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 basis of sex, as well. That is not the direction in which this argument proceeds, however — unless we follow the path of those uncharitable enough to assume bigotry before the first round of debate has even begun.
Once again, and with all due respect to Rosenberg et alia, the objective appears to be to fit argumentation to a predetermined conclusion. That's fine, as far as it goes; consistency is only one consideration in ideology, after all. But it strikes me as odd that people engaged in that approach would be surprised and offended that others find their arguments to lack the aggregate import that would exist were they following reason rather than preference to their conclusions.
Dust in the Light reader Chairm Ohn has posted three very handsome charts illustrating Dutch marriage and legitimacy trends on what looks to be a toe dipped in the blogosphere. I don't have the time or immediate context to dig for deeper analysis than what Chairm offers, but I certainly wanted to note the effort both for your edification and so that I'll find it easy to locate the charts when they would come in handy in the future.
In response to my disagreement, Ramesh Ponnuru has elaborated on his suggestion that, if "it really is the case that 'matters of character' are 'matters that should precede governmental authority,' as Coleman concludes, then I think his separationist conclusion [about marriage and state] certainly follows." Inasmuch as Ponnuru's point is that pure libertarianism doesn't allow "much of a defense of marriage laws," I suppose I've no choice but to agree. One might as well attempt to dispute that socialism doesn't allow much of a defense of inheritance laws. But as with socialism, libertarianism is a flawed, weak, ultimately dangerous approach to government when implemented as a political philosophy rather than a general principle for assigning preference.
The question, as I addressed it, is whether the degree of libertarianism that can claim the broad appeal that Ponnuru appears to be assuming requires government's lack of authority over "matters of personal character" to translate into a separation of marriage and state. On a more theoretical level, the question can be taken to be whether that degree of libertarianism is justifiable (or sane).
I may very well be missing a step in his thinking, but it seems to me that Ponnuru is conflating concepts that are actually distinct. If we reject "the idea that the promotion of morality is a legitimate aim of the government," does that mean we "can't count in cultural effects that occur through subtle influences on people's behavior and beliefs"? I don't believe so. What's more, I don't think many people do, and I don't think this represents a emotion-driven inconsistency on our part.
The idea that Americans generally reject is that it is a legitimate aim of the government to promote morality per se. It is difficult to imagine what the proof might look like, but arguendo, if it could be proven that every act of fornication brought our civilization closer to doom and ruination, then few would be the purists to declare the SCOTUSian right to privacy inviolable.
This is why we spend so much time arguing over whether same-sex marriage will have deleterious effects. Many supporters of same-sex marriage may see it as such a basic right that damage to society is irrelevant, but even they surely understand that their cause is dead if they ever reach the point of having to argue as much. Ponnuru refers to the principle that "everyone has the liberty to swing his fist until it hits someone else's nose," and I will concede that this understanding of government's purview is broadly held. That does not mean, however, that "subtle influences on people's behavior and beliefs" are outside of the state's authority. Rather, it means that the "cultural effects" must be persuasively arguable as wounds.
Unless Ponnuru's conclusion, as follows, is intended to illustrate the shortcomings of libertarianism, then it falls to a subtle, but decisive, distinction intellectually and as a matter of what America's citizens actually believe:
If you don't see a legitimate role for government in promoting morality at all... then you would support same-sex marriage only as a move toward a contractarian policy. Ultimately, I think, you would have to say that marriage is none of the government's business.
In the paragraph previous to this one, Ponnuru suggests that "liberty and social welfare" are truly what "marriage laws promote." Taking that as true, it doesn't matter that those ends are accomplished "precisely by encouraging moral behavior." The question is whether those ends are accomplished "precisely by encouraging moral behavior."
Although many proponents of same-sex marriage seem to believe that opponents' reasoning is merely cover for bigotry, the arguments against are internally consistent. Not so the other side. Even just the thesis of a post by Yale professor Jack Balkin illustrates the point: "Viewing [five legal theories] together one can see the choices that courts will have to make in upholding the rights of same-sex couples." Openly, here, it is assumed that the courts ought to take the goal of "upholding the rights of same-sex couples," not applying the law, as is the duty of their branch. Also openly, the emphasis is on methods to reach that goal, not a unified argument for why it can or should be reached.
The additional commentary that Balkin provides for each point is important to read, but consider a trimmed points one and two:
1) Sex equality. 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. The ban on same-sex marriage makes an illegal distinction on the basis of the sex of the parties. ...2) Sexual orientation discrimination. The ban on same-sex marriage discriminates against gays and lesbians in their choice of spouses.
Balkin states that the second option has the advantage of being "completely honest about what the problem is": identical treatment of a group. The difficulty that this presents, intellectually, is that homosexuals aren't discriminated against as a group. If the objective of marriage is to bridge the gap between sides in the single most fundamental human division — men and women — thereby joining potentially procreative couples, then homosexuals have exactly the same range of choices as heterosexuals. (It's worth noting that that wasn't the case with anti-miscegenation laws, which discriminated even in the range of options.)
Balkin says that one disadvantage of option two is that a court implementing it would have to add orientation to the list of suspect classifications, but that isn't enough; the court must also define marriage as something other than a pairing of men and women. To do so, it would have to make marriage "about" amorphous concepts like love, commitment, and care. This is where, pace Balkin, the decision would create "obvious problems for state prohibition of incestuous and polygamous marriages." Essentially, Balkin is counting on the judiciary, having created a right to same-sex marriage based on reasoning outside of the law itself, to discard much of that reasoning in order to adhere strictly to the letter of the law when further questions arise.
Option one is different mainly in that it approaches the issue as a matter of individual rights and is targeted more closely to the central question of any such ruling: what is marriage? As Balkin admits, the "disadvantage of the argument is that it uses sex equality doctrine to uphold what most people would say is really discrimination on the basis of sexual orientation." Essentially, to grant homosexuals the right to marry according to their orientation, such a ruling would label marriage as an inherently — definitionally — sexist institution.
What's worrying about this approach is that it avoids the group emphasis, perhaps as a means of avoiding the obvious rejoinder that men and women are equally free to marry people of the opposite sex. It suggests a particular man/woman who wishes to marry a particular man/woman and cannot, even though a particular woman/man could. In doing so, it also ultimately redefines marriage as a prerequisite, adding the view of marriage not as a broad social institution, but as a matter to be defined from the point of view of the individual. Again, only mere law stands between such a ruling and further expansion of marriage.
Of course, when the goal is to find a right, the consistency and the consequences are of secondary concern... if that.
Readers will already know my likely comment on this:
New York is one of a few states without some form of one-step no-fault divorce, partly the result of years of opposition from some women's rights groups, the Catholic Church, legislators, and others who believe that easier divorces and quick settlements might harm one spouse--often women--who have historically earned less money or have not worked outside the home.Yet Judge Kaye, who leads the Court of Appeals and oversees New York's judiciary, argued in her speech that a "fair" compromise should be possible to dissolve marriages that are obviously over, protect the rights of both spouses, and aid victims of domestic violence who may find themselves trapped if their spouses evade fault or refuse to grant a divorce. She also called for appointing more judges to the heavily burdened Family Court system.
We must keep in mind that news context is often not accurate context, and cynicism may not be appropriate with Kaye, but modern government requires one to ask: Isn't it the legislature's job to craft compromises?
What does it mean to say that marriage "should precede governmental authority"? From opponents of same-sex marriage, it usually means that the government should adhere to the definition of marriage that filtered to it over the ages. In John Coleman's hands, writing in Reason, it's closer to an argument for same-sex marriage on the sly:
As we approach the anniversary of Valentine's own rebellion and denial, shouldn't the nation that pioneered a popular government of the people, by the people, and for the people" be the one that finally stands to assert the pre-governmental primacy of matrimonial privacy?It is time to privatize marriage. If the institution is really so sacred, it should lie beyond the withering hands of politicians and policy makers in Washington D.C. There should be no federal or state license that grants validity to love. There should be no state-run office that peers into our bedrooms and honeymoon suites. If the church thinks divorce and homosexuality are problematic, it should initiate the real dialogue to address these problems in-house rather than relying on state-sponsored coercion to affirm doctrinal beliefs. And if tax-codes and guardianships need some classification for couples, let's revise civil union standards to reflect those needs.
I wonder by what calculus tax-codes could need "classification for couples." More importantly, I can't help but notice that Coleman doesn't make a distinction that's very popular among people advocating positions similar to his: that between civil marriage and religious marriage. Granted, he alludes to the different roles of church and state, but separating the two types of marriages, I don't see — as Ramesh Ponnuru does — how Coleman's "separationist conclusion certainly follows" from his premise that "matters of personal character [should] precede governmental authority."
Consider his telling of a St. Valentine's story:
Around 270 A.D.—according to one tradition, at least—St. Valentine, a Roman cleric, was imprisoned for his opposition to Emperor Claudius' decree that young men (his potential crop of soldiers) could no longer marry. Valentine performed their ceremonies anyway and was thrown in jail for his obstinacy.
The truth of the matter is that nobody stops anybody from calling any ceremony a "marriage" and calling themselves "married"; it's already out of the hands of the state. In his time, St. Valentine's ceremonies also granted such "validity to love," but Claudius (i.e., the government) apparently felt compelled to recognize the marriages, otherwise there would have been no crime. They were, in essence, civil marriages.
For his part, Coleman wishes to outdo Claudius and forbid all civil marriages and insist on not recognizing any religious marriages. One could point to the difference that priests would remain free to perform marriage ceremonies outside of government acknowledgment, but that's already the case.
Coleman may lump all religion under "the church," but the reality is that some churches do perform same-sex marriage ceremonies; some have very little concern for previous divorces. However, when particular religious marriages follow the pattern of valid civil marriages — two people of opposite sex who are not currently married or closely related — the government merely saves couples the trouble of marrying twice, so to speak.
The question then becomes which relationships to recognize for non-religious reasons, and here is where same-sex marriage opponents apply the "marriage precedes governmental authority" rule. The right to marry and the definition of marriage are not the government's to change. While civil marriage may be a government creation, it is rooted in the lessons of marriage throughout history, and the government should therefore move very slowly, and with social consensus, before issuing a Claudius-like decree abolishing the institution as it has been known.
It should also steer clear of semantic games, such as Coleman's, recasting civil marriages as civil unions so as to neatly discard all considerations — intuited more than understood — that make traditional marriage doctrine more a matter of reason than of faith.
Increasingly, it seems that a "yes" or "no" answer to the question of same-sex marriage ultimately relates to a series of "yeses" or "nos," leading to irreconcilable versions of reality. Consider this paragraph from an interesting post in which Greg Wallace ponders fatherhood:
I hope I've been able to make it clear that both the mother's and father's love are essential for any child to have a complete sense of being loved. Without this sense of "well-being" from mother, and the benevolent provision, protection and boundaries from father, the erotic drive that naturally emerges in adolescents is raw and untamed. When this happens, erotic love becomes unmanageable and literally enslaving, rather than a Gift that adds to the beauty of a committed monogamous relationship. That's why pornography was so powerful in my life as a teenager and young adult, and why my homosexuality seemed to be little more than a never ending dead end street.
In a thread elsewhere, on which I'll likely comment before tonight is through, I noticed the insistence that same-sex attraction is just the way homosexuals are. The object was to claim, for homosexuality, the precedent established for race: it's immutable and natural, and any social structure that is exclusionary on its basis is ipso facto discriminatory in an unacceptable way.
I don't intend a definitive proclamation with this, but note how well that point of view dovetails with the usually corresponding understanding of what children need for parents. If genes are destiny (perhaps in conjunction with extremely early environmental factors), then who one's parents are doesn't matter except in a controllable social sense — mitigable after the fact. In the contrary view, if the subconscious and overt behavior of parents contributes to fundamental qualities in their children, then traditional family structure carries subtle qualities that are important to preserve.
In the first case, only large aspects of the parent-child relationship are important: love, support, trust, and so on. One parent could do it, although two would be better, and there's no reason that three, four, or five "parents" mightn't be even better. But in the second case, nigh intangible aspects of the parent-child relationship are just as important: interactions between males and females, binary and complementary qualities of the parents, and so on.
To put it bluntly, if a parent can cause homosexuality, then one can, as Greg hopes to, "identify the father [or mother] wounds" and "release them" as part of a "healing process." Treating homosexual relationships as equivalent to heterosexual marriage, if it does not break the link between parenting and marriage, will normalize circumstances that affect child development profoundly.
The limited research on the topic appears to confirm this point; homosexuality is more frequent among those raised by homosexuals. Supporters of same-sex marriage always offer some form of qualifier, when they declare "no difference," to the effect that children raised by same-sex parents don't differ from other children in a way that really matters. But this statement is made after the assumption that sexual orientation doesn't matter.
Whatever one's level of "tolerance," the question ultimately becomes whether homosexuality is so inconsequential that individuals and society ought to be completely indifferent about it. In that respect, it really is a choice. And again, the answer must be "yes" or "no."
Judging from email, I should clarify the perspective through which I wrote the previous post. First, I'll repeat that the issues of same-sex marriage and homosexuality in general are not of interest to me out of antipathy toward homosexuals. Rather, as an intellectual matter, I find that homosexuality raises a variety of intriguing problems to resolve. And as a social and cultural matter, this is clearly where the front lines are.
People on both sides of me politically will disagree with my assessment, here, but I'm currently persuaded that sexual attraction is not genetically determined in a hard way. Various traits of "gayness" probably are, and there are probably variations to which people will incline one way or another, whether that inclination results from genes or socialization. Furthermore, there's probably some irreducible percentage of people for whom a particular sexual attraction might as well be genetic.
Given a general assumption that sexuality is more a range than a categorization, society has a fine line to walk between erasing a preference for heterosexuality for the archetypal "waverer" and encouraging the most socially and personally beneficial expression of homosexuality among those with no ability to make what must ultimately be a voluntary change.
Although the current dynamics of the debate make this a precarious compromise to suggest, I think the best option is for the civic face of society to find a way to encourage monogamous relationships among homosexuals while not implicitly disclaiming the legitimacy of efforts to direct them toward the heterosexual norm. From a Catholic Christian standpoint, such efforts might entail guiding them to maturation of their relationships beyond the sex to the point at which they support each other in chasteness, but that guidance would be offered without the coercive powers of the law. In practical terms, as I've written before, this solution would mean a Federal Marriage Amendment that leaves open the possibility of state-recognized "civil unions" defined in their own terms, not with direct reference to marriage.
My point with the previous post was that, since active homosexuality is fundamentally severed from the all-inclusive ideal for heterosexuals — from biology to genealogy to tradition, and so on — we must take into account the possibility that traditional social structures won't have the same force. Furthermore, we must be extremely wary of tying an already crippled family culture to the project with a blithe faith that everything will just work out for the best.
The sentence that I've emphasized in the following paragraph stuck out when I took a moment to trace the author's rhetorical construction:
Why should one part of this university be safer than another? Why do some students feel that they must lie about their sexual identity in order to secure their status as an athlete or fraternity brother? Why has the library's basement bathroom become a meeting place for fearful, closet homosexuals? Why should some professors still feel that they must hide their sexual identity for the sake of their careers?
What had interested me in University of Rhode Island student Anthony Maselli's letter to the editor was the way in which he took the ostentatious "tolerance" of one professor as reason to argue that the campus as a whole mightn't be safe — that perhaps homosexuals "should think twice before [they] walk out [their] front door[s] in the morning." Consequently, although the new allocation of the library's basement bathroom seemed a curious necessity at a university that I know to be as liberal as any, I didn't look into it.
Well, the Good 5¢ Cigar (the student paper) has since provided details:
"It's a very sensitive topic," Interim Dean of the University Library Chris Wessells said. "We are still considering what all of our options are."The situation was brought to his attention, he said, when the female janitor in charge of cleaning the basement level of the library found an excessive amount of blood and semen in the stalls of one of the men's bathrooms.
"To have to deal with stuff like this... it's awful," Wessells said. "And it's been reoccurring. It's been going on for awhile." ...
Wessells said that vandalism is also a problem. Holes are being drilled into the walls between the stalls, he said, to be used for sex. These holes are commonly referred to as "gloryholes."
The claim that pathology among homosexuals is largely attributable to society's vilification and oppression of them is common enough that I shouldn't have to dig up a specific quotation as evidence. Yet, here — in a community in which a majority hadn't yet reached puberty when the Hawaiian judiciary first declared there to be no reason that homosexual relationships oughtn't be equated with heterosexual marriages — the nature of the incidents raises questions, at the very least, about the likelihood that same-sex marriage will transform gay culture away from such deviant behavior. (Or, to minimize the claim further still, it ought to raise worries that gay culture will not change swiftly enough to avoid bringing some of this character into marital culture.)
There's no doubt that this is an uncomfortable discussion to have in the current climate, but the importance of marriage to our society requires that we question the foundation on which marital structure could be placed among homosexuals. In an email exchange, emphasizing intellectual inquisitiveness, with "GayPatriotWest," I highlighted his use of a cliché that is essentially void of meaning in this context:
So, monogamy is possible for gay men. Yes, we may have to overcome our masculine "instinct" to "spread our seed." Yet, it is in that struggle to be faithful to the man we love that we come to value our feelings for that man, the intimacy of the relationship and the sacredness of the sexual act. And I believe, that gay men who do face that struggle and choose monogamy will find their relationships more fulfilling and find as well that such relationships can better sustain them over the long run.
Even some among the readers of Dust in the Light have given me reason to agree that monogamy is possible among gay men, but possibility isn't a hopeful gauge of likelihood. For the individual, such a personal thing as monogamy needn't be rooted in any particular principle or logic; it just feels right. But marriage is something different. Marriage is useless unless it sustains commitment and fidelity during those times when monogamy might not feel right, and an intrinsic quality that helps it to do so is the literal applicability of the "spread our seed" cliché.
To be sure, contraception erases some of the distinction, but I'd be astonished if many people truly believed that heterosexual's understanding of their sexual behavior isn't built around knowledge of its first-principle of procreation. That heterosexuals can pervert their principles is of limited significance in a discussion about marriage, anyway, because it means that bolstering is required, not further subversion. If marriage is a way to encourage monogamy and commitments that outlast the drive to sire a diverse array of children, then it should incorporate increased aversion to too-prolific "seed spreading."
Isn't that less plausible when the sexual relationship bears only refracted resemblance to the biological standard? Whatever the numbers, behavior that subverts a marriage-based culture will surely be more difficult to curtail among a group for whom the cultural reasoning applies only abstractly and by force of will.
Well, the judicial imposition of same-sex marriage continues apace:
A Manhattan judge declared Friday that the section of state law that forbids same-sex marriage is unconstitutional _ the first ruling of its kind in New York and one that if upheld on appeal would allow gay couples to wed.State Supreme Court Justice Doris Ling-Cohan ruled that the words "husband," "wife," "groom" and "bride" in relevant sections of the Domestic Relations Law "shall be construed to mean 'spouse,"' and "all personal pronouns ... shall be construed to apply equally to either men or women."
I've read the decision (PDF), and it follows the Goodridge template, so it doesn't merit complete analysis. See my "Mawage" post from shortly after Goodridge for some such analysis; see my "Making Use of the Pain" post, addressing a case that Ling-Cohan cites, for some tracing of the ways in which limited, contextualized precedent expands throughout the law.
Ling-Cohan finds, as she must, that the law defines marriage as a relationship between a man and a woman. Then, through a panoply of quotations, picked and chosen from the voluminous library of judges' decisions, mostly involving sex and abortion, but also such things as rent control, in the United States and abroad, from parenthetical notes to dissents, she constructs such a wall of legal rhetoric that the obvious ceases to be visible. On page 31, Ling-Cohan repeats what opponents of same-sex marriage have been ridiculed for saying:
However, the right to enter into a marriage is not at issue here. The [Domestic Relations Law] does not bar any of the ten plaintiffs from entering into a civil marriage.
Asserting that there is another "aspect of the fundamental right to marry" that exists independently of the previous — "the right to choose whom one marries" (restated on the next page as "the right to choose one's life partner" — Ling-Cohan works her way around to the conclusion, on page 43, that:
... in the present case, the "liberty at stake" that is fundamental is the freedom to choose one's spouse. Thus, for the State to deny that freedom to an individual who wishes to marry a person of the same sex is to deny that individual the fundamental right to marry.
Homosexuals are not barred from marriage, in other words, because they can enter into the relationships that the definition of "marriage" covers. But because the definition of "marriage" does not include the relationships that they would prefer, they are barred from marriage, and the definition must be changed.
By the time she announces her judgment, Ling-Cohan has found a right to same-sex marriage on just about every possible grounds — due process and equal protection. She has continued the practice of turning the inherent circularity of a definition (A is A because it is A) into a license to rewrite definitions. She has claimed freedom to interpret New York law as distinct from the laws of the federal government and other states when it suits her, and she has relied on other governments' laws when that suits her. On page 51, she notes "an evolving public policy," evinced purely in the "recent decisions" of other New York judges, and as described above, she has literally rewritten the law, under the judicial euphemism of "construed," in order to accord with her own preferred policy:
There has been a steady evolution of the institution of marriage throughout history which belies the concept of a static traditional definition. Marriage, as it is understood today, is both a partnership of two loving equals who choose to commit themselves to each other and a State institution designed to promote stability for the couple and their children. The relationships of plaintiffs fit within this definition of marriage. (60)
The reality that we must face is that a judiciary armed with the precedent of the following language (from Planned Parenthood of Southeastern Pennsylvania v. Casey), which Ling-Cohan quotes on page 27 and which is rapidly becoming ubiquitous, can nullify whatever social laws it wishes:
At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
I daresay that a Federal Marriage Amendment is the least of the measures that must be taken. But the reality that the measure must be taken is exemplified in the possibility that some future judge, cutting and pasting her way to another progressive ruling, will find this paragraph on page 45 of Ling-Cohan's effort too apropos not to find precedential:
Defendant's historical argument is no less conclusory than amici's tautological argument that same-sex marriage is impossible, because, as a matter of definition, "marriage" means, and has always meant, the legal union of a man and a woman. Further, the premise of that argument is factually wrong; polygamy has been practiced in various places and at various times, for example, in the Territory of Utah.
PROEM:
A version of this piece appeared in the December 31, 2004, issue of National Review, under the title "One Man's Marriage Trap." Citations not linked in the text can be found here.
For a page design that may make for more comfortable reading, click "Turn Light On" at the top of the left-hand column.
Years later, Sullivan volunteered to assist a stranger through the final months of life with AIDS. The scene presents an eerie echo. "I remember one day lying down on top of him to restrain him as his brittle, burning body shook uncontrollably with the convulsions of fever."
If Sullivan noticed the parallel between these moments — described in his books Virtually Normal and Love Undetectable, respectively — he hasn't said so, but their implications could fill another book. The child's undefined desire for closeness, and the solitude of a man's deterioration. The vision of exploiting a doctor's power, and the reality of a nurse's powerlessness. An awakening to sexuality, and to solidarity.
Different people will derive conflicting lessons from these anecdotes, but this is often the case with Sullivan. He's unapologetically homosexual and, until recently, devoutly Catholic. His social sympathies are liberal, but he's often presented as conservative. He has written many times for the New York Times, but he is a leading figure in a blogosphere that sees the Times as the establishment it opposes.
Taken altogether, these qualities attract an interesting audience, and conservatives' criticism of Sullivan's opinions often begins with confessions of fandom or friendship. In particular, conservatives have generally appreciated his steadfast advocacy for a vigorous prosecution of the war on terrorism. The niche that he has claimed, however, has made Sullivan an especially influential advocate for a cause with which many of them do not agree: same-sex marriage. In his various expositions of the case for same-sex marriage over the years, Sullivan has trapped himself in a series of opportunistic contradictions — which may tell us something about the contradiction at the heart of his cause.
The Argument
Virtually Normal (1995) is Sullivan's unique perspective presented as a political argument. As a polemical feat, his strategy is brilliant, transforming the terms of the debate and providing a clear platform from which to volley objections. As an assessment of people's thinking, however, it stumbles on its own cleverness.
His handling of religion strains most palpably. In his chapter on "the prohibitionists" — the strongest opponents of homosexuality — Sullivan quotes St. Paul's most indisputable denunciation of it, Romans 1:27. Providing neither chapter nor verse, Sullivan moves immediately to speculation about Paul's intent: Homosexuality supposedly serves merely as "an analogy" for continued polytheism, exploited only because Paul "seems to assume that every individual's nature is heterosexual." Put in context, however, the reference is more apparently a manifestation of the larger sin Paul has in mind: the rejection of that which can be "perceived in the things that God has made."
Over the years, this divergent exegesis has spun to schismatic lengths. In November 1994, in The New Republic, Sullivan called his reading of St. Paul "so obvious an alternative... that it is hard to imagine the forces of avoidance that have kept it so firmly at bay for so long." In Love Undetectable (1998), fear-driven "loathing" of homosexuals and Jews is "fanned... by the distortion of a particular strain in Christian theology." By August 2003, the Catholic Church's failure to succumb to this alternative indicated a "war on gay people and their dignity."
This is not to deny that Sullivan can be genuinely insightful, but too often, his analysis of competing viewpoints is designed merely to generate elaborate debaters' points. The trick is to push opponents of same-sex marriage into a circumscribed pen, ruling certain lines of reasoning out of order. Already, in the afterword of the paperback edition, concerns about the instability of male homosexual relationships are declared "a truly bizarre argument for a conservative to make."
Similarly, the old-media technique of loaded labeling has helped Sullivan to fence in conservatives. The Federal Marriage Amendment is the "religious right amendment," not a cause of respectable conservatives, on the theory that its strongest backers are evangelical Christians. When Senate majority leader Bill Frist expressed support for it in June 2003, Sullivan bewailed "how close to theocracy today's Republicans have become." The spark for the charge was one word: Frist had described marriage as a "sacrament."
"Theocon" is a perennial smear in Sullivan's writing. Theoconservatism, he explained in a 1998 New York Times Magazine cover story, is "an orthodoxy... of cultural and moral revolution." (On the cover, a finger pointed over red letters: "The Scolds.") Sullivan notes the opposition of alleged theocon Fr. Richard John Neuhaus to "secular monism." By this phrase, Neuhaus means the antithesis of true pluralism, wherein a sacralized state claims to be the arbiter of truth, with no reference to or respect for the religious beliefs of its citizens. Sullivan makes "secular monism" seem less threatening, and Neuhaus more extreme, by redefining it as merely "the secular neutrality of modern American law and government." That is a subdued definition indeed from a man for whom a favorite slogan for the FMA is "graffiti on a sacred document."
Sullivan confesses in its afterword that Virtually Normal is "a profession of faith in liberal politics." His essential dogma is "public neutrality and private difference." The paradox derives from the fact that the "centerpiece" of Sullivan's proposal in that book — marriage — is the basic interface between culture and politics, where the private becomes public.
Sullivan himself has had difficulty adhering to the bifurcation. When Senator Rick Santorum uttered his infamous remarks about the erosion of morality-based laws should the Supreme Court's Lawrence v. Texas decision make sodomy a right, Sullivan indulged in a days-long excoriation. He dismissed Santorum's argument for not making the public/private distinction: "Bigamy and polygamy are... irrelevant here," because they involve marriage, about which a right to sodomy implied nothing. Two months later, reveling in Lawrence's outcome, Sullivan declared that the expansion of privacy rights "inescapably means the right to marry."
The institutional truth that marriage is both public and private has brought into the battle over its legal definition the most fundamental of our laws, the Constitution. The Full Faith and Credit Clause has dramatically changed roles in Sullivan's usage. In 1996, he laughed in the Sunday Times of Londonthat "the punchline" of judicially imposed same-sex marriage in Hawaii was that "every state has to give ‘full faith and credit' to the laws of every other state." When Congress debated the Defense of Marriage Act, meant to keep states from being forced to recognize other states' redefined marriages, Sullivan opposed the bill in testimony: It was up to the Supreme Court to decide whether states would be compelled to grant recognition. After the bill passed, Sullivan insisted that it was unconstitutional — which, he claimed in August 2003, "the social right knew at the time and still knows."
At other times, Sullivan argues that a constitutional amendment is unnecessary because of the very same Defense of Marriage Act. In July of last year, he said that the act had the power "to stop one state's marriages being nationalized." By November, he was declaring the suggestion that the courts might force one state to recognize another state's same-sex marriages "disingenuous." He wrote this February that if the courts were to strike down the act — if "one single civil marriage in Massachusetts is deemed valid in another state, without that other state's consent" — he would support a constitutional amendment to "say that no state is required to recognize a civil marriage from another state." His standard for "consent," however, is a tenuous barrier, given his view that state courts are qualified to offer it.
Unraveling the threads of rhetoric, it appears that Sullivan thinks the FMA is unnecessary because of the Defense of Marriage Act, although he opposed that act and wants the Court to strike it down. Once that happens, he will, supposedly, be in favor of a constitutional amendment to effect the stricken act's purpose, so that courts can dismantle it again state by state.
Periodically, this twirling of convenient views moves from frustrating to astonishing. In January, Stanley Kurtz published an argument against same-sex marriage based on an examination of familial trends in Scandinavia, where social policy toward gays has long been especially permissive. "Did no one edit this?" Sullivan attacked, saying that Kurtz's analysis "would be laughed out of a freshman social science class." Simply, "the entire premise of the piece — that marriage for gays is legal in Norway, Denmark and Sweden — is factually untrue."
Yet the previous June, when he thought that evidence from Denmark supported his case for same-sex marriage, Sullivan had written that Denmark's gay partnerships were "almost indistinguishable from marriage." In his 1997 collection Same-Sex Marriage: Pro and Con, he noted that "different compromises" in Denmark and Sweden "affect the meaning of marriage itself." Throughout the intervening years, in multiple venues and contexts, he touted "de facto marriages." In August 2001, for example, he wrote that trends were hopeful during "the first six years in which gay marriage was legal in Denmark" (Sunday Times) and that the country provided "real data on the impact of gay marriage" (The New Republic).
