Jonah Goldberg points out the self-denying activism of Brad and Angelina:
Hey, look I can respect people who are pro-gay marriage. I don't think it's an intellectually and morally indefensible position even if I'm opposed to it. But, I don't get it. Do these guys really think their boycott will sway a lot of people? "Gosh, I was against dudes marrying each other before. But if it'll get those two crazy kids together, what they hey, it's worth it."
I'm very reluctant to treat the declarations of the prettier-than-thous with unwarranted intellectual seriousness, but it seems to me Jonah elides an important point by acceding to the subtle code language whereby "everyone else in the country who wants to be married" is presumed to mean only homosexuals. In meaning and in motivation, there are — at best — only tenuous distinctions between this sort of support for marriage privileges for homosexual couples that are alike to traditional marriage in everything but gender (and all of the crucial stuff that "but" entails) and admitting the complete dilution of marriage (and therefore its ruination).
Having come to feel the inadequate breadth of my reading, I've been devoting those extremely sparse spare moments in my schedule to catching up with history, rather than keeping up with the all-too-repetitive present. Consequently, despite the urgings of a reader or two, I've entirely missed the latest bout of John Derbyshire's musings on parents' inconsequentiality.
This morning, however, I happened to peruse a few of his latest posts just prior to reading the passage in G.K. Chesterton's Orthodoxy in which that great essayists declares the importance to his life of his nurse's feeding him on fairy tales. Something that I'd already thought reoccurred to me: that Derbyshire appears to be arguing out of affection for his conclusion (and the contrarian position that it allows him to take). If this were not the case, surely a such a lover of science as he would see that he is reasoning in a puddle of muddied terminology. Consider:
Why do you think that wealthy people employ platoons of nannies, and send their kids to boarding schools? The old English aristocracy neglected their kids for a thousand years. Winston Churchill barely knew his parents. He seemed to work out all right.
And juxtapose:
Suppose, for example, my reader's daughter had an identical twin sister, who had been adopted at birth by a quite different family, one with lackadaisical parenting practices, but in a near-identical neighborhood. Same genes; same outside-the-home socialization opportunities. How different would her adult personality and life outcomes be? We don't have to guess, because in a world of billions, it happens often enough to tell us. Answer: Much less different than you'd think. With a different set of genes, my reader's daughter might have run away from home by now, in spite of all his admirable parenting efforts. That happens too.
What, precisely, differentiates the nannies and school masters of the English aristocracy from the adoptive parents of the hypothetical twin? If Churchill hardly knew his biological parents, it seems to me that the differentiation is principally one of the title of parent, but not the role. To make the terms of our analysis equivalent, we would have to ask whether the particular nanny (or collection of boarding school mentors) mattered, for they were, as a matter of role, the parents.
One can reasonably assume that Derbyshire would reply that, well then, we'll broaden the assertion to state that "parent figures" more generally don't matter as much as we'd like to think. In making this distinction, though, we highlight a point that has been made before in this debate: Derbyshire presumes to "tease out" various aspects and choices rightly attributed to parents in order to declare that parents don't matter. If we attribute to pure fate, he says, the choice of mate (and the genes that he or she brings to the table), as well as the choice of geography and even (remarkably) the choice and provision of "outside-the-home socialization opportunities," then we can declare parents' influence to be minimal. Well, if that's the game, then I'll lay down my pen in defeat and admit that it makes very little difference to their development whether I, as a parent, prefer to part my children's hair on the right or on the left.
(I'm beginning to suspect, by the by, that Derbyshire's argument is fundamentally a denial of the existence of soul. What else of substance could he possibly be minimizing on the part of "you, the parent" if he seeks to "tease out" everything of substance that parents do?)
It merits noting, while in proximity to the example, that this narrowing of terms, combined with an exaggeration of the intellectual ramifications of doing so, appears to be almost a habit. Here's Derbyshire's handling of testimony from the aforementioned reader:
A typical extract from a reader email: "My teenage daughter is not allowed to date any boy who does not first apply to me for permission. So far I have turned two down as unsuitable and approved another two. She appreciates my help because it allows her to escape undesirable attentions without embarrassment."Well, I have no problem with any of that, and hope my own daughter will be that compliant when the dating years start. Whether she will or not will depend on her personality, large components of which are know to be heritable.
Derbyshire may have allowed more, here, than he realizes. This particular reader, he admits, appears to have been blessed with a child who actively seeks, and is willing to heed and learn from, her parents' guidance. Once again, though, the strategy is to narrow the terms away from evidence that is inconvenient to the a priori aesthetic conclusion that parents don't matter: the very fact that the daughter listens is partly genetic, so the influence that the parent thereby has may be discounted.
Stepping back from the necessity for science to be seen as discovering something new in our old universe, we can plainly observe that it is merely treading water in a patently unastonishing pool of knowledge. If the contention is that some children will be naturally more resistant or immune to direct parental influence, then I don't imagine that many parents would line up to argue otherwise. If the contention is further that parents who wish to shape even fiercely self-reliant children's lives must often resort to less direct methods — such as determining the other person to contribute to their genes and the environment in which they grow — then I don't imagine that many parents would fail to laugh that such a thing ought to be paraded as a society-shaking insight.
Perhaps a few might even muse that it is, in fact, science itself that doesn't matter nearly so much as some might like to believe.
ADDENDUM:
Charles Murray (to whose explanation and use of science I attribute much more credibility than Derbyshire's) has added a post that seems to bring some mitigating middle ground to the discussion (particularly his specification that the debate is addressing the group of parents who are already doing an adequate job). But there remains a science-constructed distinction that doesn't seem to me to justify the broader conclusions:
"Nonshared environment" is still incompletely understood. It can be things like a particular teacher that one child has an another doesn't, or a friend. If one child grows up with both parents but a younger sibling doesn't, that's nonshared environment. But most of the nonshared environment is even more diffuse and mysterious. Accidents in the womb, for example. A health issue for one child and not his sibling. In any case, when you think of influences on children as divided into genes and environment, with genes playing a major role, you then have to divide what's left into two bins, shared and nonshared environment, and the nonshared environment is much the bigger bin. This is not some far-out idea that a few studies support. It is pretty much ho-hum, what-else-is-new mainstream science by this time. Parenting is, under most circumstances, part of the shared environment that explains so little.
It's the last sentence that rankles. Take merely the example of "number of books in the house" that Murray puts on his list of components of a "shared environment." Are we talking merely the presence of large numbers bound sheets of paper, or is the "shared environment" a function of the content, as well? I require no convincing that the "nonshared environment" in which one sibling reads a particular book and the other doesn't can have a tremendous effect on their development. Nonetheless, isn't it within the scope of "parenting" to increase the odds that children will or won't read a particular book? Wouldn't it be part of parenting to decrease the odds of illness and injury that might shape one sibling differently from another? To steer them clear of dangerous friends?
Look, I wouldn't dream of denying the importance of the accidents of life (which, after all, resonate with something of the divine). Still, I wonder if it isn't the case that "the nonshared environment is much the bigger bin" for the reason that our analysis is being performed among a relatively homogenous group. As Jonah Goldberg pointed out in resonse to Derbyshire, "in the days of the Old English Aristocracy — quite a far distance from the formative days of humanities evolution on the plains of Africa — social mores were much stronger." As shared social mores disperse, surely the mores of the individual parent will matter more.
Murray writes that we "have it within our power to screw up our kids; we can't do that much to make them better, compared to the way they would turn out with another set of parents who maybe aren't as good, but aren't conspicuously bad." It seems to me that he's merely noting that years of social development have led us to an effective system. Not to hum relativist, but "conspicuously bad" is in the eye of the beholder, and I'd say that a significant motivation for strenuous objections to the conclusion that parents don't matter is the conviction that such loose talk will inspire changes to our culture that will degrade its shared effects.
That's an awfully large risk to be making in order to defend the scientific discovery that "just 'a little below average parenting' isn't that big a deal in its effects on kids' outcomes."
