Marriage & Family

August 6, 2011

A Father Is a Father

Involved fathers are important, and so is traditional marriage.

Posted by Justin Katz at 12:00 PM

July 6, 2011

Different Is Not Equivalent

The religious exemption in RI's new civil union law merely allows a minimal ability to recognize the uniqueness of male-female relationships.

Posted by Justin Katz at 6:36 AM

June 22, 2011

Rhode Island Hurts Famlies

Bad governance in Rhode Island has made it unlikely that young families can stay in close proximity and still prosper.

Posted by Justin Katz at 10:00 AM

June 1, 2011

Who Is Michael Chippendale? An Elected Official.

Support civil unions or not, but Christian theology doesn't require politicians to vote one way or the other.

Posted by Justin Katz at 12:23 PM

April 7, 2011

The Way the Marriage Battle Should Be Resolved

A doomed bill in the RI House points the way to proper resolution of the same-sex marriage dispute.

Posted by Justin Katz at 10:00 AM

March 24, 2011

Hard Cases Make Bad Law

The arguments against same-sex marriage stand even when the opposition has compelling personal stories.

Posted by Justin Katz at 2:00 PM

February 22, 2011

Domesticity Will Always Look Domestic

That responsible people are cohabiting doesn't mean that it's just fine for them not to get married.

Posted by Justin Katz at 6:24 AM

February 2, 2011

The Scope of Religious Freedom

Religious protections in proposed RI same-sex marriage legislation are not as broad as some might expect.

Posted by Justin Katz at 6:12 AM

February 1, 2011

Marriage as Healthcare Policy

Marriage should not be treated as a path toward universal healthcare.

Posted by Justin Katz at 2:00 PM

January 16, 2011

Grappling with Truth Isn't Easy

Love (compassion) and responsibility can be difficult to reconcile, in life, but the call to both requires that we try.

Posted by Justin Katz at 9:03 PM

December 31, 2010

The Bourgeois Change

That radical change does not instantly kill tradition does not mean that it does not corrupt it.

Posted by Justin Katz at 6:48 AM

December 15, 2010

Human Nature (and Frank Reality) Will Out

Young women are beginning to acknowledge the benefits of marrying a rich husband. And the old is new...

Posted by Justin Katz at 6:13 AM

December 13, 2010

The Proper Frame of Traditionalist Mind

Ron Sider makes an excellent point about traditionalist's proper frame of mind, no marriage, but doing so doesn't change the intellectual structure of the same-sex marriage debate.

Posted by Justin Katz at 2:00 PM

December 1, 2010

The Concern About Marriage's Future

Why society should continue to favor opposite-sex, two-person marriage.

Posted by Justin Katz at 10:00 AM

November 24, 2010

The Radicals' Approach to Social Engineering

"Pass the bill to find out what's in it." "Change the society in order to find out whether it's harmful."

Posted by Justin Katz at 2:00 PM

November 7, 2010

The Marriage Disconnect

Why is it OK to insist that children need mothers and fathers when talking about black illegitimacy, but it's not apparently relevant when the topic is same-sex marriage?

Posted by Justin Katz at 2:38 PM

October 27, 2010

There's the "M" Word Again

Maintaining the link between marriage and childbirth is a critical tool in fighting poverty.

Posted by Justin Katz at 6:00 AM

September 28, 2010

The Marriage Game, As Predicted

Even as the substantive arguments against same-sex marriage go without response from SSM advocates and the American judiciary, alike, the next phases of the deterioration of the institution of marriage arrive.

Posted by Justin Katz at 2:00 PM

August 18, 2010

Questions of Law and Questions of Power

What's changed in the same-sex marriage debate, over the last forty years, is not the law or reality, but the attitudes of the ruling elite.

Posted by Justin Katz at 10:00 AM

August 13, 2010

The Basic Point on Marriage

As Ross Douthat writes, traditional marriage is an ideal that legalizing same-sex marriage will prevent us from recognizing.

Posted by Justin Katz at 5:41 AM

August 4, 2010

Marriage However They Want It

A judge in California has made same-sex marriage a federal issue. I'd suggest that there are much bigger considerations involved in the immediate issue.

Posted by Justin Katz at 9:56 PM

July 25, 2010

Liberty Isn't Their Concern

Same-sex marriage advocates rally at the State House; no problem. Traditional marriage advocates do the same? The side of the supposed "victims" strives to intimidate and silence them.

Posted by Justin Katz at 12:00 PM

July 22, 2010

Marriage Is What We Make It

It's not crazy to think that divorced mothers will turn to same-sex marriage.

Posted by Justin Katz at 5:54 AM

July 14, 2010

Getting Past the Circular Fiat

The debate continues about Judge Tauro's same-sex marriage rulings in Massachusetts.

Posted by Justin Katz at 6:07 AM

July 10, 2010

Congress Lacks a Constitutionally Granted Power to Define Marriage, † Œ Ø ¿

Debate continues, on Anchor Rising, about the recent same-sex marriage rulings.

Posted by Justin Katz at 6:32 PM

Re: Congress Lacks a Constitutionally Granted Power to Define Marriage

Another judge's innovative ruling in favor of same-sex marriage, and another tangle of questions about how he got from the previously understood reality A to the judicially imposed reality B.

Posted by Justin Katz at 9:16 AM

June 17, 2010

Proving Sex-Ed Policies a Failure

Great Britain has for years gone with what might be termed "total immersion" sex ed. The results have not been good.

Posted by Justin Katz at 4:57 AM

June 5, 2010

Doggedly Raising the Contraceptive Point

Continuing the discussion about whether contraception has ultimately been to the benefit of men at the expense of women.

Posted by Justin Katz at 4:02 PM

June 3, 2010

Contraception and Distortion of a Market

A social scientific analysis of the effects of the Pill suggests that women have not made out very well in the deal.

Posted by Justin Katz at 10:00 AM

May 2, 2010

How the Accommodating Institution Declines

Functional cultural institutions (like churches and marriage) face a continual tension to become more accommodating, but thereby less able to prove its own value.

Posted by Justin Katz at 1:04 PM

April 9, 2010

Flipping Political Coins with Amendments

On Wednesday's Matt Allen Show, Andrew Morse talked about some references to the 10th Amendment of the Constitution that are politically very different.

Posted by Justin Katz at 10:00 AM

April 6, 2010

The First Step of Abstinence Is Believing It's Possible

I simply deny that abstinence is impossible.

Posted by Justin Katz at 10:16 AM

September 8, 2006

What Celebrities Dare Not Consider

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).

Posted by Justin Katz at 8:34 PM | Comments (14)

July 29, 2006

Form, Title, and Influence in Parenting

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.

Posted by Justin Katz at 11:36 AM | Comments (7)

June 20, 2006

Lacking Imagination

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."

Posted by Justin Katz at 6:49 PM | Comments (3)

June 19, 2006

Where We Start, and Where We End Up

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.

Posted by Justin Katz at 8:02 PM | Comments (3)

June 18, 2006

What Would His Father Have Said?

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.

Posted by Justin Katz at 9:35 PM | Comments (6)

May 29, 2006

Rauch Should Know Better

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:

  • Qualitative difference. Respecting question one, the key legal difference between marriage and death ought to be obvious: one creates a continuous legal relationship defining the people involved that must be addressed in many of their public dealings throughout their lives, while the other is a finite act that needn't be addressed, from a public perspective, in the future (until such time, of course, as we decide that there ought to be a punishment for it).
  • Political difference. In some ways, the push for a marriage amendment indicates a lesson learned on the abortion issue. It is the sort of preemptive action that pro-lifers wish had been taken back before so many of the nation's citizens had become complicit in murder. Same-sex marriage would not be tantamount to murder, of course, but it would surely be prohibitively difficult to remedy the situation, even with evidence of social harm, once such marriages exist.
  • Judicial difference. The judiciary has already penned its own constitutional amendment in the case of abortion. It has yet to do the same, in such a sweeping way, in the case of marriage, but it will, we all know it will, and it is difficult not to suspect that such commentators as Rauch seek merely to delay action until it does so.
Posted by Justin Katz at 9:11 AM | Comments (4)

May 14, 2006

Religious Leaders Fly Right Past Shocking to Chilling

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:

  • Episcopalian Bishop Gene V. Robinson: "I'm not sure that we shouldn't stop doing marriages. We ought to do what churches do, which is bless those marriages. Until we start separating that out, I'm not sure that our people are going to separate them in our mind."
  • Atlanta religious publisher Reverend Martha Simmons: "It is the only way this issue is winnable over religious people. That was the only way the issue of slavery was winnable over religious people. History will show you that this country would still be practicing slavery had it been left up to religious people."
  • President of the Interfaith Alliance Reverend C. Welton Gaddy: "At one point people thought that we out [sic] to change the nation by changing one individual at a time. But it takes too long."

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.

Posted by Justin Katz at 8:27 PM | Comments (4)

May 6, 2006

A Pervasive Point

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.

Posted by Justin Katz at 11:53 AM

May 3, 2006

Three Out of Three Ain't Bad

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.

Posted by Justin Katz at 7:18 PM

May 2, 2006

Marriage in Other Terms

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.

Posted by Justin Katz at 6:52 PM | Comments (1)

April 15, 2006

Adults' Self-Esteem Always Trumps

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.

Posted by Justin Katz at 8:36 AM | Comments (2)

October 27, 2005

What's Wrong with an Easy Perspective?

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?"

Posted by Justin Katz at 9:43 PM | Comments (2)

July 6, 2005

Sully Still Not Listening

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.

Posted by Justin Katz at 8:06 PM | Comments (62)

June 24, 2005

What It Means to "Compromise" on Marriage

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.

Posted by Justin Katz at 10:06 PM | Comments (42)

June 23, 2005

Turning Discord into Harmony

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.

Posted by Justin Katz at 7:20 PM | Comments (8)

June 6, 2005

Coming to a Church Near You?

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.

Posted by Justin Katz at 6:07 PM | Comments (140)

April 22, 2005

Fearmongering Versus Free-Form Poetry

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.

Posted by Justin Katz at 7:41 PM | Comments (51)

Science Without Logic

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.

Posted by Justin Katz at 7:13 PM | Comments (1)

April 21, 2005

Two Paths Diverged in the Libido

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:

  1. Heterosexuals have that easy reach because their sexuality does not open them to ridicule. They are not shunned or worse because of their sexuality.
  2. Heterosexuals have the benefit of elaborate social constructs — from childhood rituals to marriage — geared toward helping them define their sexuality.

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.

Posted by Justin Katz at 6:03 AM | Comments (190)

April 12, 2005

Testimony Missing Moments

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.

Posted by Justin Katz at 7:10 PM

April 9, 2005

Whitewashing the Fence

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)

Posted by Justin Katz at 1:19 PM | Comments (161)

March 17, 2005

Two by Ben

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.

Posted by Justin Katz at 6:16 AM | Comments (201)

March 15, 2005

I'll Be Back... ?

I've never been on the Schwarzenegger bandwagon. Something about his public persona — holding the big cigars in a grin — always terminated the Reagan comparisons for me. With time and interest, I'm sure a compelling narrative could be compiled highlighting the fundamental differences between the heartland American turned upper-midlist actor turned politician and the weightlifting foreigner turned mega-billed actor turned polician.

One needn't agree with my position on same-sex marriage — or share my gut reaction to Arnold the Political Leader, for that matter — to find this statement of principle to be a matter of concern:

MATTHEWS: You would go with the courts?

SCHWARZENEGGER: Whatever the Supreme Court, whatever the Supreme Court decides, that`s exactly what I will stay with.

MATTHEWS: And that`s consistent with your philosophy, letting some judges decide, rather than letting all the people of the state decide?

SCHWARZENEGGER: Well, both, the people or the judge. In both cases, I think the important issue here is that it should not be the power of a mayor, for instance, like Mayor Newsom in San Francisco. ... I thought he was overstepping the line, because I thought that this is, again, something that the legislators can do, the people can do, or the court can do, but not individual mayors cannot make up the laws that go along, because, eventually, you have some other mayor in some other town start saying, OK, I think we should hand out guns and ammunitions and we should have free this.

Some readers of the exchange might observe that he said nothing of a governor's power to "make up the laws that go along." I would hope that many more would find it an odd — perhaps delusional — suggestion that the executive alone among the branches of government can set a precedent that undermines democracy and the rule of law. In a system in which the executive and the legislature never fail to back down when battling with the judiciary, it makes little difference whether we call the dictator of law "Mr. Mayor" or "your honor."

Posted by Justin Katz at 10:38 PM | Comments (99)

March 3, 2005

Fatherless Children Have a Hard Time When Their Father Is Gone

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.

Posted by Justin Katz at 5:42 AM

February 24, 2005

An Analogy That Doesn't Work

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

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

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

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

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

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

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

Posted by Justin Katz at 9:58 PM | Comments (60)

Releasing the Pressure

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.

Posted by Justin Katz at 7:56 PM | Comments (4)

February 23, 2005

Matters of Consistency

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.

Posted by Justin Katz at 11:34 PM | Comments (100)

February 21, 2005

Scandinavia in Pictures

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.

Posted by Justin Katz at 8:20 PM

From Character to Culture

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."

Posted by Justin Katz at 9:23 AM | Comments (1)

February 17, 2005

Whatever Works

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.

Posted by Justin Katz at 7:32 AM | Comments (27)

February 16, 2005

Catching Up in the Corrosive Lapse

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?

Posted by Justin Katz at 11:12 PM

February 15, 2005

Being the Marrying Kind

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.

Posted by Justin Katz at 11:38 PM | Comments (11)

February 11, 2005

Genes' Obviation of Parents

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."

Posted by Justin Katz at 9:10 PM | Comments (9)

February 9, 2005

The Foundation of My Rhetoric

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.

Posted by Justin Katz at 11:16 AM

Recidivism and Structure Without Foundation

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.

Posted by Justin Katz at 1:35 AM | Comments (21)

February 4, 2005

Full Steam Ahead

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.
Posted by Justin Katz at 7:38 PM | Comments (45)

February 2, 2005

The Foibles of Longing

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.

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When Andrew Sullivan was seven or eight, the visceral yet distancing medium of television sparked a feeling about which many men will have corresponding stories. A shirtless actor elicited "such an intense longing" that young Andrew "determined to become a doctor" so he could "render the man unconscious and lie on top of him when no one else was in the room." Its furtive nature may be distinct from the similar memories of others, but the bewildering indication of inchoate sexuality is familiar.

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.

Posted by Justin Katz at 1:01 AM | Comments (8)

January 31, 2005

The Impossibility of Discrete Policies

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.

Posted by Justin Katz at 4:11 PM | Comments (9)

January 28, 2005

A Presumption of Bigotry

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.

Posted by Justin Katz at 11:04 PM | Comments (12)

January 27, 2005

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

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

Marriage may be "about procreation", it may be "about love", but in practice it is about extending and forming and joining families (and if it's not then what is it about??). And by restricting my choices of viable partners to women, because I cannot have a unitive relationship with one, you are in essence barring me from marriage.

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

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

Posted by Justin Katz at 6:41 PM | Comments (50)

The Impossibility of Ideological Compromise in a Radical Movement

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.

Posted by Justin Katz at 4:10 PM

January 24, 2005

Around Again on Racism and Adoption

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.

Posted by Justin Katz at 9:08 PM | Comments (1)

Keeping Them with Their Own Kind

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?

Posted by Justin Katz at 4:26 PM

January 22, 2005

Involved Father Good, No Father Fine?

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."

Posted by Justin Katz at 5:20 PM | Comments (1)

Those Forbidden by Something Other than Law

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.

Posted by Justin Katz at 2:17 AM | Comments (1)

January 20, 2005

When the Cynical Run the Clinic

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.

Posted by Justin Katz at 8:19 PM | Comments (16)

What Slippery Slohhhhhhh...

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."

Posted by Justin Katz at 12:06 AM | Comments (8)

Parenthood: All About Me!

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.

Posted by Justin Katz at 12:03 AM | Comments (176)

January 19, 2005

Just a Matter of Strategy

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.

Posted by Justin Katz at 5:38 PM | Comments (2)

Memo to the President

"Lukewarm" support for the FMA is just fine, Mr. President. See my piece today on NRO for details.

Posted by Justin Katz at 1:53 PM

January 18, 2005

Like to Like, Like to Unlike

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.

Posted by Justin Katz at 11:59 PM | Comments (9)

January 16, 2005

But the Debate Rages On

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.

Posted by Justin Katz at 8:57 PM | Comments (1)

So Saith the President, So Saith... Not I

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.

Posted by Justin Katz at 8:14 PM | Comments (5)

January 5, 2005

Inevitability and Marriage, One Step Removed

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.

Posted by Justin Katz at 9:36 PM | Comments (12)

January 3, 2005

Rauch's Reasoning

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.

Posted by Justin Katz at 9:47 PM | Comments (5)

January 1, 2005

All You Need to Know About "2004 in religion"

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.)

Posted by Justin Katz at 5:52 PM | Comments (1)

December 28, 2004

A Note on the Previous Post

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.

Posted by Justin Katz at 1:35 AM | Comments (26)

December 27, 2004

A Convergence of Issues

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.

Posted by Justin Katz at 4:16 PM | Comments (21)

Barton Answers His Own Question

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.

Posted by Justin Katz at 1:59 AM | Comments (1)

December 15, 2004

Simple Facts of Homosexual Parents

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.")

Posted by Justin Katz at 7:54 PM | Comments (8)

December 8, 2004

The A Point

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.
Posted by Justin Katz at 12:07 AM | Comments (18)

December 3, 2004

What the Future Holds

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.

Posted by Justin Katz at 6:02 PM

What Some Will Wish to Teach Us

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?

Posted by Justin Katz at 10:47 AM | Comments (8)

December 1, 2004

What's Missing from Barry's Argument

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.

  • "the government MAY NOT... refuse to recognize divorces." I can't speak for Elizabeth, but my agreement with this statement is contingent upon an implied "all." Ought the government be able to refuse to recognize instant, insufficiently justified divorces? Yes, and many opponents of SSM would like to see reform on that very matter.
  • "... refuse to recognize marriages of the infertile." It seems to me that Elizabeth's point about gender-neutral marriage law directly conflicts with this statement. The government may (and should) refuse to recognize marriages between people who are (together) infertile because their reproductive organs are of the same sort. (This has to do with the "meaning of marriage" area of debate.)
  • "... refuse to recognize second marriages which create stepparents (that is, non-biological parents)." Of course, second marriages, with or without children already extant, are just as potentially procreative as first marriages. Refer to the previous bullet for an argument about what sort of second marriages the government may refuse to recognize.
  • "... throw non-resident parents into prison." What an either/or! Surely there are more-moderate burdens that even Barry would place on non-resident parents (e.g., child support).

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):
  1. If SSM is allowed, society will be less able to affirm the importance of being raised by bio-parents.
  2. 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").
  3. 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)

Posted by Justin Katz at 8:10 PM | Comments (2)

November 23, 2004

Post-Election Pause in SSM Fight Over

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...

Posted by Justin Katz at 11:24 PM

Sullivan Argues for the FMA

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.

Posted by Justin Katz at 8:43 PM | Comments (6)

November 22, 2004

Marriage History Rewritten

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.

Posted by Justin Katz at 9:41 AM | Comments (1)

November 20, 2004

Targeted Advocacy

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.

Posted by Justin Katz at 10:09 AM

November 19, 2004

A Reminder of Reality

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)

Posted by Justin Katz at 12:02 PM

November 17, 2004

Love Flees the Baby's Cries

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.

Posted by Justin Katz at 4:56 PM | Comments (2)

November 16, 2004

Building the Local Case, Too

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.

Posted by Justin Katz at 10:35 PM | Comments (1)

November 12, 2004

Fix the Out-Door Before You Let More People In

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.

Posted by Justin Katz at 5:35 PM | Comments (2)

November 11, 2004

Messages and Self-Manipulation

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.

Posted by Justin Katz at 1:53 PM | Comments (2)

November 9, 2004

Encouraging Maturity by Example

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.

Posted by Justin Katz at 2:04 AM | Comments (1)

October 30, 2004

Getting America Thinking About Same-Sex Marriage

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.

Posted by Justin Katz at 8:14 PM | Comments (30)

October 26, 2004

I've About Had It with the Deliberate Deafness

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.

Posted by Justin Katz at 9:03 PM | Comments (7)

October 25, 2004

Who Are You to Judge?

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)

Posted by Justin Katz at 7:13 PM | Comments (10)

October 16, 2004

Beware the Parens

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."

Posted by Justin Katz at 3:13 PM | Comments (3)

Is Asexuality a Choice?

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.

Posted by Justin Katz at 12:11 AM | Comments (10)

October 14, 2004

A Marriage Solution for an Isolated World

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.

Posted by Justin Katz at 6:50 PM | Comments (20)

October 12, 2004

That Was No Woman...

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."
Posted by Justin Katz at 10:46 PM | Comments (1)

Reformulating a Party via Guilt Trip

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.

Posted by Justin Katz at 10:27 PM | Comments (6)

October 3, 2004

Forced to Accept

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.