When he thought empirical evidence in Scandinavia pointed his way, Sullivan conceded that the "importance of the family in society is indisputable." The politics of Virtually Normal do not, however, ultimately emphasize benefits for society. It is the benefits for homosexuals that are uppermost in Sullivan's argument. Any social difficulties that a redefinition of marriage would create he would leave to the "private sphere" to solve. No public norm can be imposed, because "outsiderdom" must be "a cultural choice," and homosexual identity must be free from "the hands of the other." (The lapse into pomo-speak is telling.)
But to conservatives, a large part of the purpose of marriage is precisely to discourage "outsiderdom" and to encourage citizens toward specific, society-sustaining identities. To Sullivan, on the other hand, marriage is a mechanism to gain "personal integrity" and "dignity," to become "fully human." A major source of friction between these two approaches is the effect that the latter's understanding of marriage might have on the ability to achieve the goals of the former. In that respect, it is relevant what Sullivan considers the fundamental determinant of "full humanity" to be.
The Opinion
In Love Undetectable, Sullivan raises the concept when discussing the act of sex. Sex involves a loss of control and submergence of intellect, and to give those things up "even under the threat of death" would be "to give up being fully human." The passage calls to mind Sullivan's greatest miscalculation in Virtually Normal, which occurs in the epilogue, while he is waxing philosophical about the meaning of homosexuality.
There, he argues that features of homosexual relationships "could nourish the broader society." Lesbians' "sexual expressiveness" and gay men's "solidity and space" are sometimes "lacking in more rote, heterosexual couplings." He speaks of "the openness of the contract," of "the need for extramarital outlets," of "flexibility." In response to critics' seizing on this passage as contemptuous of monogamy, Sullivan has asserted — and there's no reason to doubt — that he did not intend an endorsement of adultery. Affairs among married homosexuals, he clarifies in the paperback's afterword, should be "as anathema as" among married heterosexuals. The lessons implied for heterosexuals "are not direct ones." Understandable bewilderment at this passage, however, distracts from what is truly problematic here.
Sullivan seems to take for granted that heterosexuals are driven toward "timeless, necessary, procreative unity," whereas homosexuals must be given space beyond the "stifling model of heterosexual normality." He is even willing to place procreative marriages on a pedestal. In the spring of 2003, he proclaimed the "unique and miraculous... connection between male-female sex and the creation of new life." That connection's alignment with "a marital structure... is obviously vital to defend." It is at the heart of his cause, however, to reorder the structure from within.
In this context, here's the truly disquieting statement of those controversial pages: "The truth is, homosexuals are not entirely normal; and to flatten their varied and complicated lives into a single, moralistic model is to miss what is essential and exhilarating about their otherness." The truth that Sullivan evades is that flattening to a model is precisely marriage's social purpose, and furthermore, his arguments for same-sex marriage are in conflict with the desire he expresses in this passage to preserve homosexuality's "otherness."
After all, how can "otherness" be preserved if distinctions are effaced? Sullivan's writing overflows with appeals to equality untinted by distinctions, as when he rejects "the mealy-mouthed talk about civil unions as some sort of options for gay citizens." The exclusion of same-sex couples is indefensible when, he says (incorrectly), "the living, breathing reality of civil marriage in America" is coupling and nothing more. Just before Thanksgiving, this year, he pushed his equality-based argument almost to the point of making the case for the FMA (emphasis his):
The basic problem for the anti-gay marriage forces is that they are upholding a marital standard for gays that no one any longer upholds for straights... Once it was obvious that this standard did not apply to heterosexuals, the [Massachusetts Supreme Judicial Court] had no choice but to strike down the inequality... that's why you really do have to amend a state constitution to prevent its guarantees of equality from being applied to gay citizens.
Of course, Sullivan opposes amendments intended to prevent the law from locking in mere coupling as the open-ended definition of marriage. He's also quick to attack those who seek to bolster marriage's vital connections from other angles. In July 2001, for example, he expressed astonishment at Lawrence Kudlow's implicit support for adultery laws. "Give me an adulterer over an ayatollah any day," wrote Sullivan. He has lambasted "screw-tightening" fundamentalists for targeting divorce, fornication — the whole arsenal of practices subversive to marriage. Yet, in January, he said of the same group that, when they "start proposing measures that would infringe on heterosexual abuse of marital privileges, [he will] take them seriously." If social conservatives target heterosexual as well as homosexual immorality, they are fanatics; if they don't, they are hypocrites.
In parallel debates among Catholics, Sullivan's prescription for addressing rampant sexual license is its legitimization. "Why can we not hold up marriage and committed loving relationships as the goal but not punish and stigmatize the non-conformists or those whose erotic needs and desires are more complex?" But it simply isn't clear how he thinks society should avouch its supposed goal. In Virtually Normal, he challenges the notion that it is better for a "waverer" to choose heterosexuality. In a later attempt to dismantle a column by William Bennett, he asks what is "so bad, after all, with mutual objectification."
Sullivan has written that many gay men value their sexual freedom, while many "yearn for anchors." In The New Republic, in August 2001, he cast his sympathy with the former, and in June 2002, he admitted that he would be among "those who choose not to marry." This may be surprising, given his long advocacy for what he calls "marriage rights." But in Love Undetectable, he describes sex itself as "almost a sacrament of human existence." A year ago, he said it's "one of the greatest and most exhilarating gifts our nature has given us." (Our nature?) In fact, "reduction" of it to "pure, heterosexual, procreative sex" is "excessively strict, given the not-so-terrifying moral dangers of other forms."
So in Sullivan's world of sacramental sex and moralistic marriage, what is the basic marker of "full humanity"? In the New York Times Magazine, in February 2001, he wrote approvingly of the dissipation of "the idea that no woman is complete without a man." Can it really be his position that no man is complete without a man? That those outside of legally recognized relationships are not "fully human"? Of course not. To Sullivan, possession of choice defines humanity, and "full humanity" is a relative measure. For gays, to have "full humanity" is to have the same range of choices that straights have. Whether the extension of a particular choice to homosexuals is at odds with the fundamental reason it exists in the first place is, from that point of view, irrelevant.
Given Sullivan's leveling conception of equality, he can't wish for homosexuals to gain the choice of marriage without also wishing for heterosexuals to gain the choices that gays' freedom from procreation naturally grants them. In such a field of options, society would have no remaining leverage to push for marriage. Sure, it could grant material benefits on the basis of commitment. Yet, even if we believe that marriage stops expanding with the inclusion of homosexuals, even if we believe that the standard for monogamy slips no further, Sullivan's "conservative case" collapses. One cannot simultaneously want no choice to bear stigma while presenting one choice as an expectation.
The Future
Sullivan has considered every strategy for nationalizing same-sex marriage — and he likes them all. To be sure, he has made it a talking point that time for persuasion is "the genius of a federal system," a "slow federal process [that he wants] to take place"; warnings of rapid change in the absence of a Federal Marriage Amendment are "scare tactics." He writes: "The flip-side of leaving Mississippi alone is that we should also leave Massachusetts alone. Deal?"
He constantly attacks the Federal Marriage Amendment as an offense against federalism. But when Ramesh Ponnuru pressed him on the point, this February, Sullivan clarified that while he believes in "winning over the public" and working "legislatively if at all possible," he would also support a Supreme Court finding that the Constitution demands legal recognition of same-sex marriage from coast to coast.
The judiciary is a central component of his politics. A December 2002 blog post explained that "individual states should be able to decide for themselves" about marriage — in state courts, "where marriage questions rightly belong." In July 2003, he reflected in the Sunday Times that the courts were changing hands to "judges who reflect contemporary understanding." (Apparently, they do so better than the public's elected representatives.)
After Lawrence, Sullivan confessed that he was happy that the ruling had gone far beyond "the narrowest possible grounds." Goodridge in Massachusetts convinced him "how impossible it is that any reasonable court" could deny gays marriage. For Sullivan, "democratic deliberation" must be a process whereby judges implement federal law; in the slow version, they do so state by state. Any movement to force actual votes indicates an "hysterical and polarizing campaign" and "unbounded paranoia with respect to courts."
To derail such campaigns, Sullivan will stroke racial tensions. He pioneered the usurpation of civil rights imagery for circumstances of such loose comparison that history needs knots to hold. The courage of taking a seat in a violent environment of ingrained racism is commandeered for ceremonies invited by local government and backed by the national media, the academy, and the bar. The Catholic Church's opposition to fundamental changes to the institution of marriage is taken to be akin to its support of slavery in 1866 — never mind that the documents Sullivan adduced as evidence of that support demonstrated no such thing. (They concerned penal servitude and the like, not slavery.)
Similarly, he will jab emotions made bare through religious friction. In his piece about "The Scolds," Sullivan wrote that it was "perhaps unsurprising that, when Neuhaus gathered a group of public thinkers and ministers to endorse a statement" of their political position, "there were no Jews among the signers." Unsurprising, indeed, for a letter subtitled, "A Statement of Christian Conscience and Citizenship."
The charitable explanation is that Sullivan has gotten so caught up in his cause, so feels the tingle of proximate success, that he doesn't hear his conflicting arguments draining empathy. Whatever the case, he long ago sank into naked advocacy. His work must now be approached like the material of a civil-action lawyer or lobbyist. When President Bush announced support for a marriage amendment, Sullivan reacted violently. All people of goodwill would have to oppose the president. He's said that the "fair-minded center of the country that balks at... hatred and fear" would never stand for pandering to extremists. But the emotional extremism on display in his writings is chiefly his own.
Andrew Sullivan seems, in short, to have an intellect in deep conflict with his emotions. His language practically glows with warmth when the next generation of gays appears in his writing. True to form, however, he began Virtually Normal with a contradictory admission:
No homosexual child, surrounded overwhelmingly by heterosexuals, will feel at home in his sexual and emotional world, even in the most tolerant of cultures.... Anyone who believes political, social, or even cultural revolution will change this fundamentally is denying reality.
Same-sex marriage became law in Massachusetts on the anniversary of Brown v. Board, and Sullivan naturally drew the parallel. To him, same-sex marriage is a matter of gays' integration into their own families. But even if the marriage episode concludes as Sullivan wishes, choices will still be beyond reach, requiring redirected advocacy. There will always be something for which to long intensely on the other side of the glass.
On my list of intended posts is a response to some comment-section speculation about why folks would spend so much time opposing same-sex marriage — or any other aspect of the "gay rights" movement, for that matter. The insinuation is that the interest is peculiar unless there's some hidden motivation of the sort in which Freudians specialize.
One consequence of that sort of thinking relates to the defense of the mainstream media and academics as "objective": those taking liberal views, since they're obviously correct, can assess things objectively, while those taking opposing views must have dark ulterior motives. The analysis of experts, scholars, and writers who disagree with the Objective Assessment must be tainted. Similarly, those who support same-sex marriage can do so through plain logic, but those who oppose have twisted hearts distorting their thoughts.
Personally, that sort of linkage is what has pulled me ever more deeply into the same-sex marriage debate. It draws on the essences of so many aspects of humanity and human society.
As I suggested, I'm still giving thought to the difference of essences when it comes to motivation to argue against gay causes. For the moment, however, I just wanted to marvel at the impossibility of handling the same-sex marriage debate apart from broader arguments about the functioning (and proper functions) of our society.
In a post on Anchor Rising, I posited that human nature creates a marketplace that incorporates every aspect of society, from economics to familial culture to religion. Liberal welfare policies ignore this marketplace and the interaction of culture and economics, leading to quick-fix solutions (taking money to give money) that exacerbate the problem they seek to resolve.
It's a quick fix to raise the income bar to public assistance for childcare (for example) in order to help two-income families and divorcées. Unfortunately, it also raises the income level at which families have financial incentive for both spouses to work. The market dynamics of workforce size then push salaries toward half the natural level of household incomes, increasing the necessity of two-income families. The daily life created under these circumstances strains relationships and serves to undermine the unity of the family, increasing divorces.
Now apply this environment to the same-sex marriage debate. One of the "conservative" arguments for same-sex marriage is that there will no longer be any need for "marriage-lite" designations that are intended for homosexuals but that wind up being available to heterosexuals. Change the definition of marriage such that homosexuals can marry, and heterosexuals will lose the option of alternative designations with less cultural weight.
The gamble is that the same sort of cultural barrier that keeps opposite-sex acquaintances from getting married will keep same-sex friends from getting married. If possible, I think that would entail an undesirable cultural suspicion of close friendships that mirror marriage in some respects (e.g., cohabitation) — just look at the new eye that modern society brings to the historical practice of sharing a bed. Given the vastness of heterosexuals' majority, however, I don't think preservation of marriage via full sexualization of same-sex relationships likely, and it is made even less so by the solidifying economic norm of the two-income family.
Consequently, the availability of same-sex marriage will be exploited by same-sex acquaintances. Two men or women who've had their expectations of marriage shattered already will be particularly prone to redefine the institution to fit their own purposes. That leaves only those other relationships that would continue to be barred from marriage (say, for example, single-parent plus adult child households), and they have all the claims of mutual care and support that homosexuals do, thus deserving the quick fix of marriage rights.
Mark Miller asks what my post regarding that Washington Post article about (in my words) "gay men paying for children to be created using their own sperm, donated/purchased eggs, and female fetus-carrying units (known colloquially as 'surrogate mothers')" has to do with same-sex marriage. It's a good question, inasmuch as the very lengthy comment-section discussion centered around that tangential issue, but that has more to do with the ongoing discussion among us all than my comments themselves. The sentence just after my summary of the WaPo article begins thus: "Put aside the gay aspect."
Mark instructs me that my question about the created children "needs to be evenly applied to both gay and straight persons," asking:
Would he write the same if the man in question were heterosexual? If it were a single woman?
Although I imagine the extreme circumstances requiring two hired women — one for eggs and one for womb — will be more common among homosexuals, rereading what I wrote, it seems to me that only an unfounded presumption of bigotry would lead Mark to ask such questions. In fact, I ended the post with a quotation from a single mother:
I started off as a single mother by choice, and I don't think my child suffered for it.... I'm a believer in nontraditional families. I think families come in all shapes and sizes.
To which my response was: "I, I, I, I."
Mark goes on to suggest that "the pursuit of a legal solution to [people having children for selfish reasons] is akin to putting a cap on income and savings because 'greed' is a bad thing" — a thinly veiled allusion to hypocrisy on my part, it would seem. The fact that I at no time suggested a legal solution points to a problem that those with traditional views often encounter: What we say sometimes seems less important than what we should say according to the box that our opponents put us in.
The record-setting comment discussion to my "Parenthood: All About Me!" post has taken various turns across the SSM-debate landscape. In doing so, it has exposed a very interesting consideration. Michael, of Third of the Month, wrote the following, while explaining why restriction by gender, alone among the criteria for marriage, is "arbitrary and capricious":
Marriage may be "about procreation", it may be "about love", but in practice it is about extending and forming and joining families (and if it's not then what is it about??). And by restricting my choices of viable partners to women, because I cannot have a unitive relationship with one, you are in essence barring me from marriage.
Further discussion has clarified that Michael isn't talking simply about the physical, ahem, uniting, but rather — although he hasn't used the term — a more spiritual unity between spouses. Now, I'm in no way suggesting that marriage — or any form of intimate relationship — doesn't or shouldn't aspire to and work toward this spiritual level of oneness, but it's clearly not a provable quality in a relationship. In part for that very reason, it's also a blatantly "religious" notion.
The claim that Michael has now made explicit, but that has always underlain the rhetoric from his side of the debate, appears to be that the law must acknowledge this supernatural quality of homosexual relationships. Not doing so, in fact, represents discrimination, because the legal marriages into which Michael is already permitted to enter could not be "unitive." Yet, it is simultaneously out of bounds for the government to acknowledge most citizens' belief that the important unitive quality with which marriage must align is the unique physical and spiritual connection manifest in opposite-sex, procreative marriages.
The Family Institute of Connecticut notes an interesting development on the same-sex marriage front in that state:
Even Rep. Staples and the Courant are beginning to realize that Love Makes a Family is an extremist organization. But they should not be surprised by LMF's position. It follows naturally from the group's misreading of Connecticut public opinion on same-sex "marriage." Pro same-sex "marriage" legislators and the Courant are aghast at LMF's "all or nothing" push for same-sex "marriage" because they are slightly more tethered to reality. LMF, on the other hand, may really believe its own spin about the fictional "Planet Connecticut," a land where an "enlightened" majority favors same-sex "marriage."If so, Connecticut's pro same-sex "marriage" media establishment bears some of the blame. Today's Courant piece, for instance, uncritically touts a UConn poll purporting to show that a majority of state residents favor civil unions and a plurality favors same-sex "marriage."
LMF's ardent persistence continues the lesson that the various rebel civil servants around the country imparted when they shrugged at the law and began handing out marriage licenses: the prudent and practical among same-sex marriage's supporters aren't really spokesmen for their cause. This applies to their ability to fairly negotiate (for lack of a more appropriate term) at each stage of the society-wide debate, and it applies to the amount that the other side ought to take them as representative.
In response to my post earlier today, Michael Triplett has endeavored to explain why his race-related opinions with respect to adoption are not racist — at least not in a bad way. I'm with him right up to here:
So, if it is "racist" to assert we should not create barriers for African Americans to adopt and that African American children would benefit from being raised by parents who have the same cultural experience, then I guess I am a racist.
The term of art, here, is "cultural experience." Contrary to the phrase's implications, culture is a learned thing; we are born into, not with, a culture. At least when we're talking about babies, therefore, the adoptees are cultureless, and one would expect them for the most part to share the "cultural experience" of their parents no matter the color of their skin. Used by those who think they've got the dark Other's best interests in mind, however, "cultural experience" is simply an empty term meant to make "race" mean more than the superficial collection of physical attributes that it ought to be. It's that indefinable something that once justified segregation. It's racism.
Now, I've already admitted that I don't have a problem with adoptive parents' seeking children with whom they share a maximum of physical attributes. Similarity increases the ease with which parents and children can see themselves in each other; it probably postpones difficult questions until the children are older; and, yes, among a species prone to notice differences and enlist generalities, it ensures a similarity of experience.
All of this only means that appearance, including race, ought to be a factor available for consideration (most especially from the parents-to-be). Triplett, however, places this consideration not just above the central family characteristic of marriage, but so far above it that a preference for married adoptive parents counts as a barrier to racial allocation.
This is where broad differences of worldview come into play. Failing to hold marriage up in the case of adoption diminishes the overall cultural preference for it. Without going in search of statistics, it seems reasonable to suggest that married couples are more likely to adopt — especially to adopt for the right reasons. If that is so, then not giving preference to married couples contributes to a dismissive view of marriage among blacks and, therefore, decreases the number of them looking to adopt.
Furthermore, intending "to attract African American parents," Triplett reinforces the "cultural experience" that leads to the disproportion of black children available for adoption. With this same aversion to creating "barriers" playing out in every aspect of American life, the very people who most need social guidance toward better lives are left loose to continue making poor decisions.
ADDENDUM:
Just to head off an obvious objection, a word on Triplett's and my differing emphases for the relevance of "experience." In Triplett's usage, "cultural experience" refers to a "cultural and race background" — background being something from the past, handed-down baggage that one must carry as a defining quality. In my usage, "similarity of experience" refers to the present, most palpably in others' reactions to a given person; for example, a father and his visually similar adopted child will have comparable interactions with the same stranger.
In the former view, the origin of the difference — in some sense, "the blame" — resides intrinsically in the individual. In the latter view, it resides in the mutable attitudes of third parties. Perhaps it's a subtle distinction, but it makes a significant difference in how our society will move toward the future, and it makes a profound difference in how parents will raise their children and address shared and unshared experiences.
Michael Triplett is incredulous that I see racism in his views on adoption. As much as I dislike overuse of the R word, I don't know how else to categorize such sentiments as this:
Those involved in adoption and foster care have lamented the lack of African American homes to place children, who are disproportionately African American. The barriers to such homes includes economic requirements that eliminate many African American households. The addition of a marriage preference would add an even larger barrier since it could eliminate even more possible placements.Is it racism to suggest that we should not create unneccesary barriers for African American children into African American homes???
What else can you call the view that even more important than their having married parents is for black children to be with their own kind?
D.C. lawyer and author Lee Waltzer had an interesting exchange with Maggie Gallagher on Marriage Debate last week on the topic of preference for married couples in adoption (read down from here). In the midst of the back-and-forth, Waltzer made a statement that resonates oddly:
I think one thing that you ignore in these discussions is how much our concepts of parenting and parenthood are indeed social constructs. The way we raise children, and relate to them, today is much different from a century or two ago, let alone across cultures. There are plenty of mothers out there who do not ascribe to "traditional" concepts of motherhood, and the same goes for fathers and fatherhood -- this is a good thing actually. It's only a few decades back that fathers had very little to do with raising children whereas today, it is socially expected for fathers to be involved.
The post in which this generalization appears begins with the minimization of a belief that isn't appreciably different:
There are some situations where a child would definitely benefit from having a mom AND a dad.
Is it a good thing that paternal involvement is expected, or are there only "some situations" in which a father is even necessary? My sense is that there's more to this juxtaposition than I've managed to unravel, but even at first glance, it demands clarification.
Rational conservatives have no illusion that parenting and parenthood cannot be constructed in various ways, but that fact tells us nothing about what the various results will be — or even which results we ought to prefer. Since mutable social constructs affect us all — guiding most especially those without the background to comprehend or the resources to accommodate permutations — it behooves us to avoid justifying effects that are merely acceptable by citing contradictory effects that are desirable.
In other words, it may be the case (although I'm not entirely convinced) that fathers of old were significantly less involved in their children's lives. It may also be the case (although I'm far from convinced) that some children experience only limited harm for having lacked fathers altogether. However, when judging differences between the here-and-now and "a century or two ago, let alone across cultures," we must consider the possibility that fathers who there-and-then would have been inadequately involved are now simply gone, and that change has wrought only incremental increases among the class of fathers who were already involved.
Change is not always "a good thing actually."
In addressing David Fried's couching of the same-sex marriage debate in terms of employment benefits, I focused on the perceived "unfairness" to other relationship types that would still be barred from marriage (e.g., son and mother). But what about relationship types that aren't barred from marriage by law? Keep this sentence from Fried in mind for what follows:
If marriage is available to all, then it is perfectly permissible to discriminate against those who choose not to formalize their relationships.
So, in a land of pre-nups and no-fault divorce, what keeps couples who can legally marry — roommates, friends, business partners — from doing so to procure benefits? I suppose some do (the storyline is particularly prominent in the context of immigration), but it certainly isn't common. Why? Because our culture still holds the male-female relationship in suspicion of romance. One wouldn't have to look long within the pop culture for evidence that this is true, but the evidence probably lies even more handily among the things we all just know.
Opposite-sex marital fraud lies behind high cultural barriers. Thousands of years of social development just tell us that it's wrong. Consequently, even if such marriages of convenience are entered, only with difficulty will the couple's acquaintances construct an impression of the marriage that doesn't align it as much as possible with what marriage simply means beyond its definition.
Approaching from another angle, non-romantic opposite-sex relationships are already suspect. Male-female roommates live under the expectation of "sexual tension," and even where it is truly absent, the presumption of it requires them to be deliberate in the way in which they present themselves. Entering into fraudulent marriage purely for benefits would surely overwhelm all assurances that the marriage doesn't mean anything.
With the introduction of same-sex marriage, however, only two apparent possibilities exist: either the marriages will not have the cultural barriers to fraud, or all same-sex relationships must become held in suspicion of romance. With the first possibility, marriage would become merely a way to extend to a roommate or friend benefits that otherwise would seem to go to waste. The second possibility involves nothing less than the deterioration of deep friendship as a relationship type.
Given the disproportion of heterosexuals to homosexuals, I suspect that the former would prevail. And as I suggested in the comment section the last time I wrote along these lines, I just don't see any stigma sticking to buddy marriages and divorces. Their meaning and purpose would be clear: to formalize non-romantic relationships for material gain.
Massachusetts lawyer David Fried spends about 400 words spinning a tapestry in which allowing same-sex marriage permits more discrimination against the unmarried, and his argument is worth addressing seriously... until he ends with the following parenthetical quip:
I think that this is exactly what will happen--and I'm in favor of it (if only because, as a straight divorced guy, I don't see why gay people should be exempt from the general misery!)
Here's a statistic I'd like to see: the percentage of heterosexual same-sex marriage supporters who have been divorced. I bet it would be very disproportionately high.
In Fried's case, I don't see how he could better have highlighted that his entire post fails to take seriously the purpose that traditionalists claim for marriage. Fried ignores the justifying intention of the discrimination in order to deliver his clever explanation for maximization of it.
One point that we who oppose same-sex marriage have made again and again is that allowing an expanded circle of relationships into the marital definition dilutes it from within. If, as Fried puts it, allowing same sex-marriage will make it "both permissible and a good idea to discriminate against those who claim societal recognition for their relationships without marrying," it will also make it more difficult to explain to other groups why their brand of relationship cannot cross the line.
Fried's point of view, specifically, is as an employment lawyer, so he couches his thinking in terms of the benefits that corporations offer to their employees. But what are those benefits for, beyond attracting and keeping workers? On what grounds would a corporation object to extending a one-person-only benefit package to an employee and his widowed mother? Surely, if companies have any interest in encouraging marriage beyond merely offering competitive compensation, it's not employees' sex lives, but their stability and access to daily mutual care and support.
Personally, I'm not sure that companies shouldn't offer certain benefits to encourage such things, but I definitely don't want the form that the "societal recognition" takes to be marriage. Rather, employers ought to reserve for that institution some of their influence in order to join the culture, the churches, and the government in securing the longer-term benefits that flow from traditional, lineal families.
A frightening and-don't-you-forget-it catch by Marriage Debate:
...In response to a student's question about gay marriage, bigamy and polygamy in certain communities, [Nadine] Strossen said the ACLU is actively fighting to defend freedom of choice in marriage and partnerships."We have defended the right for individuals to engage in polygamy," Strossen said. "We defend the freedom of choice for mature, consenting individuals."
Marriage Debate Blog links to a piece in the Washington Post that, in a way typical of the mainstream media on such topics, focuses on the "controversial" aspect of the story in such a way as to skirt deeper problems. It's about gay men paying for children to be created using their own sperm, donated/purchased eggs, and female fetus-carrying units (known colloquially as "surrogate mothers"). Put aside the gay aspect; put aside the implications of wealthy men paying thousands of dollars to twentysomething women for use of their body parts; and see if you can spot the consideration not considered, not able to be obscured with appeals to consent and individual choice, and given but the merest of allusions in the entire piece:
But most of the time, the single gay executive said, becoming a father using his sperm and eggs donated by a 24-year-old woman he met once in a downtown Starbucks to create embryos that were implanted in the uterus of a 22-year-old surrogate mother he barely knows, absolutely seems like the right thing to do.It was, he said, the culmination of increasingly urgent soul-searching that accelerated as he hurtled toward 50.
I suppose everybody who hasn't yet reached the age is "hurtling toward 50," but it sounds as if this child will — if he or she is lucky — have a nearly 70-year-old single father attending his or her high school graduation. There's a housekeeper and a nanny, but no other parents in the picture at all. Says the father to be: "I want somebody to love me and I want somebody to love."
These articles don't provide enough information (with sufficient credibility) to react too boldly, but there's definitely enough to justify lip-pursing. The father claims that he's "tired of being the star of the show," and he's counting on this leading him "in a different direction." But what about the child? Think first of the role that this child was created to play and second of his or her (apparently) complete isolation apart from this man.
Probably, this "single gay executive" is an extreme example — currently, anyway — but an echo seems inevitable throughout the practice. An ethical mire that requires the involvement of multiple women to fulfill the role of birth mother in order to create children artificially for men who are likely to be older and whose relationships are not geared toward the creation of human life is, well, it's beyond comprehension. Yet, somehow the nation's second paper of record manages to give its piece the feel of a free advertisement for the company of the woman who said the following:
I started off as a single mother by choice, and I don't think my child suffered for it.... I'm a believer in nontraditional families. I think families come in all shapes and sizes.
I, I, I, I.
To be honest, as I finished up my latest NRO piece between fixing breakfasts and changing diapers, I wondered whether the mini-controversy over President Bush and the Federal Marriage Amendment was already fading. Well, the Washington Post apparently believes that it isn't (or maybe that it shouldn't).
My fellow Anchor Rising contributor Marc Comtois emailed me today that he'll be curious to see how my thoughts play with conservatives preferring a different approach. First, I'd suggest that it would be extremely detrimental for infighting about strategy to be overemphasized within the movement to protect marriage. That said, a comment from Tom Minnery, public policy VP for Focus on the Family, speaks to the essential disagreement:
"The president is willing to spend his political capital on Social Security reform, but the nation is greatly conflicted on that issue," said Minnery... "The nation is united on marriage. The president's leadership is desperately needed."
It seems to me that we most need leadership where there is a need for action but no consensus — where the President is going to take hits for making a decision in any direction. Minnery mentions Social Security; I would highlight areas more closely related to the marriage debate, such as changing the character of the judiciary. I hope we can all agree that it is more important for the definition of marriage to be preserved than for it to be preserved explicitly. (Of course, making noise now, as many conservatives are doing, can only help to ensure that the President's judicial appointments aren't woefully disappointing.)
Now, having touched on strategic differences, perhaps I can bring us all around to mutual head-shaking at the other side by offering this instance of a particularly annoying manifestation of media bias at the WaPo (emphasis added):
The president is sensitive to the concerns of social conservatives and has tried to reassure them over the past two days that he remains as committed as ever to outlawing same-sex marriage, according to White House officials.