ADDENDUM II
An excellent follow-up from Goldberg, particularly his closing:
But my father was a unique creature, a peculiar duck, and the world will never see another like him. The suggestion that my personality — my me-ness — would be different in only trivial ways if I'd never known him strikes me as not only baldly absurd but deeply offensive as well. What makes me me, may be trivial to the guys in the lab coats and the social engineers, but that just shows how blind science is to so much that really matters. Science cannot see the poetry in life and because it cannot see it, it says it doesn't matter much. Science cannot tell a joke, but that doesn't mean jokes are unimportant things.Derb says science "just tells us what is." This is scientism. Science tells us what science can measure, nothing more and nothing less. To say that those things it cannot measure do not exist or do not matter is the gospel of the coldest and most pitiless of dogmas.
I suppose I should take Derbyshire's cue and treat his thoughts on the matter of parenthood with the same degree of seriousness (or lack thereof) as he does:
Jonah: Enough! definitely. I retire from the field with the following satisfactions: (1) I took a good whack at some dubious science. (2) I hammered another nail into the coffin lid of that old Viennese quack. (3) I have struck up an e-friendship with Judith Rich Harris, who turns out to be as witty, eloquent, and learned as her books.
All the thought that other writers and readers might have put into the discourse that he began? Pishposh; whatever. But one can't just let the scoundrel slip through the shadows without a final thought.
Jonah (here) and an emailer to him (here) offer excellent points in the vein that I'm inclined to continue, but what continues to irk me about Derbyshire's argument is the stunning lack of imagination with which he interprets science. Consider:
The growth of the child's brain into the adult's brain is regulated by genes. Genes that led that development along a path from childhood adversity to adult dysfunction, would be about as advantageous as genes that gave you only one leg. Natural selection would take care of them in short order.
One could make more of my point by delving in to the variations of evolutionary theory that find a value in random mutations and the like, but suffice, for now, to suggest that parental input (as well as, yes, socialization) could easily be seen as a mechanism whereby humanity has progressed in its evolution. Such a professed lover of science and its methods as Derbyshire should be able to step back from the value-laden term "dysfunction."
It is easy to see parents' ability to instill traits distinct from genetic programming — i.e., "dysfunctions" — as a very advantageous genetic structure, indeed. With this modicum of imagination (or just plain old clear, objective thinking), the following suggestion from Derbyshire becomes nonsense:
The notion that a missing father causes, in and of itself, psychic harm to the adult organism, similarly goes against the laws of biology, and suspicion again naturally follows.
What could he possibly mean by "harm," in this context? If Dad is a lonely, violent, paranoid man, there may be, after all, some environmental reason for the son to share those qualities. If Dad abandons the family, there may very well be something in the species' environment that would make advantages of his children's adverse reactions.
Evolution could not negate the ability to pass on that which modern society might consider dysfunctions, because nature is unqualified to decide which traits might prove beneficial or harmful. The evolutionary value is in the ability of adults — especially parents — to affect the personalities and character of the next generation — for good or ill. Such is the cold logic of science, and as observers of John Derbyshire should note, it is clearly not adequate — even to the extent that such as Derbyshire prove unable to follow its imperatives.
It is merely a shell game of those who believe that biology (that is, science) is everything to concoct "if/then" statements with the implication that, by not proving the theories of others in terms agreeable to skeptics, nature has proven the theories of the matierialist faithful. Of course, when it comes to materialists, their lower birthrates, and their effects on those children whom they do beget, it may be that natural selection will, given time, "take care of them."
Perhaps the problem is that people of a scientific bent are too often inclined to run off at the mouth over some perceived instance of a personal methodological peeve and, therefore, respond to points that others are not making. In Derbyshire's case, he offers that peeve as "fallacious reasoning about human development, mostly of the correlation-equals-causation variety." He writes:
Two alternative explanations come to mind at once. (1) We have an aggressive adult from an aggressive parent (he beat the kid, didn't he?) Maybe aggression runs in this family. It doesn't even have to be genetic. It could be dietary, or religious. (2) The kid was obnoxious and difficult from the start. (Some are. Believe me.) The parent, who was perfectly average in aggressiveness, was driven to distraction (read: abnormally aggressive reactions) by the kid's intransigent naughtiness. So we're not looking at a parent-to-child effect at all; we're actually looking at a child-to-parent effect! Yet I am pretty sure I have never read a headline saying "Difficult Kids Provoke Parents to Abuse, Study Shows." Why not? Because our popular culture, and even big swathes of our academic culture, are Freud-soaked: Mom and Dad make you what you are.
There's a clinical perspective, here — fatally tied to notions of oppressor and victim — that strikes me as related to the temperament that leads such as Derbyshire to laud the liberty of pregnant women who choose to abort their children. Nobody who disagrees with Derbyshire on the subject of fatherhood has, as far as I can see, gainsaid the notion that good parents can have bad kids, or vice versa. Our point (if I may speak for the crowd) is that — once again — parents matter. Derbyshire writes as if "aggressive adult" is a category free of internal value differentiations.
Personally, with my perspective as a father, the child prone to aggression is a given. He is my son, and I must raise him. (Note: My actual son is, apart from being bare months old, not giving any indication of untoward aggression.) The question from my point of view is what I should do to raise that child; the question from society's point of view is what it should encourage me to do as a father (and then what to do should I fail in my responsibilities).
So I've got this hypothetical aggressive son; is it within my power — through deliberate socialization, discipline, economic leverage, and any other resource available to fathers — to make it more likely that he'll be a formidable, but responsible, wrestler than a formidable and abusive gangster? I'm comfortable — on scientific, social, experiential, religious, and any other grounds — saying, "of course."
This, however, is where the aforementioned scientific bent becomes dangerous. Somehow, Derbyshire — who makes his living as a politically conservative opinion writer — feels compelled (perhaps based on questionable source material) to argue against fellow conservatives who insist that parents are important in the lives of their children. Just as aversion to the asciencism of intelligent design proponents draws evolutionists to ground that defends an ultimately soulless construct of reality, narrow intellectual points beget heated arguments over assertions with which their apparently confused vessels do not even agree.
Thus, Derbyshire responds to Jonah Goldberg's paraphrase of "if [marriage] has no serious effect on kids," by declaring:
Where did I say that? I actually said, or pretty directly implied, the OPPOSITE thing when I said that the best thing you can do for your kids is to be successful enough in life to give 'em a nice bourgeois neighborhood to grow up in.
And yet, he feels it necessary to clarify that he includes, among the "parenting styles" that mean very little, "the complete absence of a parent." Noted: marriage does have a serious effect on kids, except perhaps when one parent is completely absent, in which case their home environment is a matter of "parenting style" — a modern illusion that flies in the face of "science... confirming folk wisdom."
Even here, though, he's revealed his exit strategy by arguing — much more specifically than his rhetoric would lead a fair reader to believe — against the strawman that "parenting style makes all the difference" (emphasis added). "I never said that it doesn't make some difference," he might say, "perhaps a great deal." But even that exit is covered by the smoke spewed when he put forward his initial assertion that, in modern studies, "the home family environment... dwindles away almost... to inconsequentiality."
I spent too many years spinning these maddening circles attempting to understand Andrew Sullivan's arguments about homosexuality to get caught in the trap again. I'd therefore be content to assign Derbyshire to the same "why does anybody care what he says" level of awareness that Sullivan now inhabits for me, except for the factor that makes, as I've said, his attitude dangerous. Married to the belief that "kids are tough, resilient little buggers" who will develop for better or worse largely outside of their parents' control is an aesthetic that applauds abortion as an expression of "natural liberty" and that wobbles out on this limb:
The desire of parents to have healthy children with a decent shot at good life attainments, is very strong. I don't see anything wrong with it; and even if I did it would make no difference, as the biotechnology is already upon us, and will be embraced enthusiastically by most parents. I share your horror of state-organized eugenics, but then, I nurse a horror of state-organized pretty much ANYTHING. I have no problem at all with "consumer eugenics," but state-organized eugenics, like, oh, state-organized "homeland security," would be a disaster. A total state proscription of abortion would be too. Liberty! That's why I call myself a conservative.
Behold the future of liberty! In which the temperament of children is not a thing to be addressed by loving parents who see them as special and important regardless of their difficulty, but rather a thing to be studied and perhaps, if sufficiently captured by that famously "ethically neutral" practice called science, to justify euthanasia.