Posted by Justin Katz at 12:29 AM | Comments (52)

September 30, 2004

Bennies and Legitimacy

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.

Posted by Justin Katz at 6:27 PM | Comments (10)

September 29, 2004

Complexity: The Enemy of My Enemy?

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.

Posted by Justin Katz at 11:56 PM | Comments (14)

September 13, 2004

Granting Half a Child

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.

Posted by Justin Katz at 11:48 PM

Having to Make the Case

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.

Posted by Justin Katz at 7:28 PM | Comments (7)

September 7, 2004

A Matter of Experience

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?

Posted by Justin Katz at 4:53 PM | Comments (22)

September 1, 2004

Finding the Direct Interest

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.

Posted by Justin Katz at 5:50 PM | Comments (27)

August 26, 2004

Define Fault and Abuse...

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:

Mike S.: I'm not saying divorce should be disallowed, I'm arguing that our current laws make it too easy. What would you say about a waiting period? Say, 2 years? What about requiring both partners to agree to the divorce?

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.

Posted by Justin Katz at 1:30 PM | Comments (20)

August 21, 2004

Ganders Taking Ganders, or On Moral Sex

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.

Posted by Justin Katz at 3:25 AM | Comments (6)

August 16, 2004

Rolling Over Speed Bumps Can Be Addictive

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.

Posted by Justin Katz at 9:43 AM | Comments (15)

August 10, 2004

Permission to Be Subverted

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?

Posted by Justin Katz at 9:33 AM | Comments (2)

August 9, 2004

Reason Overruled

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.

Posted by Justin Katz at 10:05 AM | Comments (25)

August 4, 2004

Building-in Intangible Wisdom

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.

Posted by Justin Katz at 11:46 AM | Comments (11)

July 31, 2004

Inadvertent Voting and the Thrust of a Movement

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.

Posted by Justin Katz at 2:17 AM

July 30, 2004

Unheralded... but Right (Perhaps)

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.

Posted by Justin Katz at 12:28 PM

July 29, 2004

Polygamous Routes

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.

Posted by Justin Katz at 10:58 AM | Comments (11)

July 27, 2004

Jurisdiction, Confidence, and Exceptions

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.

Posted by Justin Katz at 2:40 AM | Comments (2)

July 24, 2004

What Is and What Should Never Be

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.

Posted by Justin Katz at 10:07 AM | Comments (16)

July 21, 2004

Not So Dramatic a Leap

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.

Posted by Justin Katz at 3:13 PM | Comments (10)

A Step Too Far

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.

Posted by Justin Katz at 2:17 AM | Comments (20)

When Allies Turn Out to Be Enemies

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.
Posted by Justin Katz at 1:53 AM | Comments (24)

Mrs. Dad

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.

Posted by Justin Katz at 1:15 AM | Comments (22)

A Cataclysmic Assumption

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.

Posted by Justin Katz at 12:25 AM | Comments (26)

July 20, 2004

The Credibility That Dare Not Speak Its Name

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.

Posted by Justin Katz at 11:45 PM | Comments (7)

July 19, 2004

A One-Principle Morality

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.

Posted by Justin Katz at 7:49 PM | Comments (26)

July 14, 2004

Chutes Down the Slippery Slope

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.

Posted by Justin Katz at 7:56 PM | Comments (70)

July 12, 2004

History and the Rubicon

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.

Posted by Justin Katz at 11:38 AM | Comments (17)

July 2, 2004

Standing on Principle in Massachusetts

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.)

Posted by Justin Katz at 1:34 PM

A Strategy on Schedule

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.

Posted by Justin Katz at 11:32 AM | Comments (3)

June 28, 2004

Preparing for the Blizzard in August

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.

Posted by Justin Katz at 7:51 AM | Comments (19)

June 21, 2004

Careful What You Wish For

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?

Posted by Justin Katz at 9:35 AM | Comments (1)

June 18, 2004

Rejecting Emotional Blackmail Through Love and Belief

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.

Posted by Justin Katz at 11:40 AM

June 15, 2004

An Obfuscatory House of Cards

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.

Posted by Justin Katz at 9:59 PM

Effects of the Vast Minority

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.

Posted by Justin Katz at 3:35 PM | Comments (2)

June 14, 2004

But for a Law Degree

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.

Posted by Justin Katz at 7:17 PM | Comments (1)

June 8, 2004

Andrew Sullivan's Straight Line for Reagan

PROEM:
Click "Turn Light On" at the top of the left-hand column for a simpler page design that may be easier to read.


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 because Bill Frist called marriage a "sacrament" that overlaps with the "legal entity of a union between... a man and a woman." Taking that as the measuring scale, Sullivan has a Lewisian choice: Ronald Reagan was either a wicked liar or a "theocon," by the Daily Disher's definition.

Now, Sullivan could point to Reagan's calls, within the speech, for tolerance of all religions and even of non-religion. Although requiring quite a reach to same-sex marriage, that would raise a valid field of discussion, essentially addressing whether such tolerance necessarily draws a distinction between Reagan and Frist — whether Reagan's insistence that we "mandate no belief" would have made the transition from private practice to public institution, or whether he would have sided with traditionalists in this instance of applying "moral teaching to public questions."

It would go beyond my knowledge, into presumptuous dishonesty, were I to claim to know. However, one needn't have extensive understanding of Reagan's views to observe that Sullivan assumes, as is his wont, that there are no exits before support for same-sex marriage from opposition, for example, to laws barring homosexuals from teaching in public schools. This simplistic progression is fine, as a personal belief, but a public intellectual ought to be able to trace the thinking of the other side in all of its complexity. Instead, Sullivan claims for his policy preference the inevitable cloak of "modernity," about which Reagan "was definitely more easy-going... than the current Republican leadership." But modernity, whatever its definition, changes from decade to decade.

Sullivan cites the public school example in his reply to Ponnuru. Widening the gap between the two issues is that California's 1978 ballot initiative Proposition 6 included, as public homosexual conduct, "advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity." As part of his statement against it, Reagan wondered whether even opposition to the proposition, if it had passed, might be considered advocacy. The distinctions are manifold. Surely there are people who opposed or would have opposed Proposition 6, then, who also oppose public recognition of same-sex marriage, now, and I'd argue that Reagan would have been among them.

In his speech at the prayer breakfast, Reagan traced the judiciary's assault on public expression of religion, beginning with the 1962 case in which the Supreme Court "banned compulsory saying of prayers" and expanding from there, until:

Today there are those who are fighting to make sure voluntary prayer is not returned to the classrooms. And the frustrating thing for the great majority of Americans who support and understand the special importance of religion in the national life -- the frustrating thing is that those who are attacking religion claim they are doing it in the name of tolerance, freedom, and openmindedness.

Such arguments are very much in line with those presented against same-sex marriage — particularly judicial imposition thereof. Isn't there direct route from Reagan's stated position on public religion in 1984 to opposition to SSM now? Aren't there lines crossed between standing up for homosexual teachers in 1978 and advocating for the redefinition of marriage now? Of course. Many conservatives — including myself — drew the line on the tolerant side of the sodomy issue.

Reagan expressed one more truth, on that August morning in 1984, that Sullivan seems to have forgotten:

When John Kennedy was running for President in 1960, he said that his church would not dictate his Presidency any more than he would speak for his church. Just so, and proper. But John Kennedy was speaking in an America in which the role of religion -- and by that I mean the role of all churches -- was secure. Abortion was not a political issue. Prayer was not a political issue. The right of church schools to operate was not a political issue. And it was broadly acknowledged that religious leaders had a right and a duty to speak out on the issues of the day. They held a place of respect, and a politician who spoke to or of them with a lack of respect would not long survive in the political arena.

Can Andrew Sullivan not step outside of his advocacy far enough to see, from a social conservative's perspective, the differences between America now and the America that watched Ronald Reagan leave office? Let alone the California of 1978. I think he can — or at least he once could — but that it requires a proximity of sympathy that his activism precludes.

Posted by Justin Katz at 2:36 PM | Comments (13)

June 5, 2004

An Agenda That Makes the Story Sting

I gave much more thought than usual to whether to post something that I found on Lane Core's blog. I thought. I researched. Wrote a paragraph. Thought some more, and decided that I just didn't have the time or energy to offer the commentary that would have made the effort worthwhile. But here it is, from the New York Post:

An ugly tug of war is raging over the fate of a 6-year-old boy being raised by a gay couple who won custody of the child in a landmark decision in 2000.

Gays hailed the ruling as a major victory for same-sex couples, but the boy has since become a troubled kid who punches his teachers and repeatedly says he wants to kill himself, according to an expert's report requested by his school. ...

He punches and kicks his teachers, hits and bites himself, curses and says he wants to kill himself as often as twice a month, according to the new report, completed in January by NYU's Child Study Center.

It also says he repeatedly kisses and touches classmates inappropriately and once ran around naked.

One tangential thought that I had was that it might be useful for some law blogger to make a practice of keeping tabs on the subjects of "landmark decisions." As we've seen pretty explicitly in Massachusetts, the plaintiffs and first-movers aren't accidentally in their positions; they are often as much argument as vehicle, themselves. It would be interesting, therefore, to know how things work out for them. What ever happened, for example, to Jane Roe of Roe v. Wade? (Yes, I know.)

The reason I decided not to mention the story in the Post was that I've seen similar stories involving heterosexual parents, and teasing out the points that I wanted to make would have been a sticky process. The reason that I'm mentioning it now is that, via Marriage Debate Blog, I came across a profile of another son of homosexual first-movers — this time in the Boston Globe:

Having lived together for 27 years and having been the first gay couple to obtain a license to marry in Massachusetts, Marcia Hams and Susan Shepherd were standing in front of a minister at the First Church in Cambridge May 23, and, at long last, they were declaring in public the love they had been told cannot exist.

Alongside them was their son, Peter, who is 24, a senior at Merrimack College, and after all the years of political posturing and the months of wrangling about the Supreme Judicial Court decision, the ceremony seemed blissfully spiritual.

A day later, sitting at the kitchen table of the home in Cambridge where he's now living with his mothers, he described what it was like to grow from boyhood to manhood as the son of lesbians and to attend the wedding of his mothers. With gay marriage in its third week here, some attention has been focused on the impact on children and on the subtleties and complexities in the unusual family model that Peter Hams has lived with since infancy.

"It felt cool to be reminded how much they love each other," he said about the wedding of his mothers, "but at the same time, I was troubled, too, because I wondered: In a world with so many problems, why is everybody making a damn fuss because two people love each other? My mothers are not giving guns to terrorists, and they're not selling drugs to kids, and they're certainly not destroying the sanctity of anything, and so the thought occurred to me -- what the hell is wrong with people?"

The unsettling part of the piece — unless I somehow missed or didn't register something in its near-3,000 words — is how little of real interest we learn about Peter Hams. There were some weird moments when he was young; having lesbian mothers presented some practical difficulties for the young hockey player (e.g., no parents with locker-room access); he's dyslexic and has to work particularly hard for his grades; his preppy boarding school roommate barely reacted when informed. That's about it.

Nothing on his love life, or on his relationship with his biological father, once he'd found out who it was. Nothing on his relationship with his extended family. What was his adolescence like? Nothing. A perfectly constructed picture of normalcy. And that's what's so peculiar.

As I said, I've read stories about abusive straight families. What I don't believe I've ever read, however, is a 3,000-word essay in a major newspaper about the difficulties and compromises of a normal, straight family. I also don't believe I've ever seen a similar story with the theme that the family is different, but that it hardly mattered.

The treatment of the same-sex marriage issue is one of the twin derelictions of duty on the part of the media. In the case of the war on terror and in Iraq, it is the hopeful side that has been excised. In the case of gay marriage, matters that raise legitimate questions are allowed to drift away. For one example, I've been intending to follow that local story about the lesbian foster mother charged with molesting a 15-year-old girl in her care. The one problem has been that I can't find a single mention of the case published after it broke during the first week of April (when the Providence Journal refused to report that the woman is a lesbian).

Policies built on a constructed reality will fall when they must stand against real life. The tragedy is that those most hurt are those least involved in the charade, which refuses to tarnish certain "major victories," while translating other wins into calamity

Posted by Justin Katz at 9:51 PM

Can't Beat 'em Join 'em

Although the post has a diction suggestive of a tongue in the cheek, Lucia of Alas, a Blog, has put together a more serious parry to Stanley Kurtz's arguments about cultural correlations with respect to marriage in Northern Europe:

Today, the family is reviving in the US. In the mid-1990’s, the sky high American illegitimacy rate seems to have ended its mad ascent after nearly tripling in the years between 1970 and 1993. Yet, since the campaign to legalize same sex marriage has built up steam, the rate of increase in non-marital births has slowed dramatically. This is no coincidence.

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 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. The principal theme of the advocacy has been rights-based. The "conservative case" has added a layer concerning the stability of relationships, yes, but not parenthood. In his extensive advocacy throughout the late '90s, Andrew Sullivan, who is widely regarded as the most visible "conservative" advocate for SSM, focused on marriage in terms of the adults involved in it.

Even Rauch, in an extended online debate in August 2001, never mentions parenthood. If he does so in his new book, then that effort — just like Goodridge — comes after Lucia's window of analysis. A message cannot "have gotten out" before it was presented.

Putting anachronisms aside, however, Lucia doesn't address arguments that are already on the table to explain the trend that she observes. For example, I've suggested (here, for one) 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. So the statistics that Lucia cites could be similar, in dynamic, to an observation from Stanley Kurtz when Andrew Sullivan sought to compare divorce rates in Massachusetts and Texas: "Sullivan is actually holding up the marital behavior of Catholic opponents of gay marriage as a model."

Another argument that Kurtz has put forward is that there are various apparent stages in the demise of marriage. Although the stages might vary in degree and timing for each culture, for Northern Europe Kurtz gives two:

In the early stages of parental cohabitation, the first child is treated as a test of the relationship. Many couples break up shortly after the first child is born, but many also marry. Yet as parental cohabitation grows more popular, people lose the impulse to marry at all. They have two and even three children without marrying, and many stop marrying altogether. This second stage spells the end of marriage itself. That's why it has to work against deeper cultural resistance than "experimental" first-child out-of-wedlock births.

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.

And of course, just as Kurtz has devoted much ink attempting to tease out other factors that affect marriage in Scandinavia, Lucia must contend with largely unrelated phenomena. Perhaps most notable is that U.S. out-of-wedlock births began to slow their increase around the time of welfare reform in the '90s. Since that time, overall births decreased among blacks, and out-of-wedlock births decreased among women under 20 (PDF).

Restricting ourselves to the SSM movement and out-of-wedlock births, however, the correlation isn't that strong. Lucia doesn't provide a link to her source, but it looks as if the year following the first SSM court case, in Hawaii, out-of-wedlock births jumped up. Moreover, the issue didn't really come to the public's attention until just the past year or so. 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 that point does in fact represent a reversal, or merely a temporary plateau. Time will tell, but my assessment is that Lucia is only half right here:

There is hope yet. If we continue discussing same sex marriage, and enacting it more widely, Americans may once again remember that people raising kids had best be married.

The key to saving marriage will be to broaden the discussion of SSM and then, ultimately, to reject it.

Posted by Justin Katz at 12:32 AM

June 4, 2004

As If He Has Something to Say

How audacious of Stanley Kurtz to keep on researching, writing, and publishing as if he's got something to say about marriage in Northern Europe. I don't know that I've ever seen a writer's work on a particular topic more frequently declared debunked, and yet, he keeps on writing. Well, that's because he's constructing a more thorough argument than the debunkers have been willing to address:

As we've seen, the upswing in the Dutch out-of-wedlock birthrate coincides with the enactment of registered partnerships and gay marriage. A diligent search for alternative explanations, such as access to contraception and women in the workforce, yields nothing that correlates well with the rise of out-of-wedlock birthrates in the Netherlands. Both opponents and supporters of gay marriage linked the willingness to embrace same-sex marriage with increasing social and legal acceptance of cohabitation rather than marriage for couples with children. Although pinpointing cause and effect raises particular challenges when studying the intricacies of human social life, there are now at least strong indications that Dutch gay marriage has contributed significantly to the decline of Dutch marriage.

Perhaps there is an alternative explanation. But it is up to those who wish to argue that gay marriage has not undermined marriage in the Netherlands to provide a more plausible reason for the last seven years of Dutch marital decline.

Of course, everybody knows that this stuff has been deconstructed so thoroughly and quickly that even new points are "destroyed" before they've even been made. On that basis, it's understandable that Andrew Sullivan finds no need to do otherwise than mock:

You can, in fact, draw a direct connection between the liberalization of marriage laws in Liechtenstein and this collapse in marriage in Japan. And the turning point came at exactly the moment that Richard Hatch won "Survivor," putting another nail in the coffin of heterosexual marriage.

(An increase of snide comments over substantive reply to Kurtz has actually been a long-term trend for Sullivan. At each stage, Kurtz makes an argument, Sullivan provides some sort of reply, Kurtz addresses that reply, and Sullivan lets it drop, only to ratchet up his efforts simply to discredit Kurtz through ad hominem.)

Posted by Justin Katz at 10:53 PM

June 2, 2004

Soon to Be Chastised?

Yesterday, Jay Nordlinger ruminated

Again, I am sort of amazed at the speed with which life can move.

I, for one, will not wear the label of bigot or hater because I oppose — or certainly have doubts about — homosexual marriage, and I invite others to reject that label as well. (I doubt that many of my readers have much trouble.) I believe that you can be perfectly compassionate and understanding and sympathetic without endorsing gay marriage — because, in the view of some of us dinosaurs, marriage is a specific and peculiar thing, not a free-for-all.

But I will say once more: In some circles, at least, this debate has turned nasty and perverse very quickly. You think you're a perfectly liberal-minded fellow; you would fight furiously the menacing of gays anywhere. But you wake up to find you're Torquemada just because you're not willing to upset a definition of marriage that has existed since the dawn of time.

Reading that, I thought of a letter in the Providence Journal the day before, by Judy Logan:

Before we legislate for full acceptance of homosexual behavior, I think we should wait until more facts are known. Is there any physiological evidence that a homosexual person is made differently from a heterosexual? Is there conclusive evidence that homosexuality is not a learned behavior? A study done in 2001 by two University of Southern California sociologists concluded that while children raised by gay parents show more empathy for social diversity, they are more likely to explore homosexual activity themselves. Is it possible that homosexuality is a result of a chemical or hormonal aberration that could be addressed medically if more research were done in this area?

I think we need more facts before we redefine the institution of marriage.

I wonder how Ms. Logan was, and continues to be, met on the streets and in the public and private spaces of Rhode Island since she was brash enough to publish such sentiments. Presumably she had some inkling of what to expect; I don't think the right-thinking diktat is evolving more quickly than a newspaper's letter-publication cycle.

Posted by Justin Katz at 11:47 PM | Comments (1)

June 1, 2004

Judging by the Joyful

The crucial question seems to be this: Are there two sides to the gay-marriage story? Is this a case in which mainstream journalists -- as opposed to reporters at places such as Salon.com, Out and some sections of the New York Times -- should attempt to find some kind of balance between those in favor and those opposed? Or, in the view of the press, is this officially a battle between the enlightened and the bigots?

Terry Mattingly posed these questions last week, addressing an opposing question, from Ron Kampeas: "How do you avoid upbeat wedding coverage?" Mattingly justifiably wonders whether there are any "journalists in U.S. newsrooms who could even imagine what this story looks like from a morally conservative point of view." That tack, however, still leaves recourse to Kampeas's line of rhetoric:

Should a wedding be covered like a campaign rally, with every second graf a reminder of "why this might be wrong." How do you fact check a wedding? How many people, even among the opponents of gay marriage, could be counted on for pertinent nay-saying quotes in wedding coverage?

The whole discussion misses the more prominent aspect of bias in coverage of Massachusetts's same-sex marriages. One doesn't have to dig up quotations from protesters to balance a piece about an event, just as one doesn't have to include activists' quotations to impart bias. As I've touched on before, the key to balance, and to giving due credence to the "other side," in this case is to show couples that illustrate the concerns of those who object, not just those who further the chosen image of the activists.

Posted by Justin Katz at 8:15 PM

May 31, 2004

Keeping Doubts Alive

There isn't much to fruitfully argue in Walter Olson's latest post regarding Virginia's recently passed amendment to its Affirmation of Marriage Act. Olson presents his post as a response to Ramesh Ponnuru's explanation, which is similar to my own. Ponnuru and I have argued what the law ought to be construed to mean; Olson is arguing what it could (and shouldn't) be construed to mean. Inasmuch as even some of the articles that Olson cites present the central points that I would make, to argue along the "what will it do" line would be to continue a repetitive dance.

The amendment is now law, and until judges begin taking the cases that will eventually illustrate what it does and does not cover, restating ambiguities over and over would seem to lend credence to bill-sponsor Delegate Robert Marshall's suggestion that the intention is "to sow doubt about the statute."

However, the following from Olson oughtn't go without comment:

So, again: which private arrangements are void? Ponnuru's answer is agreeably circular: he thinks the law will ban only those arrangements which purport to convey incidents of marriage which cannot be conveyed by contract. In other words, it will ban only those arrangements that are already void.