Yeah... I'm sure that's how those White House officials put it. Outlawing something that has never been legal and that DOMA already explicitly forbids at the federal level.
"Lukewarm" support for the FMA is just fine, Mr. President. See my piece today on NRO for details.
Although I'm sure I've heard generally about racial considerations in adoption, I found Michael Triplett's comments on Marriage Debate Blog startling:
It is interesting that [Maggie Gallagher] point[s] to Utah as a state with a married parent preference [for adoption], since it is a state that is probably able to avoid one of the biggest consequences of this policy: the disparate impact it would have on African Americans. A "married couple" preference could be disastrous when it comes to placing African American children into African American homes. There are already significant barriers to placing children into African American homes, many of them economic. When you add the additional barrier of preferring married couples--which are less common among African Americans--you suddenly have even greater problems with placing African American children--often the largest group of adoptable children--into homes of the same race.
Apart from its naked racism, reference to this particular consequence ("one of the biggest") brings into a stark light the muddle that is the race–sexual orientation comparison. (External context, including Gallagher's piece kicking the discussion off makes the same-sex marriage debate relevant.)
Suppose I were to suggest that every effort ought to be made to place heterosexual children with heterosexual parents. Gay rights activists might note that many, or even most, of the children up for adoption won't be aware of their orientation, so segregation would be just about impossible. Well, that's certainly sound thinking, and I happen to agree. But shouldn't the same principle apply elsewhere in the marriage debate — as with the SSM-supporter talking point that we allow infertile couples to marry? They generally won't know that they're infertile, much less completely sterile, until they've attempted to have children.
That's probably not the best example that I could have used, but I'm tired. And I'm still reeling from pondering a perspective that sees the assertion that children need mothers and fathers as discriminatory because it fails both to integrate by orientation and to segregate by race.
Whether or not the optimistic perspective expressed in the previous post is justified, we who oppose the redefinition of marriage can't put aside our arguments. Andrew Sullivan may sing in soothing tones when he writes (emphasis his):
[Same-sex marriage advocates] should refrain from any constitutional or legal challenge to DOMA for the foreseeable future (something I've urged for a long time now). We should also refrain from any attempt to force any state to recognize a gay marriage from another state (of course that's different from a state voluntarily recognizing such marriages).
But we on the other side should not fail to point out that Sullivan's rhetoric is such that a state's recognition of another state's marriages is "voluntary" if its courts decide that it must recognize them. Indeed, both sentences that I've quoted essentially advise the same thing. By Sullivan's definition, a state isn't "forced" to recognize marriages unless federal courts do the forcing, and that isn't possible unless they strike down the Defense of Marriage Act (DOMA).
That is the echo in President Bush's hollow evasion about "waiting to see whether or not DOMA will withstand a constitutional challenge." Sullivan skirts the reality of the issue when he explains:
There is no need for the FMA in any conceivable sense while DOMA is in place; and DOMA itself merely underlines the existing reality that no state is obliged by law or the constitution to recognize the civil marriages in any other state.
The "conceivable sense" (whatever that means to Sullivan) in which the FMA is necessary is that the destruction of DOMA and the nationalization of same-sex marriage would likely come in the same ruling: If DOMA were to fall to claims of "equal rights," or to assertions that the Full Faith and Credit clause applies to marriage, this argument against the FMA is akin to suggesting that, in the Sixties, there was no need for an amendment securing the illegality of on-demand abortion as long as the Supreme Court didn't find a right to abortion in the Constitution.
And most of all, let's not forget that Sullivan and other savvy gay rights activists are not the sole sources of activity, nor are even they, themselves, bound by things they say when circumstances call for lulling melodies.
All we need to know lies in the mis-start at the beginning of the President's response:
The Post: Do you plan to expend any political capital to aggressively lobby senators for a gay marriage amendment?THE PRESIDENT: You know, I think that the situation in the last session -- well, first of all, I do believe it's necessary; many in the Senate didn't, because they believe DOMA [the Defense of Marriage Act] will -- is in place, but -- they know DOMA is in place, and they're waiting to see whether or not DOMA will withstand a constitutional challenge.
Well, I sincerely hope he's keeping in mind the amount of capital — of any kind — social conservatives will expend on furthering his agenda if he abandons us. Yeah, yeah, we've got nowhere else to go, and we can keep advocating for the FMA because we think it's the right thing to do, regardless. If, however, the big story of the next four years is the strength or weakness of the intra-Republican bond, this won't help.
But we should keep in mind that the political landscape is volatile, right now, and we're better off with a President who is tepidly protective of traditional marriage than one who is implicitly unconcerned with redefinition of it. Furthermore, we should keep in mind that the President has to take a broader view of the issues. For instance, installing judges who will refrain from writing elite social preferences into the Constitution will require quite a bit of political capital, and the President is more directly involved in that process; the other two branches of government are the important ones on the marriage front.
Therefore, unless I'm being unreasonably sunny, Andrew Sullivan's happiness with the President is good news. For one thing, I'd wager that we'll see less of this sort of negative hysteria from him. More generally — and acknowledging that political posturing is no doubt part of Bush's calculus — it seems obvious that a President who is potentially in a position to reshape the Supreme Court would not want simultaneously to be the most visible representative of a cause that a not-insignificant, vocal, and influential portion of the citizenry decries as tantamount to theocracy.
Well, there's frustration all around, I guess. Consider Jonathan Rauch on Marriage Debate Blog (emphasis his):
My biggest frustration in this debate is that I can't get opponents of SSM to focus on the potential risks to marriage of not having SSM. How will the culture interpret that? I agree that words and symbols matter, and if we don't have SSM, a couple of decades from now politically sensitive people (not just on the left) will avoid the word "marriage" because it will connote discrimination. They won't talk about "husbands" and "wives" at all, because that's non-inclusive language.Everyone will just be "partners." As George F. Will likes to admonish conservatives, "Cultural change is autonomous." I'm not saying Maggie should accept SSM as inevitable. It isn't. I'm saying that if we don't have SSM, the culture won't stand still. It may bypass marriage.
The denial that he's arguing inevitability is glare on a well-polished prognostication. Rauch may not be insisting that legal redefinition of marriage is inevitable, but he's clearly suggesting that cultural redefinition is. I'd say that it's at least as likely that decisive defeat of the SSM movement would lead its supporters toward advocacy for a gay-focused alternative.
If they succeed, the culture will subsequently internalize the reasons for the different institutions (not meaning discrimination) and marriage will have found renewed strength through the challenge. Moreover, homosexuals' unions may be better able to draw on the relevant expressions and expectations of marriage (which Rauch has claimed as his motivation for SSM advocacy) than if they are part of a movement that has just succeeded in erasing a difference as profound as the ability to procreate.
This outcome — if the push for SSM fails — seems much more likely to me, given broader trends in American culture, than Rauch's prediction, which relies on the continued expansion of social radicalism.
Unless I'm missing something (which isn't a negligible possibility), the question raised by the last paragraph of Jonathan Rauch's WSJ piece on same-sex marriage is whether his reasoning is flawed or his deception is deliberate (emphasis added):
Mercifully, we may now get some time. Republicans' continued control of Supreme Court nominations makes it nearly unimaginable--and it was always unlikely--that the court will overrule the states on gay marriage. The Supreme Court recently sidestepped an opportunity to intervene in Massachusetts' gay marriages, and the election returns will give lower federal courts second thoughts about butting in. The enactment of those 13 state amendments demonstrates that popular sovereignty is alive and well in the states. I am dismayed by the amendments' passage, but I can't complain about the process. Nov. 2 showed that our federalist system is working exactly as it should, and it made the case for federal intervention weaker than ever.
Given what I've previously read from Rauch, I'm inclined to see him as an overly optimistic activist, rather than a manipulative one. Either way, if he's referring to the SCOTUS non-intervention that I believe he is, the Court's sidestepping the opportunity was hardly a neutral action. It had been asked to review whether the Massachusetts Supreme Judicial Court had acted beyond its authority, and its refusal to block the Goodridge ruling effectively answered in the negative.
Richard Dujardin has a long piece in today's Providence Journal titled "2004 in religion," and what a telling first sentence it has:
It was a year when many gay couples in Massachusetts rejoiced, being able to marry legally for the first time.
(In case you're wondering, the fact that, "with the help of religious conservatives, 11 states banned same-sex marriages" is held until the second to last sentence of the piece.)
The previous post has elicited recriminations to the effect that comparisons between homosexual activists and Islamicists are beyond the pale. Often, such reactions seem designed merely to shut down a sensitive debate. Be their intentions as they may, there's an important point to be made about them.
Mike Hubbard writes that it "seems especially repugnant, given that Islamic fundamentalists try to stone and murder homosexuals at every turn, for you to compare the two." His suggestion might be an appropriate response if I'd made a general equivalence between the two groups, but what I actually did was to address each group in the context of a particular issue. No matter how much any two groups despise each other, they still share the same world, and the actions of each will affect the other, as well as society at large. As commenter smmtheory puts it, ruling comparison of any sort out of bounds removes the ability to ask "what the possible outcome could be when two such totally divergent ideologies seek the same goal of redefining marriage."
Joel Thomas takes a moderately different approach from Hubbard: "You[, Justin], as a fundamentalist Catholic, may have more in common with Islamic fundamentalists than do gay activists." Putting aside the ambiguity of what constitutes a "fundamentalist Catholic" and my skepticism that the term applies to me, I'd say that Joel's assertion is possibly, if not likely, true.
Along a general spectrum of worldviews, I might be somewhat closer to Islamicists than is the average advocate for same-sex marriage. In such a case, it would be even more dangerous for me to bristle dismissively at delimited points of comparison. It might be true that taking certain of my views to a distorted extreme would approximate the views of Islamic fundamentalists. How else am I to find the line — and keep well away from it — unless I'm willing to be candid about comparisons?
The other option, one that is all too common in the modern West, is to be the deliberate opposite of a hated group. Unfortunately, as I began by pointing out, opposites can come around to supporting the same ends. I can only hazard to guess this, not knowing his politics, but there may be evidence of "coming around to the enemy's side" at the very beginning of Hubbard's comment:
Striving to change the nature of society, which both Islamists and gay activists are trying to do, is sometimes a necessary and useful process. The abolitionists of the 19th century were radically altering society, but I think, Mr. Katz, you agree with me that so terrible a society that allowed slavery needed to be changed. Indeed, it was the Christian thing to do.
That, to my eye, looks like a far more problematic comparison than anything I wrote. The question that ultimately arises is which of the two disagreeable camps — Islamofascists and Western conservatives — Western radicals choose to align with.
What do Islamic fundamentalists and gay activists have in common? Both are striving to change the nature of marriage in Western society:
The Inland Revenue is considering recognising polygamy for some religious groups for tax purposes. Officials have agreed to examine "family friendly" representations from Muslims who take up to four wives under sharia, the laws derived from the Koran. Existing rules allow only one wife for inheritance tax purposes. The Revenue has been asked to relax this so that a husband’s estate can be divided tax-free between several wives. The move is bound to create controversy if it leads to a change in the rules. It is seen as a breakthrough by Muslim leaders who have been campaigning to incorporate sharia into British domestic law.
Michelle Malkin, to whom the link above leads, casts this primarily as an issue of Islamic nonassimilation, and I mean this post to make no profound statement of comparison between the two interest groups nor to assign relative importance to the threats that they represent. My point in posting this is that the ways in which these issues churn in our society make cultural deterioration unpredictable and rapid.
Our society must maintain the strength of its historically unique cultural foundation in order to keep the various forces that it allows expression from pulling it apart.
ADDENDUM:
Of course, I also don't mean to imply that there are no profound points of comparison. This isn't the only issue on which Islamists and Leftists find themselves working toward the same end, after all. And one could argue that same-sex marriage and sharia marriage law bear some similarity in that they both essentially insist that society assimilate itself to the cultures of minorities.
ADDENDUM II:
Thanks to Michelle for pointing out (in an update to her post) that I'm "on the same wavelength" in this post as Mark Steyn in a column from today's Telegraph:
When I mentioned the Pensions News item in a North American column on same-sex marriage, I was besieged by e-mails from huffy gays indignant at being compared with some up-country Nigerian wives-beater. "It's not the same thing at all," they insisted. But why? If the gender of the participants is no longer relevant, why should the number be? "Don't be ridiculous," they huffed back. "There's no demand for it." Au contraire, recent investigations into de facto polygamy in Muslim communities in France and Ontario suggest that even in Western jurisdictions there'll be many more takers for polygamy than for gay nuptials.And why should only practising Muslims be entitled to its tax benefits? If you're a travelling salesman with a wife in Solihull and a mistress in Stockport, why shouldn't your better halves enjoy the same equality of treatment from the Revenue as Mullah Omar's get? Polygamy could solve an awful lot of problems, not least among my colleagues at The Spectator.
Both sides of the same-sex marriage debate surely believe that large segments of the other side are beyond persuasion. In many cases, perhaps they are correct, although I'd obviously suggest that those firmly against the innovation stand on better, more-relevant ground. I, for one, can only assert that I am not unpersuadable, but that I've read and written about the topic so much over the past few years that I can fairly state that arguments several degrees of obviousness deep have not been adequate to change my mind.
What those who complain about intransigence are usually reacting to is the impression of fruitless debate. From the perspective of advocates for same-sex marriage, the other side is merely covering up their bigotry or "homophobia" (a term that still sounds to me as if it ought to mean "fear of things that are the same," such as twins). From the perspective of advocates against it, the other side often seems simply not to take their arguments seriously; they are, after all, merely indulging bigots in order to fend off popular action before court action can render it prohibitively difficult. Consequently, supporters' arguments come to feel merely like debate rhetoric and linguistic manipulation.
Consider Mark Barton's conclusion at the end of a post spent insisting that homophobia underlies every argument against same-sex marriage:
I couldn't care less how big a transformation it seems to Maggie [Gallagher] or people of like mind, nor am I under the slightest obligation to care. All I care about is whether there are any valid arguments that on balance people will be worse off as a result of the transformation.
Well then, if those are the rules, then I couldn't care less how obvious a right it seems to Mark or people of like mind. Ought I be cowed by accusations of "homophobia"? Ha! Not if I am not under the slightest obligation to care what homosexuals and their supporters think or feel.
Now that we've reached this impasse, all that remains to our struggle is power, and indeed, SSM supporters are counting on the power of the courts. In opposition, supporters of traditional marriage are counting on the power of the people. And here we've gone and tangled up a discrete cultural debate with dangerous issues of the balance of power in our government. To co-opt a commonplace, the judiciary that grants a right to redefined marriage is one that can take that "right" — and many more, and more critical, rights — away.
Personally, I'd prefer to avoid the further deterioration of our representative democracy, so it is fortunate that Barton's rhetoric leaves discussion open. Even by his own terms, there are "valid arguments" against same-sex marriage. In a previous post in this thread, he states the following:
I suggest that any view that tacitly or otherwise presumes that gay (i.e., same-sex attracted) people should be in opposite-sex relationships or not in relationships at all is quintessentially homophobic.
Some people do hold this view, but it is not an essential component of the logic that dictates against same-sex marriage. In the first post quoted here, Mark declares it "a complete non-sequitur" from the idea that all opposite-sex couples should be married to "the idea that gay couples should not be able to get married." Curiously, he doesn't make as big a deal about the non-sequitur from the belief that all sexually active straight couples should be married to the belief that homosexuals should "not [be] in relationships at all."
Again, some people do hold the latter belief. (And they'd surely contest the assertion that their view is invalid.) The relevant point to the marriage debate, however, is that encouraging marriage among a group whose sexual activity can produce children need say nothing about a group whose sexual activity cannot — except inasmuch as the latter group wishes to diminish the importance of that difference.
Such a wish would certainly be consistent with Barton's lack of care for the concerns of his opposition. For marriage to serve any social purpose, however, what Maggie, like-minded people, and all people believe its purpose to be is absolutely paramount. A central concern of we who advocate against same-sex marriage is that its purpose will shift to what has heretofore been merely a means — affirmation, normalization — to a larger (more selfless) end.
It is not "homophobic" to point to differences between heterosexual and homosexual couples when those differences amount to something as crucial as the creation — often all too casual — of new human life. And it would be foolhardy to attempt to include homosexuals by redefining marriage as an institution into which all couples who are sexually active should enter. That standard slipped long ago, and to be honest, I've never heard a single supporter of same-sex marriage speak out against non-marital sex. When conversation approaches that necessity, the rhetoric compounds.
As guilty of it as I may unknowingly be from time to time, I'm often amazed at the confidence that people can muster when making proclamations about matters for which both cursory and thorough investigations belie confidence. Here's Dan Kachur of Providence:
In response to Stephen Moccio's Nov. 30 letter ("Homosexual parents are confusing children"), I would simply like to point out that children of homosexual couples are no more likely to be homosexuals than children of heterosexuals, according to several studies. The same studies have shown that the only difference between children of homosexual parents and their peers is that they tend to be more open-minded.
As has come up in similar context before, there's an ambiguity in Mr. Kachur's statement about whether he means to reference studies having to do with children whom homosexuals beget or children whom homosexuals raise. It seems clear that he means the latter, but it's an important question to ask, because his assertion is therefore probably not just debatable, but incorrect.
To my experience, Kachur's assertion is more often phrased as follows: "being raised by gay or lesbian parents does not make a child substantially different from his or her peers." As I pointed out in response to that specific quotation, the speaker apparently brings an anti-judgmentalist view to the assessment of "substantial difference." Even gay activists will admit that studies suggest that children raised by homosexuals evince "a greater fluidity in their sexual expression and may in fact be more likely to identity as lesbian or gay." If one takes as an assumption that differences in orientation aren't "substantial," then the equivocal description of existing research is a handy way to allow those who disagree to misinterpret the findings.
This is — and I'll venture an "of course," here — of course the objective of the language used when discussing such things. "Kids of homosexuals" becomes "kids raised by homosexuals." A finding of "no substantial difference" transforms into "no more likely to be gay." Just about any difference, after all, can be rephrased as merely being "more open-minded."
I might have given Dan Kachur the benefit of the doubt that he was merely falling prey to the clever manipulation of language so mastered by gay activists and the larger radical movement. But then he closed his letter thus:
Massachusetts currently has the lowest divorce rate in the country, so the homosexual community's fight for equality has apparently done no damage.
The charitable option, upon reading the full letter, is that Kachur is clever enough to be deceptive. Same-sex marriage in Massachusetts came without broad debate, without a count-forcing "fight." It swept into public awareness about a year ago, and there are not yet divorce numbers capable of illustrating any effect that it might have had, let alone any effect that the post-battle reality might have. (And that's overlooking the huge logical leap from divorce rates to "no damage.")
I've phrased this in countless ways, but I don't know that I've managed to put the notion as succinctly as Maggie Gallagher has:
The solution to the problem, in our culture, is to prefer that most men and women get married, because once they are in this kind of sexual union, you no longer have to worry about the fact that sex makes babies. It may or it may not, but it is no longer a social concern.
I've been meaning to post on this ever since (at my request) Joshua Baker sent me the PDF release of his and Maggie Gallagher's findings:
Do a majority of young adults favor gay marriage? It depends on how the question is asked. Over the past year, polls by reputable polling companies have found the proportion of adults ages 18-29 who favor gay marriage ranging from 40 percent to 63 percent. Conversely, the proportion of young adults opposed to gay marriage has ranged from 36 percent to 54 percent.For example, separate polls conducted just two weeks apart last spring found radically different results: A March 2004 ABC News poll found 63 percent of young adults agreeing that "it should be legal...for homosexual couples to get married" (36 percent thought such marriages should be "illegal"). Meanwhile, the Annenberg Public Policy Center found young adults opposed to gay marriage ("a law...that would allow two men [or two women] to marry each other") by a margin of 52 to 41 percent.
Looking at some Pew data covering the responses of different age groups about a year ago, I suggested that there are two ways to approach these sorts of findings: the cultural shift from one generation to the next, and the personal drift (usually toward a more-conservative view) throughout a lifetime. In the Pew poll, opposition to SSM shoots up a little less than 30% among those in their thirties — just the age range during which adults are having children and solidifying their understanding of what they want and are meant to do with their lives.
One particularly interesting aspect of the Baker/Gallagher piece is the finding that teenagers, the group below college age, are relatively conservative on this issue. I'm not quite sure what to make of that, although it does jibe with anecdotal observations — often a topic of conversation among acquaintances of my general age — that the generations appear to fluctuate wildly below midlife. Those at the front end of Generation X seem to be a bit more freewheeling. Those at the tail end (where I place myself) are more conservative, often manifesting in religious outlook.
Those following us (some currently in college) have seemed a bunch of lunatics ever since I was in high school hearing of their drug- and sex-related escapades. Consequently, it doesn't surprise me that this group would be erratic in its opinions, or that the next gang would be different in a good way.
Optimist that I am, I note another of my unsubstantiated observations: no matter what the Boomer liberals like to believe, when people's views change, those who were out on the furthest limb are more apt to hug the trunk than early trunk-huggers are apt to trust their weight to the leaves. As Baker and Gallagher conclude, it's still much too early to cede the future to the marriage radicals.
So during this recuperative period between the election and the start of another year of argument over same-sex marriage, the New York Times offers us a picture of how laughably normal — even traditional! — homosexual relationships can be. Somehow, I suspect that, in contrast, the months and years following a successful campaign for their legal equation with traditional marriage would bring similar prominence to such ideas as expressed by Michigan psychotherapist Joe Kort (specializing in "gay affirmative psychotherapy") in his piece, "10 Smart Things Gay Male Couples Can Teach Other Couples about Sexual Non-Monogamy":
When it comes to open relationships, judgments are changing. Historically, it was believed, and still is, that if a couple was open to bringing in others for sex, that was the beginning of the end for their relationship. Also the thought of a couple in an open relationship coming to therapy has been—and still is—seen as one of the problems for them, even if they themselves denied it. But too many happy and successful relationships, both gay and straight, have open contracts around sex.Meanwhile, some monogamous couples struggle and disintegrate for not being willing to open up their relationships at all.
The piece represents the endgame of the tolerance movement. With judgment of others strictly verboten, the Joe Korts are free to explain that, while such life choices as mutual infidelity aren't for everybody, those who wish to pursue their libidos' bliss need only follow a handful of guidelines for the choice to be consequence free. It's telling people what they want to hear — that they can slip past society's walls toward gratification-directed lives.
That people have the liberty to chase such lives — to promote such lives — is part of what it means to live in a free society. We who disagree must do the difficult work of withstanding the throes of adolescent logic and seek to persuade and to leverage social influence. One thing we must not do is to allow the prodigality into our shared institutions and the mechanisms whereby social influence is fortified.
As Stanley Kurtz has written many times (here, for one), the power of marriage is partly a mystique that, once spoiled cannot simply be rebooted at the end of the social experiment. And one can practically watch it deteriorating even within Kort's short piece, which opens with an anecdote about the two clients of his who educated him that monogamy needn't mean what even he believed it to mean (sort of like the legal argument over "marriage"). By the time he reaches "smart thing" 3 and then 8, he offers the following sophisticate's advice:
Never assume there's a contract on sexual exclusivity. Any couple should understand that by itself, being married and/or in a relationship isn't enough to ensure monogamy. Each may have different ideas about what "marriage" and "relationship" mean. So it's vital for the couple to mutually agree on a contract stating their agreement about monogamy, or non-monogamy. ...Another thought that gay couples have found helpful is to not make any contracts in stone! Theirs can be a living relationship that is open and closed at various points in time, with no hard rules about it. It's more important to know when and how to discuss desired changes in the contract.
The object of such same-sex marriage advocates, therefore, is nothing short of a complete erasure of practical meaning in marriage. And it is central to the very idea of marriage that its meaning be plainly known — that potential spouses know precisely what they're agreeing to do and that the rest of society knows instantly what role they have agreed to fulfill, what the rings on their fingers signify.
What activists like Kort wish to do is to reduce marriage purely to a contract between two people, with terms completely at their discretion. In the context of the institution itself, this means that marriage cannot be a social contract, because society has no way of knowing what it entails for any given couple. Beyond that context, it means the unraveling of human morality. The complication arises in attempting to maintain a sense of emotional stability on the wobbly legs of a renegotiable contract. The solution?
In their book The Male Couple, David P. McWhirter, M.D., and Andre M. Mattison, MSW, Ph.D. (1984) write that among male couples, "Sexual exclusivity . . . is infrequent, yet their expectations of fidelity are high. Fidelity is not defined in terms of sexual behavior but rather by their emotional commitment to each other."Gay couples often report that what works best for them is to engage in sexual encounters based on sexual attraction only and not emotions or affection. It is about sex and nothing more. They avoid getting to know temporary partners at any deep level, to avoid turning the encounter into something emotional that might develop into a full-blown relationship. In other words, any sexual inclusion is simply behavioral in nature, not relational.
In the vain attempt to prevent the external fulfillment of lust from shredding the unique bond between two people, the key principle becomes the objectification of everybody else. Marriage becomes the one sexual relationship in which the other person is a human being.
It would be unfair to attribute the views and intentions of Joe Kort, his clients, like-minded activists, and the sources that he cites to every homosexual who would like the world to treat his or her committed relationship no differently than any heterosexual's committed relationship. Surely, the New York Times could fill its pages with the stories of such people. But will it? And would that be the whole story?
The lyrics to Billy Joel's "Only the Good Die Young" provide a near-perfect phrasing of a deeply flawed line of thought:
I'd rather laugh with the sinners
Than cry with the saints
The presentation of that choice is hardly unique to Joel — in fact, it's a cliché — but its history doesn't of itself grant legitimacy. Back in my disbeliever days, however, I took it for granted. Hell's rockin'; Heaven's a cloud-lounge. Now that I've grown up some, spiritually and intellectually, the obvious reply is, well, obvious: the narrator hasn't apparently met any of the right saints, and it would seem that he only knows sinners for whom the bill has not come due. Personally, I'd rather cry with saints if the other option were, say, writhing in agony with the sinners, but that might just be me.
I bring up this topic of falsely limited choices because a post by Barry Deutsch (on the title of which I based my own) relies heavily on a series of them. The first comes with the first paragraph of argument:
As for gender neutral marriage, we've been moving in that direction for quite a long time; more wives and mothers work, stay-at-home-Dads are increasing (although still a small group), and coverture laws are an archaism. I'm curious to know if Elizabeth would like to undo any of the previous legal steps towards gender-neutral marriage, and if so, which ones.
Choice: either marriage involves the classic male-breadwinner-dominated structure (boo, hiss), or it is on its way toward gender neutrality. Put aside that the aforementioned Elizabeth gave delimited context for her usage of gender neutrality — "marriage and family law" — and that the more powerful of Barry's examples are cultural, not legal. The larger problem with his point — which would be an offensive one, if it were intentional — is that he conflates gender and households' division of labor.
For the past two days, I took my turn watching the children while my wife worked; does that make me less masculine? My wife less feminine? If so, perhaps we are redeemed by the fact that I've spent a good portion of last week working with ladders, hooks, wires, and fuses putting up Christmas lights and my wife just came home from work and baked cookies. Christie Brinkley was a working wife and mother when she and Billy were still married; was she a gender-neutral spouse?
Folks on the other end of this debate from me might feel the urge to quip that, for my pro-marriage rhetoric, I've cited a famous divorced couple. If you sympathize with that urge, go ahead and indulge; it will only lead us to another problematic area in Barry's post. About midway through, he offers a table of potential actions that he believes SSM opponents — or at least Elizabeth — will agree that the government may and may not do in order to "discourage unmarried bio-parents" (creepy term, that "bio-parents"). Honing in on those that are not of dubious relevance on the "MAY NOT do" list, every one presents a falsely limited choice.
All of the above are put forward in the service of Barry's central point, which also presents his central false choice:
Here's how I'd sum up the argument in the above paragraph (Elizabeth was nice enough to confirm by email that my paraphrase is accurate):
- If SSM is allowed, society will be less able to affirm the importance of being raised by bio-parents.
- This will likely result in more heterosexual parents either never marrying, or marrying and then divorcing. (This is what Elizabeth means by "more [children] will grow up lacking that key security").
- Therefore, we should not allow SSM.
For the sake of this post, I'm going to ignore my disagreements with statements 1 and 2 (and trust me, they are legion). Instead, I want to point out that something's missing from Elizabeth's argument. 1 and 2 do not logically lead to 3. There's something missing - a step between 2 and 3 which justifies the conclusion in step 3.
For example, let's look at one possibility - let's call it 2.5.
2.5 Whatever leads to more bio-parents not marrying, or getting divorced, should not be legal.
Barry refers to his step 2.5 as merely an "example" — "one possibility" — but he proceeds to write as if his specific language captures the full range of possibilities. He asserts that Elizabeth "can't fill in the gap in her argument with statement 2.5, or anything like it," but there is something like it that fits the demands. Not surprisingly, it includes aspects of the debate that he — like many SSM proponents — leaves out of the discussion:
2.5 Whatever negates the possibility of marriage's use as an explicit mechanism for binding biological parents to their children should not become part of the definition of marriage.
That same-sex marriage is more unique in falling afoul of this rule 2.5 is indisputable. First, note the persistence with which its advocates declare that marriage isn't about linking biological parents (i.e., about procreation) as part of their rhetoric. (An aside: I'd suggest that infertile heterosexual marriages of various sorts have collected long histories of evidence that they do not negate the procreative meaning of marriage, and that if they ultimately do so, it looks likely to be only a function of their enlistment in the SSM cause.) Second, note offshoot arguments that question why the presumption of sexual attraction/activity within a relationship ought to be part of a new definition of marriage.