I'm increasingly astonished at John Derbyshire's approach to social issues. Seeking evidence for our suspicions ought to be an expectation, of course — as should be a willingness to change our minds when the evidence requires. But becoming slaves to data — particularly social science data — at the expense of inherited wisdom ought to remain the practice of leftists and relativists. Consider Derbyshire's gift to fathers on their national holiday:
Nowadays, however, there is a lot of counter-research, in which the influence of the home family environment, at any rate after age three, dwindles away almost (according to some researchers, anyway) to inconsequentiality. The big determinants of adult personality are (1) genes, and (2) group socialization. The home environment of the child comes in a distant third.
How in the name of all that is holy — in Derbyshire's world or in mine — can one presume to argue against the proposition that there's "just no substitute for dad" by arguing that personality is determined by genes and socialization? From whom does Derbyshire suppose children acquire their genes? Who does he think begins children's socialization?
On the socialization count, Jonah Goldberg offers an astute response:
Parents communicate values and priorities. Historically, the best indicator of political affiliation, for example, is the political affiliation of parents. Obviously, the same holds true for religion. These are not minor slices of the human experience. If we inherit our parents' understandings of both transcendence and social organization, it seems hard for me to believe that genetics and peer groups explain most of the story of human development. ...... common sense says that the expectations set by parents explains a great deal of it too. Kids whose parents expect straight As are still far more likely to have kids who get straight As. The peer groups these kids fall into are a symptom of those expectations not the other way around.
This same sort of broad, in-the-details thinking goes more deeply — into genetics. Derbyshire argues:
You can't discount genetics, either. Being a criminal, and being a single parent, might both be the consequences of impulsive behavior. That's an aspect of personality, which is in part heritable. ...Since testosterone is associated with risk-taking and anti-social behavior, then one would expect high-testosterone males to be less inclined to get, or stay, married. This doesn't tell us anything about the benefits of fatherhood for children; it only tells us that high-testosterone males are not as a good bet to make good fathers, on average, as are low-testosterone males.
If these statements are valid, and if we assume that mothers — at least mothers who are likely to be directly or indirectly affected by sociological discussions — would prefer to raise non-anti-social non-criminals, then potential mothers will take the precaution — gobsmackingly transgressive though it may be — of being more deliberate about the men with whom they mate. Suggesting that they choose men who will stick around to perform the father role isn't significantly different from suggesting that they choose men who aren't impulsive risk-takers oozing testosterone. Perhaps they'll even conclude that men who are genetically "a good bet to make good fathers" will be less likely to engage in such activities as donating sperm for the creation of anonymous children.
John Derbyshire appears to be falling into the trap — beloved of previously ensnared academics and social engineers — of breaking social forces and relationships into their component parts, analyzing each on its decontextualized merits, and declaring the original whole to be a matter of "inconsequentiality." As much as members of the family values crowd might disagree with the resulting conclusions anyway, it entirely misses the point of their philosophical movement to argue that fathers hardly matter a bit, provided we discount their effect on genetics, household income, social grouping, and any other discrete aspect of fatherhood that we might wish to tease out for analytical purposes.
The point of saying such things as "fathers matter to their children" is not to stroke the egos of men who've managed to procreate, but rather to encourage them to work toward an ideal of fatherhood, to encourage women to insist on men who will do so, and to rekindle a culture that believes that such a thing as an ideal of fatherhood actually exists. If Derbyshire weren't so enamored of the outsider status that "empirical evidence" has helped him to claim (when it suits him), perhaps he'd realize that he doesn't actually disagree:
Probably the best thing we dads can do to give our kids a happy and useful adulthood is to make enough money that we can choose where to live, and then choose a district where our kids will be group-socialized to civilized bourgeois norms.
It takes a special sort of anti-social-conservative myopia to insist that hard-working fathers who consider the well-being of their children when locating and defining their home environments must understand that they hardly play a role at all in those children's development. Frankly, I'm not sure what Derbyshire's argument could possible boil down to except, "buzz off you bloody religious fanatics." At least leftists have the comprehensible (if invidious) motivation of wanting to redefine cultural norms. What's his excuse?
ADDENDUM:
Although it didn't fit within the flow of the above, I should note that, had Derbyshire read both of the specific authors to whom he was responding, he might have known that it would be inadequate to rest so much of his argument on confounding variables. Writes W. Bradford Wilcox in his Weekly Standard piece:
Note that these studies control for factors like race, education, and poverty that might otherwise distort the relationship between family structure and child well-being.
On the other hand, I've no information concerning whether Wilcox took into account the fact that Derbyshire's children did not inherit his accent.
ADDENDUM II:
Derbyshire has responded to Jonah mainly by introducing the concept of "parenting style," which (unless I've been misreading terribly) was not the concept at issue in the initial pieces. Indeed, Lowry and Wilcox seem mainly to be emphasizing the mere presence of fathers. Perhaps Derbyshire sees presence as a matter of style; it's curious, then, that he doesn't believe that choice of "outside-home environment to socialize into" registers in the same category.
Perhaps the most discouraging aspect of contemporary discourse emerges when one gets the feeling that others really aren't interested in coming to an objectively correct conclusion — merely in promoting their own causes. I suppose it may sound naive to lament such a thing, but it's difficult not to shake one's head when somebody seemingly interested in honest consideration and compromise betrays a disinterest in understanding the other side. Consider this from Jon Rauch:
Two questions for anti-gay-marriage, anti-abortion Republicans: If states can be allowed to go their own way in defining human life, why not allow them to go their own way in defining marriage? Where constitutional amendments are concerned, why is preventing gay couples from marrying so much more urgent than preventing unborn children from being killed?
Do you really need these questions answered for you, Jon, or would a five minute delay in your publication deadline provide the time to think it through? Well, for the benefit of passing readers, I'll take the five minutes:
If you've still any doubt that support for same-sex marriage is linked — causally or not — with vast changes to traditional religious beliefs, consider:
One wonders whether these people read from the Gospel of Judas when they pray to the government to guide its people. One also wonders whether they'll conclude that God's route to Armageddon "takes too long," as well.
In a piece in which Maggie Gallagher explores experts' opinions on the legal conflict that same-sex marriage will bring about between the church and state, Anthony Picarello eloquently restates a point that many of us have been making for years:
"This is going to affect every aspect of church-state relations." Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don't even notice that "the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it's easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter."
Whether one believes that the line of compromise will be drawn in bold where direct public funding ends or one worries that it will one day be persmissible to discriminate against a religious individual based on statements of beliefs outside the walls of a darkly lit church, Gallagher's restatement of another point that many of us have long been making rings true:
From there, it was only a short step to the headline "State Putting Church Out of Adoption Business," which ran over an opinion piece in the Boston Globe by John Garvey, dean of Boston College Law School. It's worth underscoring that Catholic Charities' problem with the state didn't hinge on its receipt of public money. Ron Madnick, president of the Massachusetts chapter of Americans United for Separation of Church and State, agreed with Garvey's assessment: "Even if Catholic Charities ceased receiving tax support and gave up its role as a state contractor, it still could not refuse to place children with same-sex couples."This March, then, unexpectedly, a mere two years after the introduction of gay marriage in America, a number of latent concerns about the impact of this innovation on religious freedom ceased to be theoretical. How could Adam and Steve's marriage possibly hurt anyone else?
Because Adam and Steve's individual marriage is a red herring; the danger lies in the process and reality of making that marriage a legal possibility. Refer back to Picarello. Then refer forward to Chai Feldblum, "a Georgetown law professor who refers to herself as 'part of an inner group of public-intellectual movement leaders committed to advancing LGBT [lesbian, gay, bisexual, transsexual] equality in this country'":
... the bottom line for Feldblum is: "Sexual liberty should win in most cases. There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."
What of the dignity of religious people? Well, obviously, their bigotted views are a perversion. And religion is a choice, after all.
Presumably, Andrew Stuttaford had some sort of evidence in mind when he wrote the following odd assertion, but it certainly reads like a statistical datum entirely removed from experienced reality:
As for why people are having fewer children (a trend that you can see in many places across the planet, not just Europe), that is more likely to reflect the fact that, thanks to modern medicine, more children survive into adulthood. There's less need, so to speak, for "spares". To attribute part of the blame for this phenomenon on a supposed European cultural or spiritual deficit is entirely to miss the point.
Each of my parents was one of three siblings, and that was considered normal for families formed in the 1940s. I now have three children, but that's nearly considered to be reckless procreation. Would Mr. Stuttaford have me believe that my grandparents were normal and I'm profligate because they intended to have only one or two children but figured they should have an extra or two just in case, while I have no such excuse?