That bit about Ponnuru's conclusion being "agreeably circular" seems, if Olson has paid half as much attention to the debate as I believe he has, disagreeably oblique. As we're discovering in Rhode Island, and as has been suggested here and there across the country, with states' creation of civil unions and legitimization of same-sex marriage, the explicit declaration of "public policy" in other states is pivotal in preventing importation of those arrangements. And indeed, the version of the amendment that passed the Virginia House uses the language "declares as existing policy."

Understandably, those who support SSM will object to any barriers' being built into state laws, but to imply that the barriers' redundancy indicates ulterior intentions is a bit much. On one hand, SSM advocates wish to push redefinition through the courts on the grounds that marriage isn't defined, and on the other, apparently, some of them object that legislating definition is so unnecessary as to prove expanding bigotry. For their part, those who oppose the judicial imposition of SSM believe any such laws would be redundant.

Although I'd suggest that all of the various imputations of motive muddy waters in need of clarification, the effort spent pushing laws and arguments to their most extreme interpretations is much more extensive among those who wish to do away with them. Consider Olson's "curious postscript":

Marshall (whose private views, of course, do not determine how courts will rule in interpreting the law) disagrees with the idea that durable power of attorney, medical directives or wills might come into question, but "said the Virginia law is intended to ban child custody and guardianship agreements between same-sex partners". ... The mention of guardianships is interesting since the designation of guardians has long been untethered to the "privileges or obligations of marriage" -- parents can and routinely do select sisters, cousins and completely unrelated friends of the family to step in as guardians for their children in the event of their demise. It appears that Marshall -- contra Ponnuru's thesis -- hopes the law will empower courts to undo private legal arrangements which are routinely upheld as valid when carried on between other unrelated persons on the grounds that they arise from a same-sex relationship.

Olson goes on to warn of a legal guardian from another state having her long-deceased partner's child snatched by the Virginia bureaucracy while on vacation within its jurisdiction. Such an event would be a travesty, indeed. However, posing the scenario on the basis of an unsympathetic reporter's paraphrase of Delegate Marshall's legally irrelevant statement on the matter would seem to discard Olson's previous emphasis on "plausibility."

In response, I'm tempted to ponder the likelihood that a federal judge will take the opportunity created by such extreme hypotheticals to strike down the Virginia statute in a ruling that's sufficiently broad to invalidate even more temperate state laws. Whether that happens, we'll just have to wait and see, but I'm not optimistic that supporters of SSM will apply their apparent aversion to surplus breadth in legal language to the ruling if it does.

Posted by Justin Katz at 3:49 PM | Comments (2)

May 25, 2004

Reverse Ripples in the Flood

Last Saturday, on the Beltway Boys, Mort Kondracke voiced a common point of advocates for same-sex marriage. In effect: "How can 2% of the population affect the institution of marriage?"

A more specific manifestation is the untempered incredulity with which proponents react to the notion that SSM could affect traditional marriage and indicators of its health, like cohabitation, out-of-wedlock births, and so on. Congressman Robert Scott (D-VA) gave a perfect example of both the specific boundaries that the question is deliberately made to fit and the foreordained reaction during hearings on same-sex marriage in the Judiciary Committee (at about 1:02:30 of the streaming video). He phrased his question in various ways, but he never moved far from the restricted matter of whether "a present traditional marriage will be harmed if gays get married." When panelists answered "yes," although attempting to answer the more relevant institutional question, he laughed.

What the laugh indicated, above all, is that these questions are meant to be purely rhetorical. In Congressman Scott's case, the question was designed to be so narrow as to exclude all but a handful of easily addressable answers. In the broader — more intellectually fair — versions, it is supposed (perhaps gambled) that no adequate response exists or can be made with sufficient clarity to persuade the public.

Stanley Kurtz's new essay in the Weekly Standard, "Going Dutch?", uses the Netherlands as a case study by which to show how, indeed, the concept of same-sex marriage weakens the institution and, in turn, changes the behavior of heterosexuals:

A careful look at the decade-long campaign for same-sex marriage in the Netherlands shows that one of its principal themes was the effort to dislodge the conviction that parenthood and marriage are intrinsically linked. Even as proponents of gay marriage argued vigorously--and ultimately successfully--that marriage should be just one of many relationship options, fewer Dutch parents were choosing marriage over cohabitation.

As I've said before, it wasn't the 2% (or whatever) of homosexuals alone who pushed their cause this far, and it won't be solely them who bring about the repercussions. The actual influences will vary from culture to culture, but what Northern Europe provides is an example of the sort of mechanism at work. It isn't a matter of a given homosexual couple's sparking reactions in specific heterosexual couples, but of the approach that equalizes the two at the social level.

Approach seems to be a key factor to the position that a person takes. Opponents of same-sex marriage begin with a principle — that hasty fundamental changes to the idea of marriage will harm the institution — and look for evidence. Because their focus is elsewhere, proponents of SSM essentially respond to this point in reverse: insisting that the statement of principle can only follow from the evidence. In something as complex and amorphous as society, such a demand ensures that we are always searching backwards for what went wrong. A man doesn't step from the courthouse after final divorce proceedings and remark, "Huh, I guess this divorce indicates that I didn't value my marriage."

The more intellectually driven (and willing to discuss) among those who argue for SSM, such as Gabriel Rosenberg, will respond to Kurtz that homosexuals are parents. Without treading too deeply into the dispute about what is meant by "parenthood," one can observe that here, too, the direction of movement between principle and evidence is reversed; some homosexuals are parents, so they should be included in marriage.

But homosexual parenthood is incidental. Most of them are not parents, and only a debatable number have that desire. That they have children does not follow from their relationships. Fertile straights, in contrast, are parents in principle, and marriage aligns this biological reality with culture. Sterile straights who adopt become parents on a case-by-case basis and are, in a neutral sense, aberrations. Homosexual couples are sterile by default. Society can form policy that accepts a certain amount of irregularity. It cannot form policy in the hopes that a principle will adhere where it does not inhere.

The conflict of approach is part of a broader cultural difference and underlies a range of topics. (Evolution comes to mind.) Generally, when evidence begins to appear for the traditional principle, progressives' emphasis switches. They become much more obvious in the degree to which they were acting from belief all along, themselves. They make reference to the complexity of the issue and the probable existence of other factors; they declare that opponents can't prove anything beyond a shadow of a doubt. But that's only because the progressives will refuse to see it proven.

If we wish to discern, in advance, what proof is likely to emerge and what principle is likely to be formed, we do well to look for evidence in the way in which same-sex marriage is being approached. As persuasive as Professor Rosenberg's argument might be under certain circumstances, the practical reality is that those circumstances are not our own. Few advocates for same-sex marriage emphasize the benefit to children; that subtopic is, rather, handled as a rebuttal when the other side brings it up.

Still further, I don't recall reading a single account of a homosexual lamenting the impossibility of marriage because it affected his or her children. Even when children are present, the argument focuses on the adults and their rights and benefits. In the visible promotion of the issue, children are presented primarily to inculcate an impression of normalcy.

In theory, yes, gay parents could be folded into the secular marriage-parenthood equation, but so could any number of family arrangements. The simple reality is that this isn't the attempt being made. Evidence regarding the health of marriage is essentially irrelevant from the point of view of the push for gay marriage. Either its health is taken on faith or it is dismissed. This treatment is most obvious in the absence of hesitance in the name of principle — the urge to disregard Scandinavia rather than to wait for longer-term trends to emerge more clearly.

The divorced man leaving the courthouse makes his observation too late. If he and his spouse had been more deliberate in asking themselves and each other whether they valued their marriage back when the answer would have been "yes," the option of divorce wouldn't have formed as possibility.

Do we value marriage?

Posted by Justin Katz at 2:51 PM | Comments (24)

May 24, 2004

Contra Max Boot

Don Feder understands that the inevitability of same-sex marriage is proportionate to liberals' power to force it:

That's ancient history. Today, liberalism is characterized by a sneering disdain for vox populi. The slogan of 21st century liberalism is: Shut up and do what you're told.

Nothing better illustrates liberalism's betrayal of democratic principles than its embrace of judicially mandated gay marriage.

Under an edict from its high court, Massachusetts began issuing marriage licenses to same-sex couples this week. It was but the latest example of judge-ocracy supplanting democracy, and the most recent instance of liberal autocrats forcing their values on a cringing public.

Boot is not alone in declaring that the courts are "only slightly ahead of the societal consensus." Frankly, whether or not one believes that SSM is inevitable in the long term, the extent of Boot's claim strikes me as absurd, and only plausible if one is fully immersed in the mainstream media's total whitewashing of related issues.

Posted by Justin Katz at 7:04 AM

May 23, 2004

When Defeat Isn't Utter Defeat

Supporters of same-sex marriage have been making a big deal out of defeatist columns by Max Boot and Cal Thomas. Although the opposition's ploy gives a vague sense of spuriousness, the columns are, for different reasons, worth addressing.

In Boot's case "defeatist" may not be an accurate term, inasmuch as I don't know what his position has heretofore been. At the very least, it seems reasonable to suggest that he hasn't done quite as much reading from the side that he might or might not consider to be his own on this issue. In this, he can be forgiven, considering that pieces laying out the arguments are rare in the mainstream media, and that those arguments are almost nonexistent in ostensibly objective coverage of the debate. Still, it's disconcerting to find Boot essentially paraphrasing the points from the other side.

Opponents of same-sex marriages may have most of the public on their side for now, but they've already all but lost this battle.

How do I know? Simply by looking at the arguments being advanced by both sides. Advocates of same-sex marriage speak in the powerful language of civil rights and liken their cause to that of African Americans fighting anti-miscegenation laws in years past. And what do opponents say in response? Once upon a time, the case would have been open and shut: Sodomy is a sin, period. Many people may still believe that, but that's no longer a tenable argument in our secularized politics.

The truth of the matter is that I've heard almost no opponents offer that as a response. In fact, probably a majority, including myself, have professed opposition to sodomy laws. Boot is correct, however, that many of us have made the marriage argument from tradition. His answer to it, though, with all due respect, is of the sort that I fielded in high school classroom debates:

They argue, first, that we shouldn't tamper with thousands of years of tradition that holds that marriage is between a man and a woman. But 141 years ago we tampered with an equally old tradition: slavery.

One struggles to articulate the difference between the primitive labor practice of slavery and the family structure of marriage to a conservative for whom it isn't obvious. Traditional marriage? Well, hey, we don't scourge thieves in the public square anymore! It seems the victory that Boot presumes to concede is much broader than simply of same-sex marriage; radical feminists surely feel vindicated in their equation of marriage to slavery.

Therein emerges the strange echo that underlies Boot's next point:

Their second argument is the slippery slope — first gay marriage gets legalized, then polygamy, pederasty, incest and who knows what. But this kind of reductio ad absurdum can be applied to just about anything. If liquor is legal for adults, why not for children? Society always draws the line somewhere.

And yet, embedded in his declaration, a few paragraphs before, that the opponents of SSM have "already all but lost this battle" is this very same unstoppable movement, whether he wants to see it as slipping down a slope or being pushed by an avalanche. "Contraception and abortion — once taboo topics — have been enshrined into law... On TV, characters used to say 'gee whiz' and sleep in twin beds; now they curse as if they had Tourette's syndrome and flash skin as if they were Gypsy Rose Lee":

The U.S. Supreme Court struck down anti-sodomy laws last year. The Episcopal Church has appointed an openly gay bishop. Many newspapers carry the equivalent of wedding announcements for gays. Same-sex kisses, once shockingly daring, are now almost as common on TV as commercials for Levitra or Prozac. Given this seismic cultural shift, anyone who makes avowedly moral arguments against homosexuality now gets treated the same way homosexuals were treated only a few years ago — as a sex-mad pervert.

Note whom Boot cites for evidence: the Supreme Court. The Episcopal Church. Newspapers. Hollywood. The elite. To Boot, there is apparently no Culture War, in the sense that sides actually disagree in fundamental ways. Liberal elites push the boundaries and call it progress; the rest of us follow. It's the classic liberal view of conservatism — a temporary reluctance. The reaction to Janet Jackson's boob doesn't, apparently, exist in this world. The success of The Passion of the Christ is a matter of cinematic taste. Such events are little but the last spasms of recalcitrance, sparked when our betters turned up the controls just a little too much in our transformation:

Republicans would be wise not to expend too much political capital pushing for a gay marriage amendment to the Constitution. They will only make themselves look "intolerant" to soccer moms whose views on this subject, as on so many others, will soon be as liberal as elite opinion already is.

And despite all that has preceded this point, Boot writes — with the confidence of the opinion-page researcher — that "it's hard to imagine that legalizing gay marriage will make much difference in the lives of most people" and that homosexuality "always has been and always will be the preference of a tiny minority; most of us are biologically hard-wired for heterosexuality." Are those two statements what legitimates Andrew Sullivan's characterization of Boot as a "leading conservative"? That he declares our traditional lives inviolable and asserts that homosexuality remains unnatural for most?

I suppose there's consistency to be found; moral arguments don't apply to homosexuality, because homosexuality is simply a matter of biology. Building on that, what is unnatural for most can be natural for some, and it is immoral to restrain the natures of a minority merely because what they wish to do conflicts with the preferences of the majority. It's all written in our immutable beings — stenciled on our souls by God. That's the story, anyway. We'll have to wait and see whether "polygamy, pederasty, incest" can be in the natures of some, as well.

For now, same-sex marriage is a done deal, says Boot. "Since the ultimate concern of conservatives is to preserve the institution of marriage, they would probably be better off caving on gay marriage rather than acceding to the most popular alternative: civil union." Somehow, in a world in which it is in homosexuals' nature to marry, it is not in heterosexuals' to do the same. We must open the doors of marriage, because otherwise, heterosexuals will wade across the swamp to the less onerous citadel of civil unions.

Cal Thomas's conclusion is oddly consonant with Boot's:

"Pro family" groups have given it their best shot, but this debate is over. They would do better to spend their energy and resources building up their side of the cultural divide and demonstrating how their own precepts are supposed to work. Divorce remains a great threat to family stability, and there are far more heterosexuals divorcing and cohabiting than homosexuals wishing to "marry." If conservative religious people wish to exert maximum influence on culture, they will redirect their attention to repairing their own cracked foundation. An improved heterosexual family structure will do more for those families and the greater good than attempts to halt the inevitable. A topical solution does not cure a skin disease whose source is far deeper.

As the population within the marital walls increases, Thomas suggests, traditionalists' only chance of making a difference is to rush to mend the floor. What's stunning about Thomas's column is that he sees same-sex marriage as inevitable because it is a "cultural tsunami" that began with a "subterranean earthquake": "this 'wave' was preceded by a seismic shift in the moral tectonic plates." Yet, he advises as if marriage is the highest ground it will reach, before receding to sea level, the landscape irrevocably changed.

Although approached from positions of belief and rejection, respectively, Thomas and Boot's answer to the "slippery slope" is the same. Thomas has faith that traditionalists can build a platform, Boot that a line will just be drawn... "somewhere."

Yes, I agree that part of securing long-term victories is the ability to make advantages out of short-term defeats. Perhaps conservatives can capitalize on some thread in the same-sex marriage movement to swing public opinion toward stiffened divorce laws. We'll have to try, at least. But in their advice to redirect efforts, both Thomas and Boot imagine that we are stepping onto firmer ground — that the assault will not continue.

In all of the varying arguments, and arguments about the arguments, few have thought to point out an obvious factor: it wasn't the "tiny minority" of homosexuals alone who pushed their cause this far. Homosexuals do not control the Supreme Court, the media, Hollywood, or even the Episcopal Church. As far as I know, the politicians and town clerks who have sought to undermine their individual legal systems were not universally, or even primarily, gay. And yet, the "gay cause" has advanced.

Both of our defeatist conservatives refer to an inexorable "seismic shift," but my mind keeps coming back to Boot's example: "anyone who makes avowedly moral arguments against homosexuality now gets treated the same way homosexuals were treated only a few years ago — as a sex-mad pervert." Way back, before the rumbling earth rolled us down the slope, society used to lock up perverts and didn't think freedom of speech included theirs. What do we face further down?

Posted by Justin Katz at 7:02 PM

Legislating via Plausible Deniability

The extreme bias of Linda Borg's Providence Journal coverage of the now-famous Lee and Judi McNeil-Beckwith, the first lesbian Rhode Islanders to make a show of marrying in Massachusetts, is hardly noteworthy. Of a little more interest — in an inside-baseball sort of way — is that Borg's is the first Projo article I've seen that admitted that Attorney General Patrick Lynch "parsed his words carefully" for his "opinion" on the legal question of such marriages' validity. In a mild way, I wonder whether somebody at the paper read my previous complaints about its handling of Lynch's statement.

However, busy and stressed out as I am, the following is what made this latest bit of marketing-as-news worthy of a few moments for a post:

After waiting nearly a decade, the couple wanted one final blessing before they took the plunge. They wanted to make sure their marriage would be valid when they returned to Providence. And so Lee called Attorney General Patrick C. Lynch Tuesday and asked for his advice.

"He congratulated us, wished us well and said his hope is that we receive all of the benefits" of marriage, Judi said.

That makes Lynch's parsing seem somewhat less of a political balance and more of an activistic strategy. It's one thing to decline responsibility for a decision in such a way that others manipulate the statement to place responsibility where it does not belong. It's another thing to intend for that to happen.

Posted by Justin Katz at 3:31 PM

What Any Two People Can Do

This is a little old, but I wanted to note that Ramesh Ponnuru has, as promised, addressed the Virginia civil unions law:

A while ago, I said I would look into a bill underlying a dispute between Jonah and Andrew Sullivan. The latter said that Virginia had passed a law that made it impossible for gay couples to make certain contractual arrangements. He said that conservatives should denounce the bill, especially since many conservatives had suggested the use of contracts as a substitute for the practical benefits of same-sex marriage. ...

The narrower reading seems to me much more plausible. The theory behind this reading is that confronted with the words "the privileges or obligations of marriage," a court or executive agent should look to the other laws of Virginia to figure out what those privileges or obligations are--and not try to derive some other meaning for them from another source. For the purpose of state law, the privileges and obligations of marriage are whatever state law says they are. The purpose of the law is to prevent any other state's decision about these matters from overriding those of Virginia.

Of course, Ramesh could have saved himself some time by simply linking to me. Hey, that's what we bloggers are here for.

Posted by Justin Katz at 2:56 PM

May 21, 2004

Cherry Picking Marriage & Family Numbers

PROEM:
Click "Turn Light On" at the top of the left-hand column if you'd prefer a simpler layout that you may find more readable.


I made it through most of the day maintaining my resolve not to spend any time on Andrew Sullivan's reference to Lee Badgett's piece arguing against Stanley Kurtz's Scandinavian analyses. Although Sullivan — among others of his fellow SSM advocates — seems peculiarly anxious to declare that this "mini-debate, at least, is now over," my time is just too thinly stretched to do today what Kurtz has promised to do next week.

Still, one factoid that Sullivan quotes from Badgett struck me as high, and I couldn't resist checking it out:

In the Netherlands, a bit south of Scandinavia, 90 percent of heterosexual couples with kids are married.

Well, I can't argue with that. According to the Netherlands StatLine, in 2003, there were 1,878,713 married couples with children and only 213,941 unmarried couples with children, which is, indeed, a 90% marriage rate (actually 89.7%). But that doesn't tell quite the whole story. There were almost twice as many single-parent households in the Netherlands in 2003 than unmarried couples: 424,742. In other words, married couples only make up 74.6% of all households with children.

That's still relatively high, of course. However, since we're looking at these numbers within the context of historically recent events, the current number is less important than the trends since those events. And in 1995, the year the same-sex marriage ball started rolling in the government, the numbers were: married, 2,012,375; unmarried, 99,610; and single, 360,754. In other words, married couples were 95.3% of all couples with children and 81.4% of all households with children. The numbers have since dropped 5.6 and 6.8 percentage points, respectively.

Although married couples represent the only decreasing group, a dark silver lining exists in that unmarried couples are increasing at a faster rate than single parents. At least there are two parents in such homes. It should be noted, however, that this rate difference decreases for households with multiple children.

Once again, it strikes me as premature, to say the least, to declare the matter settled.

ADDENDUM:
While poking around the statistical Web site, I noticed a new dynamic that will surely come up in the future, so it's worth mentioning here. The divorce rate in the Netherlands is now lower than it was throughout most of the '90s. It had been hovering in the low-to-mid 30,000s and increased steadily after 1998 (the year same-sex partnerships actually entered the law), rising from 32,459 that year to 37,104 in 2001.

On April 1, 2001, marriage itself was opened up to same-sex couples, and since then, the number of divorces has fallen — to about 32,000 in 2003. However, at the same time, the law was changed to allow couples to switch between marriage and registered partnerships with merely a visit to a registrar. Unlike marriages, registered partnerships can be dissolved out of court, by a solicitor or notary. This has led to a phenomenon called "flash annulments," of which there were about 5,000 in 2003. In other words, married couples are getting divorced without its being counted among the divorce statistics. "About 60 percent of the conversions [from marriage to partnership] were dissolved within a month, 90 percent within six months."