More significantly, note that negating a range of actions is different from "leading to" or encouraging a particular behavior (or lack thereof). Similarly, refusing to include something within a definition is different from making something illegal. Most of those who oppose SSM see our advocacy as stopping a cultural downslide, with a view toward climbing back up a ways. Various laws and restrictions pertinent to marriage must certainly be considered and perhaps reformed, but whether effective policy requires allowing or disallowing no-fault divorce, for example, or even infertile marriages is incidental. The definition of the institution — the types of people who may enter into marriage with each other — is fundamental.
(Via Marriage Debate Blog)
As usual, the Marriage Debate Blog is must reading for anybody interested in this issue. In fact, the significance of the posts currently up is a little surprising; the idea of strategic pause and/or focus on a temporary federalist compromise that some SSM advocates urged post-election doesn't seem to have caught on.
As I said, I recommend perusing the full blog, but I'll highlight three things, here. First comes a case that illustrates how proximate a Supreme Court opportunity to nationalize same-sex marriage or civil unions could be. Vermont-civil-unioned lesbians separated, and the biological mother of their child moved to Virginia and claimed sole custody. The Virginia judiciary has ruled in her favor, the Vermont judiciary has ruled in the other's favor. What now?
"The fact is, in this case there may be no enforcement mechanism for the Vermont court because the Virginia courts, the legislature and the governor of Virginia don't recognize the validity of the Vermont union," said Michael Mello, a professor at Vermont Law School and the author of a recent book on same-sex marriage."It's going to be a case like this, and possibly this case, that's going to get the gay marriage issue before the Supreme Court. That's really the only place to go when there is this kind of direct collision between two state courts, and it's hard to imagine a more direct confrontation," Mello said.
One further thing that this case illustrates is that the pieces are already in place for the national public battle over homosexual relationships to be about nothing less momentous than at least civil unions, and probably marriage. That fact works against Deb Price, whose suggestions for Democrats raise an interesting difference of opinion in their own right:
The Senate Democrats' new leadership team ought to use its fresh start to get "the gay thing" right: Seize the national spotlight by making every senator vote on a host of everyday protections that most Americans want those of us who're gay to share. ...Imagine how hollow it would sound for amend-the-Constitution senators to claim "I don't have anything against homosexuals" if they had to defend such votes as continuing to allow Social Security to exclude elderly gay couples from its protective safety net.
I'm actually for that sort of public debate. If we believe same-sex couples ought to have a right or privilege, then they ought to; if we don't, they oughtn't. Some such debates (such as expansion of Social Security benefits) would highlight the degree to which opening things up to homosexuals will (and often should) open them up to any two people (or more) who support each other. On others, I don't see why politicians couldn't just make their argument for keeping a certain right limited to married couples. (Price's mistake, it seems to me, is to assume that there really aren't considered reasons underlying opposition to same-sex marriage.)
And lastly, I thought I'd blogged Fr. Roger Landry's excellent homily on marriage when it was published in the Fall River Diocesan newspaper, but I guess the fact that I couldn't find it online let it slip through the cracks. Anyway, apart from being worth a read on its own merits, the piece brings to the fore the quirks of life. Fr. Landry (I'm almost positive) was the priest at my wedding back in 1999. Five years later, we have neighboring posts on the Marriage Debate Blog. Sometimes it's the little things...
Advocates of same-sex marriage have a thin beam on which to balance. On one hand, they have to argue in such a way as to leave the path through the courts — the only currently viable route for their cause — both practically and rhetorically open. On the other hand, they have to allay fears of precisely that path in order to prevent the courts from being restrained. This makes for some stunning reversals.
For the case in point, begin with Allan Carlson's Family Research Council piece on the link between marriage and procreation. Carlson traces the connection, historically, back to the days of the Roman Empire's decline; theologically, he traces it through the New Testament back into the very foundation of Judeo-Christian religious tradition. He then examines the factors that have contributed to its decline and offers some strategies for reinvigorating it. How do you suppose somebody like, say, Andrew Sullivan might respond to such a piece?
Well, as it happens, Sullivan responded by making the case for the Federal Marriage Amendment (emphasis Sullivan's):
The basic problem for the anti-gay marriage forces is that they are upholding a marital standard for gays that no one any longer upholds for straights. And this obvious inequality - recognized even by Scalia, for example - cannot withstand judicial scrutiny under any reasonable standard of equal treatment under the law. Thats why I think it's hyperbole to describe the Massachusetts court of judicial "activism." The argument of the Commonwealth of Massachusetts was that gays couldn't marry because they couldn't procreate. Once it was obvious that this standard did not apply to heterosexuals, the court had no choice but to strike down the inequality. It was not a radical decision at all. It was an inescapable one.
Before I address the larger gap in Sullivan's thinking, I should note that my disagreement about the decision's inescapability highlights a more limited gap. When Carlson suggests that it is no longer possible to "defend the purpose of marriage as procreation... in the current constitutional climate," it is a practical, strategic judgment of the judiciary's disposition: "Mere words—even of a new amendment—are unlikely to contain these 'penumbras' and 'emanations.'"
In that skeptical paragraph, Carlson is addressing "the right of privacy" — the more fundamental detriment to the linkage of marriage and procreation. He makes it clear that an FMA remains one of the "ways in which firewalls could be built around the already battered institution of marriage." I would argue (and have) that the FMA would merely force the Supreme Court to acknowledge the firewall already in existence, one on which every previous loosening of the marital norm has been contingent.
In short, it isn't true that the procreative standard is not regulated within the law: the definition of marriage itself applies it. That the standard is not more strictly and explicitly regulated is only evidence of the degree to which all of the lawmakers and judicial precedent-setters believed it to be inherent. (Does anybody doubt that the oversight would have been swiftly remedied had our forebears had any inkling of our present circumstances?)
Here enters the larger gap in Sullivan's rhetoric. It simply isn't the case that "no one any longer upholds [the procreative marital standard] for straights" — unless by "no one" you mean "no judges" or (to be debatementally generous) "the law." Whether or not the average man or woman on the street would think to hammer it into words, the standard is still upheld firmly on a cultural level. In a manner of phrasing it, the possibility of this disconnect between law and culture is exactly why our representative branches are the ones that are supposed to write the law — exactly why so many judicial rulings, including Goodridge, are correctly derided as "activistic."
So, despite my expectation of disagreement when I began reading Sullivan's post at the urging of an emailer, I find that he and I are of like mind: an amendment to the Constitution is necessary if the citizens of the United States of America want the law's definition of marriage to accord with the culture's definition, and not the other way around. Oh, he'll insist that those citizens only "have to amend a state constitution," but if the decision of Massachusetts' high court was "inescapable," it is a thin ruse to insist that the same would not be true for the nation's high court.
I suffer from no delusion that advocates for same-sex marriage will allow the public's choices to remain so clear. Nonetheless, it is pleasant to bask in this little bit of light, particularly following an election day on which the people of eleven more states confirmed their willingness to write marital truths into the law.
Over on Anchor Rising, Marc takes controversy over Oliver Stone's new movie as a springboard to write about history and homosexuality. My favorite instance of historical gerrymandering with respect to same-sex marriage comes from Andrew Sullivan's Same-Sex Marriage: Pro and Con. In a back-and-forth about whether some of the Christian rituals were marriages or explicit "brotherhood" ceremonies (perhaps used, periodically, to spur a truce between hostile groups), classics professor Ralph Hexter tells what appears to be a pretty spectacular lie.
Hexter argues that (in the Sixteenth Century) Michel de Montaigne witnessed the ceremony in contention, and that it would be odd if it had been a benign brotherhood ceremony, because some of the participants had been burned as punishment. Even were it true, one could argue that benign brotherhood ceremonies would have been as apt to be used for heretical purposes as marriage ceremonies were. One could argue, further, that the burning illustrates, quite clearly, that the ceremony had been misused. But such arguments aren't necessary.
Turn the page in Sullivan's book, and you find reprinted the relevant paragraph from Montaigne. Hexter got just about every important detail wrong. Montaigne was not a witness; he was told the story (as a humorous anecdote) a few years after the incident had occurred. More to the point, he is explicit that the couple had used the actual marriage ceremony for men and women, not a brotherhood ceremony, and certainly not a ceremony for same-sex marriages.
I'd note, too, that every historical example to which same-sex marriage proponents refer differs in important ways with modern notions of same-sex unions. As Marc notes, they never involved children. Often, however, that isn't the only difference from modern constructs that aligns with traditionalists' arguments.
For example, proponents note some Native American tribes that apparently had a sort of same-sex marriage. However, not only did a social stigma apply to them, but one of the spouses was said to be a man-woman and was made to fill the role of wife. In that last aspect, one sees an echo of the traditionalist argument that infertile opposite-sex couples, at the very least, bolster the cultural message of marriage: that it is about the male-female relationship and, ultimately, about procreation.
I'm starting to sense a looming cloud (perhaps "swarm" would be a better word) of advocacy to bring same-sex marriage to Rhode Island. Consequently, when addressing a question or case within that topic that seems particularly related to my state, I'll put the relevant post on Anchor Rising and note, here, that I've done so.
Such is the case with "Meeting the Emotional Needs of the Elite," which responds to a Providence Journal column by Anne Fausto-Sterling, a Brown professor and lesbian Massachusetts spouse of playwright/Brown professor Paula Vogel.
It's not a feeling in which I'd advise reclining for long; the lampooned attitude is too pervasive and too strong. Still, I found Martin Cothran's needling of one newspaper in Kentucky to be very satisfying:
The only thing more gratifying than seeing Kentuckians give an overwhelming vote of support for the institution of marriage is seeing the Herald-Leader get so upset about it.How many editorials has it written condemning those who supported the amendment and bemoaning the fact that 75 percent of Kentuckians approved the Marriage Protection Amendment? Ten? Eleven? Twelve?
If a politician were repudiated by the margin the Herald-Leader was, the paper would be writing editorials about how out of touch he was. But when you're the one who's out of touch, it's hard to know exactly how far.
The media's condescending attitude in the debate over the definition of marriage is at the heart of only one of the many lessons that can be gleaned from the amendment's passage.
The first lesson is that vitriol and open disdain directed toward honest and well-intentioned people is not likely to sway their opinions. From the inception of the debate over same-sex marriage, the Herald-Leader has done little more than impugn the motives and question the integrity of the amendment's supporters. And in the process of lecturing readers about the evils of hate, the paper provided a perfect object lesson by engaging in the very activity it was condemning.
Read the whole thing. It's important that we pause, now and then in our struggle, to remind ourselves of the reality beneath the veneer and the rhetoric and the imbalance of power.
(Via Marriage Debate)
Theodore Dalrymple is toward the top of my list of writers whom I'd like to know. (Although I suspect that in person he'd only further highlight my lack of refinement by contrast.) His piece, "The Frivolity of Evil," in the latest City Journal (which Lane Core announced as now available) has given my mind material for many a dog-walking ponderation. Given my post on Anchor Rising, yesterday, which touched on the role of love in marriage, this paragraph from Dalrymple stood out (note the parenthetical comments):
My patient already had had three children by three different men, by no means unusual among my patients, or indeed in the country as a whole. The father of her first child had been violent, and she had left him; the second died in an accident while driving a stolen car; the third, with whom she had been living, had demanded that she should leave his apartment because, a week after their child was born, he decided that he no longer wished to live with her. (The discovery of incompatibility a week after the birth of a child is now so common as to be statistically normal.) She had nowhere to go, no one to fall back on, and the hospital was a temporary sanctuary from her woes. She hoped that we would fix her up with some accommodation.She could not return to her mother, because of conflict with her "stepfather," or her mother's latest boyfriend, who, in fact, was only nine years older than she and seven years younger than her mother. This compression of the generations is also now a common pattern and is seldom a recipe for happiness. (It goes without saying that her own father had disappeared at her birth, and she had never seen him since.) The latest boyfriend in this kind of ménage either wants the daughter around to abuse her sexually or else wants her out of the house as being a nuisance and an unnecessary expense. This boyfriend wanted her out of the house, and set about creating an atmosphere certain to make her leave as soon as possible.
England's problems in this regard are much beyond ours. (Indeed, Dalrymple says the country's "rates of social pathology... are the highest in the world.") But on that basis, it gives stark examples to consider when forming our own policies. Many cultural levers and public policies are relevant, of course, but to highlight just one, it seems to me that marriage is a waste of resources if it isn't a guard against exactly the incident that Dalrymple calls "statistically normal" in his nation.
It isn't about the husband's restlessness; it isn't about helping the mother manage things; although both of these are important parts of marriage. It's about the child. Love and mutual support ought to remain intrinsic parts of marriage's cultural legacy, but if tying both parents to their children ceases to be, then all the rest is just sunshine and ticket stubs.
I found it refreshing, somehow, to write a post about same-sex marriage for Anchor Rising. The local relevance was a little thin — a letter to the editor of the Providence Journal and a story about Providence's gay mayor's opinion about the issue (guess). However, I've a feeling that same-sex marriage supporters have plans to come on strong in Rhode Island, so I wanted to begin to build a locally relevant archive.
Whatever the reasoning behind the post's placement, writing for a different (mostly new) audience forced me into a slightly different frame of mind. I'm in the midst of years of writing and thinking about this issue, of course, but I think the slight shift of approach drew out some new points — or at least new ways of phrasing old points.
On NRO, Jennifer Roback Morse has what almost reads like a summary of certain chapters in the blogosphere discussion about same-sex marriage. The immediate subject of the piece is sailor Judy Ann Patterson, who got married to a friend of a friend in order to gain additional benefits that the Navy offers to married couples. Giving the man a healthy monthly cut, Patterson padded her income quite nicely.
Morse writes the first questions that came to my mind, and with answers that I've long suggested (see here, and especially here):
Just ask yourself this: If Patterson and Huff had known that they could only obtain a divorce on grounds of adultery or domestic violence, would they have been more or less likely to contract this marriage? If couples had to have a two-year waiting period for a divorce to be finalized, would increased housing benefits seem like an adequate reason to get married? Marriage used to mean, "one to a customer for life." Now it means, "I stay married for as long as I feel like it." There can be no doubt that the easy availability of divorce contributed to making this kind of fraud possible.
At the very least, constructing the debate such that Morse's subsequent suggestions are seen as prerequisites for same-sex marriage — judging by the reaction they currently provoke — could dry up some of the pat-me-on-the-back and make-it-go-away support that SSM currently enjoys.
Sometimes activist rhetoric can be more distracting than effective (emphasis added):
In the post before this one, I argued that one of the most common arguments against marriage equality is a bait and switch. Rather than arguing against marriage equality itself, opponents argue that ideally children should be raised by a mom and a dad. Then they tell people that in order to insure that children are raised by moms and dads, we must oppose marriage equality.
Although I've found him fair, intelligent, and cordial in debate, the blogger who wrote that paragraph, Barry Deutsch, goes on to provide evidence that such dogged adherence to activist rhetoric can cloud one's thinking. The objective is to win the debate by obscuring the opposition's central disagreement through manipulation of the terms by which it is discussed. The effect, however, is to manipulate the activist's thinking beyond the bounds of fruitful dialogue.
Put simply, the legal and cultural presumption of "equality" is not breeched if there is no discrimination (in the sense that Deutsch means it, which is "invidious discrimination"). That is the question that same-sex marriage advocates wish to leave out of the discussion. And it is undoubtedly significant that every single one of Deutsch's analogies fails in such a way as to avoid it.
By allowing the KKK a legal right to march, the government says the KKK is just as good as Veterans marching on Veterans Day... In fact, no such message is sent. I defy you to locate one non-KKK member who has been convinced that because the KKK has an equal legal right to march, they must be just as admirable as all other groups that march. People simply don't think that way.
Its undoing is embedded within the example itself: "as good as Veterans marching on Veterans Day." Would Deutsch really think it merely a statement of equal government treatment if the Klan were to participate in an officially recognized march on that day? How about on inauguration day? Of course he would not, and it is for that reason that a refusal to include the KKK in publicly ratified events is not invidious discrimination, while banning the group from peaceably assembling on any given day would be.
Another analogy begins to slip around the mechanism by which same-sex marriage opponents believe "government neutrality" will have an effect, in part by forgetting what public recognition of marriage actually means:
So, for instance, if the government bans all paintings of clowns (wistful thinking, I know), that sends a message that clown painting deserves contempt and lesser treatment. Does it follow that by not banning clown paintings, the government is saying a clown painting has just as much value as a Mary Cassatt's The Bath? Of course not; the government is simply remaining neutral and letting the culture decide for itself what to value.
Marriage does not merely represent value-neutral recognition. The government is saying, "This relationship is special." It is, in effect, awarding The Bath a special place in the public museum. Not giving clown paintings (or same-sex relationships) the same treatment would not be a matter of banning them, but of addressing them neutrally and, as Deutsch agrees, "letting the culture decide for itself what to value" among all paintings that aren't governmentally rewarded. The government would have confirmed that The Bath has value; everything else would be up for debate.
But there's more to it than that; my notion of a "public museum" is an abstraction for the public's official acknowledgment of what "art" is meant to be. Since most people would agree that clown paintings can be art, it would make the analogy more relevant if we changed it to something about which there would be disagreement — say, clown porn. In accordance with Deutsch's view of neutrality, a public school teacher would not be able to tell her students that clown porn is not art by some objective measure or, conversely, that The Bath is of more value in any terms transcending mere opinion. At issue is the matter of what art is, and that's the missing aspect in a final analogy from Deutsch:
According to this worldview, by allowing marriage equality, Massachusetts has "sent a message" which says that no child needs a mom or a dad. ... this point of view ... [is] simply, factually wrong: equal legal treatment sends no such message. If it did, then by allowing criminals in prison to marry, the US has sent the message that convicted murderers are just swell as parents and mates, and that kids don't need two parents out of prison.
The problem this time is that incarceration is circumstance, not essence. Although they draw the wrong conclusion, there is merit to same-sex marriage advocates' argument that the only palpable difference between same- and opposite-sex couples is that the latter can procreate. By defining marriage as between a man and a woman, therefore, we intrinsically send the message that Deutsch claims we don't: marriage is about the children that men and women can together create. We formulate it as a life-long commitment, treating the spouses as a unit in everything from taxes to death, because it is important for them to maintain a stable, unified relationship as parents. (An institution meant to encourage merely child births would look quite different.)
We can explain to children that it is not ideal for mommies and daddies to be in prison without muddying the core meaning of marriage. Indeed, in some respects, recognizing the marriages of criminals in prison strengthens that core message. To soften this assertion some, let's apply it to a circumstance that doesn't involve an expression of public disapproval, such as having a deployed military parent. We still want a father to be married to his child's mother even if he is about to go off to war.
Deutsch is correct that recognizing same-sex relationships as marriage does not send a message "that no child needs a mom or a dad." But it does send a message that perhaps some children don't need a mom and a dad, or that a marriage is about something more important than its shared sons and daughters. And that's a message that our culture cannot afford to promote any further.
As I've noted twice before (here and here), Jeff Jacoby writes with a rare clarity about same-sex marriage, especially for a New Englander. In yesterday's column, he politely suggested that same-sex marriage activists would do well to leave behind a bit of their radical zeal for some mature consideration of their countrymen:
The gay political leadership does itself no good when it pretends that a campaign to shake marriage to its core is a quest for "fundamental human rights." Men no more have a fundamental human right to marry other men than fathers have to marry their daughters, and no one ought to be called a bigot for saying so. When tens of millions of Americans, in state after state, vote against remaking society's core institution, their views are entitled to a modicum of respect.After all, a large and growing majority of Americans treats same-sex relationships with respect. Gay and lesbian couples are widely accepted as part of the social landscape, they enjoy many legal rights and privileges, and no one challenges their freedom of private conduct. But civic equality goes only so far, and most Americans draw the line at saying that sex should be irrelevant to marriage, the core function of which is to unite the sexes. That is hardly an outlandish position. What is outlandish is for the head of the National Gay and Lesbian Task Force to declare that courts shouldn't "give a damn" about deeply rooted American values.
In response to my October 14 post addressing Noah Millman's divorce versus same-sex marriage argument, I received a response from an anonymous reader that I thought worth sharing, not the least because it illustrates that people out there are thoroughly thinking this issue through — even, surprisingly — those without blogs:
Millman takes up on the issue of homosexual marriage along the lines of Andrew Sullivan, to wit if one isn't willing to work to end unilateral divorce one is a hypocrite for opposing homosexual marriage (and presumably for opposing polygamy, polyandry, group marriage, marriage of children to adults, incestous marriage, interspecies marriage, etc.).My analogy for this (feel free to use it if you wish without attribution) is simple: assume that half of your house is on fire, and the rest of it isn't burning yet. Is spraying gasoline on the part not yet in flames a good idea?
Yes, the 60's/70's era experiment with unilateral divorce has been a disaster. The evidence was there as early as, oh, 1978 or so. However it in no way follows that legalizing homosexual marriage, and polygamy, and polyandry, and incestous marriages, and 40 year old 'chicken hawks' marrying their 14 year old toy-boy-du-jour, etc. is going to mitigate the damage done.
That damage is real and it is quantifiable. Study after study after study over the last century or so has shown that boys who grow up without a father in the home will find an adult male role model. It's arguably wired in to the brain. That's why in the old days, when a man died leaving children behind, especially young children, any and all decent men rallied 'round to help the widow with the children and especially with the boy(s). Uncles were expected to pitch in, as were co-religionists, lodge / fraternal order members, and so forth. Because it was common knowledge that absent at least one, and preferably many, positive male influences, the boy would likely "take up with a bad crowd" or otherwise "go bad". It was simply accepted that a woman could not raise a boy to manhood without men helping her; call it primitive, call it tribalistic if you will, but it was known and furthermore was true as we can see to our sorrow nowadays.
Some amount of the crime in inner cities is a direct result of lack of decent men in the lives of boys as they grow up. That's quantifiable, within some error bounds. Reduce divorce and the number of cars stolen, the number of armed robberies committed, the number of deaths from druge overdoses and turf wars, etc. will decline to some degree, over a generation, because there will be fewer shiftless young men who do not have the impulse control to keep from sticking up a stop 'n rob, spending the money on crack and shooting some other shiftless young man for the heck of it.
It is known via countless studies that sexual molestation of children is higher in stepfamilies. Fathers with stepdaughters do not have the same bond as they do with daughters. What can we expect to happen in polygamous marriages? Nothing good, I warrant. Children who are sexually molested are damaged emotionally, some for the rest of their lives. This can also be quantified, although it is more difficult. Given the lawsuit in Utah that is ongoing, which cites Lawrence to justify polygamy, and given the language of Goodridge, there is no way to stop the poly's from their goal once homosexual marriage is imposed. There is one more thing: polygamy tends in time to produce a notable excess of young men who have no chance at marriage. The Mormons were fortunate indeed to have that bad cultural artifact taken away from them after only a couple of generations or so; in time, it might have destroyed them either from within due to societal breakdown, or from without if they attempted to send their excess young men out on expansionist efforts. I suspect that more than a few of the Islamic jihads of the first 1000 years or so were due to young men deciding to raid for brides. China is facing this in the next 20 years thanks to their one-child policy. We don't need this here.
We stand on a precipice. Any society requires a certain, not always knowable, percentage of decent, honest, people to function. If too many people within a society become emotionally and/or intellectually damaged to the extent that they cannot function above the level of a small time street thug, it become impossible for that society to continue to carry on in the same way. The evidence is clear: once homosexual marriage is forced upon us, other deviations will demand and get their 'rights' as well. This will lead inexorably to an increase in sexual molestation, emotionally stunting childhoods in bizarre families, and a general decline in the competence and (dare I say it?) morality of the society. At some point in the not very distant future, it will become ever more difficult to raise a normal human being to be a productive adult, be they power-company lineman, mother, teacher or neurosurgeon, or anything in between. Then the lights will start to go out...literally, in some places, because of an excess of incompetent drones whose only skills are varying forms of social parasitism.
Millman takes a very short term view. The house is on fire, yes, and needs something sprayed on it, but not the tanker full of gasoline he (and Sullivan, and others) advocate.
Here's Andrew Sullivan on Bush's recent comments in support of civil unions:
Who knows what to make of George W. Bush's statement today that he now favors civil unions for gay couples--although his party platform is against them. For what it's worth, I tend to think this is his real position, rather than a belated realization that his extremism on this matter has cost him many votes. But if it is his real position, why didn't he say so before? And how can he support the FMA which specifically bars the "incidents of marriage" for gay couples? President speak in forked tongue.
You know, I'm really beginning to rethink my belief that Andrew Sullivan is a conniving activist; he may very well have convinced himself right into delusion. That part about "a belated realization that his extremism on this matter has cost him many votes" is almost too much to take. Sullivan has personally done everything he possibly could, over the past couple of years, to paint everything having to do with preserving traditional marriage in Fundamentalist Red, and now he has the gall — the gall — continue behaving as if there is no dispute about what the FMA will do, let alone as if he isn't on the wrong side of the analysis.
In fact, I was inclined to allocate some blame to Sullivan's historically obscuring rhetoric for the fact that Michael Totten, writing on Instapundit, would declare Bush's statement a flip-flop. Totten subsequently updated with a link to Eugene Volokh's explanation of why he's wrong, but it is only through the deliberate avoidance of the discussion by folks such as Sullivan that people wouldn't at least know that another side exists. Here's one version, from February, of my explanation about why "incidents of marriage" won't prevent the creation of civil unions (see also here, here, here, and multiple other posts on this blog for more):
So, a legislature could pass a law giving a $10,000 down-payment gift to married couples. It could pass another law giving a $10,000 down-payment gift to civil-unioned couples. Yet, the judiciary could not introduce that same policy arbitrarily, and if it somehow found a right to $10,000 written into the constitution, it's extremely difficult to see why it would be limited to married people, or civil unions, or groups of people, or what have you.In this example, the FMA would restrict both the legislature and the judiciary from expanding that $10,000 marital perk to others on the basis of its being a marital perk. In the amendment's language, the fact that married couples are currently entitled to the money, of itself, cannot be construed to require that other couples or groups are similarly entitled. But a legislature, by its nature, isn't limited to discerning what the law requires or restricted from setting up parallel perks; a judiciary, by its nature, is.
These arguments have been around for years. I know: I've been one of the people making them for that long. If you haven't heard them — particularly if you've paid as much attention to the issue as Andrew Sullivan has — it's because you haven't been listening.
Ry's parents have always encouraged her in her relationships with men, provided they approved of her choice. When she was 16, she fell in love with her first boyfriend but was unsure of where to take things. Several months into the relationship, there were a couple of weeks, her parents recall, when she mooned around the house, talking around and about the relationship, seeming stressed out, uncertain, in need of counsel. ''Finally, my dad said, 'You should just go have sex with him,''' Ry recalled.
Okay, I did change one detail.
(via Marriage Debate blog)
On Marriage Debate Blog, Eve Tushnet often manages to offer pithy, context-creating commentary when introducing links. For example, introducing a short Newsweek piece about children with homosexual parents:
[Stuff not mentioned: Criticism of existing studies of same-sex parenting; whether kids do best with a mom and dad; what thoughts these particular kids have about the mom & dad idea. There's also a cameo by creepy, bullying Christian teens, woo-hoo. --Eve]
Is it me, or does it seem that bracketed text often offers the gems? This is in marked contrast to those insidious parenthetical interjections, an example of which Dirk Johnson and Adam Piore offer in their Newsweek piece:
For kids of gays, the vast majority of them heterosexual (research shows that kids of gays are not more likely to be gay themselves), it can mean being caught between two worlds and feeling at odds with both.
That parens-slip manages to promote an idea that, at best, needs clarification. It is a flaw of the piece, as a whole, that it doesn't differentiate between children who live with homosexual couples and those who happen to have a biological parent who is gay. (The pictures are all of children with parent & partner.) If the "research" is of the second group, then although I haven't read up on it, I wouldn't be surprised if the statement were true; indeed, it might be possible to use that as evidence that homosexuality is not genetically determined.
If the research is of the first group — children living in homosexual households — then, although there's no decisive information, the statement is more wrong than right. One study, which is relatively old admittedly (1986), found that 23.5% of children of homosexual households were gay themselves; that's much higher than the general population. That finding is in line with multiple studies suggesting that, as Newsweek puts it, "sons and daughters of gays tend not to be as rigid about traditional sex roles."
Well, it has always been a possibility that the singles movement would push for the various benefits offered their married acquaintances, but this certainly advances the progression a stage or two:
"If asexuality is indeed a form of sexual orientation, perhaps it will not be long before the issue of 'A' pride starts attracting more attention," New Scientist says.Activists have already started campaigning to promote awareness and acceptance of asexuality, it reports.
The Asexual Visibility and Education Network has an online store that sell items promoting awareness and acceptance on asexuality.
Among the items is a T-shirt with the slogan, "Asexuality: it's not just for amoebas anymore."
Only in a stunningly corrupted culture could those who are less inclined toward the sin of the age feel the need to campaign for acceptance. In the fashion of our day, some among these folks will surely decide that the law has no basis to discriminate against them in the various ways that it encourages people to pair up.
Right at the outset, let me say that I respect Noah Millman's thinking and writing. When I manage to read his blog, I find him always thoughtful and usually correct. Still, a recent post of his, arguing that "the fight to prohibit the redefinition of marriage as a unisex institution is deeply hypocritical," falls in the category of rhetoric that many conservatives find sufficiently persuasive to let a difficult practical decision loiter unto irrelevance.
To speak bluntly, Noah's is a dangerous, destructive argument to put forward without heavy disclaimers that some restrictions may apply — that the issue is beyond its reach when spilled from intellectual isolation into a society in which those who respect neither side of the intraconservative debate really do wish to institute their undermining policy. Consider, for example, the ease with which he slips by the entire same-sex marriage fight:
The only states that have even talked about redefining marriage this way have been forced to do so by the courts. The solution to that problem is to punish the courts - systematically, by reducing their power, and not in an ad-hoc fashion by exempting this or that law from review or amending the Constitution every time they rule in a way the people dislike. Believe me, they'll get the message; they sure did in the 1930s.