Yes, I'm sure there are arguments — akin to those I myself have made about social trends — that the need for "spares" is more culturally, than individually, understood. But that doesn't seem to capture the cultural forces at work. When I've been subjected to the presumptuous (and not infrequently offered) observation that I have too many children, the reasoning has had more to do with their cost than with a lack of need for them. And a focus on the cost seems, to me, at least, to have traces in our self-absorbed lifestyles. How can a person afford the latest high-tech gadgets, after all, with so many mouths to feed, and how can all of the content piling up in the DVR be viewed with children pleading for attention?
That Stuttaford makes the following suggestion implies that he intuitively understands that the natural desire for multiple children is being suppressed by cost — in what one might term as a sort of "spiritual deficit" — rather than falling to some natural number based on need:
... if countries really do wish to increase, or at least slow the decrease, in their birth rates, some of the evidence (at least so far as Europe is concerned) appears to show that making it easier for women to go out to work is the way to go.
I'd worry that such an approach would merely reinforce the social habits that make it so difficult to live on a single income in the first place (owing to an economy with an inflated workforce). On the other hand, sticking to the cold economic calculations that seem to drive libertarian thinking even on such warm and cushy matters as children, and making the gigantic assumption that a more fertile foreign culture won't overwhelm the West, perhaps the best thing countries can do is to reinforce the trends of decline. After all, at some point, parents will realize that it is in their own best interest to increase the odds of having offspring who won't vote to put them to sleep in their old age and at least one who will step in to help when the social welfare regime finally collapses.
Fr. Peter,
As a parishioner who has been thinking and writing about the issue of same-sex marriage for the past five years, I found cause for concern in your recent bulletin missive on the topic. It is fine for a pastor to struggle with such matters; indeed, I'd argue that we all have a responsibility to engage them. For my part, I began contemplation of same-sex marriage thinking that there mightn't be a problem, and might be justice in, equalizing marriage as a matter of the law. Inasmuch as you affirm the Church's handling of marriage for itself, it would appear that your thinking is similar to mine back then. However, having opened this particular can of worms, as you say, in your own public forum as a spiritual leader, it seems to me that you've a responsibility to follow your thinking to its end and resolve the ambiguities in your letter.
Toward beginning to reconcile modern gut response with tradition, I would stress that general principles of separation of church and state do not dictate government relativism in all areas in which religion supplies concrete answers. That the Church has accurately identified a spiritual imperative does not mean that the social manifestation of the same imperative is not a proper matter for legislation. Different assumptions direct the logic of religion and of government, to be sure, but if it is a fact that God has revealed truth through our particular Church, it follows that similar principles are at least likely to carry over into the secular sphere.
You find it important, I was relieved to read, to repeat and affirm the Church's internal teachings on marriage, based on the premise that "the joining and benefit of each partner is... understood as being inseparable from the bearing of children." The question that must next be answered is the reason for our government to acknowledge and promote marriage. Is it just for affirmation, for recognition? Is civil marriage to be understood as a golden sticker borne for all to see that we legitimately have, in your words, "dignity as human persons"? Woe to our society if we need to be thus regulated as individuals; more's the woe if each of us must seek it through prior declaration of our value by another person.
If civil marriage is meant to allay our insecurities as social beings, then why must it be limited to sexual relationships with non-relatives? Why must it be limited to two people? Why — I ask again — have government-acknowledged marriages at all? If it is to encourage mutual care (one possible answer), the presence of "a healthy and mature sexual orientation" would seem to be moot. What, in terms distinct from those religious ones on which we agree, is marriage for? Beyond passive bestowment of status to relationships that citizens insist are "marriages," what does our government hope that marriage will actively do to benefit our society?
The conclusion to which I've come is that the government's critical reason for recognizing and encouraging marriage is to form the culture's vision of the institution as one uniting parents together and with their children. We do not invest in the culture of marriage in order to affirm adults in their private decisions or even as an expression of belief in their dignity; we vest marriage with meaning primarily with an eye toward those adults who are least likely to choose its restrictions. We want marriage to be strong, in short, in order to bind adults together when they might be drawn to different lives, and we do so not as an instrument of oppression, but for the benefit of those with no say, but high stakes, in the matter: children. And the sexual male-female relationship is the only one in which children can appear without an explicit choice to form a family.
I, along with many other married people with intentional children and willful fidelity, do not need government recognition, especially in addition to Church recognition, for my marriage to be meaningful and permanent. The public's interest in such marriages is as instances of investment, of definition (further obligating the spouses to live up to the example that their choices have put them in a position to represent.) Public investment in same-sex relationships as a form of marriage would serve to redefine the institution, changing its meaning beyond the straightforward statement of responsibility to begotten life. Rationalize as we may, if marriage is not understood as "inseparable from the bearing of children," then bearing children must be separable from marriage.
You ask how "we [can] foster a greater dignity for all persons." I submit that we do so by leading people toward maturity — not a "mature sexual orientation," but a mature understanding of their place in the scheme of life. "A sense of identity" does not come with a paper from the city hall, but with an acknowledgment of the ways in which identities define what we can, can't, and should do. And dignity cannot coincide with — much less be built upon — a false equivalence.
ADDENDUM:
Conversation continues in the comment section of Mark Shea's post noting my letter.
In a nutshell, the Providence Journal editorial board believes that adults' feelings and desires trump the needs of children:
It is a shame that, rather than continue caring for children, Catholic Charities opted to close up shop [in Massachusetts]. First, though, the archdiocese sought an exemption from the anti-discrimination laws, a move that prompted seven members of the agency's board to resign. In a move that might play well in a GOP presidential campaign, Gov. Mitt Romney proposed changing the law to accommodate the church. (That might have kept Catholic Charities doing its good work with adoptions, but it would sanction discrimination, which is wrong.)
It would seem that, from a certain point of view, it is not the American ideal to accommodate different beliefs inasmuch as is possible. To secular zealots, the government — ever more involved in the intricate workings of society — cannot "sanction" what some believe to be unfair discrimination, so there can be no compromises. We cannot tolerate a civil practice that requires homosexuals to adopt through other means than a charity associated with a millennia-old religion, so the charity must either contravene the religion's teachings or else — in a retrograde act worthy of "shame" — cease operations.
I suppose an argument about whose shame it is ultimately comes down to whose beliefs better justify obstinacy. On one side, a group of people who believe that we are endowed with immortal souls and are bound by laws that transcend any particular human era (so that we must often reject that which our times condition us to prefer) are choosing not to reject the system by which they seek to understand those higher laws, because to do otherwise would be to jeopardize their own and others' eternal well-being. For the other side, the modern secular ideal of anti-discrimination requires that any act for which academic "studies show no substantial problems" must be permitted and facilitated by everybody if not doing so would hurt somebody's feelings.
As a matter of our shared government system, the Projo may be correct that, with "so many children in need, it makes no sense to limit the supply of potential parents." Somehow, though, in the convoluted fog of progressive emotional fiat, it apparently makes sense to limit the number of trustworthy agents seeking to bring those children and parents together.
Perhaps continuing my theme of grappling with inexplicability, it took me a while to figure out what is so bothersome about Charles Bakst's seemingly plain argument for same-sex marriage:
This is a tough, tough situation. I was struck by an Oct. 3 Boston Globe report about Catholic parishioners wrestling with the issue of whether to support the referendum drive [to put a constitutional ban on same-sex marriage in Massachusetts]:"One woman at the cathedral, who did not want to give her name, said she planned to sign the petition even though it was hard for her because her daughter is gay.
" 'It should be between a man and a woman,' she said of marriage. Of her daughter, she said, 'I pray for her every day. I respect her. I'll never stop loving her. I'll never stop praying for her.' "
I don't question the depth of this mother's love — or the sincerity of her beliefs, which are shared by some other parents of gays. But if I had a gay daughter or son, I'd want that child to have the same chance to find happiness in marriage, with the same rights and prestige, that society bestows on anyone else. If I felt otherwise, I'd be asking, "What's wrong with me?" and praying for help for myself.
The unnerving quality of these paragraphs is the ease with which Bakst shifts from declaring the issue to be a "tough, tough situation" to presenting a simplistic, untainted meaning for same-sex marriage. One gets the sense that same-sex marriage creates a "tough, tough situation" only for we who are insufficiently enlightened to realize that our beliefs are wrong.
