want very much to make it possible for 40-year old men to "marry" their 12 year old lovers, or in time their 10 year old or even 8 year old lovers. Those of us who oppose this will again be vilified as hate-filled Klan-bigots and also as "pedophobes". That there are SSM advocates who would resist such a thing I do not doubt, but what will their justification for resisting it be? Tradition? Religion? Ethics? The Constitution? There's no rock for them to stand upon once they sweep away "one man and one woman", except for personal opinion.
Take a paper clip. Bend the inside loop up so that it makes a kind of "S" shape. It no longer functions as a paper clip. Bend it back down as close to the way it was before. It functions as a paper clip, but not as well as before. Bend the loop up, down, up, down, up, down, around... until the metal becomes fatiqued and breaks.
You no longer have a paper clip. What you have, and what it can be used for, is open to discussion but clearly it no longer is a paper clip. It will never again serve the function it was designed for.
The last 40 years has seen unlimited abortion on demand, unilateral divorce, and other things that have were supposed to improve our nation, but that do not seem to have worked as advertised. The social fabric is frayed, and continues to fray. Any civilization requires some number of boring, normal, honest people who can be counted on to raise more boring, normal, honest children to adulthood.
The social engineers who have been bending our paperclip in all manner of directions do not seem to understand that once a society is broken, it no longer works as it did before, and cannot be restored. There's no do-overs in history.
SSM advocates state that since society accepts unilateral divorce, with all the damage that it does, SSM with all its obvious perils and unknown implications should be accepted as well. I cannot recall where I read it, but someone pointed out that if half of a house is on fire, spraying the part not yet burning with gasoline is a really, really bad plan.
Please, put down that gasoline hose, for the sake of all of us.
Posted by: notdhimmi at March 18, 2005 6:22 PM
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