If you're a supporter of the Federal Marriage Amendment and you didn't just slap your head in astonishment that you missed such a straightforward answer, then count me among your company. We face a judiciary with nigh irresistible momentum toward implementing a liberal cultural regimen as the law, and Noah's solution is not to stand firm on a specific issue about which a significant majority is in agreement in the hopes of bending back the culture.
Rather, his solution is to maneuver through procedural abstractions that are at least two steps removed from any specific matter that has the emotional power to raise the average American's ire. Not only would he leech the public will for action, but he'd attract another politically imposing group to the other side, because the attack would be more directly against their interests: lawyers. Restricting the judiciary on huge cultural questions is one thing; directly assaulting the power of the courthouse is another.
While writing about divorce, Noah mentions that "we're talking about changing a culture, not building a machine." His phrasing is so true, and so relevant, that it's jarring that he does not apply the principle to the ostensible topic of his post. In the process of cultural change, the first step is to arrest an insidious trend; only then can we overlay a beneficial one. Failing to work in that direction risks wasted effort, wasted ammunition, and broadcast strategies. Reducing the judiciary's power, as a cause of its own, would trigger red flags among any number of groups that find the political landscape such that they can't outright support same-sex marriage, or that haven't realized the judicial implications of resistence to same-sex marriage.
And the redirected action would very likely be for naught. The component of his suggestion by which he would fortify marriage — tightening divorce laws — would only further motivate the juristic incubi. Citizens who wish to leave open the option of divorce for themselves and citizens who wish not to have a previous marital decision come under retrospective scrutiny are not the only parties with an interest in maintaining a culture in which divorce is easy and in which that ease requires further contractual protections. Add children into the mix, and the number of forms and legal challenges only increases. Divorce is practically an industry unto itself.
If we believe in the undeclared intentions of the judiciary, generally speaking, to redefine marriage, as well as the difficulty of depleting the power of that branch of government, is it rational to trust that the judiciary would leave tightened divorce laws alone? Couldn't quick divorce suddenly become yet another invisible-ink right in the Constitution? I would suggest that the distinct matters of activists judges and protecting marriage coalesce such that those who oppose the former ought to, first, throw their weight behind those who support the latter, not the other way around.
The same-sex marriage issue pits traditional conservatives against a radical movement that simply does not accept basic premises of governance, culture, or even of rationality that one might suppose to be common ground. Therefore, if we address each battle without reference to the fundamental differences (as Noah has done in separating judicial activism and SSM as issues), then that radical movement — which readily subordinates all to its driving intellectual and emotional needs — will roll right over those who stand against it in any particular.
Noah's prescription, in other words, fits neither the circumstances nor the opposition. Nowhere is this impression more bolstered than in his closing "open question" to Andrew Sullivan. In response to a Sullivan post about an evangelical's call to shift emphasis to divorce, Noah writes:
So here's my question: are you *predicting* that an attack on no-fault divorce is coming ("divorce is next" is how you title this item) and hence warning straights, in effect, "first they came for the gays"? Or are you mocking the Christian Right for *ignoring* divorce and focusing only on sins their flocks would not commit ("Why not combine . . . amendments 'defending' marriage with bands on no-fault divorce? Well, you know the answer.")? Are you attacking your opponents for *not* really caring about marriage, or warning us that they *do* really care?
Consider, by way of indirect evidence, a bit of another post from Sullivan, from January:
So how does Derbyshire propose to "tighten access" to marriage, as currently conceived? He offers nothing. Would he crack down on Las Vegas marriage laws? Would he lobby for a constitutional amendment banning no-fault divorce? Would he require waiting periods before marriage is legal? No word yet. Methinks he's blowing smoke. When those in favor of traditional marriage start proposing measures that would infringe on heterosexual abuse of marital privileges, I'll take them seriously. Until then ...
The answer to Noah's either/or questions is: "Yes." Sullivan is mocking a group he sees as hypocrites. When they cease their hypocrisy, he will take them seriously... seriously enough to warn others what a bunch of oppressive, out-of-touch kooks they are. To my experience, most of those who actually advocate against same-sex marriage are not hypocrites, inasmuch as they would gladly put divorce laws on the table for reassessment. And Noah would surely agree that they are not kooks.
The topical sequence in which cultural change must be pursued and what can be accomplished at each stage are legitimate matters for debate. However, to pick up Noah's Biblical imagery, presuming a beam in the collective eye of heterosexuals, in order to characterize SSM supporters as having only a mote, tars even the most intellectually and personally consistent advocates for traditional marriage with the indiscretions of other heterosexuals — who, again to my experience, are exponentially more likely to support same-sex marriage anyway. Disparaging supporters of the FMA in this way is merely a method of obviating a somewhat cold, certainly difficult assessment of the choices that we actually face.
In a post about the same-sex marriage fight Down Under, Diogenes offers a great illustration of one aspect of the argument against the innovation:
Say Mr. So-and-so has a maniacal desire to have carnal relations with Zelda. I point out to him, "You can only have lawful carnal relations with Zelda in the context of marriage. As it happens, Zelda is already my wife, and you are not permitted to marry her. I suggest you work to broaden your appetites."
Jonah Goldberg posted an email earlier today posing a question that, as Jonah mentions, one hears often from homosexuals with some conservative leanings on particular issues:
What's a gay conservative to do? See, I agree with republicans on things like low taxes, free market reform, privatization, smaller government, foreign policy, and the war on terror. Unfortunately. the party caters to a constituency that pretty much defines me as an abomination and takes every effort to cast the "homosexual agenda" as anti-family and anti-american. In election years, this rhetoric becomes even more hateful, and now there's an entire constitutional amendment trying to keep me in my place.
Upon taking a moment to notice that the emailer is pretty much defining religious/social conservatives as hateful and bigotted, it becomes clear that he wishes to play the guilted compassion card in such a way as to marginalize an opposing, but larger and more historical, Republican constituency. It's not an argument from principle; it's an argument from emotional pressure. Granted, that's an approach that has accumulated undue force in modern times, but how does one respond to the following except with a wry "boo hoo":
They make it crystal clear they don't care about my vote under any circumstances. It's like the republicans labor under the illusion that we will all eventually go away and not have to be dealt with.
That's an intriguing construction. The first sentence is flatly untrue; Republicans would welcome "the gay vote" — as long as it is based on shared principles rather than capitulation to demands that the party simply cannot afford politically. Then, contrasting with the woe-is-me appeal, the second sentence offers a veiled warning. That implicit refusal to compromise isn't the only thing that's veiled; note what also lies behind the gay rhetoric:
On the other hand, I disagree with almost every "non-social" policy (I agree on abortion, death penalty, gay rights, and school vouchers with the democrats; pretty much whatever the religous wing of the republicans is for, i oppose) on the democratic platform.
The parenthetical at first caught my attention because it made me muse at the complete social platform with which the "gay thing" seems so often aligned. But there seems to be a deeper current, here. The complaint is of gay conservatives' political homelessness, and the plea is to treat homosexuals as people — as people who matter enough to address. However — if I may disassociate a word from a cliché — the homosexuality appears to be a wedge to open the way for an entire worldview that is wholly incompatible with the religious conservative perspective. Since the orientation is taken as immutable, it follows that the opposing perspective must go.
This factor plays in multiple directions, but it very often seems that sexual matters have this effect. Encouraging a narrowly linear way of thinking that accords with strong urges, they allow fundamental shifts to pass as a matter of course, the gathering earthquake unnoticed beneath the rocking of the bed.
In response to Lane Core's comment to a post on this blog implying that the people of Massachusetts have been "forced to accept something," Chuck Anziulewicz writes:
All the people in Massachusetts who opposed marriage equality for Gay couples probably say the same thing: "I don't care if they are allowed to marry. I will never accept it."
There's something similar — and probably related — in this to the dynamic whereby freedom of religion is gradually narrowing to include the freedom to believe, in one's heart, that a religion is true, but not necessarily to act as if it really is. In the present context, the question is: What does it mean to be forced to accept something?
Whether or not Chuck would do so, there can be no doubt that many on his side of the same-sex marriage debate would scoff at the suggestion that the government ought to fund Christian missions overseas. The higher among the bricks on the wall separating Church and State often accompany the justification that a member of the public oughtn't be forced to fund a religion at odds with his own — indeed, one that is working to persuade others that his own is false. Why then, is it not being "forced to accept" same-sex marriage when a judiciary decrees that the citizens' shared government must deem same-sex marriages to be identical to opposite-sex marriages?
To be sure, in their heart of hearts, people cannot be forced to accept what they will not accept. But can that lack of acceptance extend to differentiated employment benefits? Adoption? To public school curricula that teach opposite-sex marriage as a preferable structure around which to build a family? The last question has two important implications.
First, Chuck falls to the narrow definitions by which SSM advocates argue that their proposed change will have no adverse effects — if it has any effects at all:
Has "traditional marriage" changed in Massachusetts? Not really. Gay couples have simply been allowed to participate. Does this mean that Straight couples are no longer allowed to marry? That Straight people are being forced to marry persons of the same sex? That married couples are divorcing more often? That families are falling apart? That Straight people are deciding to "turn Gay?" No on all counts. "Traditional marriage" for heterosexual couples will always be the norm, regardless how many Gay couples decide to tie the knot.
Well, if the choice remains forever and ever between traditional marriage and same-sex marriage, then I'd agree that it's probable that the former will always be the norm. The choices, unfortunately, aren't so limited. No marriage could become the norm, as could a view of marriage as a loose emotional contract authored anew for any given individual's preferences.
The second important implication of my above rhetorical question is that Chuck is almost silent the relationship between marriage and child bearing and rearing. In this comment and in a subsequent one, the only reason that he gives for marriage — and public encouragement of it — is "to declare before friends and family that [the spouses] are willing to pledge themselves to each other, ideally for life, and make a solemn commitment to one another's well-being." Indeed, stunningly (yet without apparently realizing it) his preliminary reasoning suggests exactly the perspective that traditionalists fear will be an effect of normalized same-sex marriage (emphasis added):
Straight couples don't need to get married to have sex or to have children.
To the extent that this statement is true, Chuck my friend, it is the problem. Affianced couples aren't just declaring that they will care for each other — "ideally for life" (well, you know, "for life" is something to shoot for, anyway). They are declaring that they desire to blend two families through future generations extending toward forever. They are declaring that they will only beget children with each other, and that those children will be born into households headed by their own parents, who are committed to raising them together.
The danger in same-sex marriage is that — not immediately, but as generations move along — it will further a corrosion whereby society at large is deciding that couples really don't need to be married to have children, that marriage and procreation can be treated as distinctly as marriage and sex unfortunately are already. Such an outcome is simply not acceptable.
In the comments to the previous entry, Chuck Anziulewicz responds to the suggestion that the same-sex marriage movement is more about legitimacy than benefits by writing:
No, you are simply wrong. What Gay couples are most interested in is equal treatment under the law. We don't really care if you don't consider our love and commitment "legitimate." Evangelical Christians don't consider any religions but their own to be "legitimate" faiths. So what? You can't be forced to accept something you won't accept. Equal treatment under the law does not mean forced brainwashing of an unwilling heterosexual majority.
To reuse my too-frequent introductory phrase: as with everything in this debate, in evidence in Chuck's argument is the distance between the first principles on which everything else is built. It's certainly understandable that a homosexual person in a committed relationship, as Chuck is, would skip a step of dispassionate logic, but he strides right over the point that the traditionalists are making, leaving him (apparently) no room to comprehend what they are saying short of hearing a complaint against brainwashing.
For an inequality according to the law to exist, all other circumstances must be equivalent. It is not unduly discriminatory, for example, not to give carpenters a tax break for teaching supplies. You teach, you get the break; you don't teach, you don't. Chuck is like a carpenter claiming that, since both professionals buy supplies, he deserves the tax break; this presumes that no relevant difference lies between the two vocations. In the terms of the same-sex marriage debate, the legitimacy that Chuck claims not to demand is inherent in the claim of inequality. Same-sex relationships are assumed to be as legitimate an arrangement for public recognition as opposite-sex marriages, and the argument proceeds from there.
Chuck is somewhat unique, however, in that he sincerely wants no more than the ability to provide for his partner in the same way that spouses are able to provide for each other. The difficulty with this position, however, is that it is morally untenable once the emotional plank of inequality is leveraged. Unequal is unequal; if we can't assert enough difference to justify discriminatory policy assessments with respect to Social Security, for example, then on what basis do we assert enough difference to offer opposite-sex marriages any distinction, including the name of the relationship?
The case to be made — by homosexuals who truly desire only commitment's fruit of public benefits — is that their relationships deserve that degree of recognition, without more reference to marriage than as an example. This is actually the fair compromise that I've long advocated: ensure that laws creating civil unions will do so on an item-by-item basis, and allow the states to determine what rights and privileges ought to be included — on their own merits. Unless there have been changes since I last analyzed it, that is precisely the scenario that the Federal Marriage Amendment would create.
It is not, however, a compromise that many homosexuals would accept, whatever their protestations of indifference about fundamentalists' opinions.
The Marriage Debate blog quotes an argument from a Canadian report on bisexuals as the lost party in the debate over same sex marriage. A reality that pervades the entire debate arises again: the sides on this issue are simply irreconcilable. The same evidence can be claimed to support both conclusions, depending on first principles. Consider:
"The opponents of marriage equality consistently seek to reduce this emotional and complex issue to straight versus gay, good versus evil, religiously-blessed love versus mere sex," said Matt Foreman, Task Force Executive Director. "In reality, marriage is about much more than gender and sexual orientation, it is much more than a package of civil rights and responsibilities, and it is about much more than sex. Highlighting bisexuals in the debate underscores all of this and shows that love and commitment are wonderfully complex and multi-dimensional."
From where I sit, it is actually the advocates for same-sex marriage who "seek to reduce this emotional and complex issue to straight versus gay." In their view, straights love people of the opposite sex; gays love people of the same sex; who is the citizenry to decide that one is more legitimate than the other? With the placement of bisexuals before reasonable disputants, an answer to this question only becomes more conceivable.
Depending on circumstances, bisexuals would be open to marrying a person of either sex. Therefore, we may legitimately wonder whether — apart from the individual's desire — society has a reason to support one choice over another. For many of us on the traditionalist side, the answer already lies within our writing against same-sex marriage.
Marriage is indeed about more than those aspects of it that Mr. Foreman mentions. (Although, I'd be interested to know what that "more" is, from his point of view.) Highlighting bisexuals, however, only underscores the fact that different manifestations of the "wonderfully complex and multi-dimensional" experiences of love and commitment require different considerations — considerations according to which distinctions can and should be made.
Almost unbidden, while reading Marriage Debate Blog, the following opening from a Montreal Gazette piece by Allison Hanes brought to mind a dynamic of judicial activism to which I hadn't given much thought. Here's the opening, which is almost incidental to my point:
There's no doubt the Montreal man fathered the girl who celebrated her first birthday in July - but should he get to be her daddy?That's the emotionally and legally loaded question Quebec Superior Court will grapple with this week.
The toddler was born after the man donated sperm to an old flame who was starting a family with her lesbian partner.
I wonder if at least some judges like the feeling of offering these Brave New World rulings. If you think about it, the judge's proper role is relatively mundane: just apply the laws that others have made. By dictating the redefinition of basic, core concepts of our societal understanding, they open up whole areas of moral and factual territory over which they can stand as arbiter. Perhaps it's not so much direct power that drives them as indirect power by way of a conceit of unimpeachable wisdom.
Swamped as I am, I still couldn't let Glenn Reynolds's post on the politics of same-sex marriage go without comment, mainly because of this:
I think that gay marriage is good for everyone. Marriage is a good thing, and I don't see any reason why it wouldn't be just as good a thing for gay people as for straight people. Judging from the gay couples I know, it would be a good thing -- and I'm entirely at a loss to understand why people think gay marriage somehow undermines straight marriage. But to get there, you need to make that case, not just accuse opponents of being closedminded-biblethumping-bigotsoftheredneckreligiousright.
Now, of course, I agree entirely with Prof. Reynolds's suggestion that advocates of SSM can't just declare the other side invalid and move from there. Nonetheless, as one who has followed the SSM debate closely, who has read Glenn Reynolds closely, and who has analyzed both together, I have to object that I've never seen Reynolds "make the case." To be sure, he could reply that it isn't an issue about which he's overly intent, but then, one might wonder how jeers at the Pope on the issue fit into that lack of interest. What, really, is the difference between accusing opponents of being fanatics and just acting as if opponents don't make any points worth considering?
In this one, narrow, respect, I agree with an update that Reynolds made to his post, quoting Harvard law professor Bill Stuntz as follows:
It seems to me that the gay marriage debate today is the price we pay for Roe v. Wade a generation ago. Roe sent a message to a sizeable fraction of Americans, and the message was: your views don't count. Not "you lose," but "you don't even get to make an argument." I think the rush to constitutionalize marriage is very, very bad in a host of ways and on a host of levels, but it's hard to criticize the religious right for reaching for the weapons the other side used to crush them. Like you, I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument) that produces compromise and progress instead of polarization and regress. It'd be a nice change.
It's possible (though not likely) that Prof. Stuntz is referring to an aspect of the fight against SSM that I've yet to encounter, but it seems to me that he neatly slides over a distinction that ought to be important to one who deals with law. How is seeking to pass a Constitutional Amendment — with all of the arguments, political calculations, and actual votes involved — anything like "the weapon" of bringing about the same effect through litigation? Not to exaggerate, but that's a bit like calling strong homeland defense measures "reaching for the weapons the [terrorists] used."
Perhaps I'm just worn out and of limited faculty after dealing with a roomful of twelve year olds all day, but I simply cannot understand how reasonable-sounding men of the Ivy Hall can write such things as this:
I assume the marriage amendment is going nowhere. Maybe, once that happens, we can actually have a political debate (not a legal argument) that produces compromise and progress instead of polarization and regress.
With all due respect, what concept of this issue's history has slipped beneath Professor Stuntz's perch? The Supreme Court's right-to-sodomy finding? The Massachusetts Supreme Judicial Court's decision that same-sex marriage already exists within the law? The various mayors et al. who've grabbed the refracted spotlight by taking matters into their own hands? The multiple lawsuits around the country seeking to repeat Massachusetts or to invalidate the federal Defense of Marriage Act and all of the various corresponding state statutes and amendments?
How in the Founders' names, in short, does the professor find marriage's defenders as the offensive — polarizing — side? Following on that, through what tinted lense does it appear that a failure to define marriage by vote will put an end to the attempt to do so through legal argument?
Maybe I've been too quick to assume that certain commentators are slyly working to pacify reasonable supporters of a Federal Marriage Amendment in order to allow the SSM activists to sneak through the judicial system. Maybe they just aren't able, or willing, to assess the actual, objective positioning of the two sides.
In the comments to this post, Mark Miller writes:
I think the decision to divorce where children are involved is agonizing for a majority of couples.
Does that correspond with people's experience? It's an honest question. The fact of the matter is that I can't think of a single divorce with which I've a personal connection in which the originating spouse gave any indication that the children were otherwise than a secondary consideration. If he or she was agonized, it hasn't shown. Ever.
That's not to say that there aren't such situations, but are they really a majority, as Mark contends?
While expressing another position related to marriage that leads me to wonder what, in his experience, has made his assumptions differ so dramatically from mine, Mark Miller's comments to a recent post bring forth a link between his views on divorce and on same-sex marriage:
In this case, I think I am the one being conservative - people taking personal responsibility and limiting government involvement. To me, this issue is akin to outlawing spanking. Some studies have shown that spanking is not good for children. Should the government criminalize it ? I don't want the government telling me how to raise my kids - and that includes not telling me I have to stay married - whatever good intentions may exist.
Spanking is just one of various examples that Mark has used in the same context — smoking being another — all of which fail in that they conflate various forms of state interest. One could argue — wrongly, in my opinion — that the government's interest in the healthy development of its citizens gives it the right to determine whether certain parental strategies, such as spanking, serve that interest and thereafter regulate them. But that would require quite a different argument from one suggesting that the government's interest in the same gives it the right to determine when it will recognize the dissolution of a marriage.
As has often been repeated lately, marriage is not merely a private contract between two parties. Rather, it's a relationship in which the public invests its cultural and financial capital and that the government certifies representatives to witness and recognize. Couples who do not wish for the public, through its government structure, to have a say in whether parenthood dictates a heightened barrier to exit from marriage are free to pursue religious sanctification and contractual union, while forgoing government recognition and its benefits. Even those who object to my offering that as an option ought to see that official marriage, on one hand, and parental strategy, on the other, are not at the same level of legitimate government interest.
The distinction between the two presents itself in the form of a decision in the issue of healthcare. Although some are trying, it's currently very difficult to argue on behalf of behavioral regulations for consumers of fast food. The dynamic would change, however, were the government to take a more significant role in the provision of healthcare. The public would actually be involved in the process of maintaining health, rather than just dealing with habits' results in indirect ways.
It seems at least possible, to me, that this same conflation of degrees of interest likely contributes to Mark's support for same-sex marriage. As an uninvolved third-party that merely recognizes private relationships called "marriage," the government would have insufficient interest in differentiating between those relationships on the basis of sex to have a right to make distinctions. (It would go beyond my purposes, here, to offer more than a parenthetical note that many supporters of same-sex marriage somehow expect that right to reassert itself when participants in other permutations of marriage-like relationships request recognition.)
In this light, something that might appear to be an ideological contradiction, at first glance, proves consistent. Among the more expansive points that Mark has made repeatedly while arguing for same-sex marriage is that one benefit is the "normalization" of homosexuality. Social acceptance of homosexuality, in his view, justifies changes to marriage law, whereas a preference for children to be raised by their married biological parents does not. Put another way, the public's involvement in individuals' marital bonds is a permissible tool for the legitimization of homosexuality, but it is not a permissible tool for the illegitimization of divorce.
Admittedly, I've crafted my language in such a way as to exclude various ways in which the two views are consistent (e.g., if one believes that the government ought to be able to force inclusion, but not exclusion). One consistent thread that may be irreducible, however, is the idea that the individual's rights always trump a society's rights.
An individual who is a spouse and parent would only lose his right to conduct his affairs as suits him if doing so infringes on somebody else's rights. The only applicable infringement would be on that person's children's right to be raised in the optimal environment... but who better than the parent to determine what that entails? Thus, Mark — who would also oppose giving one spouse veto power over divorce — is suggesting that the parent asserting his right to leave also has the exclusive right to judge his children's competing claim.
Cut from the equation is society's right to determine that children are better off with married biological parents, no matter what a supremely prejudiced parent might declare. Cut from the equation is society's right to reinforce the power, value, and importance of marriage — an institution "owned" at the social level. Cut from the equation is society's right to structure relationships in which it plays a role in such a way as to discourage one side from allowing himself or herself to want to break the entrance oath.
Whatever one thinks of such rights, cutting them is certainly not conservative.
An exchange in the comments to this post brought to mind a disconnect between theoretical discussion and real experience. The following dialogue is culled from several comments:
Mark Miller: A very bad idea. Requiring both partners to agree gives too much power over the outcome to one person. Maybe I could accept that in the case of a no-fault divorce.
Mike: Why do you not think that no-fault divorce gives too much power over the outcome to one person? Say the husband suddenly decides he doesn't want to be tied down, and want to go date other women. Our current laws effectively allow him to unilaterally end the marriage, which has the effect of saying that his personal desires are more important than his wife's, and than the interests of keeping the marriage together.
Mark: Say the husband is philandering and abusing the wife and children but doesn't want to end the marriage because it will be costly and who doesn't want to have their cake and eat it too. In that case, his personal desires should not trump those of the suffering wife/children and ultimately - society. That is a simple (and common) example why you cannot require both people to sign off on a divorce.
Mike: I'd say you've described a 'fault' divorce, not a 'no-fault' one.
Mark thereafter noted his initial qualification that "maybe" he could accept the two-party sign-off in the case of "no-fault" divorce. Still, the "maybe" — standing in contrast to his emphasis on the "very bad idea" of giving one party too much power — suggests that it isn't the "outcome" that shouldn't be unilateral, in his view, but just the specific outcome of a continuation of the marriage. Maybe one person shouldn't have the power to end a marriage, but certainly one person shouldn't have the power to maintain it. I suspect that is a common opinion, as unstated and unconsidered as it may often be.
After decades of the status quo, it does seem odd to think that one spouse might even want to stay married to another who wanted out. Therefore, we're inclined to attribute some sort of adverse motive to a hypothetical one who does. I wonder, though, if this mightn't change were the two-person sign-off required. Couldn't Wouldn't having the option, and knowing that he or she would have the option, to veto a divorce make the reluctant party reconsider whether the marriage has some value beyond agreeable cohabitation? Wouldn't, also, the other spouse be affected in the decisions that he or she made leading up to a divorce knowing that it mightn't go through?
So, to the practical reality that the theoretical discussion often neglects: most of the divorces with which I've had personal contact have involved a cheating husband who simply wanted out. In one case, the role was reversed, but it would have undeniably been in the wife's and children's interests for the effort to have been thwarted (as she would have had reason to believe it would be when the thought first entered her mind). We can shine rhetorical spotlights on a giant billboard picturing an abusive husband who won't let his wife and children escape, but it seems to me that we wind up ignoring all those other husbands (and wives) lurking about in the shadows indulging in a different form of abuse — of both their own families and our shared social fabric.
Whether it indicates that a fundamental principle has gone askew or that rhetoric must tilt to match a false conclusion, arguments on behalf of same-sex marriage seem often to mirror the object of their advocacy. The closer the marriage proposal is pushed toward the ideals of traditional marriage, the more the supporting arguments will manage to be just a bit off, and the points of distinction, in the resulting disputes, can be frustratingly difficult even to isolate, let alone resolve. Such is the case with the procreation -> contraception -> homosexuality line of thought that Jon Rowe pursues in the comments to my post on Governor McGreevey.
In his phrasing, however, Rowe may have left an opening by which to reveal the underlying gaps. Start with the last paragraph of the two contiguous comments to which I am responding:
The point that I am trying to make, "procreation" is a really weak place park a justificatory basis for sex. As Andrew Sullivan says, just because this is what sex CAN be about, doesn't mean that this is what sex MUST be about.
If by "park" Rowe means "rely upon exclusively," I happen to agree; in fact, I'd suggest that sex is at its best when it incorporates various justificatory bases. In terms of Catholic morality, in which I'll consolidate a broader ethics for my purposes with this post, sex becomes nearly sacred when it is both unitive and procreative, with the latter quality modified with "open to."
The former quality relates to Rowe's statement that "sex for the purpose of expressing love, cementing relationships, relieving stress, is legit." It would seem, therefore, with the possible exception of the reductive palliative of stress relief, that some common ground exists; indeed, Sullivan relies heavily on Catholic teachings, in this respect. Where the matter complicates for the traditional side, and where those taking Rowe's position insist on a narrow absolutism, is when a particular sexual act is not open to procreation; Rowe writes:
If the natural teleology of sex is procreation, then nothing could be more "unnatural" than contraception (according to this teleology). If we accept contraception as legit. as I think we should, then we necessarily accept that sex wholly cut off from its procreative teleology, i.e., sex for the purpose of expressing love, cementing relationships, relieving stress, is legit.
"Teleology" is one of those words that seem intended to distract one's opposition with a trip to the dictionary. If we understand, however, that "teleology" indicates a type of study, doctrine, or comprehension, then Rowe's use of it would seem to go further than he intends, and if it doesn't go that far, then it undermines his argument.
Catholics (or others) who pay attention to the various skirmishes as our faith evolves, including the determination of where it can evolve, will know that there's some debate about what constitutes openness to procreation. It is probably fair to say that the irreducible essence of the concept is that the sex must involve the two distinct sexual organs' being used in the manner in which they were designed to act as one, within a context — marriage — that emotionally and practically situates the man and woman to become one in the person of a child and unite all together as a family.
Note, though, that being open to procreation is not the same as succeeding at it, and the intra-Catholic debate centers around the degree to which a husband and wife can, by their own efforts, avoid success. Here, Rowe's notion of "procreative teleology" becomes useful, as the understanding of a purpose that sex must not contradict, even if it doesn't always fulfill it. Approaching the concept in this way, however, it becomes obvious that what Rowe has asserted as something that we must "necessarily accept" is, in fact, a question: Is contraceptive sex "wholly cut off from its procreative teleology"?
To say "yes," as Rowe does, is to conflate not only an outlook and an act, but also various methods of contraception, some of which do cause the act to contradict the outlook, and some of which don't. (See here for my description of the substantive difference between "natural family planning" and condom use.) Simply put, moral sex is that for which it isn't possible to separate the unitive and procreative aspects of the act, which is what makes sex that is purely about the restricted, two-person bond between the partners illegitimate. It would also make sex that is purely reproductive illegitimate. And this brings us to Rowe's supposed proof that procreation is inadequate as the exclusive marker of moral sex:
The strange thing is, polygamy and incest are procreative. So if procreation is our guide, those two forms of sex are fine.It's true that bestiality, like homosexuality, is inherently non-procreative. So is sex with a pre-pubescent child (but not with a post-pubescent 13 or 14 year old: that passes our "procreation" test). But then again, so too is sex with a post-menopausal woman. So too is heterosexual oral & anal sex. So to is getting a tubal ligation or a vasectomy.