Bakst captures the broader perspective of many same-sex marriage supporters, I think, by characterizing it from the point of view of a parent — a liberal parent, at that. What parent doesn't want his children to have an equal "chance to find happiness"? What parent doesn't wish for children's social acceptance (however differently we may define such a thing)? The toughness comes in when parents put aside illusory and ultimately selfish visions of their children's lives and weigh their responsibility not only to those children, but to the society of which those children are a part — and of which those children's children will be a part.
That parental and social responsibility ought to make for tough, tough situations doesn't necessitate a particular conclusion. It does, however, suggest that Mr. Bakst ought to be asking himself the question that he thinks incumbent only upon those who feel differently than he: "What's wrong with me?" Or, to put it more charitably and more accurately: "What am I missing?"
I never actually expected to receive Andrew Sullivan's promised response to my piece about him, but I would have hoped that he'd begin conducting his end of the marriage debate with even the slightest indication that he's paying attention to what the other side is saying... or even who the other side is. Witness:
Since marriage has already been redefined to make the exclusion of gays logically absurd, the campaign against letting gays into the human family necessarily raises the suspicion of mere animus. It's not bigotry to say that these are the rules that govern civil marriage and too bad if you can't live up to them (i.e. procreation, or traditional gender roles). But it is suspicious when you abolish all those rules for straights and then use the old rules to bar gays. I don't see how gay marriage opponents manage to get round the logic of this - except by resorting to purely religious arguments (which would invalidate most heterosexual marriages today as well), or simply reiterating the definitional case that marriage is for straights, dammit.
One gets the sense that Sullivan has broken the world into straights and gays, with only the latter permitted to act independently of their "movement." Some gays wish to leverage same-sex marriage to undermine society as we know it, but Sullivan refuses to have their arguments considered as part of the issue. But through the magic of the passive voice, "marriage has already been redefined," and therefore traditionalist "yous" have had the hypocrisy to "abolish all those rules for straights and then use the old rules to bar gays."
I'm too young to have participated in the earlier debates, but I'm pretty sure — conversions excluded — that the overlap in names on petitions for divorce and contraception and against same-sex marriage is minimal. Unfortunately, one of the complicating factors when attempting to come up with resolutions to the current fight is that Sullivan's handling of the other side is way too likely to prove the norm for his.
To the post in which I announced my latest TheFactIs.org piece, "notdhimmi" comments:
Mr. Ponnuru observed shortly after his "4th way" article hit the world that his email on the topic was generally one of two forms (paraphrasing)1. Email from opponents to SSM, claiming "The SSM activists won't accept anything less than full marriage, just like man-woman marriage".
2. Email from supporters of SSM asserting that anything less than full marriage, just like man-woman marriage, wouldn't satisfy them.
I think there's a clue, here, on how well this 'compromise' (really a unilateral partial surrender) would work.
I recall that observation (although I couldn't find it in a quick search), and it seemed to me at the time that the combined emailer view of the issue is a little pat. As much as it draws on real and valid opinions of those on both sides of the issue, it misses an important quality of solutions such as Ramesh's and mine: namely, that the "compromise," in this sense, is between an array of political groupings, not individuals, and not feuding factions.
For such compromises to function, they don't require representatives of all sides to sit down and agree to a collection of bottom lines and concessions. Rather, they require only that enough people find the solution fair and agreeable to change the calculations of more adamant parties. Consider that the emails that Ramesh mentioned were written within the context of the debate as it stands, politically.
If a large enough segment of the population were to take up an Option Four–type position, intractable supporters of full same-sex marriage would risk being tagged as, well, the intractable ones in the debate, and they might lose all. Furthermore, if the compromise offered a more attractive footing for future advocacy than would exist without the compromise, all but the most resistant activists would move toward it. The sides' current refusal to budge is, itself, a calculated action and, as such, can change.
That, as it happens, is where my tweaking of Ramesh's suggestion comes into play. The idea, essentially, is to solve the marriage debate by rerouting it toward the civil union debate — to challenge the notion (against which I've railed for years) that "civil union" means specifically "marriage by another name." Same-sex marriage supporters would thereafter have to rebuild the connotation of "civil union" in a slower, more cultural, less-by-default process. Same-sex marriage opponents would thereafter have to actually define their views of "alternative families" and bolster marriage culturally — beyond its civil benefits.
The point, again, is that these "have to" steps would be reactions to a compromise that the broader society has decided the parties must make.
My latest column, "Juggling Spheres in the Marriage Debate," begins with activists' invasion of Notre Dame Cathedral and makes its way to suggestions for resolving the current impasse in the same-sex marriage battle.
Coming Attractions...
Barring the emergence of a more immediate topic, my next column will address that Lee Harris piece that everybody's been talking about.
No doubt, many supporters of same-sex marriage will grimace when they read this news, but the likelihood of that reaction makes it no less legitimate to ask: Is this sort of activism in America's future — particularly if civil marriage becomes degendered?
About 20 members of the group Act Up entered the cathedral and proceeded to perform the mock marriage in front of baffled tourists and worshippers, according to an AFP correspondent at the scene.One activist - dressed as a priest - pronounded the two women married, while other Act Up members chanted: "Pope Benedict XVI, homophobe, AIDS accomplice."
With security officials in pursit, they then fled the cathedral, but clashes broke out outside the Paris landmark, during which Monsignor Patrick Jacquin suffered a minor neck injury. He was treated at the scene.
Commenter Fitz notes a post on Alas, a Blog, on which blogger Ampersand links to and quotes from various commentary on the McArdle debate, citing mine as the only one not worth reading (because it is "just more of the old 'same sex marriage will lead to incest' fearmongering).
Particularly when I don't recognize the paraphrased fearmongering as something that I wrote, or even closely related to my points, I'm not but so concerned about what is said over on Alas — except to recall the longevity of the "same-old-same-old" dismissal of disagreeable arguments. However, I thought commenter Kim's free-form ode to Fitz pretty well illustrates various, well, difficulties that traditionalists have in finding willingness to actually discuss these matters credulously on the other side:
Fitz, I don't like you.I don't like you because you personify the unknown stranger that seems intent on invading and molesting my privacy and life.
I don't like you because your own fear and weakness makes you cling to a patriarchy and patriarchal roles that hurt me, other women and others in general that aren't willing to yeild to the power you falsely feel entitled to.
I don't like you because you infringe upon my right to religious freedom or lack thereof with your outspoken attempts at forcing your religion down my throat and into my life.
I don't like you because you are bigoted and unfairly discriminating and try to cover it up with strawmen arguments and a patronizing attitude.
I don't like you because you try to define my marriage based on your morality instead of respecting that the right to define a marriage belongs soley to the people entering into the contract.
I don't like you because you cling to gender-roles because of how they empower you without giving any consideration to how they disempower women.
I don't like you because you attempt to use feminism and liberalism as dirty words without even fully understanding them.
I simply don't like you. And I want you out of my marriage. I want you out of my bed. I want you out of my religious privacy. I want you out of my decision making when it comes to what role I will choose. I want you out of my family when it comes to deciding whether my family is abnormal because we have married gay relatives. I want you gone with all of your judgements and molestations of my life. In my eyes, you're a cultural and societal rapist of privacy and personal rights.
I don't like you.
Scat-dat-diddledy-do, Sister Same-Old.
Believe me: as is often the case, I'm actually a bit anxious to move on to other topics than homosexuality. But I've been following an editorial-page debate in the University of Rhode Island's student paper, The Good 5¢ Cigar, and I couldn't let the following, from a letter by Professor of Biomedical and Pharmaceutical Sciences Alvin Swonger, go without comment:
Mr. Nelson expresses amazement that Americans still "support homosexuality" despite it contributing to AIDS transmission. That his argument is preposterous can be readily understood by choosing from among the unlimited number of parallel arguments relating to other health concerns.Women after age 45 are twice as likely to suffer major depression as men, yet Americans - amazingly - continue to support femininity. Most cases of influenza are transmitted by inhalation, yet Americans - amazingly - continue to support breathing. Parkinson's Disease is most prevalent in elderly men, glucose-6-phosphate dehydrogenase deficiency in blacks, Italians, Greeks, Arabs, and Sephardic Jews, psoriasis in pale skinned whites, radon exposure in miners, and spousal abuse in married couples, yet - amazingly - Americans still (usually) tolerate those various demographic groups and support aging, farming, mining, and marriage while spending tax dollars researching the causes and potential treatments for the related medical and social problems.