Including flash annulments, divorces in the past three years have been well above any previous year, before or after registered same-sex couples of one form or another.

Posted by Justin Katz at 8:31 PM | Comments (9)

May 20, 2004

An Expanding Crack in the System

As the day has worn on, my mind keeps returning to just how stunning what's going on in government with respect to this marriage issue is. For the moment, put aside your beliefs and conclusions about the question itself and think about the mechanism of its progress.

From the Providence Journal article that I mentioned earlier:

It appears clear, however, that legalizing gay marriage won't happen in this, an election year.

Rhode Island is one of a minority of states whose laws are ambiguous when it comes to same-sex marriage.

Lawmakers submitted bills this legislative session to legalize same-sex marriage, and to prohibit it by defining marriage as the union of a man and a woman. But all those proposals appear dead, lawmakers say.

"A lot of representatives and senators would rather stay away from controversial issues in an election year," said Rep. Edith H. Ajello, D-Providence, one of the sponsors of the proposal to legalize gay marriage.

With the state next-door handing out marriage licenses and a public not sure what that means for their own state, the legislators consider keeping their jobs to be more important than doing them. They wish to be elected not because they feel they deserve the job, nor because they feel themselves actually representative, but because, well, because they wish to be elected. Bad timing — no vote.

But little matter. Along comes the attorney general who, although he is elected, is an enforcer rather than a legislator, so what the law is or becomes won't seem directly relevant to how well he is performing and, therefore, whether he deserves reelection. Nonetheless, he issues a carefully phrased statement on the question, which the legislators are too scared and lacking in principle to answer, saying essentially that it depends whether same-sex marriage conflicts with "public policy," and that such a thing isn't for him to decide. Ambiguity on top of ambiguity, and here's the tally: legislature, no comment; executive, not my department; judiciary... well.

The lone remaining branch is certain to be given its own opportunity to have a say. That opportunity has accelerated, because the "not my department" reply from Lynch, a representative of the executive branch, isn't quite so benign:

Judi proposed to Lee on Sunday in the rose garden at Roger William Park in Providence.

But they didn't rush up to apply for a marriage license early Monday -- they waited to hear what Rhode Island Attorney General Patrick C. Lynch had to say.

After Lynch said he did not see a prohibition against gay marriage in Rhode Island law, they drove to Worcester to file for a license. On Tuesday, it was off to the doctor for premarital blood tests, which came back today. ...

But while they know the issue may end up in court, the McNeil-Beckwiths believe the license is valid, citing Lynch's opinion. The attorney general said the law suggests the state would recognize any marriage legally performed in another state, "unless doing so would run contrary to the strong public policy of this state."

In other words, even though he declared it the job of another branch to decide the matter, it is as if he's given the go ahead. So, the elected body charged with making laws as the people's representatives is taking a pass. An elected official with no direct responsibility for anything other than enforcing the laws rightly passes, as well, although opening the way for legal challenges so wide that people believe he declared the matter legal. And now it will end up in the hands of — you guessed it — officials who are appointed for life and can only be reached by the people if "impeached by a majority of the house of representatives and convicted by two thirds of the senate."

I'm not going to make any predictions, but considering the unified advocacy of the media — from the state's major newspaper to its main talk radio station — I wouldn't be surprised if the legislature's election-year demurral isn't made permanent before the representatives get a chance to actually take a stand. The frightening possibility is that this may be the new paradigm for controversial issues — which will tend toward the "most important" side of the public ledger.

Similar arguments about a crack expanding through a government made brittle by politicians' weakness and judges' presumption apply to Massachusetts. Hadley Arkes argues that the weakest link in that state's balance of powers was the governor. Here's one point in a more-involved column:

... if the constitutional authority was really with the governor, to act for himself and the legislature, then it made the most profound difference that the governor flex that authority now himself: He could invoke his powers under the constitution; cite the error of the court in seizing jurisdiction wrongfully for itself; and order all licenses of marriage to be sent on to Boston, to his office, until the legislature, in the fullness of time, settled its policy on marriage. By an act of that kind he would have forced a change in the focus of the litigation: The task would fall then to the court to entertain challenges to the actions of the governor. If the judges summoned the governor to appear before them, there would no longer be any quibble over the question of whether the governor has standing before the court, or whether he would appear. And the court could be compelled now to face precisely the issue that the judges had skirted: whether the majority of four had themselves violated the constitution of Massachusetts. Faced with a tension of that kind, it was even conceivable that one of the wavering judges of the four might peel away, and in peeling away, leave the issue back where it belonged — in the political arena, with the governor and the legislators.

William Duncan concentrates on the legislature's complicity:

In 2001, a citizen coalition gathered 76,607 certified signatures (57,100 were needed) to place before the Massachusetts legislature a proposed constitutional amendment that, if passed, would have defined marriage as the union of a man and a woman and prevented the creation of a marriage equivalent. In order to be placed on the ballot, the measure needed to gain the support of 25 percent of legislators in two successive sessions. Evidencing a fear of the popular vote that bordered on "democraphobia," the Goodridge lawyers lobbied the attorney general and filed suit to prevent the legislature from considering the proposed amendment.

They need not have made the effort. The senate president ensured that the bill would not get a vote by simply ending the constitutional convention before such a vote could be taken. (The Supreme Judicial Court ruled that this violated the Massachusetts constitution, which calls for "final action" on initiative proposals.) If the legislature had voted at that time, the measure could have been on the November 2004 ballot.

The activists' quick recourse to the attorney general and to file a lawsuit suggests where they believe the ultimate authority to lie. Apparently, the legislature agrees, as Duncan suggests when he writes that "the new senate president proposed a civil-union law, but dutifully sent his proposal to the court for input before allowing legislators to vote on the idea."

All of these factors come together to suggest the trajectory of the debate into the federal sphere. Between the various arrogations, abrogations, and equivocations, the terms of the discussion are cycled and churned so dramatically that concepts of principle and precedent are meaningless. As Stanley Kurtz points out, civil disobedience swept aside arguments about federalism and Massachusetts's residency law for marriage before they were even tested. Moreover, in Goodridge, Justice Greaney cites the residency rule to assuage objections to the court's decision. Just four months later, lawmakers cited Goodridge itself as invalidating the residency rule.

At this point, I'm not sure what to think. It takes some effort to get up to speed on this matter, and I'm not confident that the American people will invest that effort in time to prevent — or even demand a vote on — nationalized SSM. The erosion of the walls between government branches blurs violations of separation of powers. The quick and specious characterizations of the issue as a simple civil rights issue confuse the emotions of a post-Sixties culture. And the facile references to safeguards, whose demises are already planned, are succeeding in bolstering citizens' natural apathy from one stage of the coup to the next.

That, to me, is the concern that transcends the particularities of same-sex marriage. For the overt issue, one can construct a dark solace by comparing same-sex marriage to other shifts in law and culture that have harmed marriage and, therefore, the basic family unit of society. Christians can find a less-dark peace in the knowledge that our spiritual obligations remain largely the same, only in a different (albeit more difficult) context. The danger that these comforts will be less capable of mitigating, however, is that the strategy that will have brought our nation same-sex marriage will be applied to any issue that can be made to fit the mold — capable of being spun into equal rights phrasing and of being litigated.

Hope is not lost, though, even on the matter at hand. Andrew Sullivan is either deceptive or delusional when he writes:

The major goal of the anti-marriage rights lobby was to provoke hysteria and backlash from the images of weddings for gay couples. But, in fact, the mainstream response has been either positive or neutral. Most people rightly fail to see how these couples' committing to one another hurts anyone else. And if it doesn't harm anyone, and brings such joy to so many, why stop it?

The backlash suggestions from every advocate against same-sex marriage whom I've read making any predictions are expected to coincide with the export of Massachusetts's marriages elsewhere, and that has yet to come. When it does, increasing numbers of people may come to see what folks such as myself have been arguing all along: even if the sociological arguments are too abstract, there are more direct and palpable ways in which the arrival of same-sex marriage affects us all adversely.

Odd that Mr. Sullivan doesn't appear to have even considered whether the lack of hysteria on M-Day among those who oppose SSM indicates that their motivation isn't hate and bigotry, after all. Maybe theirs is a reasoned, principled argument. Well, soon enough, advocates for SSM will have their own opportunity to prove that they stand on principle. Sullivan in particular — from February:

If all legal precedent fails, if DOMA is struck down, if one single civil marriage in Massachusetts is deemed valid in another state, without that other state's consent, I will support a federal constitutional amendment that would solely say that no state is required to recognize a civil marriage from another state. By that time, we might even have had a chance to evaluate how equal marriage rights play out in a single state or two.

We'll see. I can only hope to be stunned by what actually occurs in that case.

Posted by Justin Katz at 9:41 PM | Comments (8)

What Each of Us Sees in the Marriage Law

As I pointed out on Monday, Rhode Island gay activist Kate Monteiro was wrong to say that state Attorney General Patrick Lynch "has said clearly that what we've done for centuries in Rhode Island will continue - that valid legal marriages performed in other places are recognized here in Rhode Island." It's clear, from Lynch's statement on the matter, that he believes there isn't anything explicit on which he has the authority to opine, but that the answer will have to be "determined by statute, legal precedent, and common law."

Well, Providence Journal reporter Tom Mooney likes Monteiro's interpretation better than mine:

Attorney General Patrick C. Lynch's opinion Monday that Rhode Island should honor legally obtained same-sex marriages performed in Massachusetts signaled how the landmark ruling across the border promises to have ramifications here.

"Promises," no less. To the extent that Mooney's suggestion is true, it is evidence of nothing so much as that Representative Victor Moffitt was right to suggest that Lynch should have been clearer in confirming that "he can't interpret what's not there" in the law. For his part, Moffitt was the legislator who introduced the bill to confirm marriage's definition in Rhode Island as what everybody's always believed it to be.

Representative Edith Ajello, a sponsor of an opposing bill to expand marriage to couples of the same sex, made a comment with broader, almost conspiratorial, implications:

The more people see pictures and hear personal stories about couples who have been living in committed relationships for years finally being allowed to make their relationship legal, the more people will relax.

That's certainly true, particularly considering the degree to which the average citizen just wishes the issue would go away. In fact, homosexual activists are playing on the inclination to shake our collective heads and turn away in their marketing work. The Boston Globe reported, speaking of Susan Shepard and Marcia Hams, the first lesbian couple to receive a marriage license in Boston:

The couple had been carefully selected by gay advocacy groups, including the National Gay and Lesbian Task Force and GLAD. Those advocates are eager to see media attention trained on the right kind of couples in the first hours of gay marriage: those with deep local roots, so their residency -- the focus of enormous controversy over gay marriage in the past few weeks -- is not in question.

The planning and control are not just in response to the residency requirement, of course. The strategy has been part of every decision, including the search for plaintiffs in Goodridge and other cases. It has also been an effort that many media sources, including the Providence Journal, have been suspiciously willing to assist. The Boston Herald found a (perhaps mild) example of the sorts of couples that are being so scrupulously avoided elsewhere:

PROVINCETOWN - The couple who expect to be the first to receive a marriage application here on this landmark day is from Minnesota, and despite legal obstacles the governor has tried to enforce, they plan to marry around noon.

I don't care about what the governor has to say,'' said Jonathan Yarbrough, 30, who will reaffirm his legal Canadian marriage to his partner of seven years, Cody Rogahn, 55. The couple called in January to reserve the top spot. ``What the governor is doing is shameful in itself.'' ...

Yarbrough, a part-time bartender who plans to wear leather pants, tuxedo shirt, and leather vest during the half-hour ceremony, has gotten hitched to Rogahn, a retired school superintendent, first in a civil commitment in Minnesota, then in Canada, and now in Massachusetts, the first U.S. state to recognize gay marriage.

But he says the concept of forever is "overrated'' and that he, as a bisexual, and Rogahn, who is gay, have chosen to enjoy an open marriage. "I think it's possible to love more than one person and have more than one partner, not in the polygamist sense,'' he said. "In our case, it is, we have, an open marriage.''

"Have chosen to enjoy an open marriage." That's in contrast, I suppose, to couples — such as my wife and myself — who "have chosen to submit themselves to the restrictions of monogamy."

One wonders whether Rep. Ajello believes the public will relax if the pictures are of leather-clad libertines with twenty-five year age gaps being openly defiant of the law. Granted, that's a big "if."

Posted by Justin Katz at 12:03 PM

May 17, 2004

Overstating and Underplaying

The Rhode Island attorney general, Democrat Patrick Lynch, has released a politic statement regarding the validity of Massachusetts same-sex marriage in his state:

In Rhode Island, as in other states, many of the answers to the questions raised by same-sex marriage, such as the one posed by [Massachusetts] Governor Romney in his April 29, 2004, letter to [Rhode Island] Governor Carcieri, will ultimately come from the courts-not from the Attorney General, the Governor, or any other state officer or employee. No Rhode Island court has addressed or interpreted whether or not Rhode Island's marriage laws permit same-sex couples to marry or whether same-sex marriages, if performed in Rhode Island, would be void. To date, the only marriages in Rhode Island deemed void involve bigamy, incest or mental incompetence, or marriages in which one or both parties never intended to be married.

A different legal issue is whether same-sex marriages legally performed in Massachusetts would be recognized as marriages under Rhode Island law. If a same-sex couple were to marry in Massachusetts, where such marriages are legal, Rhode Island would decide whether to recognize that marriage under principles of comity. This Office's review of Rhode Island law suggests that Rhode Island would recognize any marriage validly performed in another state unless doing so would run contrary to the strong public policy of this State. Public policy can be determined by statute, legal precedent, and common law.

He leaves the possibility open, but notes (correctly) that it isn't really his place to make the call. In other words, Kate Monteiro, of the RI Alliance for Lesbian and Gay Civil Rights, is simply incorrect to say, "Lynch has said clearly that what we've done for centuries in Rhode Island will continue - that valid legal marriages performed in other places are recognized here in Rhode Island." He said they might be recognized; "it potentially involves the interpretation of statutes, a constitutional analysis, and the application of common law principles relating to the relationships between and among the different states."

What's more striking — and probably indicative of Lynch's personal views — is that the attorney general warns homosexual Rhode Islanders only that, before heading to Massachusetts to marry, "they may want to consult with a private attorney and, in any event, they should take care when completing any application and when attesting to the truth of any matter." Surely, Lynch knows that lying about residence will open couples up to perjury charges. In fact, that's the argument that town clerks are going to use in their own defense — that "the onus would be on the couple to be truthful and to accept the consequences of getting a license in defiance of the governor's edict." (What that last bit means, in translation, is "in defiance of the governor's reminder of Massachusetts law.")

For all I know, some legal principle bars Lynch from making assertions about Massachusetts laws. That excuse doesn't apply, however, to the Providence Journal, which handles the matter as follows, in the piece announcing Lynch's statement:

Lynch said gay couples traveling to Massachusetts to wed should consider consulting with a private attorney and take care when answering application questions.

In most Massachusetts cities and towns, clerks are following Massachusetts Gov. Mitt Romney's directive to issue licenses only to residents or those who plan to move to Massachusetts.

Wouldn't it clearly be an important part of the Projo's service to its readers to mention where the legal "onus" lies?

Posted by Justin Katz at 5:54 PM

Beginning with Illegality

It isn't my intention to offer running commentary in response to uncritical major media coverage of happenings in Massachusetts. But this raises a point that oughtn't get lost in all the heavy breathing:

Provincetown is among a handful of Massachusetts towns that have said they would ignore Gov. Mitt Romney's directive that city and town officials ask couples for proof of residency or intention to move to the state before issuing marriage licenses.

And that helped Provincetown attract couples from Minnesota, New York and Alabama today.

Chris McCary and John Sullivan, both of Anniston, Ala., flew into Boston yesterday and left for Provincetown at 3 this morning. They reached the steps of town hall at 5:30 a.m., were the first in line and the first here to receive a same-sex marriage license.

"This was a sure bet," McCary said.

The couple, together for six years, didn't want to wait any longer to make it official. They were heading for the district court in Orleans to ask a judge to waive the normal three-day waiting period. They planned to marry later today in Provincetown.

From what I've read, there's a question on the marriage license essentially asking out-of-state couples, under penalty of perjury, whether the marriage would be legal in their home states. The implications of this for couples who disregard the law would seem, at the very least, to merit a bit of discussion in articles about their marriages. Think of it: the Alabama couple mentioned above — from a state that explicitly bars SSM — is going to a Massachusetts judge to request additional concessions in procuring their illegal marriage.

Not exactly an indication of fidelity to the law or belief in the process of democratic persuasion.

Posted by Justin Katz at 11:10 AM | Comments (1)

Unsolicited Testimony to the Rhode Island Legislature on Same-Sex Marriage

PROEM:
For a more-readable layout, click "Turn Light On" at the top of the left-hand column.


In researching the issue of same-sex marriage, one comes across many accounts of homosexual parents who wish to raise their children in the most normal environment possible. Other cases involve people who want primarily to procure assistance in caring for each other. Because these arguments draw so directly from the pool of reasons that society supports and encourages marriage, they are the most powerful for their cause. Our hearts rightly ache in response to such pleas, sincerely put forward, and were the institution of marriage healthier, we might move to make exceptions.

The unfortunate reality is, however, that marriage and the family structure that ensues are in a weakened condition. We've all heard the statistic that half of marriages end in divorce. Less well known is that only fifty percent of children conceived in the United States are born to parents who are married, with the remainder evenly split between abortion and birth out of wedlock.

Countries that are further along in the liberalization of family structure provide evidence of the folly of its pursuit. In Sweden and Norway, for example, children are more likely to be born out of wedlock than within. Sweden's abortion rate is higher than that of the United States, and ours is dropping while theirs climbs. Children's odds of being born into wedlock — of being born at all — are plummeting throughout Europe. It is crucial for the United States, which is much larger, encompasses greater demographic diversity, and drives more of the global economy to avoid the further erosion of marriage.

The hopeful news is that the domestic tide may already be turning. Abortions are back down to the rates of the 1970s. Out-of-wedlock births seem to be reaching the crest of their curve. Shifting the institution on which family issues hinge, therefore, would shake ground on which we've only just begun to get our balance. The particular innovation of same-sex marriage would not have minimal repercussions.

Compelling arguments can be made for the extension of certain benefits to homosexuals for their roles as parents and as mutual caregivers, and that is an area of legislation that is surely worthy of debate, at both the state and federal levels. One question that such proceedings would have to address is the bottom-line purpose of the laws and to whom benefits ought to be granted. If a brother and sister, for example, are committed to raising her child from a previous marriage, why should the argument for assisting children's guardians exclude them? Perhaps a daughter should be able to ensure that her Social Security extends to her mother, for whom she cares, should anything happen to the younger woman. But if these questions, and countless variations, are asked and answered within the context of marriage, the institution would quickly lose its legal and cultural meaning and, therefore, its power to shape our society.

Dilution is only one of the routes toward marriage's decline should we extend it to same-sex couples at this time. Every statement about marriage ever made in law, philosophy, sociology, and so on has been premised on its definition's being opposite-sex. It is difficult to think of an institution more susceptible to unintended consequences. Marriage lies at exactly the intersection between government and culture, public and private, secular and religious.

Homosexuals who would like the ability to marry each other ask whom it would hurt. The answer is not emotionally satisfying, but it is no less important for being so. The major policy questions of our day rarely deal with direct benefits that lead to direct detriments. We don't know whom, specifically, same-sex marriage would hurt. However, we do know who is most harmed by fundamental liberalization of family structures: those for whom it is not a choice and those without the resources to absorb the disruption. Children, in the first case. In the second, the poor and struggling.

Even if, for the purposes of civic policy, we sublimate religious considerations to a presumption of individual liberty, as I believe we should, we must admit that the right to marriage cannot be granted on a case-by-case basis. It must represent a social and moral standard. This is a practical reality as well as a substantive one. Marriage is effective because of its shared principles and the way in which it counterpoises benefits and requirements. Civil support of it exists, in large part, for the sake of those families most at risk to break its rules — to give them a sense that there are rules. Its tacit meaning and simple emphasis are crucial attributes.

This careful balance of factors that are most important for those least able to articulate them can only be safely manipulated through similarly broad and implicit, almost uncalculated, change. This isn't a civil rights issue; homosexuals are free to form relationships, to pursue happiness, however they desire. This is a matter of societal well-being, of fundamental construction and first principles. We all — young and old, married and single, gay and straight — will be helped or hurt by the decisions that we make as citizens today.

Even as we seek humane accommodations for those whose lives venture beyond the boundaries of institutional ideals, we must allow those boundaries to expand naturally, not prematurely. There may well come a day when familial frontiers seem ordinary extensions of the marriage community. The law can reflect that sense when it comes, because the law will not risk undermining our culture; it will be, itself, an effect thereof. But legislators and judges should not use the law of this state to dictate a change with effects that we cannot possibly comprehend as we stand, now, in the midst of turmoil and controversy.

To the contrary, the legislature must cement the current legal definition of marriage so that the laws of other states don't dictate change in ours, and so that our courts don't transform marriage through the pretense that the law already demands it. We are a charitable people, but let's not ignore countless faces that we cannot yet see out of compassion for a few that we can.