The first thing to note is that Rowe has illustrated precisely why contraception, even if accepted as "legit." in some circumstances, doesn't thereby legitimate pursuit of any particular benefit that non-procreative sex might provide. Whatever it might mean that "nothing could be more 'unnatural' than contraception," it remains true that all of the various activities that he lists are inherently contraceptive. By his reasoning, therefore, they would all be "unnatural," and with room to layer particular detriments on top of that quality.
Now, we could argue about the sex lives of grandmothers and never resolve our fundamental differences, but the point that I'm trying to make is that, other than providing those taking his side with a chuckle at turning the table on the traditionalists, Rowe's rhetoric is utterly irrelevant unless he (1) intends to argue that no justificatory basis is adequate to make distinctions about various sex acts or (2) is on his way to explaining why another basis would be a stronger defense to exclude acts that we presumably agree ought to be considered immoral.
If his intention is number 1, then he will quickly be drowned out by expressions of disgust at the possibilities. If it is number 2, then I'd suggest that he's embarked on an impossible quest. The only adequate justificatory basis is one that encompasses the totality of moral sex as traditionally conceived. To borrow and modify an image from commenter Ben Bateman, those seeking to remove the panel of procreation from the wall around marriage so that they can fit through seem conspicuously uninterested in truly explaining why the wall will remain standing, holey as it would be, or where a new wall can be built to preserve the institution.
Marty McKeever took the plunge and answered the question, "How will marriage be destroyed, and what part will gay marriage play?" The post was certainly worth Marty's effort to write, and it's worth others' effort to read. However, apart from recommending the essay, something that an opposing commenter, Scott, wrote tied with another aspect of the larger debate that I've been meaning to mention. The following blockquote spans two comments, at the ellipsis, the first part directed at Marty, and the second to another commenter, Jim Price:
If you do not like gay marriage, then don't marry a man. Instruct your kids not to marry the same sex. ...Grit your teeth all you want Jim, in the end, I win.
Your morals aren't mine, you see, thats your problem. You see the world in black and white only. I'm smart enough to understand gray.
Whether or not you like it, I will be married, to a man and in the end you'll be a George Wallace footnote.
Its harsh but its the truth Jim.
You can type on a message board until your fingers turn blue but I will win, and you know what, heterosexual marriage will survive. I'm sorry you're not smart enough to see through the fundraising doomsday scenarios that you've been fed but keep sending those checks to James Dobson if it makes you truly happy.
You're a speed bump, not a wall.
The personal insults and active belittling of his opposition suggest to me a mindset that won't stop at the equilibrium of "you do your thing, I'll do mine." Indeed, most of Scott's comments to the post at hand include some reference or other (in aggregate) to "the unwashed simpletons in flyover country." The rhetoric may be of mutual liberty, but the language is of the sort that brings into question the worthiness of the other side to possess their share. To the extent that those people continue to have power in one form or another — whether influence or property — in a post–same-sex marriage world, it's easy to imagine Scott and his ilk thinking it not overbearing to impose correction of their errors.
For further exploration of this point, we can turn to no less un-stupid a person than Eugene Volokh:
But in any event, one should acknowledge that the "It doesn't hurt you, so why should you object?" argument omits an important point: The broad array of gay rights proposals would restrict the liberty and equality of those who oppose homosexuality -- and this array is more of a package deal than we might think, since the more proposals the gay rights movement wins on, the easier (generally speaking) it would be for it to win on other proposals.We might be able to envision a regime of optimal liberty, where the rights of both homosexuals and those who oppose homosexuality are equally respected -- many libertarians, for instance, would do so by distinguishing restrictions on government action from restrictions on nongovernmental action. But even if we can identify a point that we ourselves endorse, that point may as a practical matter be politically unstable, so that if the gay rights movement gets to that point (wherever the point is), it will in practice end up also getting more, and cutting into the liberties of others.
The Marriage Debate blog post that quotes from Volokh's entry also links to his follow-up entries, which branch in different directions. It would seem that there are aspects of grayness quite apart from the dubious accuracy of Scott's assertions about heterosexual marriage's future.
Indeed, the claim of a reasoned complexity of perspective among those who advocate for further normalization of homosexuality is beginning to appear as an easily removed robe. And perhaps those opposing the process can be forgiven for wondering whether the American Bar Association let the cloak slip a little, and prematurely, when it proposed changing its ethics policies in order to ban judges from joining groups that "discriminate" against gays. As the relevant commission leader, Mark Harrison, put it, the object is to "make sure that judges aren't viewed as bigots." What groups would make such a view possible is up in the air. The National Guard? The Boy Scouts? The Catholic Church?
Volokh dubs it "pretty sad" that "[m]aybe we do have, as a practical matter, a choice between a regime that suppresses the liberties of homosexuals and benefits those who don't approve of homosexuality, and a regime that benefits homosexuals and suppresses the liberties of those who don't approve of homosexuality." Sadder still, in my view, is that society's choice between these two paths is appearing more and more likely to be made not on the basis of which tilt is ultimately better for future generations, in the complicated summation of effects, but which group has the power and will to force the wheel and make of the opposition a speed bump — rather than a legitimate marker of a speed limit.
Attorney Jim Geoly posted something on the Marriage Debate blog that struck me as both true and curious about the Washington state judge's recent ruling that, if it withstands an appeal, will bring same-sex marriage to a second state:
These people are building a very cynical federalism case against the federal DOMA: that the "states" should have the right to decide the issue. They will point to Quill/Glucksberg upholding the states' right to decide the physician assisted suicide issue. The irony is that, within each state, they are hijacking the democratic process and relying on activist judges to impose SSM under state constitutions that were never intended to guarantee this "right." They are overturning the will of the people of states like Mass. and WA, and then using that result disingenuously to argue that "the people" of Mass. or WA have opted for SSM, and should be allowed to do so. Very tricky stuff.
I agree in substance and in reaction to what Geoly is saying, but what I find curious is that it's just being noted now; I guess there's a tendency to forget how deeply one has dug into an issue. And if one has paid attention as advocates for same-sex marriage have hashed out their arguments over the years, it has been clear what their rhetoric vis-à-vis the courts would be. Here's Jonathan Rauch in the midst of a series of essay exchanges on National Review Online in August 2001:
In Vermont, state judges effectively ordered up a civil-unions program. In Hawaii, judges ordered same-sex marriage (the voters overruled them). Though I don't know enough about either state's constitution to have a good legal opinion, my knees jerk in the direction of thinking that both sets of judges overreached. So, Arkes asks, how about a U.S. constitutional amendment preventing state judges from foisting gay marriage on a state? Would I support that?No, because I believe in federalism. I can't very well oppose, on federalist grounds, stripping away states' power to pass same-sex marriage while also advocating stripping away state courts' power to interpret state constitutions. I may not have liked what Vermont's judges did, but the question is whether Vermont should be allowed to have a system in which the judges could do it. If the answer is no, then people outside Vermont could wind up deciding how many chambers the state legislature should have, whether state judges are elected or appointed, how often the board of prisons should meet — you name it. ...
Unless some federal prerogative is impinged upon (and none was in the Vermont civil-unions case), reining in Vermont's judges is the business of Vermont's voters. So I think the feds should stay out. (I'm surprised to hear myself patiently explaining all this to conservatives who are supposedly proponents of federalism. Oh, well.)
First, I should note that this passage was written before Goodridge left the more federalist-friendly turf of "civil unions" behind for the field of marriage. However, Rauch repeated the principle parenthetically in a February 2004 email to Nick Schulz, saying, "Activist state judges are the states' business, so long as no state can impose its own decision on others."
Second, as Geoly suggests, these un-reined-in judges aren't without their likely effect on the federal system. How many times must the process repeat — must judges behave in this fashion — before one can begin to see theirs as a concerted effort? By asking that, I don't mean to imply the convenient answer of "two," but if Rauch can get away with jumping from a limited, specific restriction on state judges all the way to warnings about dictated schedules for prison boards, I think mine is a legitimate question. If judges begin to act as a sort of federal ruling class, do "states' rights" translate into a barrier from working together to restrain them?
(For the sake of my specific point, with this post, I'm leaving aside my belief that Rauch begins to run afoul of Article IV, Section 4, of the Constitution, which "guarantee[s] to every State... a Republican Form of Government.")
Not surprisingly, for his part, Andrew Sullivan dismisses this area of thought with a simple wave of his hand. Here he is in December 2002:
As to equal protection, you could indeed argue that granting a very basic civil right to a majority and denying it to a minority is an obvious case of inequality. Perhaps one day in the distant future, SCOTUS will see this. I certainly hope so. But is it likely now? Or immediately? Or even soon? One should recall that it's still constitutional in some states to single out gays in the privacy of their own homes and arrest them for sexual acts that, when performed by hetersoexuals, are entirely legal. (With any luck, SCOTUS is going to end that blatant injustice soon. And Kurtz, to his great credit, supports such a move.) But it's a huge leap from there to the Court's mandating gay marriage across the country on the grounds of equal protection. I don't know many scholars or legal observers who expect SCOTUS to take such a drastic meaure any time in the distant future. Of course, it's possible (whereas using Full Faith and Credit is almost certainly impossible). But it's extremely unlikely. Remember it took well over a century for the Court to rule on inter-racial marriages in this way. The relevant question is whether it is so likely in the short term that we have to take the drastic step of amending the Constitution of the United States itself to prevent such a thing from happening. That's where Kurtz and I disagree. I believe individual states should be able to decide for themselves. I believe that state courts - where marriage questions rightly belong - should also rule on a state-by-state basis.
So, Sullivan believes that marriage questions rightly belong in state courts, and Rauch believes that states ought to be empowered to have judiciaries that can usurp legislative prerogative. Presumably, in either case, should it ever so happen that the courts appear intent on coordinating their efforts, state to state, it will fall to the people of each state, through the generally arduous task of constitutional amendment, to stem the tide — all the while facing the prospect of Supreme Court negation of their efforts.
That would seem to represent an imbalance of dexterity. Why not give the people of each state a head start through passage of a higher legal statement than judges can reach, one that by its nature requires the involvement of direct representatives throughout the country in order to pass?
Moral culpability is not entirely lashed to a measurement of distance, and finding excuses not to look along the line of likely outcomes of a given decision, far from absolving one of responsibility, is itself an immoral act. That, in a nutshell, is my response to a point in the comment section of this post. After I'd suggested that knowing homosexual couples is irrelevant "to whether same-sex marriage is intelligent or dangerous public policy," liberal periodic commenter Angie wrote:
I believe that people who are arguing against SSM do not know any gay couples. If you socialized regularly with gay couples--benefits, dinner parties, workplace--you would not be too popular if they knew you were writing hundreds of thousands of words on the computer daily about why THEY should not get married while you yourself are married and enjoying the benefits of that. And besides that, you'd have a face and a personality to add to the subject matter. Not just a logical analysis. Similar to how I believe most pro-life advocates either cannot bear children or they have a loving partner who will support them emotionally and financially should an accidental pregnancy occur. Just another way to think about these issues which leaves out the legal/logic/ethic speak and brings real humans into the picture.
Reread this sentence:
If you socialized regularly with gay couples--benefits, dinner parties, workplace--you would not be too popular if they knew you were writing hundreds of thousands of words on the computer daily about why THEY should not get married while you yourself are married and enjoying the benefits of that.
I have no doubt that this is true. In fact, I wouldn't be surprised if confronted with evidence that those hundreds of thousands of words have contributed, directly and indirectly, to my current state of semi-employment. But unless Angie is offering an enciphered explanation for her taking the wrong position, the reality of interpersonal influence is irrelevant both to the substance of the issue and to the moral responsibility to take the right position. It is a sign of the apathetic turpitude of our times that precisely her formulation likely underlies the tacit responses to this sort of matter across our society. One would think that liberals, of all people, would applaud a principled stand against the demands of social pressure.
Furthermore, it's simply to state the factual to note that the activists and their friends in the media have ensured that the same-sex marriage cause will not lack for sympathetic faces and personalities, piled on top of decades of cultural-elite effort to normalize homosexuality generally. And that's entirely apart from the people who've contacted me personally over the past few years, as well as those whom, yes, I do know. I can only ascribe it to a baseline spiritual desperation, in our society, that so many have brushed off the wisdom that broad decisions can be skewed if made while embroiled, or by those who are embroiled. Whether the topic is homosexuality, abortion, or any other matter with emotional weight, it remains true that we ought not — cannot — leave out the "legal/logic/ethic speak" that becomes more difficult as we approach the adverse consequences of choosing the correct path.
Look, reason tells me that human life begins at conception and that, for the sake of society, for the sake of humanity, we must hold to the moral principle that human life is uniquely and individually valuable. Destitution, much less inconvenience, is not sufficient justification for taking another's life — no matter what rhetoric we might employ to depreciate that life. Similarly does reason tell me that marriage is central to the health of our society as well as — and this is important — the well-being of those most dependent upon our social foundation. Reason also suggests that same-sex marriage, especially within our modern context and considering the mechanisms through which it is being thrust into the law and the culture, will further the corrosion of the institution.
If any group that must be factored into these decisions lacks for the sympathy that flows from "a face and a personality" it is those who have yet to be born. (Consider the enthusiasm with which pro-lifers have met increasingly detailed sonogram pictures.) It is easy to respond to the pull of loved ones' desires; it is somewhat less easy to hear the pleas of the countless people who will inherit whatever society we manage to bequeath. To blind one's self to the latter through deliberate focus on the former compounds moral travesty upon moral error.
Although I strongly suspect that it represents one of those cultural instances in which the difficulty of expressing a human truth indicates how central a truth it is (leaving it susceptible to exactly the sort of corrosive intellectual trap that has become so popular among intellectuals in the last century-plus), I've been trying to frame my thoughts sufficiently to address a line of argument that Gabriel Rosenberg has been pursuing recently:
I find the prohibition against SSM extremely unjust because of its discrimination on the basis of sex. This is apart from the positive reasons I support SSM as simply good public policy, but the injustice I see drives me to push for SSM more than other mere policy changes I advocate. It is also why I see this as more than a mere policy disagreement to be decided by the legislature. In my next post (whenever that may be) I will look at arguments some make for why the discrimination is justified. In this post, however, I want to deal with those arguments that seek to avoid justifying the discrimination by claiming it just isn't discrimination (as least not based on sex)...
Overall, what bothers me about Gabriel's methodology is that it deconstructs the idea under observation (traditional marriage, in this case), discarding each individual component as insufficient to justify exclusion of a conflicting demand, without giving adequate weight to the thing as a whole. But what has inspired me to raise the topic here somewhat prematurely is the following passage from Jeff Miller's post on the Vatican's recent document, "On the Collaboration of Men and Women in the Church and in the World":
The following paragraph is what will get the most attention by the media.A second tendency emerges in the wake of the first. In order to avoid the domination of one sex or the other, their differences tend to be denied, viewed as mere effects of historical and cultural conditioning. In this perspective, physical difference, termed sex, is minimized, while the purely cultural element, termed gender, is emphasized to the maximum and held to be primary. The obscuring of the difference or duality of the sexes has enormous consequences on a variety of levels. This theory of the human person, intended to promote prospects for equality of women through liberation from biological determinism, has in reality inspired ideologies which, for example, call into question the family, in its natural two-parent structure of mother and father, and make homosexuality and heterosexuality virtually equivalent, in a new model of polymorphous sexuality.In fact that is one of the paragraphs that Todd of Catholic Sensibility cries out against it saying:
Ah! Feminism is the root of the Gay Rights Movement. This is incisive reporting that would put the NCR to shame.I would guess the NCR he is referring to the National Catholic Register and not the National Catholic Reporter. But Cardinal Ratzinger is exactly right here when he equates the interchangeability of the sexes that modern feminism proclaims as inspiring other ideologies. If men and women are not different except for the mechanics of reproduction, then homosexual sex and same-sex marriage can not be seen as different from heterosexual sex and marriage. The moral teachings of the Church are like an orchestra that requires all parts to support each other. To remove one teaching is to introduce a dissonance that weakens the rest.
As hinted above, I think Jeff's notion of orchestral erudition extrapolates to society — humanity — more broadly (which is what one would expect if the Church's teachings are Truth). Tear out one societal premise, no matter how intellectually sound the arguments for doing so may seem in an intellectual context, and others are apt to go awry. This is one reason that, no matter how much it may irk rebellious adolescents, the statement "it has always been this way" ought to present a very high burden to change.
Now, I don't know Todd's position on same-sex marriage, and Gabriel's thinking hardly hinges on the degree to which Todd's reaction to the Vatican's statement is justified. However, I think that reaction has probably been pretty common in such exchanges, particularly among those who, unlike Todd, aren't Catholic or, especially, religious themselves. And thus does change occur in our messy progression toward collapse: a tradition-based argument for tweaking our conception of a particular modification — the more equitable treatment of women, in this case — is dismissed through mere assertion of sense. Then, somebody offers a plausible argument, from a progressive point of view, for why that sense might be incorrect — requires enunciated justification, at least — and the subject of the original warning moves from something that won't happen to something that should happen.
In some respects, this is the mechanism of the "slippery slope." Declarations that E will not be a consequence of D, and can therefore be discarded in consideration of D, transform into belief that D requires E.
In the case of same-sex marriage, when proponents argue that F will not be a consequence of E, they mean such things as polygamy, incest, and bestiality, but I think Gabriel has brought into the light a more deeply destructive F. In the comments to a now-buried post on this blog, he wrote:
If androgeny is akin to the argument that no particular relgion is more true than any other, then I do support the government taking the androgenous position. That does not imply I believe or think others should believe we are androgenous, just as I do not believe that all religions are equally true. Just as I think we should be free to determine for ourselves what is true in theology, I think we should be able to determine what the essence of gender is. ...Should the government respect established gender norms. I do not believe so, because I think that we should each be free to establish for ourselves what gender means to us.
I apologize for what you consider parlor tricks, but I'm doing my best to explain why I can think gender is very real and important, and yet not want it to be a factor in determining the validity of a marriage. That is my primary concern here. I'm trying to make it clear that I am not arguing that gender is insignificant or unreal, and I'm not sure that is understood. ...
By the way, I'm not offering suggestions to God. I fully understand the God made us with gender differences. I do not wish it to be any other way, and I thank God for making me who I am. That does not imply, though, that I think those differences ought to be used to prohibit marriage.
I still intend to make an attempt to explain my bottom line for gender norms and differences, but for now, note what has occurred in Gabriel's argument: although he wishes to avoid the practical and public-opinion burdens of advocating androgyny, he will admit that he doesn't believe it the government's place to dictate gender roles even to the degree of acknowledging differences between them within the family. Just as, however, governmental neutrality toward religion has been transforming into government enforcement of public non-religion, complete governmental neutrality toward gender will transform into enforcement of public "non-discrimination." In fact, that "just as" might be somewhat understated, because government recognition of marriage gives the institution a public force that religion lacks.
Some among America's religious citizens, myself included, have begun to wonder whether the Founders of our country oughtn't have been a bit more specific in describing what "neutrality toward religion" should mean. That common slogan: "freedom of, not freedom from." If our government and our society had institutionalized recognition of the importance of some form of religious practice within citizens' lives, it would have been roughly analogous to marriage, for gender. For example, part of "the separation of church and state" is that people do not register their relationships with God for any sort of government benefits; marriage is just such a registration of a relationship with another person.
Marriage, in one of its aspects, is society's way of acknowledging that, yes, there are important, undeniable differences between the genders and that those differences are of particular importance in the context of family, and particularly to the well-being of families' children. Individual citizens and individual families are free to define the essence of their various roles as their personalities and beliefs require, but society privileges a certain framework for thinking about those roles. A wife and mother can do everything that she believes is traditionally allocated to husbands and fathers, but she will still be a "wife" and a "mother." In this way, all of those qualities that human beings are supremely unqualified to judge and generally unable to change are still aligned with the roles that millennia of evolving tradition have honed.
Removing society's ability to reinforce this alignment through government recognition of marriage will, first, undermine general comfort in acknowledging that gender is a significant contributor to personality. Second, it may very well turn around to government enforcement of public androgyny such that, not only will citizens be allowed and even encouraged to see "the essence of gender" as a nullity, but they will be required to act as if that is the case no matter what they believe.
ADDENDUM:
I've simply run out of time to further consider and clarify the substance of this post, but if any specific point or intellectual transition isn't clear, please let me know, and I'll try to address the inadequacy.
On the Marriage Debate Blog, which is increasingly must-reading material for those interested in the issue of same-sex marriage, a current topic of discussion involves the likely repercussions for religious organizations should same-sex marriage become the law of the land. As part of a rebuttal to Anthony Picarello's description of some areas in which religious organizations may be compelled to pursue First Amendment lawsuits, Barry Deutsch writes (with an internal blockquote from Picarello, ellipsis Deutsch's):
Second, resisting churches may face targeted exclusion from public facilities, public funding streams and other government benefits. [...] For example, religious groups have already been excluded from public contracts. New York City has passed a law requiring any contractor doing more than $100,000 in business with the city to extend health benefits to same-sex domestic partners. Groups such as the Salvation Army--which has provided the city with millions in contract services for the needy--will be excluded from participation in those contracts because of their religious convictions.Again, so what?
No one is denying the Salvation Army the right to their religious convictions. However, neither the Salvation Army, nor anyone else, has a right to be free of all consequences for their decisions.
Voters are free, through their elected representatives, to set up rules regarding who the government will and won't sign contracts with (within Constitutional limits; voters are not free to make a "this city will never contract with Jews" law). All employers - religious or otherwise - can set their hiring rules so that they qualify for government contracts, or not. But when the Salvation Army or any other employer freely chooses hiring rules which exclude them from government contracts, then that's their own decision, and they've freely chosen to suffer the consequences.
The first thing to note — after chuckling at an SSM proponent's appeal to voters' rights — is that Deutsch has cut out the more difficult example of the Boy Scouts' experience, in which the Supreme Court's affirmation of its First Amendment rights with respect to hiring gay leaders was hardly the end of the story for the group. Yes, he is right that the Salvation Army has simply run into the consequences of its conflict with a direct statute (and many Christians have applauded the organization's willingness to stand up for its principles), but that case is just an example, not the totality of the reasons for concern.
Indeed, discussing such possibilities now is not an attempt to make a legal argument that religious organizations should have "an absolute pass from employment law," as Deutsch puts it, but an effort to persuade citizens and lawmakers that the innovation of same-sex marriage will have far-reaching and largely unintended effects. For example, consider the variation of the argument involving religious organizations' inability to offer health insurance just to heterosexual married spouses should marriage become de-gendered. In this case, the public will not have "set up" the rules in which the organizations are tangled — especially if the law is changed at the command of a judge.
More deeply relevant, however, is that Deutsch intellectually elides an entire aspect of the debate with his parenthetical "within Constitutional limits; voters are not free to make a 'this city will never contract with Jews' law." The constitutional limits are the question. In effect, a law saying "this city will never contract with groups that recognize only opposite-sex marriages" is to say "this city will never contract with Catholics" (for one).
Deutsch may or may not choose to wade into the morass of conflicting rights and discrimination (which, after all, was the context for Picarello's statements), but it would be of questionable consistency for same-sex marriage advocates to start touting the difference between explicit discrimination and discrimination "in effect." This is particularly true for an SSM advocate who has attempted to argue that opposition to SSM and bigotry are related by definition.
ADDENDUM:
As is often the case with the posts of bloggers who support same-sex marriage, I found the comments to Deutsch's entry to be instructive.
Joe Buck's comment begins with a point that's worthy of debate: that the conflict, at least in the case of health insurance, stands as an argument for a single-payer system. While I would strenuously oppose the "single-payer" aspect, I do believe that healthcare ought to be dislodged from employment packages. But then Buck's alternative suggestion relates to a central problem with the movement for SSM: "Or, they could allow the employee to name any person (say, a mother or a brother or a friend) to receive medical benefits." More broadly applied, that's a mandate for the dissolution of marriage.
Next, Steve Duncan turns up the flame on his rhetoric:
Another 4 years of Dubya and the same sex marriage debate will be moot. We'll be discussing whether the corpses of gay people are better disposed of through incineration or burial in trenches. This is truly a gang of evil, vile, murdering thieves we're saddled with.
It isn't entirely clear how far into the society Duncan extends inclusion in this "gang of evil, vile, murdering thieves," but suffice to say that I don't suspect he'd much object to legal penalties for groups that discriminate against homosexuals. It's easy to justify regulation of what one considers to be evil.
And lastly, unless I'm misreading the intent, Echidne seems to offer one way in which such penalties could be instituted:
It's interesting that because we don't have civil rights laws about individuals as consumers the religious institutions can and do decide which services should be available for all. Think of Catholic hospitals and their policies about vasectomies and abortions. In fact, it's sort of curious that the federal laws provide no protection for discrimination when we act in the role of consumers.Maybe this is what should be corrected, rather than a further reduction of the protections via the manipulation of employment protections?
Whatever the merits of Picarello's legal argument, I can't say I blame my fellow social conservatives for being concerned about the directions in which the "gay rights" movement could break if it achieves erasure of distinctions in the public institution of marriage.
ADDENDUM II:
Immediately upon shutting down the computer last night, it occurred to me to question Deutsch's assertion about an organization's right to withhold benefits from the spouse of "a divorced and remarried woman." Is this true — not as a matter of organizational policy, but of law? I'm not so sure; for one thing, I wasn't aware that divorcees represent a constitutionally protected group.
Whether it's true or not, it oughtn't be true. Perhaps the differing perspectives, here, have to do with political leanings and one's belief in the wisdom of endowing government with broadly and deeply reaching regulatory powers to enforce, through labor laws and the like, a regime of life choices that must be considered acceptable.
When I requested his entrance into the debate about the constitutionality of the Marriage Protection Act, Eugene Volokh emailed that he lacked time and expertise to comment appropriately. Subsequently, it appears that either his interest was piqued or the sheer number of inquiries made some sort of comment expedient.
Anyway, although he doesn't mention my take, I'm glad to see that the professor agrees with me:
People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars.
Of course, Mr. Volokh also notes that the very fact that the issue would fall to the state courts is problematic for those who oppose same-sex marriage in that state courts could rule it unconstitutional in their own states, putting pressure on fellow judges to rule in harmony and leaving no overriding recourse, except constitutional amendment(s). Whatever the case, the wisdom of the act seems to me a murky judgment to make; if we're presuming that judges are more likely to rule in favor of same-sex marriage than not, then I incline (somewhat) toward at least requiring the rulings of no fewer than fifty courts — that are subject to varying degrees of regulation by fifty-one legislative bodies.
Still, I agree that "if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment... is indeed the first-best alternative, especially when it seems like it could well be politically plausible." Word on the street is, however, that the Senate won't even let the Marriage Protection Act through, so I'm not sure why an amendment version would fare better.
Marty McKeever notes a story about a new Spike Lee movie, She Hate Me, that I had noticed, but was too busy to give due consideration. Here's "lesbian author and sex educator" Tristan Taormino, whom Lee hired to keep the movie real through "Lesbian Boot Camp":
"At the very end of the film, Spike purposely leaves the Jack-Fatima-Alex relationship ambiguous," she said. "It's clear that the three are all co-parenting the kids, and [lesbian couple] Fatima and Alex are very much a couple. But it's not clear what their relationship to Jack is. To me, the end is a radical vision of our future, a future where the heterosexual nuclear two-parent family is not the dominant model."
Suggests Marty:
Keep this in mind the next time a gay marriage advocate tells you they won't support polygamy. Not only will they support it -- gay activists will be the driving force behind it. Even two committed lesbians know that children need a daddy...
People approaching this issue from various angles will react differently to Marty's prediction. Those who would claim that he's being absurd should consider the Canadian case that I pointed out in March 2003, in which a lesbian couple went to court to have the biological father of their child certified as a third parent. To be fair, I should mention that, as Stanley Kurtz reported the following month, judge David Aston turned the group down, despite having declared his desire to do otherwise.
Whatever the outcome of further appeals in this case, Judge Aston's legal thinking isn't likely the end of the story. Apart from jurisdictional boundaries, he acknowledged the "slippery slope" argument: "If a child can have three parents, why not four or six or a dozen? What about all the adults in a commune or a religious organization or a sect?" If anything, this barrier need be only temporary; it isn't difficult to imagine a court taking the intermediary step of opining that a family can reasonably include the two married parents and then a third, biological, parent. See? There's no need to go beyond that compassionate recognition of real families for the benefit of the children involved. (Until a lesbian couple has a child with a donated sperm and a donated egg, and/or until the principle of "actual parenthood" gains sufficient legitimacy to be inserted into the law.)
As for the likelihood that the average same-sex marriage advocate will stand in the way of multiple parenting and polygamy, well, I think Marty's commenter "Wilma" provides an opportunity for insight:
What nonsense! Gays and lesbians have the same affection for committed, two person relationships as heterosexuals do. Polygamy is condemned because it is denigrating to the women involved.
This ludicrously jumbled thinking will unravel with the first tug on emotional strings. Leaving aside the undemonstrated assertion about homosexuals' institutional "affection," the explanatory sentence undermines the point. As Marty subsequently suggests, the obvious question is how a biological father's inclusion would be denigrating to his two spouses. Wilma responds by applying the difficulty of "shared affections," which plainly wouldn't apply in a scenario defined by the women's lack of affection for men; it also takes into account neither gay male couples and their lesbian egg donors nor polygamous relationships made up entirely of women or of men.
Immediately, it is clear that traditional arguments cannot hold in a new world in which homosexuality has been declared as no more significantly different from heterosexuality than a minority race is from the majority. This is true even when homosexual activists are the ones attempting to make the traditional arguments. And experience leads me to believe that, when reality forces folks like Wilma to address the illogic of their thinking, they will merely discard the old points in exchange for enlightened acceptance of the new paradigm.