Is Swonger serious? These are the sorts of comments that, I imagine, spark rewarding titters in the faculty lounge, but as a logical matter, the professor's own argument is — at the absolute least — as "preposterous" as that of the student whom he is addressing.
I don't know Prof. Swonger, and therefore I've no reason to doubt his intelligence or professional competence; I say that honestly, without intending to imply doubt through insinuation. But the other option is that this particular intellectual approach is so common that academics — scientists, no less — let it slide through their own minds without a second thought.
I would hope that, once the faulty passage has been circled in red ink, people far less intellectual than college professors would be able to see the distinctions over which Swonger has glossed. If not, let me know, and we'll see about some lesson plans for a 101.
Toward the tail end of the (currently) 152 comments to my "Whitewashing the Fence" post, Michael begins an extended answer with the following interesting observation:
All gays have a different attitude towards sex and sexuality than most straights. This is probably because, unlike heterosexuals, gays have been forced to have their own inner dialogues about what sexuality means, something that I don't think straights ever really deal with. This leads to a broader tolerance towards sexual and mating choices.
The difficulty in figuring out how to formulate a response to this quotation illustrates how differently the issue of same-sex marriage is being approached. The question that springs first to mind: Why are homosexuals "forced" to do such deeper thinking than heterosexuals about the meaning of sexuality? The bottom line answer — clear enough to merit an <obvious> tag — is that any heterosexuals inclined to derive one have an answer within easy reach.
Here, the "tolerance" maven might jump in with one of the two related quick-response reactions:
Rebuttal 1 applies less and less. Indeed, I'd argue that the reverse is true in certain settings. Furthermore, anybody who believes that ridicule doesn't (and doesn't inevitably) play a role in the formation of heterosexuals' understanding of life must lack a broad view of youth.
Rebuttal 2 brings us to the divisions between "liberal" and "conservative" that Michael subsequently attempts to draw. It has been a social-liberal project for decades (centuries, depending where one draws the line) to break down those constructs. The opposition isn't surprising: conservatives wish to maintain those constructs (again, with different lines), to fortify them so that society can rely on them to achieve other goals. (And clearly marriage counts among those constructs.)
But these are distractions. The main reason that heterosexuals, generally speaking, don't require extended inner dialogue about the meaning of sexuality is that a plain observation of biological reality provides the essential: procreation. (Frankly, when I was an atheist, I would have argued that the single most objective "meaning" to life is procreation.) As pleasurable as sex may be, and as much as the provision of pleasure can rightly become a secondary meaning, the fact that procreation remains central can be seen in the lengths that heterosexuals must go to deny it. Even all of the contraptions, the changing of body chemistry, and the dismemberment of unborn progeny do not fully succeed in permitting denial.
For homosexuals, on the other hand, not only is that denial allowed, but it is required if they are to formulate "what sexuality means" in a way that doesn't mire their sex lives in the secondary. Even conservative gays (among whom Michael counts himself) must take a radical view of sex or else admit something in which there is neither sin nor reason for shame: that their sexual attractions are, in the Catholic phrasing, "objectively disordered."
Whether they like it or not, denial of this conclusion — which is not meant to be belittling — is inherently subversive. Witness Michael's insouciant response to the question "Will gays androgynize marriage?":
I dunno. Probably. But that's a good thing. Not that men and women are completely interchangeable, but that men and women can feel free to fulfill the roles they're good at fulfilling.
In one swoop, the meaning of sex has not only engulfed the significance of gender, but also installed the individual as the definer of roles in a relativist process of blending what one wishes to do and be with a self-assessment of what one is "good" at doing and being. The denial is, in St. Paul's language, of what can be "understood and perceived in what [God] has made." We do well to consider his explanation and admonition, not as an insult, but as the advice of one concerned with our individual and collective well being — lest while claiming to be wise, we become fools. Even inner dialogues require more voices than one's own.
Expecting there to be a hearing of the Rhode Island House Committee on Judiciary this afternoon during which testimony would be received on a bill that would de-genderize my home state's marriage laws, I devoted a few hours last night and this morning to testimony that I planned to send in. Well, not two minutes after I'd compiled my list of the relevant state representatives and hit the "send" button, I discovered that the testimony session had been postponed.
Oh well. I've posted my testimony over on Anchor Rising.
There it is, the assumption that social conservatives have ulterior motives when it comes to the same-sex marriage debate:
One version of this argument would hold that Class B so reviles Class A that they will, at the margin, want less to do with any institution Class A has contaminated. Social conservatives on their best behavior are at pains to avoid this one.
You've got us, Jim Henley, we don't actually believe the arguments we make. They're all just cover for the easily dismissible argument that none of us — save the liberal-manufactured strawmen in our midst — have made. Actually, this social conservative can shake the impression that liberals are merely assuming that we're doing that which they observe about themselves.
The impression originates with the underlying one that liberals don't take this debate as seriously as conservatives do. I don't mean seriously in the sense of wanting to win the issue; if anything, most of the strongest proponents of same-sex marriage have a more direct emotional desire for victory. I mean seriously in the sense of wanting to find the right answer — in the sense of taking opposing arguments seriously enough to understand them as rational ideas from a particular perspective. Instead, SSM proponents' minds are made up, correct by definition, and all the rest is just, to borrow Henley's pun, fencing.
Take the man himself: as intelligently and compellingly as Henley's post is written, he mischaracterizes, deliberately or not, just about every argument that his opposition makes about same-sex marriage. Consequently, he misses the fundamental aspect that makes his position wrong. To begin with the limited, here's what he believes social conservatives on their "best behavior" argue:
Instead they argue that marriage is deeply attractive because it is an opportunity to "step[] into an explicitly gendered role," as Megan puts it, and opening the institution to Class A, gay couples, compromises that.
I don't think that's the point that Megan McArdle (herself not a social conservative) is making, but whether it is or not, her phrasing is adequate to describe the social conservative view:
... social conservatives reply that institutions have a number of complex ways in which they fulfill their roles, and one of the very important ways in which the institution of marriage perpetuates itself is by creating a romantic vision of oneself in marriage that is intrinsically tied into expressing one's masculinity or femininity in relation to a person of the opposite sex; stepping into an explicitly gendered role. This may not be true of every single marriage, and indeed undoubtedly it is untrue in some cases. But it is true of the culture-wide institution. By changing the explicitly gendered nature of marriage we might be accidentally cutting away something that turns out to be a crucial underpinning.
It isn't that young men pursue wives because it's a "deeply attractive... opportunity" to behave explicitly masculine. Believe me — as a man who's spent time in a fraternity as well as working on the docks and on the construction site — such opportunities abound. What marriage does, in this circumscribed aspect of its function, is to define what the explicitly gendered role should be in relation to women and in relation to children. The importance of gender to marriage isn't its utility as a sales and promotion vehicle, but as a matter of definition. And the importance of marriage to society is not that it fashions a garment for role-playing, but rather that it tethers with cultural accessories a feature that opposite-sex relationships uniquely have.
Here, Henley builds on his flawed interpretation:
Furthermore, this will, if anything, strengthen, not weaken, heterosexual marriage as an institution for child-rearing. Right now a heterosexual man hungry for a "gendered role" has two obvious options open to him - father children out of wedlock, or within. ... His choices are "kids within marriage" or "kids outside of marriage." Gay marriage means the marginal straight guy, the one looking for any excuse to avoid The C-Word, ladies, sees that many fewer "kids outside marriage."
The third option that Henley ignores is "no kids" — whether that means no kids born or no kids binding. Children are entirely a matter of choice for the homosexual couple; they are a matter of potential consequence for the heterosexual couple.
Heretofore, most compassionate social conservatives whom I've read have seen committed gay couples with children as bearing the unfortunate burden of the larger social necessity that marriage remain male-female. But it may be that Henley has unearthed a reason that such couples would be a detriment in their own right. What gay marriage means to the marginal straight guy — yes, the one looking for any excuse to avoid commitment, whether to women or to children — is that it doesn't matter whether his children's mother is married to him, just that she's married to somebody. Or even that their parents are married, whoever they are.