ADDENDUM:
Ampersand has picked up on something that I probably should have made clearer above. The "abortion rate" to which I refer is measured as the percentage of conceived children aborted, and I drew the conclusion based on some statistical analysis that I performed (with charts) back in March.

Posted by Justin Katz at 10:28 AM | Comments (4)

Crossing the Rubicon Down the Aisle

Well, today, courtesy of four judges and a gavel, same-sex marriage arrives in Massachusetts. The fires that are about to crop up across the nation's various government bodies and across our culture and society are too broad and varied to guess. We'll just have to keep an eye out for them.

The question of the day: will the sparks be enough to wake America up to what's happening? Or will we just roll over and cover ourselves with a blanket of apathy? One thing we can expect is a surge of commentary declaring, "See! Nothing happened!" As if social corrosion were an instant phenomenon. I wondered, as I walked the dog, this morning, what will win the race: nationalized SSM, evidence of its effects, or the 2010 census.

Be that outcome as it may, we can also expect the elite — with its perhaps insurmountable power via judges and media — to move on to the next issue that it's inclined to push through. Will it be further loosening of restrictions, or are the bien-pensant prepared to begin tightening the screws on their nemeses? Yet another thing that we can only wait to discover. For our part, on the conservative and traditionalist side, even as we keep up the struggle to win this particular battle, we should start looking for other ways to minimize damage, such as hardened divorce and adultery laws.

Reading accounts of same-sex couples waiting in line in the middle of the night, it really came home to me how difficult an issue this is to address. As with any issue, the people involved are mostly just going along with their lives, strolling off the path rather than charging. Chasing them with angry words will drive them further into the thicket, but neither can we fail in our duty to attempt to draw them back.

It was a bit of surprise to discover this little-cited passage in the first reading that happened to fall yesterday in the cycle at Mass:

'It is the decision of the Holy Spirit and of us not to place on you any burden beyond these necessities,
namely, to abstain from meat sacrificed to idols,
from blood, from meats of strangled animals,
and from unlawful marriage.
If you keep free of these,
you will be doing what is right. Farewell.'

I don't think the Massachusetts judiciary is meant to be the judge of what is "unlawful" in this context.

Posted by Justin Katz at 7:16 AM | Comments (4)

May 14, 2004

That Could Never Happen Here...

Here it comes:

SEATTLE -- The American Civil Liberties Union of Washington today announced an agreement settling a discrimination complaint filed by a gay man against a local business that refused to print invitations to his wedding with his same-sex partner. Under the agreement, the business owner has apologized for her actions and agreed to abide by Seattle’s anti-discrimination law in the future.

"Our nation's commitment to ending discrimination requires businesses to serve all customers equally," said ACLU of Washington staff attorney Aaron Caplan, who represented the gay man in the case. "Business owners are entitled to their private opinions about same-sex marriage, but discriminatory business practices are not permitted." ...

The business owner’s refusal violated Seattle’s Open Housing Public Accommodations Ordinance, which protects an individual’s right to purchase products and services without regard to sexual orientation. With legal representation by the ACLU, Butts filed a complaint with Seattle’s Office for Civil Rights, the agency that enforces the non-discrimination law.

Under the settlement announced today, the business owner acknowledged that all persons should be treated with respect and dignity, regardless of sexual orientation, and she apologized that her actions offended and hurt Butts. She agreed not to violate Seattle’s anti-discrimination law in the future. Butts and Carter were married in October 2003.

Jeff Miller points out that there's quite a bit of difference between housing and card printing. The more fundamental line that's been crossed, however — even accepting as legitimate the argument that business owners don't have a Constitutionally guaranteed right to associate and transact with whomever they wish — is that the discrimination wasn't directed at the customer, but at the project. The business owner didn't refuse to print birthday invitations or some such on the basis of the orientation of the buyer.

This is a very common conflation among identity-activists of all sorts, but particularly among homosexuals. In fact, it constitutes the entire civil rights argument for same-sex marriage, and that's what's so shocking about the way the SSM debate has been phrased.

Similarly, it's the most shocking part of the invitation lawsuit. Of course, the case was settled out of court, but such claims will surely find their way into courthouses in the very near future. And when they do, the basic question that they will ask is whether private businesses and organizations have a right not to endorse the activities and events of homosexuals. Frankly, I'm nervous about the answer. The requirements that the settlement imposed on the business owner smack of a condescending punishment of a grade-school child — entirely fitting, considering that the consequence of the way of thinking that justified the suit is that even business owners are little more than employees of the state.

Where are all of the sincere SSM activists — where's Andrew Sullivan — condemning this clear threat to civil liberties? One doesn't have to oppose same-sex marriage to agree that this sort of litigation ought to be quashed before the wave arrives.

That could be Monday.

(via El Camino Real)

ADDENDUM:
Apart from questions of rights (and all that stuff), think of what a political weapon this precedent will be if it becomes law. Imagine that the business owner had been a congresswoman who supported the Federal Marriage Amendment. She would be in the position of heading a company that has to print invitations to the very events that she seeks to make illegitimate! Imagine the spurious mockery that would flood the opinion and commentary worlds.

Posted by Justin Katz at 4:51 PM | Comments (14)

May 11, 2004

The Right to Not Be Married... or Whatever

As concerned citizens attempt to flesh out the full implications of what can and cannot be assumed about the Full Faith and Credit clause with respect to same-sex marriages and federalism (see the comments here, for example), the country's courts are in the process of setting the precedent that will ultimately decide the debate. Dennis Powell points out one such case with sparse details available. Two lesbians with a Vermont civil union are battling over divorce under New York's jurisdiction. Powell raises the FF&C clause here:

Barring invocation of the Defense of Marriage Act, the case would be tried under the full-faith-and-credit clause. But again there are legal vines to be hacked away. What law in New York governs civil unions that do not legally exist in New York? The judge would have a choice. The case could be ruled as being so far outside New York law that the parties to the suit would be told to go back to Vermont for their divorce (which would be problematic not for the judge but certainly for the parties, in that Vermont has a six-month residency requirement for filing and a one-year residency requirement for obtaining a dissolution). The judge could decide to try the case in New York employing the relevant Vermont statutes. Or the judge could try the case under New York domestic-relations law, effectively creating recognition of civil unions in the state. ...

There is apparently no judicial guideline in New York for the handling of such matters. By statute, New York does not recognize common-law marriages, but under full faith and credit dissolves them if a divorce action is brought. It could turn out that the path through the legal jungle is an easy one, depending on the approach taken in the case. But it may well spark legislative action in the Empire State.

Full Faith and Credit, it is crucial to remind ourselves, is little more than another principle thrown into the tangle of this issue. It is simultaneously an angle of attack for proponents of SSM and a decoy from other routes. New York attorney general Eliot Spitzer has already declared that Massachusetts same-sex marriages should be recognized in New York. The bottom line is that, barring a constitutional amendment, this fundamental social and cultural question is going to be answered by a handful of largely unaccountable public officials.

For a sense of the way in which the various routes and angles coalesce to redefine the law — effectively, to legislate — by way of legal precedent, consider another case addressing Vermont civil unions in New York. In that instance, the question is whether a civil union ought to grant the same rights to litigate as a spouse in a wrongful death suite. In the process of working around to a "yes," a judge has cited common-law marriage precedent that requires recognition of such marriages if they are legal in the other state. Of course, common-law marriages are not legal in Vermont, but that merely made it a simpler matter to equate civil unions with them.

In the wrongful death case, it is also relevant that the judge cited various limited instances in which common-law marriages have been recognized. Such citations — always selective, and often drawing from other states' courts — become the basis for determining what precedent is and, in the language of full faith and credit, what "public policy" is. Thanks to the Massachusetts judiciary, same-sex marriage has come too quickly for the public even to observe the federalist ramifications of civil unions in one state. It simply stretches the bounds of reasonable discussion to suggest that a patchwork for marriage will hold long enough to allow legal consequences to become apparent, much less social consequences.

I'll say it again: If gay marriage arrives as a direct, unobstructed result of this push, it will not only arrive in the worst conceivable way for our culture, and the gay subculture, but it will also have torn a gaping hole in the law on its way.

Posted by Justin Katz at 5:31 PM | Comments (12)

May 9, 2004

Purporting Marriage in Virginia

In the Washington Blade, D.C.'s weekly paper for homosexuals, reporter Adrian Brune quotes UVA professor Robert Lombardo regarding Virginia's just-passed (and controversial) marriage law:

Lombardo also argued that the law's reach might be limited by other legislation more specific to the types of contracts gay couples might enter into.

"The usual rule judges follow in these instances is that laws with specific language usually overcome laws with more general language," Lombardo said. "For example, the state's advance medical directive says you can designate anyone you want to make medical decisions on your behalf, regardless of your relationship. That would clearly outweigh a law prohibiting a general contract between persons of the same-sex as long as it doesn't specifically mirror a civil union.

"I wouldn't want to predict how people would try to use this law. At least on its face, while it's not good news, it doesn't have the reach that it might."

Apart from the suggestion of "prohibiting a general contract," which seems beyond the language of the law in question (depending what he means by it), Lombardo supports the argument that I've been making. Moreover, to the extent that a "general contract" prohibition exists, Lombardo provides an example of precisely the remedy that I've previously suggested.

I can understand why homosexuals would object to this law, and why they believe it discriminatory and unfair. However, it doesn't help anybody's cause to exaggerate the meaning of statutes so that they appear to do more than they in fact do. If one's cause is just and right, it deserves honesty.

Speaking of honesty and law, here's how the piece ends:

The Virginia DOMA law and Marriage Affirmation Act might also be challenged under the U.S. Constitution's "full faith and credit law," which generally requires states to recognize legal documents like marriage licenses issued by other states.

Whether such challenges would (or should) succeed is, of course, a highly disputed question. And Brune maintains factual accuracy by referring to an argument that might be made, not one that might win. Still, given the focus on the Full Faith and Credit clause, with advocates for SSM denying loudly and often that it will nationalize one state's same-sex marriages, the above paragraph makes one wonder whether we're seeing a distinction between what is said to the general public and what is said among themselves, so to speak.

(via Marriage Debate blog)

Posted by Justin Katz at 12:37 PM | Comments (10)

May 7, 2004

The Ellipsis of Love

Different worlds, indeed. I've been pondering all day how Andrew Sullivan can take this legal language:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

And assert this as undeniable fact (emphasis his):

...when a law is passed that bans even private contractual agreements between two gay people in a relationship...

...by making even a "partnership contract or other arrangement ... void and unenforceable," Virginia is denying gay couples any legal protections at all in as broad and vague a fashion as possible.

This is very much like the whole "incidents of marriage" thing that I've been over and over (here's one entrance to my writing on the topic), meaning that the relevant part of the text is what Sullivan elides: "purporting to bestow the privileges or obligations of marriage." The meaning of this law looks about as clear as laws can be, and although I look forward to reading the results of Ramesh Ponnuru's investigation, I'm not sure why he considers it at all vague. (That response, on Ponnuru's part, already gives Sullivan rhetorical leverage.)

Basically, whatever "privileges and obligations" the state of Virginia considers to be exclusively available to married couples will not be available to homosexual couples, whether through private contract or public registration in another state. In other words, any contracts enforceable between any two people — whether friends, family, business partners, or what have you — would remain available to homosexuals. In reverse, any contracts that are not valid between another pair would not become valid just because the parties draw up a contract calling themselves "married" or "partners" or some other term.

When someone as sharp and in line with my own position on this issue as Ponnuru has doubts, there's certainly reason to leave open the possibility of a blindspot. But barring language in the law that my brain just won't register, it seems to me that supporters of SSM — whether as a conscious device or conceptual error — presume a right to some sort of special recognition in their claims of bigotry and "persecution." This missing principle is at the heart of an email posted by Jonah Goldberg:

Sullivan's point is that he theorizes the mainstream Right is lying when they claim they only oppose same-sex marriage in the name of marriage and aren't anti gay. Even though the Virginia law may not be a fair test of Sullivan's thesis (Ponnuru's point), you sure gave credence to Sullivan's theory with your reaction.

Thus, by inexplicit definition, refusing to grant homosexual pairs additional rights and privileges that would be premised on their being homosexual amounts to being "anti gay." Put another way, it becomes "anti" simply to be something other than "pro." (I think this is along the lines of what Goldberg has been arguing.)

The emailer goes on to suggest that "a strong condemnation of the law under Sullivan's interpretation," at least, would be merited, but such condemnation, without rephrasing, would tacitly accept that equivalence is persecution. Sure, I would condemn a law that declared that "all contracts whatsoever between people who are homosexual are void," but that's not what Virginia is doing here.

Posted by Justin Katz at 4:52 PM | Comments (5)

May 6, 2004

Just the First Taste

A California lawsuit gives us a glimpse of litigation to come, should same-sex marriage become a reality:

A San Jose gay couple is suing an Internet-based adoption service after it refused them service.

In a decision issued Wednesday, federal district court judge Phyllis Hamilton ruled that a lawsuit against Adoption.com for discriminating against same-sex couples can proceed to trial.

Adoption.com is the largest adoption-related internet business in the United States. Among other for-profit services, it permits prospective adoptive parents to post their personal profiles in hopes of connecting with potential birth mothers. They will not, however, permit same-sex couples to post their profiles.

In 2002, the company refused to accept an application from San Jose residents Rich and Michael Butler, a same-sex couple who have been together eight years and who sought to post their profiles on one of Adoption.com's websites.

Dale Gwilliam, a spokesperson for the company, allegedly told the Butlers that Adoption.com does not allow gay and lesbian couples to use their services.

Represented by the National Center for Lesbian Rights the Butlers filed a lawsuit challenging this discriminatory policy under California law, which prohibits businesses from discriminating on the basis of sexual orientation.

In his ruling allowing the suit to move forward Judge Hamilton rejected the company's argument that it does not have to comply with California's non-discrimination laws.

Two things disturb me about this — one a long-standing frustration, the other a relatively new consideration. The frustration is with the utter absence of the argument that differentiating between couples based on their makeup is not the same thing as discriminating on the basis of qualities those people possess. In other words, it isn't that the couple is gay, per se, but that the relationship does not contain a member of each sex. I realize that, for homosexuals, that amounts to the same outcome; however, laws pertaining to discrimination have to do with justification and judgment. Should marriage be redefined as any couple, these fundamentally different points of differentiation would collapse into one.

Note that Adoption.com also requires clients to be married, indicating that even that eminently legitimate point of discrimination is being threatened:

Because of varying state laws, not all hopeful parents who would like to be listed on ParentProfiles.com can be listed. For example, we cannot accept people who are not legally married, people who have not completed a pre-adoption home study, or people who otherwise do not satisfy our eligibility requirements. Even though some states allow parents in these situations to adopt, others do not.

The second, relatively new, consideration gives, in many ways, more reason for concern. Although the 365gay.com article quoted above doesn't mention it, Adoption.com is based in Arizona, not California. I'm not an expert on the relevant laws, but it seems to me that the standard that could potentially be set with this case would undermine claims that a federalist solution is possible. Same-sex marriage in a state would open up any organization that wishes to deal with couples from that state to such discrimination lawsuits.

A state-by-state patchwork (for marriage, as opposed to civil union–type contracts) will not stand. Moreover, it isn't but so overwrought to suggest that no organization that resists demands to ignore differences will stand either.

Posted by Justin Katz at 4:58 PM | Comments (1)

May 5, 2004

A Little Twist in Scandinavia

In 1998, Andrew Sullivan wrote, in Love Undetectable (p. 162):

In lesbian culture also, many of the alleged pathologies most closely associated with gay men seem to be absent. Personal competition sometimes cedes to an almost stifling emphasis on consensus and conformity; loving relationships are often the rule rather than the exception; sexual intrigue and the linkages between friends and lovers are complex and long-lasting. Here is a culture of extraordinary stability and variety, a monogamist's dream of political and social community which somehow has not found its champions among the family-mongering religious right.

Although I remain curious about what Sullivan meant by complex "sexual intrigue," the key point here is the notion of hyper-monogamous lesbians forming classically perfect communities. In all of his writing on the topic that I've read, Sullivan seems to take the feminizing effect of women on society as defining the ideal, which could expand into a broad topic of itself. More specific, however, is the recurring rhetorical contrivance that lesbians will somehow cancel out any harmful tendencies among gay men should same-sex marriage become a cultural reality. From a piece in the August 5, 2001, Sunday Times of London:

In Vermont only a few thousand such marriages have taken place, with two thirds of them between lesbians. These lesbian marriages are more monogamous than most heterosexual marriages because, by and large, women are less prone to philandering than men.

Given this commonplace (with which I've been inclined to agree — except for the strange idea that one can be more monogamous than monogamous), a summary, published by the Institute for Marriage and Public Policy, of a study of divorce rates among Swedish same-sex marriages is astonishing:

The study found that gay male couples were 1.5 times as likely (or 50 percent more likely) to divorce as married opposite-sex couples, while lesbian couples were 2.67 times as likely (167 percent more likely) to divorce as opposite-sex married couples over a similar period of time. Even after controlling for demographic characteristics associated with increased risk of divorce, male same-sex couples were 1.35 times as likely (35 percent more likely) to divorce, and lesbian couples were three times as likely (200 percent more likely) to divorce as opposite- sex married couples.

In contrast (apparently) to Vermont, 62% of same-sex marriages in Sweden were between men. That near-reversal points to the first obvious disclaimer to any analysis in the context of the American debate: cultural differences likely exist even between the corresponding subcultures of the Sweden and the United States. The second obvious disclaimer, at least for me, is that suggestions, at this point, are purely speculative, and in-depth research for such factors as couples' attitudes and practices will be necessary.

However, if I were among a group brainstorming possible explanations for this surprising statistical outcome, I'd suggest looking at precisely the gender differences that would lead one to expect different results. That is to say: perhaps lesbians do take commitment and monogamy more seriously than gay men.

It could be, in that case, that men just don't bother to get divorced when they split up, whereas women want a clean, official break. Or perhaps Swedish gay men marry for reasons that don't flow directly from the relationship itself — whether benefits or some sort of social standing. That would accord with the widely held opinion that gay male marriages would be more likely to be open. In that case, diminished pressure for monogamy could actually serve to limit divorce rates. (Although at a rate much higher than opposite-sex marriages.)

A verboten intimation could follow a conclusion that, among gay men, a lowered bar is less likely to fall. The possibility can't be dismissed, although it surely will be, that women do take their interpersonal commitments more seriously, but that something either in the current homosexual subculture or in the nature of same-sex relationships makes unmodified marriage less stable.

Theoretically, the difference could very well result entirely from the inability to "become one" in the person of a mutual biological child. Or the unthinkable may, in fact, be true: that the ideal isn't to be found entirely in feminization, but in the balanced interplay of the sexes. Of course, if the a priori principle is that there is no such thing as an "ideal," then distinctions of lasting/fleeting, stable/unstable, balanced/imbalanced, coherent/incoherent are all gobbledygook anyway.

Posted by Justin Katz at 2:37 PM | Comments (4)

Nevermind the Rumbling

Even without reference to the reality that it's politically shrewd for supporters of same-sex marriage to dampen the dispute at this time, one ought to approach dismissive admonitions that controversy is unmerited with a high degree of skepticism. In the case of Jeffrey Rosen's "The Gay Marriage Anti-Climax. Yawn.," the image that comes to mind is of a man pointing toward a layer of accumulated soil on a volcano. Only by closing one's ears to the rumbling is it possible not to notice the underlying turmoil.

Opponents of gay marriage fear that, after May 17, same-sex couples will flock to Massachusetts from other states, get married, and return to their home states demanding recognition of their new marriages. These fears are unfounded, thanks to a provision of the Massachusetts marriage law that refuses to recognize marriages celebrated in Massachusetts if they take place between parties domiciled in a state that does not recognize the marriage as valid. This provision--designed to prevent out-of-staters from evading their own local marriage laws--means that a same-sex couple from New York traveling to Massachusetts for the weekend to get married should be turned away at the altar. And, despite the assurances of the New York attorney general that his state will recognize any valid Massachusetts marriages, the marriage would be invalid in New York even if the couple managed to return with a marriage certificate. Since the marriage can't be valid in Massachusetts, it can't be valid in New York.

Gabriel Rosenberg, among the most circumspect advocates of same-sex marriage across whom I've come, takes a somewhat different tone:

There are other interpretations of the law, though. Attorney General Reilly expressed the opinion that the 1913 law only applies to couples from the 38 states that have passed DOMA legislation expressly prohibiting same-sex marriage. That is his opinion would still allow same-sex couples from New York, Connecticut, and the like to marry in Massachusetts. This is quite an important distinction, because for example, New York's Attorney General Spitzer has issued an opinion that while local New York officials should not issue licenses to same-sex couples, they should recognize those marriages lawfully entered into elsewhere. We see here a rather dizzying scenario for determining whether the same-sex marriage of New York couples entered into in Massachusetts is valid. It's valid in NY if it was lawful in MA, and it's lawful in MA as long as it would not be void if contracted in NY.