Josh Chafetz declares — with a bit more confidence than circumstances (or the law) merit — that the Marriage Protection Act, already passed by the House, is unconstitutional:
Congress cannot strip the federal judiciary of the ability to hear or decide any question pertainint to the interpretation of, or the validity under the Constitution of, the Defense of Marriage Act. Sorry, guys.
As you can probably glean from Chafetz's response to it and its name, the Marriage Protection Act specifically removes the Defense of Marriage Act — defining marriage for federal purposes and affirming states' right to reject the same-sex marriages of other states — from the federal judiciary's jurisdiction. And as you can glean from the fact of the act, many in the U.S. Congress apparently disagree with Josh's constitutional analysis. The reality is that the question of Congress's power over the judiciary is very much open to debate, with legal precedent to support both claims, right down to varying interpretations allowed by the Constitution itself.
Before I delve into that mire of nuance, however, it might be helpful for me to ease into the discussion by addressing a burden that Chafetz supposes those who disagree with him to have:
People who disagree with me also need to explain the Eleventh Amendment. After all, the Eleventh Amendment is just a jurisdiction stripping measure. (It strips diversity jurisdiction rather than federal question jurisdiction, but I can't see why that would be relevant.) If Congress can constitutionally strip jurisdiction at any time, then why go to all the trouble of passing a constitutional amendment for the purpose? To put it differently, if you disagree with my analysis above, then, assuming the Eleventh Amendment hadn't passed, why, on your theory of Article III, couldn't Congress simply have passed the Eleventh Amendment as an ordinary statute? And if they could have, why didn't they in the first place?
The first paragraph of an annotation from Chafetz's own source for constitutional text points the way to a response. Not only did the Eleventh Amendment follow a Supreme Court assertion of jurisdiction (thus being reactionary rather than preemptive), but it dealt with a matter of "original jurisdiction," around which the Constitution does not provide for congressional regulation.
Already, you see, we're in the thickets of legal jargon. Article III, Section 2 of the Constitution lists the matters to which the judiciary's power "shall extend" and describes the form of jurisdiction — original or appellate — that the Supreme Court will have. Cases falling under original jurisdiction go directly to the Supreme Court, and Congress has no statutory power; those falling under appellate jurisdiction reach the Supreme Court through appeal, "with such Exceptions, and under such Regulations as the Congress shall make."
Although the case that sparked the Eleventh Amendment had to do with matters of assumpsit and process about which my knowledge is too limited to comment, the need for the amendment in order to accomplish its end is clear. Cases "in which a State shall be Party" fall under original jurisdiction, so for Congress to remove cases in which a state is the defendant against citizens of another state or a foreign state, as the Eleventh Amendment does, the Constitution itself had to change. In contrast, claims against DOMA — with the U.S. government as defendant — would fall under appellate jurisdiction.
Now, consider the conclusion of the above-mentioned annotation:
There thus remains a measure of doubt that Congress' power over the federal courts is as plenary as some of the Court's language suggests it is. Congress has a vast amount of discretion in conferring and withdrawing and structuring the original and appellate jurisdiction of the inferior federal courts and the appellate jurisdiction of the Supreme Court; so much is clear from the practice since 1789 and the holdings of many Court decisions. That its power extends to accomplishing by means of its control over jurisdiction actions which it could not do directly by substantive enactment is by no means clear from the text of the Constitution nor from the cases.
Even here, the Marriage Protection Act seems to fall on an interpretable line. I continue to believe that DOMA is constitutional, and I'm not at all persuaded that the least accountable branch of the federal government ought to be empowered to demand an interpretation at odds with those expressed by the other two branches, particularly if subsequent iterations of those branches reaffirm the constitutionality of the law through a removal of jurisdiction.
That, however, is more a political assessment than a legal one. To come to the objective conclusion that the Marriage Protection Act is constitutional, one must clear the highest hurdle that Chafetz notes:
People who disagree with my analysis above have, I think, an obligation to explain why Art. III, sec. 2's statement that the federal judicial power "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority" doesn't actually mean that the federal judicial power shall extend to all such cases.
The crux of Chafetz's preceding analysis is that the Constitution extends powers to the judiciary as a whole, such that "some federal court is given jurisdiction over those questions"; where appellate jurisdiction is impossible, it transforms into original jurisdiction. At the very least, one can opine that, had that reading been their intention, the Founders could have phrased the concept in much more direct terms. As it is, hinging on the phrase "shall extend," I don't think the language justifies such a sweeping interpretation.
As I see it, Article III, Section 2, is structured to describe the reach of the judiciary and then to specify how that reach applies. The jurisdiction of the only court created by the Constitution extends to Set A inalienably and to Set B subject to regulation and exception. Chafetz emphasizes that "shall extend" is different from "may extend," but as important a distinction as that may be, it does not mean that "shall" is equivalent to "under all circumstances and with no exceptions." That the Constitution lists all areas of reach need mean only that the Court's jurisdiction over them is meant to be the negatable default, not that it is sacrosanct.
It would certainly have obviated this debate had the authors included language saying, essentially, that appellate jurisdiction becomes effectively null when there are no lower courts or when the lower courts exist with limited authority. On the other hand, it would have been similarly helpful for the authors to have included language clarifying Josh's contention that the reduction of jurisdiction to appellate is contingent upon the existence of other federal courts. Even something as simple as "the supreme Court shall maintain original Jurisdiction" would have sufficed.
I'll concede that the matter is legitimately arguable, and it will be interesting to see what happens should the Supreme Court assert jurisdiction over a statute that claims to be free of its jurisdiction. But given the legitimacy of debate, which no honest disputants can deny, I'm inclined to err in the direction that favors the two branches of government manifested in hundreds of elected officials, rather than the one with nine life-tenured judges. Frankly, I continue to marvel at the general inclination — which I see as anathematic to the spirit of our representative democracy — to err in the other direction.
In the comments to this post, supporters of same-sex marriage — namely Gabriel Rosenberg and Mark Miller — continue to argue about the likely subsequents according to their own personal views concerning the whys and hows of their cause. Gabriel, for example, notes that if "you base your support on SSM on the right of the individual not to be denied equal protection on the basis of their sex, then there is no inconsistency in supporting SSM, but not polygamy or incest."
This is an argument that should be directed at supporters of SSM, not opponents. How many times must those opposing SSM explain that it is not only the nature of the change being sought, but also the method and thinking being brought to bear that threaten the most harm? At this time, with the logical and practical tack being taken by those advocating for SSM, it is incumbent upon anybody who would prefer to keep polygamy, incest, self-marriage, and so on out of the American norm and to bolster the principles enshrined in the institution to oppose that movement.
As things stand, even out to the edges of support for same-sex marriage, there's a clear mandate for it to be inserted into the law no matter the method. This has been among my central complaints from the very beginning — that those who wish to tear down barriers within marriage are reckless in their tearing down of the institution itself as well as presumptions and standards in the law and our governing system.
This problem can be seen in the negative, as well, with the only possible objection to any and all strategies from the SSM movement being seen as bigotry. It's an easy way to dismiss the other side's points, and it facilitates high self-esteem for those leveraging it. But it also blinds supporters to ramifications of their righteous demands.
The questions to which the fight comes down are whether it's more important to protect the institution or to be on the side of same-sex marriage, whether marriage is worth taking the position that is emotionally more difficult to ensure that the strength of the institution — if eventually expanded — justifies the struggle to grant it to gays or is worth risking so as to be on the "right side" of a civil rights issue, and whether maturity demands that what may be the wrong side wins for the right reasons or intellectual tricks and emotionalism free the movement of its consequences.
Thanks to reader Mike S. for pointing out this factoid courtesy of NRO:
In 1983, a Vermont legislator named Elizabeth Edwards introduced a bill to allow a 65-year-old woman to marry her 86-year-old maternal uncle, despite incest laws banning the match. Edwards, a Republican (only in Vermont, kids!), figured that incest laws were primarily about preventing defective offspring, and her neighbors Ramona Crane and Harold Forbes were too old to bear children. "They're a super-neat couple who don't have any money, and they just have each other, and I think they should be able to get married if they want to," Edwards told United Press International for a February 23, 1983, story.
I see nothing in Ms. Edwards's thinking that does not apply to same-sex relatives of any age. Once again, those who would rearrange our thinking about marriage to include couples involving one sex have to address the claims of those who prefer other forms of sex, as well as those who have no intention of having sex at all.
If they want to argue that there's some social good to be derived exclusively from recognition of gay sex, that's fine. They can argue the point and bring it to their fellow citizens. But leveraging the courts to declare various new rights is not an adequately subtle a mechanism. If they really do believe as many SSM advocates are content to claim, then it seems to me increasingly clear that they ought to be on the other side for the time being — until the circumstances, the rhetoric, and the strategies have shifted.
One final response to the comments to that post, and then I'm considering myself caught up and going to bed. Tomorrow, I'll return to my search for blog-worthy material, hopefully having to do with other topics than same-sex marriage.
Jon Rowe writes:
[Polygamy, incest, bestiality,] & Homosexuality each wholly distinguishable phenomenon. The only thing they have in common is being frowned on by tradition. But equally has interracial couplings. Thus, homosexuality is no MORE logically related to these things than are interracial couplings. The bottom line of my point is examine each on a case by case basis.
There are various ways to argue against this point, but most relevant to the discussion, I'd say, is that there's an extra step required for same-sex marriage to follow interracial sex and marriage. To allow such activities for couples of differing race, all that was required was to assert that there was no significant difference between the races. Self evidently, therefore, there is no significant difference between the type of sex or the form of marriage indicated.
The same is not true for homosexual couples. In their case, it is patently absurd to argue that there is no significant difference between the sexes (although some try to argue just that). The equivalence that must be added to the mix is between the types of sex. And therein lies the step too far.
As Jon had already relied upon in a response to Ben, we still consider the difference between humans and beasts "profound," so — without intermediary steps — the leap from interracial to interspecies is too long to be plausible. However, to include homosexuals in the same category as heterosexuals, one must argue that the totality of gay sex is no different from the totality of heterosexual sex. I find the necessary level of equivalence for this comparison to be laughable, but those who would make it must illustrate why one form of non-heterosexual-vaginal sex is significantly different from another — not only in theory, but in the terms in which homosexuality is actually being "normalized" (e.g., with reference to "choice," "consent," and "privacy").
Another, more-common approach is to argue that the form of sex is not relevant to marriage. In this case, the difficulty of differentiating other forms of sexual relationships reappears. Additionally, one must explain why the presumption of sex continues to matter at all — a line of thinking that is likely to open the way for incestuous marriages.
A related problem has accompanied the gay movement, as a civil rights movement, all along. Unless gender is seen as no more significant than skin color, homosexuals are defined by what they do and how they live their lives. Striving to change laws and customs to include them loosens the strainer for behavior, choices, and lifestyles in a way that merely declaring nonexistent a distinction by a specific quality does not.
Whether it is deliberate or not, it has seemed to play out that some advocates for same-sex marriage take up the task of arguing the points, during which process they wind up making the clarifications and even concessions inherent in discussion. Then other advocates push the issue in a conflicting way, and the arguers merely adjust their rhetoric to incorporate the current circumstances or ignore what's been done and said.
Gabriel Rosenberg provides a largely symbolic example when, in response to my objection to the term "life mate," he offers alternatives that I might find more culturally satisfying. The point that he manages to sidestep is that his inclination was to use the phrase "life mate." Another advocate for same-sex marriage, James Trilling, referred to his own wife as a "life partner." In Massachusetts, the marriage license is for Parties A and B; in San Francisco, it was for Applicants 1 and 2. The response that my pointing this out is meant to spur is not a search for language that will placate me, but an appeal to other advocates to change their emphasis.
Indeed, I'm coming to think that many of those who argue on behalf of same-sex marriage should, if they mean what they say, be actively opposing the cause as it is currently constituted. Jon Rowe (esquire) argues that same-sex marriage will not allow incest, polygamy, and whatever to slip in after it because gender-based classifications involve "suspect classifications" and must overcome "intermediate scrutiny," while other categories can be excluded with just a "rational basis."
Let's put aside the fact that Jon is seeking to comfort his opponents by arguing that there's "just as much logical legal distance between" between SSM and further innovations as he is attempting to leap to reach SSM in the first place (from racial discrimination and "strict scrutiny"). The whole argument will be mooted if courts continue to do as the Massachusetts Supreme Judicial Court did in creating same-sex marriage for that state: it found that restrictions against same-sex marriage did not pass a rational basis test with reference to sexual orientation. Much of the argumentation of Jon's fellow SSM supporters is the rhetorical equivalent of the court's judgment. Shouldn't he oppose them in their efforts?
If the movement for this fundamental change — which many of its supporters will admit carries a certain risk — takes a tack that increases risks, shouldn't those who honestly seek to preserve the institution in question oppose them? Even to the point of supporting some form of Constitutional Amendment, if necessary?
Frankly, I can't help but conclude that many, even most, SSM advocates want the recognition — the normalization — of marriage for homosexuals more than they want to preserve a healthy institution. As Ben Bateman wrote:
Perhaps we can stop the sexual liberation juggernaut at gay incest (very unlikely), polygamy (unlikely), bestiality (somewhat unlikely), or pedophilia. I hope so. The question is: Will many of today's SSM supporters, who are riding the juggernaut, hop off in the future and help fight it? I'm skeptical, if for no other reason that today they refuse to think seriously about where it's headed.
In a comment exchange about discrimination by gender in, yes, that same post, Gabriel Rosenberg writes:
I do not get upset when men are turned away as surrogate mothers provided that women who cannot carry the child are also turned away. I do not get upset when women are turned away from a sperm bank, provided that men who cannot ejaculate or also turned away. In these cases the line is not being drawn on gender, but rather on the ability to do something. As I noted, in the marriage case it is not the inability to procreate that is the cause for refusal.
At a certain point, it seems to me, matters of discrimination come down to identity. Can a woman be a husband? A father? Of course not, and in neither case is the inability limited to the matter of procreation. If it is the identity that is under attack, we move toward Prof. Rosenberg's next paragraph:
It is not irrational at all for you to suggest that men make better male role models, and if you are looking for a male role model I would suggest you find a man. Being a good male role model is not a legal requirement of spouse. And some people might prefer to find a person who is a good role model as a human being--a person who models what a human being should do, and not what certain gender roles should be.
Ah, how we go 'round and 'round in this debate. Spouses may not be required to be "good male role models" in order to marry, but it is currently the law — rightly so — in most places that one of the two who enter into the relationship culturally most full of the potential to land the members in the central-role-model position of parents be a male role model. Those "some people" who prefer other arrangements are free to make them, but society is "looking for a male role model" in one member of each married pair. Moreover, society would confirm that intention if allowed to vote on the matter.
This would be particularly the case, I imagine, were the question phrased in these terms. Perhaps the public could be made to see the extreme underbelly of the ideology that same-sex marriage will usher in. The example embedded within the professor's quip is of a world in which one cannot impose views about "what certain gender roles should be" because the society demands that we ignore what the gender attributes actually are.
The previous post was, in part, in response to this comment from Chuck Anziulewicz:
I've heard that one before. Always guaranteed to get a knowing chuckle from a conservative audience. I even heard Michael Medved say it on his program: "Gay people have EVERY right to get married ... as long as they get married to someone of the opposite sex!" (wink wink, nudge nudge)The thing is, Michael Medved claims to know plenty of Gay people, so he knows how patently absurd such a statement is. He knows it isn't that simple. Yet he continues to say it. Why? Because it draws a chuckle. He has a talk show, the line is almost a joke, so why not have a few yucks at the expense of Gay people. He knows better, yet he panders to the ignorance of those in his audience who DON'T.
Why would you want to do this, Justin? You're married to a woman. You have kids. I'll ASSUME that you've never felt physical attraction to any other men. WHY? Because you are heterosexual. THAT is your sexual orientation, am I correct? It wasn't something you made a cataclysmic decision about, am I right? When you were going through puberty, did you say to yourself, "Gee, now that I'm becoming an adult, I guess I'll have to decide whether I want to be Gay or Straight. Hmmm, most people are Straight, and most people think homos are yucky, so I guess I'll just be Straight!" No, I don't think that was the case. I suspect that, like everyone else, your sexual orientation was just sort of AUTOMATIC, something you arrived at without much conscious decision. Please correct me if I'm wrong. ...
You are an intelligent guy, Justin ... which is why your contention that Gay people should simply marry people of the opposite sex is so insulting.
Chuck is wrong about the intent and, I'd wager, reception of my suggestion that homosexuals are not excluded from marriage. It isn't a laugh line; it's a sincere argument. What did make me chuckle, however, was the way in which he faulted Medved for oversimplification and then proceeded to oversimplify the mechanism of personal formation. Do many components of identity really come down to a decision?
Not to equate them, but the only three that I can immediately draw from my own experience have been to become a non-smoker, not to run away from an increasingly certain commitment to my then-girlfriend/now-wife, and to allow myself to believe in God. Note, however, that all three of these decisions were made as an adult and were renunciations of aspects of my identity into which I'd slipped during my formative years.
I can't speak for Michael Medved, but as far as I'm able to say, the point to which Chuck has failed to grant any credence is that many of those who oppose same-sex marriage really do privilege the family type indicated by marriage rather than the sexual relationship of the spouses. We really are defending an institution rather than a prejudice. We are not saying that homosexuals should marry people of the opposite sex (although it would make for an interesting discussion), but that they can. It's a legal question of discrimination, and a social question of priorities.
I remember one afternoon, during my late-mid teens, when about a half-dozen of us gathered in B's finished basement to watch a porn video, as rough-edged boys with easy access to a major city are particularly apt to do. Like most such films, the plot was superfluous — smut about filming fictional smut — and followed a predictable pattern of scenes.
When the obligatory "two women in the Jacuzzi" scene rolled around, L expressed disgust and requested that we fast forward to the next scene. It shouldn't surprise anybody who's kept abreast of the culture for the past couple of decades that none of the other adolescents in the room were willing to second L's motion.
About five years later, R's slut of a girlfriend — known among a separate group of my acquaintances from a different town for impromptu Jacuzzi scenes, so to speak — promised him a special surprise for his birthday. When R proved too drunk to follow the two young ladies up the stairs to his bedroom, if memory serves, L was among those encouraging him to sober up quickly.
There are, of course, multiple explanations that one could offer for L's apparent change of attitude. One could even quibble about whether it actually represented a change at all. But I place the two scenes side by side to illustrate how a person's reaction to the same sexual activity can change from disgust to arousal, at least in the expression of that person's opinion and suggestions for action.
In arguing about same-sex marriage over the past few years, I've found one foundation of individuals' positions to vary wildly in substance, but very little in the confidence with which they state their opinions: the immutability of the sexual orientation. I've seen folks on both sides, with the correspondingly antipodal lessons, argue everything from complete choice to genetic destiny. That assessments vary so widely in conclusion as well as perceived implications suggests to me that there is something mixed up with this issue that most everybody is content to leave out of the realm of public consideration.
I've made no secret about the fact that I went through a number of emotionally torturous years. During that time, I was usually lonely, confused, and lacking in a sense of self. Although I would have chosen different experiences, and although I intend to do my utmost to prevent my children from repeating mine, those years did grant me something that I've come to consider invaluable as a thinker, writer, and person: glimpses of directions in which my life could have gone had a single variable been changed.
As the case in point, I can begin with a specific man who was a rare friend to me when my world was crumbling and imagine him having inclinations and intentions that he did not have. From that relatively minor shift in circumstances, I can trace the accumulation of a lifestyle, as the identity that he'd helped me to form expanded to include more people — perhaps an entire "scene." As I'd thrown that identity against whatever visions my parents had of me and my future, forcing them to come to terms with their own feelings about my revelation, whether the clash preceded wrenching turmoil or some form of approval. Actions and declarations and bonds and associations might pile up to the extent that any other life would seem on the other side of and inaccessible except through repetition of those torturous years.
Now, some straights will note that, even in equivalent turmoil, the path that I've described was never a possibility for them. And some gays will insist that I'm describing a transition to something only superficially associated with their orientations. I've no reason to doubt either the sincerity or accuracy of any such statements. But I wonder how many people have some degree of a similar sense. How much might this be an unstated factor in the decisions that people make with respect to same-sex marriage?
To be sure, in some fronts of the battle, the causes and permanence of homosexuality are irrelevant. Even so, the discussion might find new routes toward resolution were people to break through their apparent confidence about the nature of homosexuality and openly discuss the bases for their opinions — both research and personal anecdotes.
Of course, mirroring the multiplying barriers to recantation of sexual identity, possible conclusions of such a line of thought will likely preclude its actually being followed. If sexuality is somewhat fluid, for example, then it becomes even more legitimate for society to single out a particular lifestyle and family type for special approval. More generally, there are as many motivations to deny or assert any given theory as there are personalities.
Despite natural reluctance, some light needs to shine into this corner of the debate. With key activists in the same-sex marriage movement citing (in certain venues) the increased sexual fluidity of children of homosexual parents as a positive development, it behooves we on the other side to raise the standard of personal honesty. The law must not be allowed to lead dramatic changes in our culture under circumstances in which an underlying something remains unspoken.
Too many points beg reply among the record-setting (for this blog) sixty-two comments to this post from last week for me to incorporate them into a single entry, so I'll address them discretely as I'm able throughout the evening and, if necessary, into tomorrow. With this first, although in response to a relatively late comment, I'd like to address an all-too-common misunderstanding of the way in which our government works.
Exhibiting the tendency of those who hold certain views to declare a radical libertarian opinion about the governmental ideal to be the system that we currently inhabit, Bill Ware writes the following:
Our nation was founded on the basis of life, liberty, and the pursuit of happiness. The government is only empowered to restrict our liberties to the extent our actions harm (take away the liberties of) others. When Judge Kennedy says that the Supreme Court cannot base it's decisions on traditional (religious) morality, this doesn't mean that all our morale principles are cast aside, that anything goes. All our laws based on civil morality remain in full effect. Laws based on religious beliefs that have no civil justification are unconstitutional.
As a summary of American representative democracy, Bill's schema of "religious morality" versus "civil morality" is incorrect at just about every level. To begin with, the sole principle that Bill ascribes to "civil morality" is that only actions that "harm our citizens" are legitimate targets of the law. Furthermore, Bill makes absolutely no distinctions between the various branches of government.
The first problem that arises out of these two factors — concisely describing exactly the loose rigging that threatens to knock our civil ship off course — is that very few actions are so simple as to fall easily into a straightforward harm/benefit model, and the elite, unaccountable judiciary is a poor mechanism to make the call. This is true even with issues that allow a reasonably clear picture of direct harm, such as that at hand, same-sex marriage.
We've all heard, ad nauseum, the rhetorical trope, "how does it affect your marriage if two guys tie the knot." But those who oppose the innovation are concerned about a different kind of harm — a social one that mightn't affect individuals until long after the barrier has been leveled. A country with future-visibility of the current generation will quickly find itself lost at sea, and the central complaint about the judiciary's power grabs has been its adherence to such whims.
It's become more than a little frustrating to have to explain such fundamental principles of our government, but it must be stated as often as necessary that our system is not so simple, and that the judiciary is not so powerfully endowed. Except in the reckless regime that Bill's ideological company would insert, it just is not true that the "government" is only empowered to regulate against harm, as defined by secularists. It is also not true that judges are charged with assessing harm and conforming the law to its avoidance.
Self-government means nothing if citizens cannot decide the appropriate bases by which to govern themselves and each other. Unless they conflict with explicit boundaries imposed at a higher level of government, referenda and legislation can do anything, for any reason, that the voters support. Unfortunately, for practical purposes, the judiciary has made itself the last stop for imposition from above, leaving the other branches less and less option than to legislate through Constitutional Amendment.
So, suppose the United States Congress were to pass, and the states were to ratify, a Constitutional Amendment granting the right to define marriage to each state. In that case, a state could define marriage as between a man and a woman, and the law would plainly not be unconstitutional. This would be true despite Bill's theory about harm and "civil morality." If it has any meaning, "civil morality" simply indicates those moral ideals that we all have in common — as proven through democratic political expression — within the civil sphere.
To the extent that I agree with Justice Kennedy, as Bill paraphrases him, it is on the point that the Supreme Court cannot base its decisions on traditional morality when the law requires conflicting action. It must, under those circumstances, refer litigants to the branch of government involving those people who acquire their positions through these things we call "campaigns" and "elections." The problem, rapidly advancing toward calamity, is that judges haven't been so neutrally disposed toward untraditional morality.
Perhaps it will take the judiciary's ruling in ways that finally breach the limits of such folks as Bill for those citizens to realize that they've been asserting theory as practice only because the theory better facilitates their preferences. Somebody coined an applicable phrase for this phenomenon, but so as not to run afoul of the rhetorical morality of Godwin's Law, I'll leave it unstated.
In the comments to this post, Mark Miller writes:
The argument that the basic rationales between allowing SSM and incest are the same is just old and tired. I agree that allowing SSM is moving the line - but that doesn't mean that I support NO LINES. ...It follows the same logic as to why hunting animals is legal but hunting humans is not, why owning a gun is legal but making bombs is not, why we chose to attack Iraq but we won't attack North Korea, why contraception is legal although it has an effect on procreation, why having sex with a 14 yr old is rape but with a 18 yr old is not .... and so on. I've said it many times before - the law draws lines all the time. [N.B., Mark didn't pair these two passages as I have, but I don't believe I've changed his meaning.]
I've responded to his entire comment in that post, but in the rapids of my afternoon, I didn't follow all the way through with my thinking on the specific point of age of consent (to which Mark has made reference before, in argument with me). Here's what I wrote:
The age of consent for sex is probably the most effective of your examples, but even that is a line by age and maturity, not by significant difference. States have different laws, and moreover, as Eugene Volokh proved a couple of weeks ago when he opened it to his blog readers as an academic question, it's still a matter under debate. Still, I think the burden is on you to go into more detail as to how it applies.
The simpler, more potent point that I failed at first to spot is not so much that discrimination according to age is discrimination by a single criterion, whereas the lines that Mark would draw for marriage are by "significant differences." Rather, while society agrees that the law can legitimately make distinctions according to age, the distinctions that Mark would like to make for marriage are by "sexual orientation."
That phrase, in essence, means the way in which one prefers to conduct himself or herself sexually, and a central — probably the central — argument for same-sex marriage is that it is illegitimate for the law to discriminate on that basis. If love, commitment, sincere desire, and so on are to be the defining requirements for marriage, what barrier stands between various ways of expressing all of these purported social goods?
Now, I continue to hold that reserving marriage for couples containing people of opposite sex is not discrimination according to orientation, because homosexuals are free to enter into such marriages. Similarly, those SSM advocates who've made much of the tarnished state of the institution should agree, as well, that people inclined to consort with multiple partners are also free to enter into marriage, as currently defined. The particular relationship, not those engaged in it, is the object of privilege, and the simple biological fact is that same-sex and opposite-sex couples are not similiarly situated in that respect.
Most people who argue on behalf of same-sex marriage do so with laudable motivation. Believing the issue to mirror that of miscegenation, they wish to place themselves on the compassionate side of history. James Trilling illustrates this, in his recent Providence Journal piece, when he offers his vision of a future in which same-sex marriage has proven to have no adverse consequences for American society. Unfortunately, Mr. Trilling's scenario is not a "thought experiment," as he claims, but an exercise in imagination.
This is not to say that it couldn't prove true, but that it is no more certain than any other future that one could plausibly imagine. The relevant question is not the loaded one of whether readers wish to have judged the issue correctly, but whether Trilling's judgment is correct. I would suggest that it is not.
The most significant gap in the basis for his prediction comes with Mr. Trilling's assertion that contraceptives broke "the age-old equation of marriage and procreation." Unless one considers sex and marriage to be the same thing, it isn't enough to note that married couples can, or even do, use birth control. Suppose, for example, decades after the widespread infiltration of contraceptives into the society, the great majority of children were born to married couples and the great majority of married couples had children. Were this the case, one could say that — despite the disconnection of conception from sex — the culture still linked marriage and procreation.
And that is the case. In other words, the cultural presumption that children will be raised by their married biological parents is still sufficiently strong for same-sex marriage to be the alteration that breaks the link. And this realization has implications for society thirty or forty years hence.
The first probable consequence of such a break is embedded within the evidence that it has not yet been made: A large number of couples who give birth to children will not be married. Trilling's promise of God's forbearance notwithstanding, such a future is not one that we should hope ever to consider "normal."
The second probable consequence is evident on the new Massachusetts marriage licenses, which now officially join in matrimony Party A and Party B. During their run, same-sex marriages in San Francisco were between "applicant one" and "applicant two." Mr. Trilling, himself, refers not to his wife, but to his female "life partner." To circumvent the age-old understanding of marriage, the language shifts from that of tradition and family to that of contracts.
As much as Mr. Trilling may be correct to suggest that the civil and religious faces of marriage can be distinctly drawn, the line between them runs through the gray area of culture. Separated from the words "husband" and "wife," with all of the implications and responsibilities that those roles have accumulated over the millennia, the particulars of the agreement come into question. Why must Parties A and B be unrelated? Why not an Applicant Three?
Trilling dismisses the "extreme innovations" of incest and polygamy on the grounds that they aren't on the "political radar." Even limiting ourselves to the narrow screen that Trilling's radar must have, the same was true of same-sex marriage fifteen years ago — let alone thirty or forty. Imagine the reactions of the first interracial spouses or the first couples on the Pill had someone accused them of setting the stage for homosexuals to be married. I suspect that their reactions would have been a bit stronger than a reassurance that such an extreme innovation wasn't on the political radar.
Furthermore, if marriage is merely an agreement between (or among) enumerated parties, why can't they insist that its meaning is particular to their own purposes — to exclude monogamy, for instance. Of course, some people already do live according to loosened agreements. However, they do not substantially change the broader institution, in large part because they do not modify the common language under which they continue to be aberrations.