This relates to Henley's dismissal of one of McArdle's historical "case studies," the easing of divorce laws. McArdle writes:
When the law changed, the institution changed. The marginal divorce made the next one easier. Again, the magnitude of the change swamped the dire predictions of the anti-reformist wing; no one could have imagined, in their wildest dreams, a day when half of all marriages ended in divorce.
And Henley responds (emphasis his):
Needless to say, allowing homosexual marriage doesn't remove legal barriers to ending marriages; it removes legal barriers to starting them.
This response neatly sidesteps the apposite clause: "the institution changed." As McArdle goes on to explain, when you enter into modern marriage, "you aren't really making a lifetime commitment; you're making a lifetime commitment unless you find something better to do." And in that, Henley's new vision for marriage and parenthood makes divorce even easier. Creating children need not be a lifetime commitment to them or to their mother, because the institution for commitment — marriage — is no longer defined for the purposes of one man and one woman and the children that they may create. It is defined for the purposes of one person and another person and any children that they may or may not acquire.
We're not talking strict legality; we're talking culture and social meaning. And contrary to Henley's narrow requirements for analogies, one can't separate the meaning of a marriage's beginning from the ease with which its members dissolve it.
The broader view brings us to the mutually agreed upon wisdom of an image suggested by Chesterton, as Henley quotes:
There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, "I don't see the use of this; let us clear it away." To which the more intelligent type of reformer will do well to answer: "If you don't see the use of it, I certainly won't let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it."This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.
Henley sees this as a test requiring the formulation of some reason, but the social conservative — here, the "intelligent reformer" — is insisting on the reason. In its totality. With the issue at hand, in particular, I've noted a tendency among the other side to break marriage into a series of discrete considerations and to address them each in turn. This part is invalid; this part is outdated; this part makes no sense; this part is religious; and this remaining part is arguable... so there is no rational basis to oppose our proposed massive change. This is simply an insufficient approach. Marriage, in particular among social institutions, is effective and crucial most profoundly in the way in which its various parts have been honed to work together.
Perhaps the most interesting aspect of Henley's argument is his mention of a non-gendered reason for marriage (emphasis his):
It is probably as important on the other end - as a way by which children separate themselves from their parents on reaching adulthood. Every marriage ceremony I've ever attended has been quite clear on this, as is the Bible. ("The wife shall cleave to the husband.") We know that this is important for genetic mixing. I'd argue it's also important for social mixing. Marriage as separator of offspring from forebear makes society less clannish. The search for and taking of mate widens social circles and enlarges trust networks while at the same time militating against mere atomism. You don't just separate from the old family, you cleave to a new one.
Indeed, I'd cite this as a compelling reason for another defining restriction of marriage: proscription of consanguineous marriages. And it's true that the social mixing will remain intact even should the genetic mixing be withdrawn from the essential definition of marriage. However, McArdle's point about each step making the next easier comes starkly into play: there are currently two reasons for the fence against consanguineous marriage: procreative and social. At the very least, same-sex marriage would invalidate the former, leaving only vague notions of clannishness that a society (or judiciary) that takes individual choice as the supreme principle would surely deem an inappropriate basis for the law.
Stepping outside of the narrow point, though, we observe that Henley has made the repeated assertion that he is leaving out the "justice claims" of same-sex marriage supporters. Those claims, and every other argument that Henley puts forward on behalf of same-sex marriage, would apply equally to any other couple or group that wished to have the government recognize its relationship as "marriage."
Jim Henley closes his post by de-emphasizing his objective. His "isn't even an argument for taking the fence down," but rather "for adding another gate." To the contrary, just as he is wrong to insist that historical "form-factors" must match modern problems perfectly in order for lessons to be drawn, he errs in treating his closing distinction as a difference of kind. Whatever social liberals might say (on their best behavior), each gate makes it more plausible to add another, until the fence has been removed with neither understanding nor even, truly, conscientious awareness that it has been done.
(via Marriage Debate Blog)
Ben Bateman left a couple of comments to this post that deserve not to disappear into the expanding backroom discussion. First:
Laid 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.
Second:
Mike (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.
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."
Greg Wallace has continued his series on fatherhood (the first part of which I commented on here). The second part gives the thesis:
It's been my personal experience as the male child of an alcoholic father and as one who disciples sexual strugglers that a father's absence seems to have the most damaging impact upon male children. Over the years, everything I've read indicates that if Dad’s missing in the child's life before age five, tendencies towards dependence and passivity are likely to develop. On the other hand, if Dad's missing in action between the ages of six and 12, hyper-masculine behavior (i.e., a false masculine mask to hide a sense of deficiency) may result. Let me rush to say there are no hard and fast rules here. These are generalities that depend on how the child perceives and processes information related to the father's absence.
In that post, Greg writes of his own, painful experiences as a boy. In the subsequent one, he turns to the Bible, analyzing the household of Isaac and its effects on Esau and Jacob. Greg proves his own point that "being sexually broken has had its odd benefits [in that some] of these familiar Bible stories are seen in a whole new light," and his assessment certainly makes for interesting reading.
I promised to respond to two critics, so I'll just point out two things about a comment from Michael to my "Matters of Consistency" post. Michael writes:
So any line of argumentation that comes down on the side of SSM is following a preference to a predetermined conclusions but any line of argumentation that comes down against SSM is following reason? I don't understand how you can't see the prejudice in that sentiment.
I'm tempted to acknowledge that I do see the prejudice: the prejudice of the right against the wrong. But that would require a stronger stand than I take. For now, it's enough to note that I did not use Michael's language of absolutes (e.g., "any").
This whole thing began with Jack Balkin's list of options from which the American judiciary could choose in order to reach the goal of same-sex marriage. Although there are degrees to which the demand is held as uncompromising, balancing between the end and the means is the problem at the heart of SSM advocacy. In order for same-sex marriage to be a right that the Supreme Court can recognize, it must be argued as if nothing new is being granted. As even Balkin admits, there is the "completely honest" approach, and there's the "misfit" argument. Seeing all as legitimate indicates that the conclusion is predetermined.
Michael then offers an explanation that we've all seen before, because it's essentially the anti-miscegenation case:
Suppose the state, in an attempt to protect marriage, realized that marriages were significantly more stable if people married within their profession, and thus the state found a compelling interest to ban inter-professional marriages. Everyone is treated equally; they can marry anybody they want from their own profession. There is no physical discrimination because men, women, blacks, whites are all treated the same. The "cannot" here is universal. But what about the "want"? Let's say you want to marry a nurse but cannot because you are a writer. And she, likewise, cannot marry you. You can either choose to marry someone else, someone you want to marry significantly less, or you can change your relgion. There's no discrimination because every profession is treated the same and the government is not telling you cannot get married because you are a writer, only that you can only marry another writer.
Interested readers can find all sorts of discussion about why this sort of example isn't relevant to the same-sex marriage issue. (Search for "miscegenation.") Of particular note is that Michael applies the SSM advocate's marital objective — stability — to the example, not marital objectives to which I subscribe (mainly procreation and raising children). More to the point, he ignores a central statement from my "Whatever Works" post: Unlike anti-miscegenation laws, unlike Michael's hypothetical, with SSM, homosexuals and heterosexuals have exactly the same range of options.
The same-sex marriage discussion has gotten heated, 'round here, and since that's neither my intention nor my desire, I'm going to respond carefully to the latest remarks from two people and then step back from this round. My current schedule doesn't allow me the liberty to continue swinging at irresolvable differences.
First, a response to Gabriel Rosenberg's latest offering:
[Katz] seems to feel I was too focused on the word "consistency" and thus I missed his other points. I thought I had responded to his main point that prohibiting same-sex marriage cannot be both sex discrimination and sexual orientation discrimination.
To be honest, the consistency angle was one that I didn't intend to be central to my "Whatever Works" post. However, in my rush to get to work, I thought I'd made it sufficiently secondary. Perhaps I did not. Be that as it may, part of my thinking when emphasizing SSM proponents' concentration on that angle for my subsequent post grew from the following in Rosenberg's initial response:
In his post Katz explains why he disagrees with one of the theories Balkin presented, but never why any two of them are mutually incompatible.