The salient point is that only the whim of a handful of officials is required to undo all of the guides and structures that Rosen claims as balms for the anxiety. In Massachusetts, at the source of the problem, it seems very likely that at least some town clerks will hand out official documents that will essentially become litigation licenses for same-sex couples from other states. Some have declared as much to The Boston Globe. (What a thrill of power for them!) Meanwhile, state officials are hinting at legal repercussions for mutinous townies. Even so, Rosen probably wouldn't think it matters:

And, even in the unlikely event that the legislature bows to the tourism industry [which will seek a marriage boom], a well-settled body of law says that states don't have to recognize the marriages of their own residents who have traveled to another state to get married for the purpose of circumventing a strongly held public policy in their home state.

Here Rosen is drawing on the work of law professor Andrew Koppelman. Professor Koppelman has been writing about this comparison at least since the Hawaii Supreme Court almost kicked off the same explosion in the mid-'90s. Rosen quotes from the professor's book, The Gay Rights Question in Contemporary American Law, to bolster his assertion that "well-developed judicial precedents, dating back to the anti-miscegenation era, will guide courts in their effort to carve out a moderate path." However, in a 1997 article for Quinnipiac Law Review (reprinted, in part, in Andrew Sullivan's Same-Sex Marriage: Pro and Con), Koppelman highlights a case that cuts against the promised precedent:

The earliest case involving an attempt to evade a prohibition on interracial marriage, Medway v. Needham, arose in Massachusetts in 1819. A mulatto man and a white woman, both domiciled in Massachusetts, had gone to Rhode Island, where interracial marriage was legal, in order to evade their home state's prohibition of their marriage. The [Massachusetts] court upheld the marriage, emphasizing, as modern authorities do, the importance of certainty and uniformity with respect to the existence of a marriage. A contrary rule would involve "extreme inconvenience and cruelty"; the rule it adopted "must be founded on principles of policy, with a view to prevent the disastrous consequences to the issue of such marriages, as well as to avoid the public mischief, which would result from the loose state, in which people so situated would live."

Koppelman goes on to note that the court expressed the necessity of limits — having to do with matters that would (in the court's words) "tend to outrage principles and feelings of all civilized nations" — and to explain that the case "was criticized by others, was never followed in any miscegenation case, and was later overruled by statute." But that's not the end of the story. In the brow-furrowing way of these debates, a name familiar to anybody who read the above-linked Globe article about town clerks pops up again. Mary Bonauto, legal director of Gay and Lesbian Advocates and Defenders, has had her eye on Medway at least since the Hawaii episode:

In Massachusetts, our legal precedents, traditions and history do not support discrimination against marriages that are valid where licensed and certified. As a choice of law matter, states now typically recognize each other's marriages if the marriages are valid where contracted. This is often true even when the specific type of marriage at issue is forbidden in the home state. For example, in Massachusetts, the "validation rule" has operated to validate out-of-state marriages which would have been invalid marriages if licensed in Massachusetts, including those between: couples of different races (Medway v. Needham, 16 Mass. 157 (1819)); marriages between closely related people (Sutton v. Warren, 10 Metcalf 451 (1845)); under-aged couples (Levy v. Downing, 157 Mass. 73 (1892)), Commonwealth v. Graham, 157 Mass. 73 (1892)); various couples who remarried during the "nisi" period following a divorce (Vital v. Vital, 319 Mass. 185 (1946)); and common law marriages (Boltz v. Boltz, 325 Mass. 726 (1950)). Taken together, these cases confirm that marriage is a unique and important status which states are loath to undo once certified.

It's relevant to note that the Medway court actually mentioned incestuous marriages as outside of the acceptable bounds of its ruling, a restriction that seems to have been loosened just 26 years later. Surely Bonauto isn't the only homosexual activist with this shaft in her quiver. Moreover, the case hasn't just popped up in the context of importing marriages to Massachusetts. Again with reference to Hawaii, in 1996, Nebraska Attorney General Don Stenberg responded to a query from Senator Jim Jones citing a Nebraska case that, itself, cited Medway v. Needham to validate a law-evading out-of-state marriage.

What will happen when same-sex marriages — procured licitly or otherwise — are thrown to the judgment of courts is difficult to say. It can be said, however, that Bonauto and Rosen both are in a position of relying on one old law to be heeded while another isn't. Compound this across the various state governments of the union, with activist judges and civil servants thrown into the mix, and it isn't exaggerating things in the least for those who wish this mammoth cultural decision to be made by the people to stifle their yawns and get to work.

(Links regarding Mass. town clerks via Marriage Debate blog.)

Posted by Justin Katz at 12:31 AM

April 27, 2004

Notes on the Marriage Debate

For three full weeks, I've held on to Andrew Sullivan's "fisking" of Shelby Steele. To be honest, I had intended to let it slide, at first — not knowing much about Mr. Steele, and believing that the form and style of fisking plays to Sullivan's weaknesses, not his strengths. Fisking his efforts, in turn, is more work than it seems worth. So, rather than reread the thing and offer a polished rebuttal, I thought I'd just (essentially) post the notes that I made a few weeks ago in response to the piece and some related entries on his blog.

If one reads broadly from Sullivan's marriage library, a tacit underscore becomes apparent that seems to hold for many other advocates for SSM: he wants marriage just to be another choice. Homosexuals can live the free, libertine lifestyle, or they can marry. No stigma or objective preference is intended to attach to either. However, for the broader society, marriage is meant to create expectation.

The nature of straight relationships is such that the wilder, multifarious practices that even the "conservative" Sullivan has been known to laud would be detrimental to society. Heterosexuals simply cannot afford to make marriage just another option. 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.

Sullivan flips the emphasis, saying that some straight marriages are childless, so homosexuals' natural childlessness isn't a factor. But he's wrong to disconnect marriage from procreation in such a way. Even leaving aside that the connection still exists in fact, it must continue to exist in principle. Both marriage and procreation may not be individually connected with sex, but it is crucial that they remain connected with each other.

This statement is sure to elicit guffaws from SSM supporters, but marriage is less about whether two heterosexuals do procreate than that, barring relatively uncommon problems, they can. Much has been made of the truism that birth control has disconnected sex from childbirth. However, in terms relative to choices of lifestyle, even birth control does not open the promiscuous "choice" that marriage is meant to foreclose. Most forms of contraception require some degree of control over the circumstances of the sex. With multiple partners, particularly for men, it becomes exponentially more difficult to ensure effectiveness.

Even so, Sullivan might argue, marriage is ultimately about family, and "marriage discrimination" drives wedges into families. It has been my reading experience that Sullivan usually means this to refer to the homosexual adults and their parents and siblings. Most dramatic, in this line, is his periodic reference to figures who oppose same-sex marriage, but who have gay sons and daughters:

When "pro-family" types talk about wedge issues, they don't often concede that one of their wedges is to split families apart. And part of the point of civil marriage for gays is to bring families back together.

It's truly dissonant for a self-proclaimed libertarian to be pushing the concept that government action can confer legitimacy on offsprings' lifestyles in the eyes of their parents — particularly when this is an area in which the libertarian view would actually be correct. To the extent that families' wounds related to homosexuality aren't healed, a marriage ceremony that comes "close enough" to meeting the parents' thwarted visions of their children's futures will be of limited value. Legal accoutrements will be of even less. On the other end, families not currently divided over the issue will not find themselves more not divided because of a government stamp.

Beyond all the policy judgments made at a distance, I wonder if Sullivan, sitting at his computer, staring aimlessly out the window, ever meditates on why parents would work against the immediate interests of their own children. Yeah, there are certain to be instances of parents' lashing out and/or harboring some unspoken hope that preventing the institutional normalization of gay relationships will push their children back toward more-normal lives. But couldn't it be, just maybe, that they believe — also or instead — that the issue is important enough to merit resisting the pull of personal accord?

Posted by Justin Katz at 9:13 PM

Bad Marriage Math

Its absense was palpable, so I won't flatter myself that it was in response to me that Darren Spedale added, to his piece about Scandinavian marriage, some of the hard data that I faulted him for leaving out. Now that we've got some objective numbers to address, it would seem that he's continued to be selective in those that he presents, sometimes attempting to spin the statistics past the breaking point. To start with the mild:

In 1989, at the outset of the partnership law's existence, there were 6.0 heterosexual marriages per 1,000 persons in Denmark, according to Danmarks Statistik, the national statistical organization. By the mid-1990's that number had climbed to 6.8 marriages per 1,000 population, or an increase of just over 10% from 1990. As of 2002, the latest year for which statistics are available, the number of marriages per 1,000 population has increased to 6.93.

What's new is the extension out to 2002. The mildly conspicuous omission is the degree of fluctuation during this time. Furthermore, as I offered for perspective last time, with miniscule native population growth, increases in the per-1,000 marriage rate aren't as significant as they would be in a nation with a more rapidly expanding total population. These are both relatively nitpicking points; that becomes less the case with Spedale's newly offered information about divorce:

Furthermore, the number of heterosexual divorces in 1989 stood at 2.95 per 1,000 population. By the mid-1990's, it was at 2.4 per 1,000, or an approximate 12% decrease in the number of divorces. While that number has increased in recent years to slightly below pre-gay marriage levels (2.72 in 2001 and 2.85 in 2002), the fact that the number of divorces fell during the years following the passage of gay marriage in Denmark demonstrate that heterosexual couples didn't abandon the institution when it was opened up to gays and lesbians, as many on the right predicted.

Admittedly, I wasn't paying attention back then, but I still have no idea who those people "on the right" were who predicted an immediate exodus of straights from the institution of marriage; that sounds a lot like the strawmen being thrown into the current debate. Nonetheless, there is a limited sense — but significant to Spedale's analysis — in which that prediction was realized.

Spedale is correct that the divorce rate in 2002 was "slightly below pre-gay marriage levels" — 2.81 in 1987 and 2.87 in 1988. However, the only data he provides is for 1989, the year SSM was introduced, when the rate was 2.95 per 1,000 of the population. What's especially interesting about this is that, as the by-month data shows, the 435 divorce increase from 1988 to 1989 is more than covered by a surge in November 1989 — the month after the first same-sex marriage. That month, divorces increased by 553 from October and were 479 above the average for the year.

That isn't a factor that I'd bother to include, unprovoked, in my own analysis, but it is interesting that, in using data to mitigate the recent increase in the divorce rate, it may very well be that Spedale relies upon the very phenomenon that he intends to dismiss. (The line graph that the statistics Web site provides for this data shows that the jump was much more than any seasonal boost that might have played a role.)

Spedale goes beyond all of these subtleties, as significant as they may be, when he tries to justify his claim that "divorce rates among gay and lesbian couples is so much lower than rates of divorce among their heterosexual counterparts":

In January of 2004, there were approximately 2468 gay and lesbian couples, or 4936 individuals, in registered partnerships in Denmark, according to Danmarks Statistik. Danmarks Statistik also records 1169 individuals as divorced from these partnerships. (The organization does not carry statistics on the annual number of same-sex divorces.) This means that, at a minimum, 585 same-sex couples have divorced since the gay marriage came into being 15 years ago. This would equate to a divorce rate of approximately 19% of all same-sex couples.

However, to be fair, we must assume that a percentage of such 'divorcees' have remarried, taking themselves out of this pool. Nevertheless, even if we assume that 50% of all divorced same-sex couples have remarried in this period of time (unlikely, but possible), then we would calculate that a total of approximately 26% of all same-sex marriages have ended in divorce. Compared to the divorce rate for heterosexual married couples in Denmark, which in 2002 was 41% (or to the U.S. rate, which is closer to 50%), gay and lesbian marriages are indeed more stable than those of heterosexual couples.

It took me longer than I'd like to admit to figure out Spedale's math here. The problem, I ultimately concluded, is that he doesn't "assume that 50%" of divorced homosexuals remarried. That would mean that the same number of same-sex couples had remarried as were still divorced, for a total of 1,170 couples, or 32% of all same-sex marriages. Instead, he got the 26% by multiplying 585 by 1.5, which actually ends up assuming that one-quarter of divorcees remarried. Even 32%, though, is obviously less than 41%; unfortunately, the two percentages measure the divorce rate in incomparable ways. Spedale got the 41% by dividing the number of opposite-sex divorces in 2002 by the number of new marriages in that year. That's a very different measure than the number who have ever been married or divorced.

Before I homogenize the data, I should confess that I have no idea where Spedale got 4,936 SSM individuals in 2004. According to my source, which I believe is his, the number should be 5,577. Thus, his 19% divorce rate should be 17.3%, and his adjusted 26% divorce rate should be 23.9%. From Spedale's perspective, that's even better. Still, applying the same calculations to the numbers of heterosexuals married and divorced as of 2004 (2,154,117 and 405,198), the corresponding divorce rates are 15.8% and 22.0%. Whatever these numbers show, it certainly isn't that "gay and lesbian marriages are indeed more stable than those of heterosexual couples."

And cut the numbers however we may, it is still ridiculous to declare the door closed. We'll see which way Scandinavian marriage and family statistics go, and I can only guess that, deep down, Spedale realizes that it doesn't look good for the argument that he's attempting to make.

Posted by Justin Katz at 12:51 PM | Comments (1)

April 26, 2004

When Reason Isn't the Reason

Bruce Carroll applies reason (and reasonableness) to the cause of acquiring marriage rights for his fellow homosexuals. The first step is to admit why the landscape is as it currently is:

But it wasn't the "religious right" or President Bush who started this round of the culture war. It was us.

The battle was clearly started by gay activists who adopted the tactic of challenging marriage laws across the country. The battle was joined, of course, by the conservatives now pushing for a federal constitutional amendment.

But we need to step up and admit that the responsibility of the gay marriage debate, good or bad, is squarely on the shoulders and the consciences of the so-called leaders of the Human Rights Campaign, National Gay & Lesbian Task Force, Log Cabin Republicans and their ilk.

The accusation that the President was sparking an election-year controversy over a passive gay marriage movement in a cynical ploy to divide the nation for political gain has been among the more bizarre and transparent feints of SSM advocates. And even supporters of SSM, such as Eugene Volokh, through whom I found Carroll's piece, have suggested that the attempt at a legal coup has set back what had already been (in their view) a probable outcome anyway. That, in turn, relates to another of the more bizarre rhetorical ploys of SSM advocates — that the FMA is an attempt to block something that's culturally inevitable while it is still politically possible to do so.

However, the obvious strategy under those circumstances — disavowing all efforts to force the goal prematurely — requires acknowledging something that many gay activists are loath to admit. The most striking idea that Carroll voices is not the dissent from others who share his cause, but this simple bit of honesty (emphasis added):

I told them that while there was a gay-marrying frenzy breaking out in San Francisco, Oregon, and New Paltz, N.Y., most Americans were not at a place to accept this change.

Of course, I'm outside of Carroll's crowd, but it seems to me that he steps right over a gulf between his casual admission that SSM is something new and the polemical demand that it be seen as a right inherent in the concept of marriage. As it happens, I agree with Carroll's suggestion, even apart from any given policy goal:

What is needed is a fundamental and, most importantly, mature awareness campaign across the country about what it is to be a gay or lesbian American today. We all need to be willing to come out of our closets — proverbial or not — and let our friends, family and work colleagues know who we are.

Let them know that we pay our taxes just like them. Let them know we experience the ups and downs of daily life just like them. Let them know that we want the same financial, job and relationship security that they enjoy. Let them know that we want to be as tolerant of their long-standing religious beliefs as we want them to be tolerant of ours.

Among my most cherished relationships — some short-lived, some lasting — have been those in which the other person was willing to speak candidly about his or her starkly contrasting experiences and the lessons drawn therefrom. Whether the difference is one of gender, race, or sexuality, sincere discussions that are free of sardonic postures and insecure masks engender an appreciation of shared humanity. And I've found my life and worldview greatly enriched by such conversations.

However, contrary to what Carroll might hope, such empathy won't necessarily translate into agreement on particular issues. Seeing a matter from the perspective of those most affected by it often reinforces the conclusions that had been made at a distance. If somebody else is fully human, well, that same person is only human.

To some of those to whom Carroll directs his advice, the idea that there's anything that merits respect in our view, on the opposing side, will be as odd as the notion that we could possibly hold our beliefs without hating them. Perhaps some SSM advocates realize, whether consciously or deep down, that we on the outside don't hate them, in which case it might be conceivable that we're right.

For this reason, although it represents a risk in more ways than one, I'd say a "mature awareness campaign" that puts our beliefs, preconceptions, and conclusions on the table is good advice for traditionalists, as well.

Posted by Justin Katz at 2:59 PM | Comments (1)

April 24, 2004

Ceding the Last Battle

In a comment to a post on Tuesday, reader Fitz asks:

I would submit - concerning the general flow of this conversation - that the gay "marriage" battle is really the last battle in the culture war.

By that I mean - to lose this engagement is to answer many of the questions we struggle with.

To lose this battle is to presuppose a disengagement with the culture at large. This will dispirit the troops concerning coming battles over the "right" to die, legalized prostitution, abortion, educational implementation of the liberal agenda, etc.

Furthermore - losing this battle will cement the idea of permissible judicial supremacy over our most important moral battles. This will encourage our robed masters and their new class supporter's - giving them carte blanche to implement their agenda further (really, who will oppose them after this huge defeat).

In many ways they have already won - The lack of outrage amongst the legal elites in calling biology and reproduction "No rational basis" is indicative of their supremacy amongst the ruling class.

My question to you Mr. Katz is - Do you disagree with my thesis? and if the answer is No, then why are you (and the rest of us) not throwing all our efforts behind opposing this latest front? (or are you?)

The first thing to note is that I spend more time than I have to spare discussing, researching, thinking, and writing about same sex marriage. And that, ultimately, is where I've assessed that I can personally do the most good. I can't answer for others in their own judgments about how much to do and in what way. Whatever the case for any particular individual, it must be said that it ain't easy to take a stand. I'm pretty sure I've lost some friends and professional good will as a result of mine. But that's how it goes.

Be my personal sacrifices what they may, taking incrementally broader views leave plenty of room for hope no matter the outcome with this issue. Over the past half-decade or so, folks have been starting to wake up to what has been lost in our culture's rush from traditional principles and practices — and to the need to defend it. The fight over same-sex marriage, in that context, is a battle at the turning point.

If traditionalists lose it, it may prove to have been a parting victory for the abating zeitgeist — a final bit of havoc wreaked by the defeated ethos. Recovery will be more difficult as a result, but not impossible. An optimist might suggest that, given the nature of the trend that we, for our part, are encouraging, the extra work might ultimately be for the good.

In its legal aspect, defeat needn't mean that the judiciary will not face ever-increasing hostilities in its bids for power. The fact of the matter is that the citizenry hasn't really begun to push back against the robed oligarchs. As that poll of Evangelicals illustrates (properly read — ahem), many people who oppose changing the definition of marriage do not fully appreciate the forces at play. Furthermore, SSM advocates such as Andrew Sullivan have devoted a sizable portion of their efforts to declaring that nothing in the law or legal system will nationalize SSM if the people don't want it. Their reactions when they are proven wrong (as I suspect they know they will be), and just the fact of their being proven wrong, will help to cut through the obfuscations that loosen the judiciary's leash, such as carefully spun federalist rhetoric.

Abortion, by way of comparison, came during a completely different era, legally and culturally. It may very well be that the two issues, if SSM is nationalized by the courts, bookend the period of people's tolerance for this sort of behavior from that branch. For one thing, a much broader segment of society was implicated in Roe v. Wade, particularly as time went on. After-the-fact resistance to same-sex marriage will not force citizens to face the question of whether they murdered their offspring, or advocated for the ability of others to do so.

In its cultural aspect, the war is not lost because there are other theaters in which to fight it. Fitz gets to the real variable, however, when he mentions morale. We ought to hold out hope, should this legal battle be lost, that it is possible to use the caused turbulence to strengthen other aspects of marriage. A successful reaffirmation of the lifetime commitment and of monogamy in the culture and (preferably) in the law would limit the ill effects of same-sex marriage, and might even provide an opening for society to transform the social understanding of homosexuality.

The outcome, under any circumstances, is far from certain. Still, we can take comfort in the observation that these things run in cycles. As I've stated before, such principles as those crystallized in traditional marriage seem to have a way of coming around again, even if it must occur after our society as currently constituted collapses.

And even if this is the last cycle... well, I'm a Christian believer, and therefore, even pessimism about particulars can be a source of optimism.

Posted by Justin Katz at 6:22 PM | Comments (3)

April 22, 2004

Scandinavian Marriage by the Numbers

The legalization of same-sex marriage does not of itself cause some cosmic shift in people's attitudes about marriage. The day after the ink dries on legislation or a judicial ruling, divorce lawyers' phones won't ring off the hook and unmarried couples won't give birth to vast broods. However, the legalization of same-sex marriage is a definitive marker — the bottom line of how a society defines marriage and its purposes.

Therefore, it necessarily arrives as part of a progression, not as a bolt from the cultural blue. This is not to say that the "yes" vote doesn't bring a significant shift; accepting marriages between two men or two women establishes a manifest illustration that, whatever the essence of marriage is, it doesn't follow from the unique complement of man and woman.