I won't mimic Mr. Trilling's attempt to draw your minds toward an imaginary future, away from the real questions that we face in the present. I won't presume to insist that, following my advice, "Humankind [will have] taken another small step toward maturity." But if maturity is a quality that we value, ask yourself this: If well-intentioned supporters of same-sex marriage are wrong about its consequences, will we have the fortitude or the wherewithal to make amends, or will we once again look to the past for blame and the future for responsibility?
There is no shame in having to explain to a "new generation," whose approval Mr. Trilling apparently desires, that you strove to preserve the health of the society bequeathed to them, even if time proves that it was never at risk. Better that than to be forced to confess that, in hurrying to be on "the right side of history," you put your children's children on the wrong side of the Rubicon.
ADDENDUM:
I originally submitted this, as either a column or a letter, to the Providence Journal under a pseudonym in the hopes that, even if the folks who run the editorial page have something against me, some response would be made to what was, by newspaper standards, a very long op-ed. Unless the Projo's sleuths figured out my subterfuge, some other factor must be keeping my arguments out of its pages. As for the possibility that I've blown my cover, well, I was a bit uneasy about the dishonesty anyway — but not as uneasy as I am about the one-sided nature of the debate.
You've probably seen one or both, but I still wanted to mention pieces by Maggie Gallagher and Jeff Jacoby applauding Massachusetts Governor Mitt Romney. Here's Gallagher:
The advocates tell us the skies have not fallen in Massachusetts; nothing has changed, they assure us. Romney points out that small things have already begun to change, foretelling the bigger, sadder changes to come. First, the marriage licenses change so they no longer read husband and wife but "Party A" and "Party B." The Department of Health insists that birth certificates also change. The line for mother and father becomes "Parent A" and "Parent B." ...The experience of same-sex couples will become the new norm for family life, because the "unisex" idea that gender has no public significance is the only model that can be construed as "inclusive" of both opposite-sex and same-sex unions. The result is not neutrality but the active promotion of a new unisex ideal, in which the distinctive features of opposite-sex relations will be submerged, marginalized, cast to one side, and redefined as discrimination in order to protect the new court-ordered public moral standard of the equality of same-sex and opposite-sex couples.
Here's Jacoby:
Whatever else might be said about same-sex marriage, elites in Massachusetts are clearly comfortable with it. The public at large may not yet be ready to radically alter society's most basic institution -- even in the Bay State, a majority still says marriage should be defined as the union of a man and a woman. But the attendance at a gay wedding of so many movers and shakers from both sides of the aisle is a good indication of which way the cultural winds are blowing. Less and less is it politically risky to openly support same-sex marriage. Increasingly, it is becoming risky not to.
(There are some Big Ideas lurking in the recesses of my mind related to this, but at the end of my first week as a father of two, just before a long weekend followed by the purchase of a house and a two-week rehabilitation and moving process, and without my midday coffee having had a chance to kick in, I just can't get them to step forward.)
So this gay-audience–focused piece, Andrew Sullivan posts on his own Web site:
One of the staggering features of America, after all, is its vastness and diversity. By diversity, I don't mean the usual pablum of racially obsessed left-wing bores. I mean real diversity. I mean the bizarre notion that South Beach and Tallahassee are not just in the same country but in the same state. I mean the idea that the West Village and West Virginia are both equally American. Maybe it's because I come from somewhere else, but I wasn't in this country for long before I realized that its federal system is not just a curiosity. It's the only thing keeping this fractious and divided country in one ramshackle piece. ...So let's be federalists for a while. Until public opinion shifts to a deeper understanding of the humanity of gay people, let's show the world by example what that humanity is. Change does not come instantly. And it takes maturity to see that.
Somehow, Sullivan's timing of this mature piece (and his promotion of it) seems conspicuous, given the impending vote on the FMA. He offers various bits of advice that those who do not wish for same-sex marriage to be litigated into national law, but who are hesitant to take explicit steps to stop it, will find encouraging to hear:
Call off the lawsuits. Let Governor Romney enforce that ancient 1913 anti-miscegenation law to prevent out-of-state couples from getting married. Wait until the generational shift increases support for our equality.
Surely he doesn't believe that such advice will really be followed. And so it has gone, from Sullivan and others, with rhetoric assuaging the reasonable among the cause's opponents and litigation continuing apace. In warning of a backlash, he hopes to preempt one, and he obscures how reasonable that backlash would be, given our "diversity":
ttempts to litigate the national legitimacy of Massachusetts marriages will only risk disaster--by giving credence to religious-right fears that gay marriage in one state will mean gay marriage in every state.
One wonders how much Mr. Sullivan actually believes his various predictions — or, given their persistence against his counsel, other advocates for his cause do. Many of them seem to think the matter irrelevant, but among those who concede the legitimacy of the concern, activists' confidence that laws permitting same-sex marriage will quickly prove "their benign impact, their humanizing potential, their socially beneficial effects" seems an open question.
Chuck Colson wonders why citizens, particularly Christian citizens, aren't being more vocal about same-sex marriage:
I think some don't really believe this is such a critical battle. To them I can only say—wake up and pay attention. This issue has the potential to redefine and, ultimately, to destroy the institution of marriage in this country—and with marriage goes the family. You can't ignore this.But there are other Christians who recognize the importance of the battle over same-sex "marriage" but are still not speaking up. For many of them, I think the problem is a lack of faith.
Now, that may sound harsh, but I can't think of a better way to put it. A lot of Christians—even some of our most prominent leaders—seem to have succumbed to a "What's the use?" attitude. They believe that the cultural climate has turned so much against us that we'll never be able to stop the advance of same-sex "marriage." And they have heard that we don't have the votes to pass a constitutional amendment in this session of Congress—so they don't even want to urge the House and Senate to vote. Some Christian commentators have sounded a defeatist note.
The factors that Colson names are certainly in effect, as conservative writers Cal Thomas and Max Boot have proven. But I'd suggest that the issue is still distant for most. Whether they are turning away from ickiness or finding it difficult to get their heads around the bizarre shifts of the modern world, most people just don't have a sense that the news is real and that it will have real effects. Imagine trying to explain winter to people who have only known summer; you might find it difficult to convince them to buy snowsuits while they are available at a discount.
After a short break, the Providence Journal news department has returned to its advocacy for same-sex marriage to be brought to Rhode Island. Here are the circumstances of the latest effort:
Massachusetts Governor Romney and Attorney General Tom Reilly cited the law -- which some say was originally written to be used against interracial couples -- in denying marriage licenses to out-of-state gay couples.After gay marriage became legal in Massachusetts last month, several city and town clerks openly defied the law and issued the documents to nonresidents anyway, until Reilly ordered them to stop or face penalties.
"The governor simply can't dust off this law to discriminate against gays and lesbians," Michelle Granda, a lawyer for Gay and Lesbian Advocates and Defenders, which represents the eight out-of-state couples, said at a news conference yesterday.
Gotta love the "some say" clause thrust between the actors and their action. It isn't until paragraph twenty-five — just before sixteen paragraphs describing the parties to the lawsuit against the law — that we find hints that the law hasn't been dormant since the pre–civil rights era: "Issues such as whether they were cousins or if they were married to other people could make their marriages illegal in Massachusetts." For how much longer?
Wendy Becker, one half of a professorial lesbian couple and "a teacher in the social work department of Rhode Island College... completing her doctoral dissertation in law, policy and society at Northeastern University," clarifies the objective:
We want our kids to know we love and support each other in the same way as their friends' parents do. And we want them to grow up in a world free from discrimination based on anything.
Silly question: What isn't allowed in a world free from discrimination based on anything?
Although they state overconfidently the genetic predetermination of homosexuality, Rabbi Marc Gellman and Msgr. Thomas Hartman offer some firm and fair guidance for those whose religions hold the choices of family members to be sinful:
First of all, we must have courage to say what we think is right.Your granddaughter had courage, just like Tom's brother, in confronting a pious Catholic family with a life choice that violates the clear and unambiguous teachings of the church. But her announcement is not the only act of courage called for in this ongoing discussion. Your courage is also needed to tell her, with equal love, that you cannot accept the choices she has made.
The second virtue we must all have if this deep spiritual and moral thinking about gay marriage is not to descend into bitter vituperation is humility. You must find a way to say no to your granddaughter's decision to have a commitment ceremony without saying no to your love for her.
The old cliché of disapproval's precipitation of disownment would, in many ways represent an easier model to follow, just as inherently affirming passivity would be in the other direction. We oughtn't forget that people can change, though, and inasmuch as it is possible, we want change toward truth to be an appealing one.
Lucia of Alas, a Blog, has responded, in three separate posts, to my criticism of an earlier post in which she put forward the theory that some improving trends in American family statistics have been a positive result of advocacy for same-sex marriage. Some folks, in her comment sections, have suggested that her effort is more satire than argument, and she hasn't disabused them of the notion.
That may be the case, although it would represent a disproportionate effort on her part, if you ask me. For my part, since Lucia has been cordial in private email, I'm inclined to pursue the most charitable interpretation. (I'll leave it to others to decide whether satire would, in fact, be the charitable interpretation.)
It seems to me that the distinction is largely irrelevant, anyway. If her essays represent a sincere argument, then they ought to be rebutted as such. If they don't hold up as if they were sincere, then they fail as satire, as well. And herein lies my difficulty: I'm not sure how to respond in either case. In some places, it is as if she's just taken the first link of a Google search as evidence. In other places, it's as if she didn't read what I wrote.
Here's the point from her original post to which I most specifically objected:
A careful look at the campaign for same sex marriage in the US shows that its principle themes are to promote responsible parenthood and long term commitment. Advocates of same sex marriage like Jonathan Rauch and court cases like Goodridge vs. Massachusetts stressed both themes. This important message seems to be getting out; American parents seem about to reverse the long term trend of forgoing marriage.
The largest flaw that I see in this theory is that responsible parenthood has by no means been a principal theme of the campaign. As I wrote at the time:
The first thing to note is that one must look carefully indeed — some might say narrowly — to believe that the principal themes of the same-sex marriage movement have been as Lucia describes.
Note that I wrote that one must look narrowly, not "define the themes too narrowly," as Lucia rephrases in her first response. Be that as it may, Lucia does nothing to disprove either accusation. Instead, she offers this (emphases in original):
The way I define a "principal theme" is related to how I categorizes the numerous campaigns operating simultaneously under an umbrella or parent campaign. In this context, the campaign for same sex marriage falls under the parent campaign for gay rights. I see the assertion of the right to marry as the one of the principal themes of the parent campaign for gay rights. Other themes in the parent campaign include the right to nondiscrimination in employment and housing, and decriminalizing gay sex. Looked at individually, many of the themes of the parent campaigns are themselves campaigns, which we could call child campaigns. Each child campaign has its own principle themes.The campaign for gay marriage as a child campaign, has its own principal themes which distinguish the child campaign from the parent campaign. Promoting long term commitment and responsible parenthood number among the principal themes of those advocating legalized same sex marriage.
I apologize for my candor, but this is just obfuscatory nonsense, which Lucia employs in order to notch up the theme that she wishes to declare as principal. If the central declaration on behalf of same-sex marriage is the rights-based theme, the fact that it is the central declaration for every campaign under the "gay rights" umbrella does not make it less principal to this one. This is particularly true in light of the observed effect that Lucia proposes, a cultural one having to do with the message that people are hearing for this specific movement.
This accords entirely with Stanley Kurtz's ideas, which Lucia mistakenly characterizes as follows (emphases in original):
Dr. Kurtz seems to think one of the principal themes of those advocating same sex marriage is the idea that parents should not be married, or that unmarried parents are preferable to married parents. Right or wrong, his theme and mine are equally narrow, and being excessivly narrow is the flaw Mr. Katz finds in my choice of theme.
That strikes me as a dramatically distorted paraphrase of Kurtz's argument. He argues that, as an underlying necessity of the rights-based assertions, the effect of SSM advocacy is to disconnect the presumed ability to conceive mutual children from marriage, which is supposed to lock biological parents into child-rearing families. But once again, the flaw to which I pointed is not that the theme is excessively narrow, but that Lucia must have looked narrowly to see it as central, not to mention that her evidence post-dates the effects that it supposedly had — all of which she only proves in attempting to address the complaint as she phrased it.
For the "love and commitment" theme, she cites Andrew Sullivan and Jonathan Rauch, providing (without citation) a single line from Sullivan. I'm willing to concede that this theme has been significant with these two authors (although still subordinate to civil rights). Nonetheless, as far as I know, Rauch didn't enter the scene until after the window of influence for Lucia's theory, and even Sullivan has admitted that his argument has represented only part of the internal debate among homosexuals:
... there has been a long debate among gays about marriage rights and those of us who took the conservative position, despite enormous pressure and vitriol from our peers, have largely won the argument.
I'm not in a position to put a date on that ostensible victory, but I will point out that Sullivan's first book on the topic, Virtually Normal (which was groundbreaking at the time) didn't come out until 1995, and that he had not declared the battle even "largely" over by the time of his Same-Sex Marriage: A Reader in 1997. But my point put more emphasis on the idea of parenthood, and to this Lucia offers the following (see her post for the links):
Sullivan discussed the need to unite gays and lesbians with their own children, the importance of marriage as a place to nurture children, and the benefit of providing a stable home headed by a married couple in at least three articles available on the web, published in 1989, 1997, 1998. While promoting his book, Jonathan Rauch observes ".... marriage is the best environment for raising children and wonders why conservatives don't seem to consider the 28 percent of homosexual couples with children." He reiterates the importance of marriage to children here.; he laments the trend toward unmarried cohabitation particularly when children are involved here.
With one exception, every single one of these articles falls after the beginning of the trend that she's following. And here's the entire appearance of this "principal theme" in the one exception:
Since there's no reason gays should not be allowed to adopt or be foster parents, it could also help nurture children.
One sentence. With a "could." Every one of the Sullivan articles cited is equally brief on the matter. Rauch's comments are all from the '00s, as are the blogs that have emerged "recently." Sorry, Lucia. That won't do. It certainly doesn't justify the subsequent racial aspersions with which she closes the first post.
Frankly, the execution and end of part one make me hesitant to bother going on to the second, but as I suggested, I'm taking Lucia at her word that she's not simply wasting my time. First, she responds to my mention of "welfare reform in the '90s":
Justin Katz is correct; I did not consider that the 1995 deceleration might have resulted from The 1996 Welfare Reform Act, signed into law in late August. Women who became pregnant the day the bill was signed would give birth in May 1997, contributing to the 1997 birth statistics. In any case, one might expect a somewhat longer time lag. After all, it is possible that co-habiting couples might spend a few months deciding to marry and then a few more planning their wedding.
It's difficult to know how to respond. First, I didn't mention the specific act. If we're going by the actual enactment of laws, then same-sex marriage is entirely outside of consideration for a trend starting in 1995. (Judicially imposed SSM in Hawaii never went into effect.) Since attitudes and arguments are more significant to this discussion, here's the third promised law in the "Contract with America," which was released as part of the Republicans' 1994 campaign:
THE PERSONAL RESPONSIBILITY ACT: Discourage illegitimacy and teen pregnancy by prohibiting welfare to minor mothers and denying increased AFDC for additional children while on welfare, cut spending for welfare programs, and enact a tough two-years-and-out provision with work requirements to promote individual responsibility.
The Republicans won the House and took over in 1995. That year, the percentage of births out of wedlock overall actually dropped (PDF), despite an increase among white non-Hispanics. Now, I'm not stating that the election or the results thereof should receive the full credit for the shift. However, I will stress that — if there's at least loose alignment between welfare and race, on one hand, and socially liberal family theories and race, on the other — the group about which Lucia is apparently talking, "co-habiting couples," has had very little to do with the overall trend. More significantly, the group that did drive the overall trend would have been that most affected by welfare reform.
Thereafter, Lucia offers a barrage of points that all miss my characterization of a "boost effect," which I described thus:
For example, I've suggested that the debate itself can cause a healthy boost in marriage statistics, as those inclined to support traditional marriage strengthen their own. If same-sex marriage is in the news and a person opposes it — for whatever reason, but using traditionalist rhetoric — that person is less likely to devalue his or her own marriage.
This is one of the instances in which I question whether Lucia was reading the post that I actually wrote, because she declares, "I thought that general theory was precisely the one I suggested!" Obviously, a negative boost and a positive boost are substantially different.
She writes of SSM advocates' describing "the numerous advantages of marriage, and how marriage benefits children," although she's shown no evidence that this was a principal theme in the relevant timeframe. (And no evidence as to why blacks and Hispanics would be so disproportionately persuaded by the arguments.) She writes that the "pure joy of watching happy people marry often causes people to value marriage," although not a single gay couple had been married, yet, and marriage rates were falling. And to top it all off, she quotes Gabriel Rosenberg arguing (recently, I presume, although there's no direct link) that the terms of the debate should be changed to make the argument akin to that which she says has been "principal" all along.
She then goes on to do to the opposition to SSM what she did to those who support it, anachronistic elevation of specific factors:
If the eight messages I found were the dominant themes of opposition to SSM during in the nineties, as they currently seem to be, it is unlikely opponents' arguments contributed to the deceleration in the non-marital birth ratio. More likely, it would lead to an acceleration. So, I find idea that the deceleration in the non-marital birth rate was due to the themes promoted by the opponents of same sex marriage highly unlikely. It seems fortunate to me that people listened to the advice of advocates of SSM who said marriage is valuable, and all parents should be married.
This is deceptive on every level. Every single one of the pieces that Lucia cites is too recent to apply. Most of the linked points are presented within larger arguments or are made within the context of specific aspects of the debate. Moreover, none of them conflict with my characterization of the boost effect. If the majority of Americans oppose marriage — which the majority most definitely did in the '90s and still do — then having the threat of decadence laid out will make them move away from that which they oppose. A straight man's statement that gay men should not be able to marry because they will not be monogamous is another reminder that he, himself, should remain monogamous.
Last point on part two, and then I'll moving on (emphasis Lucia's):
Katz provides lengthy direct quotes wherein Dr. Kurtz speculates as to the various stages involved in destroying matrimony as an institution. Dr. Kurtz finally concludes "this will result in a rapid increase of out-of-wedlock births as a result of loosening sexual and marital mores and laws".Suffice it to say that Dr. Kurtz's theory which predicts a rapid increase is not supported by the US data which shows a factor of four deceleration in the rate-of- change in out-of-wedlock births during the American campaign for sex marriage.
All I can say is that Lucia completely missed the point. Moreover, the quoted conclusion was actually my rephrasing of the first stage. (Although it might not have been clear to what I was specifically referring, it should have been clear that it was my writing.) Here's what I wrote:
Generically, this will result in a rapid increase of out-of-wedlock births as a result of loosening sexual and marital mores and laws. At some point, this levels off, if only for a time. His argument is that separating the notions of procreation, parenthood, and marriage kicks off another increase. ...Given the various arguments, or even just looking at the chart that accompanies Kurtz's "Going Dutch?" piece, the question is whether the trend up to [the issue's coming to the public's attention over the past year or so] does in fact represent a reversal, or merely a temporary plateau.
Let me be more clear: Looking at Kurtz's chart, and reading his argument, what he is saying is that loosening sexual mores cause an increase in out-of-wedlock births, which we've seen in this country. At some point, this can level off, as it did in Kurtz's chart for the Dutch and as it is currently doing in the U.S. Next, according to Kurtz, as advocates for SSM argue that the mutual creation of children is not central to marriage, another increase begins, this one steeper and perhaps fatal to the institution. We have yet to see this in the United States, and those who oppose SSM hope to avoid it altogether.
As I said, Lucia has a third post, which just went up this afternoon, but I don't have the energy to give it a thorough review. To be honest, my confidence that she isn't playing games with me has decreased significantly since I began to respond. Suffice to say that she cites me, of all people, arguing that effects of changes in the law will be delayed, in order to suggest that:
Because of this delay, one would expect 1995 would be first year when the birth rate might be unambiguously affected by the 1993 Hawaii ruling. That is precisely when the transition became evident, and supports my contention that the transition occurred after the Hawaii Ruling which brought the pro-family pro-commitment message of those advocating legalized same sex marriage to national attention. American's listened and responded.
Now, apparently, her argument isn't that the points made on behalf of SSM affected out-of-wedlock births, but that a specific ruling in Hawaii did so. The first problem with the new tack is that Lucia does not address why subsequent events in the opposite direction — e.g., national DOMA legislation in 1996 and the amending of Hawaii's constitution in 1998 — had no apparent effect. Second, she ignores that Baehr v. Lewin did not make the argument that is central to her theory, instead confirming my assertion that the principal argument for SSM has been rights-based:
The result we reach today is in complete harmony with the Loving Court's observation that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws. If it should ultimately be determined that the marriage laws of Hawaii impermissibly discriminate against the appellants, based on the suspect category of sex, then that would be the result of the interrelation of existing legislation.
In sum: having raised numerous objections to her argument, and with the underlying sense that I may have been had in doing so, I reject Lucia's assertion that it "is now up to the opponents of same-sex marriage to show why we should believe them when they say that same-sex marriage will weaken American marriage as a social institution." Her move has not been successfully made, whether it's sincere or satirical.
You've heard all those arguments about how 2–5% of the population couldn't affect the marriages of the rest? Well, Michael Sellitto disagrees:
As has been posted here before (I believe), and the media covered, there is a small, but growing, group of heterosexual couples who choose to not get married because their gay and lesbian friends cannot marry. They feel that getting married would be uncomfortable and distasteful, given the lack of equality for their friends and family.At the same time, the "gays don't need marriage" crowd are doing a great job convincing straight couples--who automatically get more common-law protection than same-sex couples--that they (opposite-sex couples) don't need marriage either. Why should opposite sex couples feel the need to marry when they see their gay and lesbian friends told that they do not need marriage to protect them or their children? ...
A federal marriage amendment would only exacerbate these issues. Straight couples who were iffy before the FMA would be pushed over the top to being completely uncomfortable taking part in "marriage" when their friends and family are written out of the US Constitution.
Apparently, knowledge of and admiration for same-sex couples — with children — is so pervasive that we will become a nation of socially liberal activists! I know absolutely nothing about Mr. Sellitto, but it seems to me that his argument is indicative of the tendency among social liberals to believe that, not only are their beliefs universal, but the circumstances in which they personally form and apply those beliefs must also be universal. To simplify in context: because heterosexual couples whom one knows are so supportive of gay acquaintances and their claims to marriage rights that they might be willing to forgo marriage for themselves, such protests will become a significant trend.
I'm going to go out on a limb, here, and suggest that it simply is not the case, and never will be, that the majority of people in this country are close to such families. Moreover, it seems plausible that many of those who are and who approve will be those who also support corrosively permissive rules for heterosexual marriage. Couples who see marriage as little more than a contract are couples for whom marriage can be a cultural and political statement.
More importantly, if demographics are to be believed, the people most in need of a strong cultural message for marriage — those less inclined toward nuclear families and less able to absorb the repercussions of eschewing them — will be the least likely to know any poster families for the gay marriage movement. If that's the case, the less well-off will receive not the marriage-affirming message that Sellitto argues would accompany experience with married same-sex couples, but the cultural message that marriage isn't about families so much as couples.
To the (limited) extent that the anti argument actually is that "gays don't need marriage," it suggests that homosexual relationships don't beget children. In every particular, their families are a matter of direct choice. As I've written several times:
A strong cultural expectation of marriage is most important for those whose behavior makes marriage preferable even though it mightn't be what they would choose in a void. A couple whose members thoroughly commit to each other purely as a matter of choice — considering that commitment to be absolutely binding (as Sullivan believes all marriages should be) — are in no need of a public institution, or at least the "spouses" need it less. To get to the point, marriage isn't meant to be a choice, strictly speaking, because those who would choose it don't require incentive, and the real benefit of marriage isn't the perks, but the familial structure for children.
In the context of "strong cultural expectation," note something that Sellitto slipped into his post: "straight couples--who automatically get more common-law protection than same-sex couples." Inasmuch as only 16 states recognize common-law marriages, I'm not sure that Sellitto is correct in his assertion (and common-law marriages differ from marriage only in the method of entrance).
Assuming he's talking about something else and characterizes it correctly, however, his insinuation seems to be that all cultural acknowledgments of sexual difference ought to be erased to the point that presumptions about same-sex relationships ought to be no different than presumptions about opposite-sex relationships. For "common-law protection" to extend to gay couples, regardless of relative frequency, two men living together must evoke the same legal and cultural reaction as a man and a woman living together. Supporters of SSM may not have a problem with that, but the position is a radical one, with tremendous consequences for society.
If this Michael Sellitto is the same as the New Yorker who wrote to Russ Maney of Snitch Newsweekly, however, debate about cultural consequences isn't likely to bear much fruit:
If you look back in time, almost all of the great men of history were essentially raised in same-sex environments. The wealthy class would send their men off to boarding schools where they lived with other boys and were taught by men. All of their developmental years were spent almost exclusively with males. And, call me crazy, but I have a lot of respect for the Founding Fathers, and I think they were pretty successful.
In a world in which the history of boarding schools is legitimate evidence that children don't do better with a parent of each gender perhaps it does make sense that an amendment confirming the definition of marriage as between a man and a woman would spur men and women to abandon marriage.
Last week, I noticed that the Liberty Counsel has picked up a strategy for fighting Goodridge about which I've been wondering for some time:
When the Massachusetts court bypassed the legislative and executive branches to change state marriage law, it upset the separation of powers in the state and violated the plaintiffs' rights, under the "guarantee clause" of the U.S. Constitution, to have a republican government, said Mr. Staver, who with other conservative lawyers represent 11 Massachusetts lawmakers and a Boston resident.
Back in February, that argument occurred to me in reaction to Jonathan Rauch's continued assertions that a state has a right to allow its judiciary to be activistic. As I wrote in an email exchange with a conservative writer:
If there's even a guarantee that citizens' state governments will be representative in nature, then there might be room to argue that it is not an affront to federalist principles for the federal government to take action should a judicial oligarchy begin to form. ...If it is a positive duty of the U.S. to ensure state-level representative democracy, then Rauch's amendment would arguably go against the federal side of the federalist principles that he purports to value by enshrining the notion that the people of a state have a right to hand over their government to a judiciary.
I can't become the King of Rhode Island, even if initially elected to the post, and the Massachusetts legislature can't vote to hand its authority over to the Catholic Church. Therefore, it's a short step to conclude that the Massachusetts legislature can't abdicate its authority to the state's unelected judges. One can argue that the threshold hasn't been reached in Massachusetts, but it's becoming clear to me that there is a threshold.
That, in itself, is an important point to bolster, not the least because advocates for same-sex marriage, for all of whom the courts are a central mechanism, will attempt to wrench it loose, as I found in extended discussion with Gabriel Rosenberg in comments to a post the next day.
PROEM:
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Yesterday morning, I bookmarked a Reagan speech to which John Hawkins linked on his main page, my intention being to read it while I ate lunch. Before that break had arrived, a layer of dispirited frustration had coated my general sense of loss as a result of Andrew Sullivan's telling and predictable emphasis while writing about Reagan. From his initial reaction:
he paid respect to religion but never turned Republicanism into what it is today - a repository for sectarian scolding
Expanded the next day, first in context of the Texas GOP's platform:
If you want to know why someone who loved Ronald Reagan can no longer support the Republican Party, then the extremism of George W. Bush's own party in his home state is Exhibit A.
Then, answering the question, "What does Reagan's legacy demand of us now?"
... he would not have played the anti-gay card that Karl Rove has; and he would never have recast his party into one where only fundamentalist Christians are ultimately, fully at home. Unlike Bush, Reagan was a man of ideas, an intellectual, a man who had thought long and hard about the world and developed keen ideas about what was needed to fix its problems. ...It is a long road from [Reagan's benign, chuckling steeliness] to the dour cynicism of Karl Rove and joyless puritanism of John Ashcroft. There was always the old Democrat in Reagan's new Republican, a deep sense of civility, a wry sense of humor, a faith leavened with skepticism, a conservatism informed by liberalism's faith in the future. It is not too late to rescue this legacy from the clutches of today's acidic, sectarian GOP. But time is running out.
As did Ramesh Ponnuru, I saw this as an instance of the manifest and active desire of some "for a Reagan in their own image." The dispirited frustration mentioned above was not unlike the feeling a child has when, throughout the course of playing a game, his cousin simply claims all of the pieces for himself. There is no effort, on Sullivan's part, to take Reagan as common ground with those who oppose same-sex marriage and thereby to pursue understanding and resolution.
So then I ate lunch and read Reagan's 1984 remarks at an ecumenical prayer breakfast in Dallas:
I believe that faith and religion play a critical role in the political life of our nation -- and always has -- and that the church -- and by that I mean all churches, all denominations -- has had a strong influence on the state. And this has worked to our benefit as a nation.Those who created our country -- the Founding Fathers and Mothers -- understood that there is a divine order which transcends the human order. They saw the state, in fact, as a form of moral order and felt that the bedrock of moral order is religion. ...
George Washington referred to religion's profound and unsurpassed place in the heart of our nation quite directly in his Farewell Address in 1796. Seven years earlier, France had erected a government that was intended to be purely secular. This new government would be grounded on reason rather than the law of God. By 1796 the French Revolution had known the Reign of Terror.
Is this merely an example of what Sullivan means when he writes that Reagan "exploited the religious right"? If so, his exploitation was thorough, gigantic, apocalyptically cynical.
The truth is, politics and morality are inseparable. And as morality's foundation is religion, religion and politics are necessarily related. We need religion as a guide. We need it because we are imperfect, and our government needs the church, because only those humble enough to admit they're sinners can bring to democracy the tolerance it requires in order to survive.
Recall that, last June, Sullivan declared the Republican party mere steps from imposing theocracy beca