My hurried a.m. deficiencies as a rhetorician notwithstanding, it seems to me that one would think the thing I actually explained to be the main point. But I'll take the blame for the misunderstanding. However, I won't take the blame for Rosenberg's reaction to my reaction to it:
This is a rather juvenile and disgusting attack. He accuses same-sex marriage proponents of being inconsistent, of doing "whatever works" to achieve its goals, of not standing on any principles, in short of being intellectually dishonest. When I deny those serious accusations I'm told that my powerful reaction might be a sign of insecurity about whether I'm consistent.
Only the first two of my alleged accusations are accurate. I never said that supporters of same-sex marriage don't stand on any principles, nor (in turn) that they are intellectually dishonest (although anybody can be, of course). Indeed, I later said that consistency is only one consideration; furthermore, my "juvenile and disgusting attack" would be nonsensical if I, too, joined the SSM supporters at hand in believing that "the notion of consistency is particularly powerful." Therefore, it doesn't follow that my accusations expanded as Rosenberg has done. (N.B. If one argument for or against something is correct, than consistency with other arguments is moot.)
Here we come to an intriguing point: my second post was not entirely about Mr. Rosenberg, and my first post had nothing directly to do with him. If you go back and read his response to the first, perhaps you'll see, as I do, that the the full brunt of the comments that now so offend him hardly apply to him. His approach to SSM is not identical to Balkin's, differentiated in part by the quality of being more consistent and more logically, as opposed to legalistically, founded. And as I said, the second post was not only in response to him (this is something else that I might have been well advised to make clearer, although I thought the plural language would be adequate.) Yet, Rosenberg goes on to express insult as if everything that I had written in both posts was directly aimed at him:
The initial accusations were insulting. The inference that since I was insulted the accusations are probably true is just stupid.
Yes, that inference would have been stupid if (1) the accusations had been made against him, (2) my response had been directed entirely at him, and (3) my parenthetical quip had actually suggested that my accusations were "probably true." None of those requirements to prove my stupidity are met. But if I won't cede stupidity, I will admit that I should have further explained something about which Rosenberg writes, "I honestly have no idea what Katz is talking about here." In his first post, Rosenberg had written:
Suppose you know a person is attracted to women or in a sexual relationship with a woman. You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female. All sexual orientation discrimination concerns deviation from one's traditional gender roles.
I said that this posits "a scenario in which discrimination is desirable" because in order for Rosenberg to explain why "all sexual orientation discrimination is inherently a matter of sex discrimination," he must imagine a situation in which we want to "classify a person as homosexual." Since he agrees with me that "if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification," he appears to be positing a circumstance in which the ability to classify — i.e., discriminate — is important.
This point does not indicate that I agree with Rosenberg's overall suggestion. I don't know how else to say it, so I'll just repeat myself: one can define orientation without reference to a particular person's sex. Suppose you want to know whether Pat qualifies for a benefit (or a restriction, for that matter) based on sexual orientation. You need to know neither Pat's gender nor that of the people to whom Pat is attracted — only that Pat is homosexual. If you want more detail — whether Pat is a lesbian or a gay man — obviously Pat's sex becomes relevant.
In the case at hand, whether a homosexual is male or female makes no difference with respect to his or her ability to enter into marriage with a person of the same sex. The IRS, for example, doesn't need to know which one of Pat and Nick is the man, just that they are of opposite sex. To say the least, a strange permutation of sex discrimination is necessary in order for the term to cover a state of affairs in which it doesn't matter whether the individual object of alleged discrimination is a man or a woman.
Pace Rosenberg, it is not true that "if a policy discriminates on the basis of orientation it must discriminate on the basis of sex." And as I've already described, going in the other direction, if a policy discriminates on the basis of sex, it does not discriminate on the basis of orientation. This is why I'm not sure how to further the cause of mutual understanding when Rosenberg writes, in response to my statement that the argument "proceeds" from sex distinctions to orientation distinctions, not the other way around:
It matters not whether the discrimination was itself the goal of the policy, which seems very unlikely, or whether there was some other goal with discrimination being used to achieve that goal, which is far more likely to be the case. Either way one discriminates. Katz is making the incorrect assumption that a policy of discrimination necessarily means the authors or advocates of that policy are bigots.
Of course, there's a bit of loose terminology on all sides about whether we're talking licit "discrimination" or "invidious discrimination." And perhaps I could have been clearer that by "goal," I meant to indicate the discrimination as an intended effect, not a side effect. Still, in the totality of the points that I have made thus far in this exchange, the assumption of bigotry is all that's left — not specifically attributing motives on Gabriel Rosenberg's part, or anybody else's, but as a matter of what must be assumed in order to find sex discrimination within orientation discrimination rather than to start with the stated requirements based on gender and investigate the effects. (I apologize for not, myself, pulling together the totality, but I'm running out of available time.)
As for the last two paragraphs of Rosenberg's post, the areas of misunderstanding, on both sides, are too thick and the temper too heated for unraveling to be sufficiently effective to justify the time. It's as if we're looking at two different discussions, in part because I've apparently left too much unexplained, and in part because Rosenberg seems to think himself the main object of my "attack," rather than the broader position to which he contributes.
It's a frustrating feeling: I think if I'd used some other word than "consistent," perhaps those who've reacted to my "Whatever Works" post might have addressed the points other than the word. Perhaps the notion of consistency is particularly powerful among supporters of same-sex marriage, or something. (Whether their reaction is an indication of insecurity, I leave to readers to decide; I'm not sure either way.)
Look, if the opposite-sex definition of marriage discriminates on the basis of sex, then there is no discrimination on the basis of orientation. Neither homosexuals nor heterosexuals can marry people of the same sex. The tenuous bridge between the two points from Yale Prof. Jack Balkin that I addressed is evident in his phrasing of the sex discrimination case:
It violates sex equality to tell a man he cannot marry another man when a woman could do so. It violates sex equality to tell a woman she cannot marry another woman when a man could do so.
Perhaps the distinction can be best phrased thus: the sex discrimination case is a matter of "can"; the orientation discrimination case is a matter of "want." If we apply the "can" of sex discrimination to orientation discrimination, we find that there is no legal discrimination. The "cannot" is universal. Gabriel Rosenberg attempts a legal bridge:
Although the prohibition facially discriminates on the basis of sex and does not do so on the basis of sexual orientation, one could argue that while facially neutral it has a disparate impact on the homosexual population. That is one could claim that while both heterosexuals and homosexuals must marry a spouse of the opposite sex, homosexuals have greater difficulty finding such a spouse who will marry them.
It may be the case that a legal regime that has made it a dramatic matter of law to peer into the hearts of men can trace back to discrimination from the outcome of a particular policy. Taking up that argument would require entry into another area of likely disagreement, however. Suffice, for now, to say that I reject disparate impact claims, at least when there isn't other information than the outcome to indicate invidious discrimination, and that I'm skeptical that homosexuals wishing to enter into opposite-sex marriages would have any greater difficulty finding spouses than do heterosexuals. The debate's irrelevant, in this instance, because Rosenberg doesn't even want to "consider whether homosexuals could find opposite sex spouses if they wanted to do so, when [he] believe[s] they should not have to do so."
Consequently, Rosenberg takes another tack that, oddly, winds up requiring him to posit a scenario in which discrimination is desirable so that the two forms of discrimination can be made one and the same in a forced overlap:
The reason there is no inconsistency, though, is more basic. The fact is all sexual orientation discrimination is inherently a matter of sex discrimination because one cannot define sexual orientation without reference to one's sex. Suppose you know a person is attracted to women or in a sexual relationship with a woman. You cannot possibly decide whether to classify that person as homosexual or heterosexual unless you also know whether the person is male or female. [Emphasis his.]
The obvious response to the first part of this quotation is that one can define orientation without reference to a particular person's sex: heterosexuals are attracted to people of the opposite sex, and homosexuals are attracted to people of the same sex. Although I can't come up with a circumstance in which one would know the gender of a person's significant other but not of the person him- or herself, I will venture to suggest that if one cannot classify the person, one cannot discriminate against him or her on the basis of that classification. The only way to discriminate is to know that the person is homosexual — meaning attracted to a person of the opposite sex, whichever that might be.
At best, what Rosenberg has proven is that a policy beginning with the goal of discriminating on the basis of orientation must discriminate on the bas