Beyond the intangibles of gender difference, couples of opposite sex can uniquely be the biological parents of shared children. Tying those parents to those children is a crucial social objective. And to the degree to which denial of marriage's role in this objective is codified into law — establishing rights and privileges for others — it removes marriage as a mechanism to achieve it.

This biological and psychological reality holds no matter the culture in question. Therefore, it would be a waste of time to argue with Andrew Sullivan's assertion that "the legal and cultural norms around coupling and family are very, very different in Scandinavia than in the U.S." Even letting slide his perennial attempts to use that region as a model and example in his advocacy for SSM in the United States, one can suggest that damage to the institution of marriage would only be more profoundly harmful on our shores, where (Sullivan admits) "civil marriage remains... the privileged organizing unit for coupling and rearing children."

However, Sullivan cannot be ignored in his attempts to argue that one area of difference is that Scandinavian citizens can achieve the familial benefits of marriage without entering into the institution per se. He quotes from correspondence with researcher Darren Spedale:

Couples in Scandinavia who have chosen to spend their lives together without a marriage certificate often plan for an otherwise traditional family structure, including children. Thus, the 'out-of-wedlock births' that Kurtz refers to in Scandinavia are children who are wanted by their parents... Probably the most telling proof of this is the incredibly low number of Scandinavian children available for adoption each year. In Denmark, for example, only about 25 Danish children are available for adoption each year in the entire country. ... Kurtz's claim that 'rising rates of cohabitation and out-of-wedlock births stand as proxy for rising rates of family dissolution' is therefore misleading.

Perhaps I'm not alone in finding it suspicious that Spedale seeks to replace cohabitation and out-of-wedlock births with adoption as a bellwether of family dissolution. Low numbers of children put up for adoption are to be expected in societies in which parents who would be willing to remove their children from their lives can kill them before they're born. As I highlighted in a post with extensive graphs on these matters, between approximately 11% (Netherlands) and 26% (Sweden) of all children conceived in the region were aborted in 2000. This was up from rates in the same bookend countries of approximately 2% and 16% in 1970.

More to the point, however, Spedale presumes too much in implying that "family dissolution" requires that all parties, including the children, go their separate ways:

The only thing that such statistics demonstrate is a continuing shift in the Scandinavian countries to permanent relationships of families in a traditional family structure (i.e., with children), who don't hold a marriage license. Kurtz fails to prove any connection whatsoever between unmarried couples and family dissolution.

Certainly, a problem faces Mr. Kurtz in that cohabiting families are a bit more difficult to track. For one thing, without the expectation that parents will be married, divorce rates and statistics about whether children live with their own parents cannot easily be combined. Examining statistics of Danish childrens' households, it is heartening that 74.8% of children still lived with their own mothers and fathers in 2001, even if that was down from 75.9% in 1991. The picture begins to tint, however, when one notes that the number of children living with a single mother was up 11% over that period.

Raw numbers of children are tricky for a variety of reasons. Firstly, they can go up in every category, leaving one to compare rates of increase for small and large numbers alike. The number of children living with their own parents, for example, was up 5%, or 41,569 kids, while the number of children living with their recoupled mothers was up 18%, or 13,203 kids. All in all, those 41,569 additional children living with their own parents compares with 28,763 additional children whose original families dissolved.

Secondly, raw numbers of children are skewed by the tendency of traditional families to be larger. To understand this dynamic, consider the data by household type, which is a bit more worrying. In 2001, for homes with one child, unmarried parents (combining all registered partnerships, "consensual unions," and cohabiting couples) amounted to 40.6% the number of married households, while single parent households (either mother or father) amounted to 49.2% of the number of married households. So the total one-child households that didn't involve marriage was 89.8% the size of the total households that did. For homes with two children, the unmarried total was 23.7% the size of married, and the single parent total was 19.2% — meaning that marriage-less households were 42.9% the total for married. For homes with three or more children, the numbers are 16.4% and 13.9%, generating a total no-marriage to marriage ratio of 30.3%.

For a visual sense of what this means, consider the following graphic. The solid bars are the actual numbers in each category for 2001.

Note not only that there are more married two-child households than one-child, but also that the distance increases as described above. The outlined boxes give some historical perspective, as the relevant numbers for 1991. It isn't clear that the trend is of families with children remaining the same, only dispensing with the marital formality, as Spedale suggests. If that were the case, losses in the married category would be made up more directly in the unmarried couple category.

Although there may have been some degree of this in the '90s, comparing the percentage change of the total numbers suggests that the arrangement could be culturally and individually fleeting. Larger families are likely to be older, with a cultural view formed during an earlier period, meaning that the parents absorbed the meaning of marriage, even if they don't have a license. Moreover, larger unmarried families would seem likely to include more reshuffled children, because (for one thing) large nuclear families began earlier in the trend away from marriage.

In the following figure, the solid bars represent the difference that you see in the first figure — the change from 1991 to 2001.

Looking just at the solid columns, you can see that marriage is decreasing among one-child households, but leveling off then increasing for additional children. However, the other family types are increasing at a faster rate. Most disturbing of all are the outlined boxes, which show the percentage change in total households from 1991 to 2004. Single-parent households are by far the most rapidly expanding group for families with multiple children.

What it looks like to me is that there's a reason that it's widely accepted among sociologists that cohabitation isn't stable. Those who are serious will get married; those who are not will separate. And unfortunately, the rate of the latter is increasing more than the rate of the former. Combined with the fact that individual children are ever-more-likely to live without both of their biological parents, and Sullivan would seem to be ill advised to count on the "social conservatism" of Scandinavians. This is especially true when it is considered that, as I showed in the context of births and abortions, Denmark is the most-improving nation in the region.

Sullivan shifts his discussion to Norway (link in original):

It's also true that in the period Kurtz is concerned about the number of marriages in Norway increased by almost 25 percent from 20,161 in 1993 to 26,425 in 1999. How does that square with the "death of marriage"?

Let's get fairness out of the way first: for some reason, Sullivan added the data for marriages abroad to a total that already included them, so the actual numbers are 18,741 and 23,456, which represents an increase of just over 25%. I've no reason to quibble with that, as I believe there's a very real chance that the public battle over same-sex marriage gives the whole institution a temporary boost, because people are considering what marriage means, overall and for themselves. What's peculiar is that Sullivan (or somebody) had to dig to get the table that ends at 1999, and I'm not sure why he believes that Kurtz is only "concerned about" that period.

The latest table goes all the way to 2002, when there were 24,069 marriages. I'm not sufficiently familiar with what's going on in that country to know why it's so, but the marriage numbers have been volatile this decade, up to 25,356 in 2000 and down to 22,967 in 2001. That blip was in large part due to fluctuations in the number of church weddings, which might be consistent with my boost hypothesis. However, the 2002 increase was more evenly divided between religious and civil. Whatever the case, one can discern how susceptible the relatively tiny totals are to distortion of trends by the fact that one could pick five-year gaps during which marriages increased by 25% or by 0%.

One more bit of numerical flimflammery that's worth noting involves this from Spedale:

This solemn approach towards, and respect for, entering into the institution of marriage also explains why divorce rates among gay and lesbian couples is so much lower than rates of divorce among their heterosexual counterparts.

Sullivan emphasizes the point, writing, "Yes, you read that right." But who knows what we're reading; Spedale offers no numbers, let alone a source for numbers. So let's use the numbers that Sullivan's Norway source provides. Although there's no corresponding table, the main report about divorces and separation notes that there were 44 same-sex divorces and 77 same-sex separations in 2002. Since I wasn't able to find any historical data, let's be generous and assume that 2002 was the first year during which Norwegian same-sex couples divorced. Thus, we'll compare the 44 divorces to the 1,412 same-sex partnerships that had been contracted in the previous decade.

This source calculates the heterosexual "divorce rate" per 1,000 married women. In Norway for 2002, it was 11.9. Calculating the per-1,000 number for same-sex divorces, we get 31.2, which is two-and-a-half times the divorce rate of heterosexual marriages. And, remember, this assumes that there had never been a same-sex divorce in Norway before that year. If 44 same-sex couples had divorced every year for the past ten, there would only have been 972 of them by that point, and their divorce rate would be 45.3.

But more than all of the number games, what bothers me about Sullivan's latest spin is this:

Between 1994 and 1999, there were a total of five registered same-sex partnerships in the county Kurtz cites. Kurtz wants to explain the shift in that county's heterosexual conduct by citing a mere ten people?

Variations of this statement have been made — and rebutted — so many times over the past year that I'm beginning to think those who make it don't really listen for an answer. It isn't the actual number of same-sex marriages that creates an issue; those who say it hurts my marriage not at all if two homosexuals marry are correct. At the same time, those 10 folks in that county, even the 1,412 folks in all of Norway, didn't change the law all on their own. What preceded their marriages was a final push of the socially understood meaning and purpose of marriage to the point at which gender became irrelevant. The effects will take decades to play out, and none yet can claim definitive conclusions. But frankly, the numbers don't give much reason for optimism — certainly not enough to emulate the policy here across the pond.

ADDENDUM:
Apparently, I wasn't alone in thinking Spedale's appeal to low adoption rates to be suspicious. Here's Eve Tushnet:

Low rates of babies placed for adoption = strong family culture??? Has Spedale ever spent any time in an American inner city? Many, many American communities have exceptionally low marriage rates and a strong stigma against placing your baby for adoption. Those are the families of "fatherless America," not models of marriageless bliss.

ADDENDUM II:
Sullivan has linked to Spedale's full response to Kurtz. To cut to the chase, I'm not impressed. The great bulk of its content is advocacy fluff (e.g., about "respect" and "tolerance"), a strange belief that SSM must be working because the politicians would have modified or removed it otherwise, and snide remarks about how Spedale actually conducted dozens of interviews, whereas Kurtz mostly studied numbers covering entire populations.

In fact, numbers are sparse and selectively applied in Spedale's lengthy essay. We learn that, in 1996, "before the registered partnership law was introduced, approximately 50% of heterosexual couples in Iceland with children were already living together as permanent partners without a marriage certificate." We get the adoption number cited above. And then we get this:

In 1990, at the outset of the partnership law's existence, there were 6.1 heterosexual marriages per 1,000 persons in Denmark. By the mid-1990's (1996), that number had climbed to 6.8 marriages per 1,000 population, or an increase of just over 10% from 1990.

Furthermore, the number of heterosexual divorces in 1990 stood at 2.7 per 1,000 population. By the mid-1990's, it was at 2.4 per 1,000, or an approximate 12% decrease in the number of divorces.

What's peculiar, here, is that Spedale opens his essay proclaiming that "15 years after the first of these countries (Denmark) legalized gay marriage in the form of registered partnerships, the results are in." He ends suggesting that this "15-year history with gay marriage" allows us to "close the door on Stanley Kurtz's supposed argument that gay marriage in Scandinavia has had a negative impact on the institution of marriage." If that's the case, why offer only data from the first six of those fifteen years?

See for yourself why. Since 1996, this marriage rate per 1,000 has fluctuated back down to 6.5 (1997), up to 7.2 (2000), and in 2002 rested at 6.9. (Incidentally, between 1996 and 2002, Denmark's population increased only 2.2%, or 117,327 people, 79,572 of whom were immigrants not canceled out by emigrants. That leaves native population growth of only 37,755, if I'm not missing anything.)

More importantly, and less mixed up with other factors, is the trend in divorce. It's true that the number of divorces decreased from 13,731 in 1990 to 12,776 in 1996. However, they've since increased steadily each year, and in 2002, there were 15,304. That's 2.85 per 1,000 of the total population — up 5.6% from 1990's 2.7, and up 18.8% from 1996's 2.4.

Sorry Darren, I don't think the door can be close just yet. What's the hurry?

ADDENDUM III:
Spedale has added some statistical meat to his essay. I've addressed it here.

Posted by Justin Katz at 11:57 PM | Comments (3)

April 21, 2004

Ripples from a Spinning Poll

Without much comment, Andrew Sullivan notes that evangelicals are questioning the accuracy of that PBS poll that found only moderate enthusiasm for a Constitutional amendment defining marriage as man-woman. From the American Family Association:

The poll was conducted by Greenberg Quinlan Rosner Research in recent weeks for Religion & Ethics Newsweekly and U.S. News & World Report. The results of the poll, which were widely publicized, indicated that by a margin of 52 to 41 percent, Evangelicals prefer to leave the issue of same-sex marriage up to the states rather than amend the U.S. Constitution.

The fact that a New York Times poll in March said 59 percent of the general population supports a Federal Marriage Amendment caused many to question the polling group's definition of "Evangelical."

Russell Moore, a senior officials at Southern Baptist Theological Seminary, says the survey is off target because the authors assumed self-professing Evangelicals are true Evangelicals. He tells Baptist Press that incredibly, 45 percent of those so-called Evangelicals in the survey disagreed with the statement that "only born-again Christians go to heaven."

More than any question of who does or does not have a right to the moniker "Evangelical," this disparity was caused by differences in the actual questions. Once again, here is the question that garnered the controversial response rate (I even took the time to let Acrobat kick in to double-check the PDF):

Should the U.S. Constitution be amended to ban gay marriage, or is it enough to prohibit gay marriage by law without changing the Constitution?

I see nothing about "leaving it up to the states." I don't even see any ambiguity about the preferred outcome. So, unless I'm missing some bit of information, here, the person who wrote the poll summary (see page 17 of this PDF) erroneously introduced the concept of state law, and everybody else has spun a prudential assessment about legal methods into a lack of support for an amendment.

Ever feel like the only person who can see (or will admit) that a coworker's project is fatally flawed?

Posted by Justin Katz at 8:28 PM | Comments (1)

April 19, 2004

Unspinning Evangelical Marriage Poll Numbers

Andrew Sullivan is surprised and encouraged by a poll showing that white evangelicals are human beings with a variety of concerns, which they approach with varying emphasis. Who'd have thought such a thing could be possible?

While I must admit to some reluctance to temper Sullivan's revelation, it's important to note that he gets the numbers wrong. Some of the blame belongs with his source and its source, both of whose contributions are probably some combination of error and spin. Here's Sullivan's first claim of fact:

52 percent of evangelicals said they preferred the matter to be handled by the states.

Here's how Frank Langfitt of the Sun-Sentinel (which I'm pretty sure is Sullivan's source) put it:

52 percent would prefer to rely on state laws to prevent gays from marrying rather than altering the U.S. Constitution.

That language comes directly from the PBS Religion & Ethics Newsweekly summary of its survey. But they're all wrong. Here's the actual question that respondents answered (see page 12 on this PDF):

Should the U.S. Constitution be amended to ban gay marriage, or is it enough to prohibit gay marriage by law without changing the Constitution?

The first thing to note is that the number is actually 52% of the 85% who oppose gay marriage. More importantly, the summary writer inserted the concept of state law and introduced the notion of preference, and then Sullivan replaced the emphasis on prevention with generic "handled by the states." The question, itself, however, is one of effectiveness — whether regular ol' laws, federal or state, would be sufficient. The survey doesn't explore whether proven inadequacy of statutes would switch support toward an amendment. Mention of the judiciary might have yielded higher support for an amendment, for example.

Here's Sullivan's second claim of fact:

Moreover 48 percent of evangelicals said that support for marriage rights for gays would not disqualify a candidate from their vote.

He actually got that backwards, as checking his source shows:

only 48 percent of white evangelicals said a candidate's support for gay marriage would disqualify him from receiving their votes.

The "only" is a bit of mild editorializing on Langfitt's part, not included in the PBS summary. Still, PBS assists him by failing to mention that the 48% compares with only 38% who would still vote for a candidate who disagreed on the issue.

The number mix-up is probably an honest mistake on Sullivan's part. However, to the degree that he strengthens the language with his rhetorical boilerplate ("support for marriage rights for gays"), he highlights two important omissions that begin with the summary.

First, another 7% said it "depends." The question is sufficiently open regarding both the degree of disagreement and the areas of agreement that some folks (myself included) would leave room for an election offering the choice between, say, a candidate who would abandon the war on terror and issue an executive order instituting gay marriage and one who would be strong against terrorism and offered some mild, qualified support for gay marriage. Seen in such a light, the 48% is astoundingly high.

Second, if I'm reading the survey data correctly, this question was asked of the total population. In other words, the 38% who would vote for a candidate with whom they disagreed about gay marriage might include as much as 10% who would — despite disagreement — be voting for a candidate who opposes gay marriage.

Thus do numbers transform in meaning and significance. Polls don't offer the most concrete of data, in the first place, but as the layers of spin and misreading pile on, they shift from cautiously useful, to useless, to detrimental.

Posted by Justin Katz at 10:36 AM | Comments (5)

April 16, 2004

Lileks Gives It Some Thought (And I'm Right)

In August, this blog was the medium for a somewhat bold suggestion: that Lileks ought to give some more thought to the concept of same-sex marriage before writing on it further. For that post, I fisked his column "Times Change, and So Does Marriage," which read in part:

Does gay marriage threaten heterosexual marriage? Of course! Who knows how many women woke last week to find notes on the kitchen table: "Dearest Wife, now that homosexual sodomy is legal in Texas, I have to go try it. Took the cell phone. Farewell."

No, if heterosexual marriage is threatened by anything, it's by heterosexuals. Famous heterosexuals in particular. ... Say what you will about gay marriage, it's nice to see someone taking the institution seriously.

Would a constitutional amendment on marriage pass? Probably. Would states allow "civil unions"? Probably. Would the republic endure? Sure. If you're opposed to gay marriage, don't have one. If you want to defend traditional marriage, stay married.

Well, it looks like he's given it some thought, perhaps providing further proof that opposition to gay marriage increases with contemplation. From today's Bleat:

... what perked up my ears was one of the anthropologist's assertions that there is no difference between a two-parent / two-sex family and a two-parent / same-sex family. None. He said: Any preference for a traditional mom/dad family was based in a "superstition." His word: "Superstition." Because, you see, there was no evidence that two moms were different in any important way than a mom and a dad. Belief in werewolves, belief in the evil eye, belief in the walking undead or the superiority of a mom-dad household: superstition.

... Just because gay couples can't [sic] be excellent parents doesn't mean that the inherent nature of the relationship is equal to the inherent nature of heterosexual parenting. But nowadays we cannot make value judgments about these things. If you say that heterosexual parenting arrangements have a built-in advantage you're somehow delegitimizing the very notion of homosexual parenting.

... Of course kids need dads and moms! But it's not the first time I've heard [that they don't], and it seems to be a favored argument by those who are approaching the same-sex marriage issue not as a civil rights issue, but as a means of enshrining gender-studies grad school nonsense in public policy.

The next realizations in line are that same-sex marriage forced through the courts, or even through legislatures as a blanket civil rights move, would make that grad school nonsense the only applicable law of the land and then that this outcome is the most likely barring an amendment.

It is possible to envision a culture in which homosexuals would seek marriage in terms, and with concessions, that would allow preference for individual liberties to counterbalance all legitimate civil concerns about the institutional shift. But that culture is not the one in which we live, and appeal to those marital terms doesn't seem to go much deeper, currently, than the marketing campaign.

Posted by Justin Katz at 11:12 PM

When Roommates Tie the Knot

Having gone a few rounds on the topic with Gabriel Rosenberg, I haven't entered into his exchange regarding same-sex marriage and parenthood on the Marriage Debate blog. However, a spun-off point from his latest contribution is too revealing not to note:

Even if they can't adopt, I think roommates should be permitted to marry. They already are permitted if the rooommates are opposite-sex and I don't believe we should forbid it solely because of the gender of the roommates. Whether roommates should marry depends on the circumstance. One should only enter marriage with the intention and the expectation that it will be permanent. So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them. That being said I don't think they should jointly adopt unless they undertake this permanent commitment with all it entails.

Overall, this strikes me as further evidence that opponents and proponents of same-sex marriage really do agree on most of the particulars, merely approaching them with different priorities. Opponents argue that SSM would break down barriers further along the progression, and proponents say that it should. The former suggest that this would dilute marriage beyond utility, and the latter act as if this is irrelevant to the law.

I'm sure those who believe that marriage, as it stands, plays an important cultural role will be happy to find Prof. Rosenberg offering his non-binding personal opinion in place of the legal barrier, but they shouldn't be sufficiently satisfied as to acquiesce to his policy suggestion. The legal boundaries of marriage are the mechanism whereby society asserts what pairs of citizens should and shouldn't do. Ponder this sentence further:

So if roommates decide to marry they need to understand that they can't be dating other people, or expect to end the marriage when it no longer suits them.

Would Rosenberg support tighter divorce laws? Or how about guidelines that make it more difficult to remarry after having left a previous marriage for no socially compelling reason? Not likely. He may believe that roommates "need to understand" the rules, but based on previous exchanges, I don't think he sees that need as great enough to merit enforced consequences for breaking them. In a way of phrasing it, Rosenberg's argument is that those whom he seeks to persuade to change the law should trust that others will respect the reason that it was done and pass up benefits to which they would gain legal access... just because.

It may be that part of the reason for tepid response of marriage traditionalists that Chuck Colson finds inexplicable is a simple inability to compute the arguments of the other side. Married roommates "can't be dating other people"? But we all understand, by the word "roommates," that they're not dating each other. That's why it's brought up for the purpose of illustrating the potential perversions of SSM; it will extend the opportunity for benefits to relationships with absolutely none of the qualities that justify those benefits in the first place. In essence, Rosenberg is saying that roommates should be allowed to marry, but that they should only do so if they aren't really "roommates."

Aversion to the confusion of roles on which Rosenberg is relying to slip his point through is the very cultural force that discourages opposite-sex pairs who fit the definition of "roommates" from marrying, even thought they legally could do so. One can imagine the perplexed reactions when such a pair attempted to explain their arrangement to family, friends, and new acquaintances. Straight same-sex roommates would face no such interpersonal pressure to appropriately delineate their relationship because it would be implicitly understood that they are merely gaming the system. By virtue of their heterosexuality, the expectation of romantic intimacy is more easily dismissed.

Joe's admission evoked a curious look from the woman at the bar. "So you and your friend are married?"

"Yup."

Her eyebrows lowered as she laughed nervously. "Are you...," she said, finishing her sentence with the pantomime of a limp wrist.

"Nope." In a tone of practiced nonchalance, he explained that they just hadn't wanted his employment benefits to go to waste while John was partially unemployed and working toward his graduate degree. Joe sipped his beer and added, with a broad smile, "And our bedrooms are on opposite ends of the house."

She tittered again, but this time, the lowered eyebrows gave way to a deep blush.

Imagine the same scene if the woman had been the one attempting to explain that she was married to her "roommate" John for convenience. Professor Rosenberg may not see any reason that society shouldn't move toward gender-neutral cultural subtext, but to advocate as much is to dismiss notions of human nature and to discard endlessly subtle and integral roles that have developed over millennia.

The only way for a pair's marital pronouncements to become the only relevant indication of their relationship is for cultural comprehension and expectations between men and women (or any combination) to be drained completely from society. That is simply not possible among human beings, even if it weren't undesirable. Universities may be pushing their campuses toward the androgyny represented by unisex bathrooms, but the country at large is much less amenable to such social engineering.

ADDENDUM:
It seems, based on discussion in the comments section to this post, that I was incorrect to infer that Prof. Rosenberg wouldn't support the tightening of some of the obligation-based marital laws, such as those around divorce and adultery. However, his position on such matters seems essentially independent from the question of same-sex marriage, which I find problematic in its own right. A significant portion of opposition to SSM derives from perception of the danger of further corrosion of marriage and the impossibility of comprehending the effects that erasing gender distinctions in such a central institution would have.

There are too many variables to people's handling of information in this debate — from completely different usage of terminology to the media's inclination to stuff all opposition into the religious corner — to propound on the reasons that people make the arguments that they do. I give the professor the benefit of the doubt on this count. However, I continue to find it worrying that even such fair and reasonable disputants as Prof. Rosenberg treat SSM as so entirely a matter of individual rights that strategies for mitigating potential corrodents are not integral to their larger propositions.

Posted by Justin Katz at 9:53 AM | Comments (10)

April 12, 2004

Coming Round to Civil Unions

Citing some new polling data from the Los Angeles Times, Andrew Sullivan writes:

The latest breakdown shows about 25 percent favor of marriage rights, close to 40 percent support civil unions, and 33 percent favor giving gay couples nothing at all. What strikes me about that finding is that the polls haven't changed much on marriage - with one significant difference. The middle group of Americans - tolerant, but queasy, say - have now come round to civil unions. Civil unions are, in fact, the natural compromise right now. Bottom line: around two-thirds of Americans believe that gays should have either marriage rights or something close to that (called something else). I'm encouraged.

What strikes me about the finding is that it's the first time I can recall the question being posed as a three-way option. The Washington Post, for example, has been measuring civil union support separately from the yes-or-no on marriage. The latest results presented that way, from early March, find 51% support for civil unions, but support for same-sex marriage split 38% for, 59% against.

Sullivan (aided by the AP summary that he cites) adds a few percentage points in his direction when summing up the L.A. Times poll. And it's mildly interesting to note that he gives a "close to" percentage for "civil unions," the only category for which his AP source actually provides the exact number, whereas he translates "about a quarter" for marriage and "about a third" for neither into actual percentages. Looking at question 34 on the PDF of the raw data, the breakdown is actually 38% civil unions, 24% marriage, 34% neither. As the saying goes: you can take the blogger out of the Old Media, but you can't take the Old Media techniques away from the blogger.

With actual numbers in hand, and assuming some legitimacy to comparison, it seems that the civil union percentage doesn't primarily come at the expense of support for same-sex marriage. If anything, it draws down the opposition number more. That serves to further emphasize that Sullivan is wrong to characterize people's view of civil unions as "something close to [marriage] (called something else)." As I noted when he pulled the same trick with the Post poll, I would have been captured in the "civil unions" category, and I envision them as something quite distinct from marriage.

Sullivan thinks that the "job now is to persuade the middle ground that civil unions would be a far bigger blow to marriage than allowing gays into the institution." However, it's at least as likely that succeeding in such persuasion would result in people's returning to complete opposition. Whatever the case, it's odd to find Sullivan "encouraged" at the civil unions news, considering that they've been considered the "compromise" for years and that, in June 2002, he declared it "time to stop the mealy-mouthed talk about civil unions as some sort of option for homosexual citizens."

Posted by Justin Katz at 7:11 PM | Comments (2)

April 8, 2004

One and a Half Sides to the Story

The same-sex marriage debate presents a problem for those who oppose changing marriage into a gender-independent institution: there are multiple bases from which to address it. At first glance, that might look like an advantage, but what it has enabled the media to do (even talk radio), at least in Rhode Island, is to choose which component of the opposition to present for balance. Not surprisingly, they've gone with the religious front, because that can be countered with the thoroughly memorized and rehearsed separation of church and state argument.

Last week, I sent a column to the Providence Journal offering some of the secular points against same-sex marriage, and I'm getting the feeling that they're not interested in publishing it. However, today, the paper printed a letter that — as heartened as I am to hear voices in contrast to the paper's advocacy — sticks to the storyline:

We who strongly oppose same-gender marriage believe the way we do not because homosexuals are "exotic," not because of a piece of paper, not because of nice, fuzzy feelings, not because two persons are law-abiding citizens, not because of a feeling of civil legitimacy. Rather, we believe in a just God, who instituted marriage between a man and a woman for love and the perpetuation of his created beings.

The letter writer, Paul Pagano, makes some good points, but I'm beginning to get that creepy feeling I had before I discovered alternative media. Surely blog readers will have felt it: as if nobody else in the world (or the state) can see the arguments and the reality that seem so obvious to you. It's extremely unsettling, although rumors of a land where the truth may be spoken offer some encouragement.

(Note: I'm going to try to place the above-mentioned column elsewhere, but if I haven't done so in the near future, I'll just make a post of it.)

Posted by Justin Katz at 3:18 PM | Comments (14)

April 6, 2004

A Do-Over Is Better than the Wrong Call

I've stepped back a bit from the debate over the two marriage amendments. It's true that I believe the Hatch amendment to be inadequate for the problem that we currently face, but my main objection is that it came to public attention before it was prudent to release an alternative to the Federal Marriage Amendment. For that reason, while I'm mildly vexed that Ramesh Ponnuru is actively promoting it, I also find Maggie Gallagher's response to him to be a little more fervent than necessary. This debate isn't taking place behind closed doors, after all. However, Ramesh doesn't really address my complaint, unless he means to sidestep it with this point:

Six: The courts will ignore the intent of the Hatch language to do all kinds of terrible things. "[I]f we had courts bound by the intent of the framers we wouldn't be facing this problem, would we?" So now the courts are the problem? I thought Gallagher's argument was that we would have a problem even without the courts. There goes Argument One, and most of Arguments Two and Three. If Argument Six is correct — that judges are so far gone that there's no way an amendment can constrain them — then the FMA is pointless too.

The choices that Ponnuru offers are too stark: either the courts will follow the intent of the language or they cannot be constrained. But the letter of the law isn't the only determinant of the environment in which the courts have to work — particularly considering that the deleterious trend at hand is the expanding use of extralegal precedent (e.g., personal, elite, and international opinion). The tacit reality, in other words, is that the judiciary must be constrained as much, or more, in a political, public-image sense than a legal one.

The FMA is drawn such that any transgression by the courts will offer political cover for very strong responses from the legislature and executive. The HA is considerably lighter in that respect. Therefore, if the latter becomes the Constitutional parry of the legislature, the judiciary is left with room to continue its strategy of legalisms and loopholes, wearing down marriage — and increasing its own power.

It may be that the American people are beginning to see past the gavel and through the black robes sufficiently that the other branches could muster the mandate to respond should judges wear the HA down to useless verbiage. I continue believe, however, that there's still hope — and therefore reason for endeavoring — to pass the stronger amendment in the first place.

Posted by Justin Katz at 8:55 PM | Comments (4)

April 3, 2004

Omitting Information That's Unhelpful to the Cause

Something just doesn't add up in a Providence Journal report today by Michael McKinney:

A Fall River foster mother, arraigned on charges of raping a 15-year-old girl in her custody, had previously been viewed by the state Department of Social Services as offering a "model foster home," according to a department spokeswoman.

The 26-year-old woman, Christina Machado, has been a foster mother since 1996 and has two children of her own as well as another foster child, and the 15-year-old accuser has been in the house since September 2002.

Machado is free on $5,000 bail and has moved out of the house rather than force the girl out. (Although the girl has apparently left, too, so perhaps Machado left so the other foster child could stay.) According to McKinney, she pleaded not guilty to charges that followed an investigation begun when the Department of Social Services "received a call on its hot line about two or three weeks ago about the accusations." DSS spokeswoman Denise Monteiro says, "At this point, we take every allegation seriously until it is proven or unproven." McKinney reports that specifics "of the alleged crime could not be determined... before a trial."

Monteiro said by phone yesterday that over some two weeks, DSS investigators found no witnesses to the alleged crime. It could not be determined yesterday if the police, which investigate separately, had found witnesses.

So, based on this article, it seems entirely plausible that the foster daughter — who went through who knows what before the age of 14 — might have made up a story, and it's just gotten out of hand. Every kid knows that DSS is one way to express power over mommy and daddy, but it is a little odd that this girl would target mommy and not follow the more predictable storyline. I mean, one would guess that there's a foster father, because (1) Machado has two children of her own, (2) Monteiro said that "they have been a model foster home," and (3) if the mother has left the house, somebody has to be there with the children.

But it's just quirky enough, and it's sufficiently nearby that there was a chance I'd know of the family, so I figured I'd Google Machado, whose name the Projo provides (along with her home address). Doing so, I discovered that the Boston Herald covered the story yesterday, in a piece by David Guarino entitled "Rape rap fuels gay fight: Lesbian foster mom charged in assault."

Well, that's an interesting omission from the Projo piece! Perhaps McKinney or his editors didn't want to taint the front-page encomium of RI House Majority Leader Gordon Fox, who is basking in the affection resulting from his public coming out the other day. But Machado's lifestyle isn't the only bit of information that the Boston Herald reveals that the Providence Journal wouldn't or couldn't:

Sources said a teacher at the girl's school made the report after she had been "acting up."

Sources familiar with the lengthy police report said the rapes allegedly occurred within five days of one another last month. The sources said a friend of Machado's "witnessed the abuse and was instrumental in telling police what happened." ...

The girl had been in the care of Machado and another woman, who sources identified as her partner, since November 2003 after living in several other foster homes.

The girl was examined at a Fall River hospital by doctors who confirmed she had been raped, according to a source. ...

DSS records show one call to report abuse last year but Monteiro said it was "unsupported."...

Three other younger children are still in the Walnut Street home, including another foster child, a boy.

That makes it sound quite a bit less like a teenage foster child's revenge gotten out of control. It also raises a number of questions about the case and about the Providence Journal. Regarding the former, we have a lesbian who's been a foster mother since she was 18. Perhaps her partner is older, because that seems awfully early to sign up for that role, but then how did the 26-year-old lesbian come to have two children "of her own"?

The Herald puts the 15-year-old in the house about four months before the two alleged incidents (as opposed to the Journal's year and a half), which makes the timing of abuse more plausible. If the Herald is correct, it would mean that the same girl probably wasn't the one who made the "unsupported" accusation last year. The Herald's vague details also raise disturbing questions about the nature of the case. What sort of lesbian rape would leave traces that a doctor could confirm? And under what circumstances did the "friend" witness the abuse? Was the behavior consensual?

I'm not confident that the Projo will be the place to watch for answers to these questions. It's possible that Guarino has better sources at the Fall River police station than McKinney does, but the nature of the household is a pretty basic detail — one that he seems deliberately to have written around. If that's true, then the news division of the Providence Journal left out information specifically because some readers might have found it relevant.

Discouraged by the lack of real debate about the marriage bills currently in the Rhode Island legislature, I submitted a column to the Projo earlier in the week. Ever since, I've been thinking that it mightn't have been prudent for me to react so harshly to some of its coverage in the past, as merited as I believe my criticism to have been. But McKinney's piece is an embarrassment, at best, and an outrage, at worst — particularly because it is entirely in line with the paper's already clear agenda. How can interested citizens not react harshly when the state's only major newspaper shifts to advocacy?

ADDENDUM:
A local TV news station has online video (mostly of the house and neighbors who can't believe such things could happen in their neighborhood). I've also found the Fall River Herald News report. (I'd tried earlier, but the paper's main page is quirky, and I gave up.)

Both of these sources accord with the Providence Journal with respect to the length of time that the girl had been in the home (since fall 2002). The TV news did mention that Machado lives with another woman, but without using the "L" word. The Herald News, conspicuously, only mentions that she "lives with another foster child and two natural children." Both of these sources also report that the 15-year-old was removed from the home immediately, and the newspaper adds this peculiar bit of information:

Monteiro would not discuss the details of the investigation, but did say the alleged victim has been traumatized and is "a troubled girl."

Was she "troubled" before living there or only after? And what does Monteiro mean to imply — mentioning this aspect of the case for public consumption?

Posted by Justin Katz at 3:19 PM | Comments (5)

March 31, 2004

Hey, Man, You're Just a Bigot; Ain't No Thang.

It's increasingly clear that those who argue for and against same-sex marriage really do agree about what its proponents are trying to do. They just say it as if it ought to lead to different conclusions.

This applies to various rhetorical offshoots of the debate, too. So, when opponents of SSM complain that proponents fling about loaded words like "bigot" to make themselves seem correct by definition, those who do so, such as Barry Deutsch, just agree and declare that they really don't mean anything hostile or unfair by it:

One area of miscommunication in the marriage equality debate is about words like "bigot" and "homophobe." Marriage equality opponents, quite understandably, don't like being called bigots and homophobes. They might genuinely have nothing against lesbians and gays; some of them have good friends who are lesbian or gay, and some of them are lesbian or gay themselves.

The problem here, I think, stems from two different definitions of "bigotry." Marriage equality opponents think "bigot," in this context, means "someone who hates lesbians and gays."

Speaking for myself, that's only one possible meaning of "bigot" or "homophobe." Another meaning, which is how I tend to use those words in the context of the marriage equality debate, is "someone who favors an unequal legal status for lesbians and gays." And by that latter definition, it makes perfect sense to describe those who oppose marriage equality as homophobes and bigots. ...

If the stigma bothers them that much, they can avoid it by changing their minds and favoring equality between gays and straights.

Well, that's prima facie moronic bullshit. By "moronic," I mean "not adequately reasoned," and by "bullshit," I mean "something that is incorrect." If Deutsch wishes to cease being a bullshitting moron, he just has to admit that words have meanings and connotations that expand beyond his own personal usage. And if he sincerely wishes to debate public policy, rather than ram his preferred solution through by means of name calling, he need only acknowledge that "bigot" requires unreasoning obstinacy and "prejudice," in this context, requires blanket hostility.

Such people are free to argue according to whatever presumptional and definitional universes they wish to inhabit, but it's simple semantic truth that, by describing all people who come to a given conclusion using words that suggest motivation, they are proving themselves to be the bigots.

(via Marriage Debate Blog)

Posted by Justin Katz at 5:07 PM | Comments (14)

March 29, 2004

The Do-Over Amendment Adds a Layer of Complexity

When the Hatch marriage amendment first hit the Net, I suggested that, whereas the FMA would be an undeniable rebuke to courts and preserve the definition of marriage until such time as a large majority of Americans wish to change it, the Hatch version seemed more likely to inspire new lengths of parsing from the judge's bench. Maggie Gallagher makes a similar point, today:

By creating a complicated debate over federalism, rather than a simple and clear debate over the meaning of marriage, the Hatch language will provide multiple "hatches" for political officials who either secretly support or don't care about gay marriage to escape the political consequences of their views.

Legally, the Hatch amendment's effects are complex and unclear. Politically, its effect is all too clear: By splitting the opposition to same-sex marriage into camps, the Hatch proposal is the opposite of mature leadership. It is a monkey wrench thrown into a serious, difficult, but absolutely critical effort to restore not only the proper balance of the courts, but a common, shared understanding of what marriage is, and how much it matters to this generation and to generations to come.

Which may be why Sen. Hatch made it clear last week that he endorses the original FMA.

This may be one of those moments in history at which two critical matters coalesce such that they can only be adequately addressed together. There's still plenty of time and reason for optimism to stick with the FMA. I suspect the picture will look quite different this summer, and having the Hatch language out there as a "compromise" will make the debate that much more difficult.

Posted by Justin Katz at 10:26 PM | Comments (2)

March 26, 2004

Precedents Made of Sand

In early February, Yale Professor Gabriel Rosenberg wrote in a comment to this post about same-sex marriage in Massachusetts:

I suspect that the court will find a rational basis for banning consanguineal and affinal marriages that has nothing to do with genetic offspring. For one thing, the affinal relations banned in Mass (but not in most other states) have no common bloodline so genetic concerns cannot be the sole basis.

He went on to write two posts differentiating SSM from polygamy and incest. As I suggested in my response, he made some valuable points — which advocates for traditional marriage may invoke a bit further down the slippery slope — but they were judgments with no compelling argument for why courts would care to agree with them.

In support of Prof. Rosenberg's point, one could note that the relevant statute in Massachusetts law includes stepparents and the like along with biological family members as barred from marriage. Furthermore, in the 2000 case Commonwealth v. Smith, the Supreme Judicial Court addressed the matter in the context of a father who had engaged in sodomitic sex with his daughter and whose lawyer argued that it had not been incest because there was no chance of conception. Although it found in his favor on semantic grounds, the court reasoned (internal citations removed):

Limiting "sexual intercourse" to penile-vaginal penetration would be appropriate if the sole purpose of the incest prohibition were the prevention of genetic or biological abnormalities in the offspring of incestuous unions. However, the plain language of the incest statute indicates that its drafters sought to advance purposes different from, and more compelling than, eugenics. For the statute does not define the crime of incest exclusively in terms of sexual intercourse between consanguineous relations, but also criminalizes the intermarriage of persons so related. Moreover, the "[p]ersons within the degrees of consanguinity" to whom the statute's prohibitions of intermarriage and sexual intercourse apply are not limited to blood relations, but include also certain affinal kin as well as stepparents. The Legislature's purpose in criminalizing incestuous conduct must thus extend beyond the prevention of genetic defects, as this goal would clearly not be advanced by criminalizing marriage itself, without more, between blood relations, and still less by prohibiting coitus between affinal kin who do not share a common bloodline. Indeed, the scope of the incest statute, as it relates to both conduct and persons, strongly suggests that its framers valued and sought to promote the sanctity and integrity of familial relationships, as well as to protect children within the family from sexual impositions by their elders.

So, the court didn't even go so far as to find it necessary to judge whether the legislature had a "rational basis" for its decree; it just determined that legislative intent was to include relationships other than by blood in the incest statute — but not to include a variety of behavior, as indicated by its narrow reading of "sexual intercourse." To leave no doubt that the second judgment of its intent was absolutely incorrect, the legislature subsequently expanded the incest statute to explicitly include the whole collection of sexual acts; it left the first judgment, about what relations were included, alone.

Well, on Monday — not quite four years after Smith — the SJC offered this chuckle-inspiring line, about the paragraph I've just quoted, in Commonwealth v. Dawud Rahim:

In rejecting this argument, we stated, without analysis or explanation, that the prohibitions in [the incest statute] extended to "affinal" relationships, thus indicating that the purpose of the incest prohibition is broader than simply eugenics.

Although it is currently immaterial, due to the intervening legislation, Rahim did have that penile-vaginal intercourse. This time around, however, it is not incest because it was with his stepdaughter. The court dismisses its earlier statements as dicta (or excess verbiage) that needn't be considered binding. Furthermore, the court argues that the legislature has used "consanguinity" and "affinity" as distinct terms, elsewhere, so the entire range of banned marital relationships is not covered by the relevant language in the incest statute, which reads as follows:

Persons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void...

Gone is the endeavor to understand the general intent of the statute — the values it seeks to preserve and the harms it seeks to prevent — replaced, now, with explication of specific linguistic intent. Whatever their justification, the thinking now goes, the legislature knew that it was not criminalizing affinal incest with this statute, and that's what counts. Of course, as the three (of seven) judges standing in dissent remind us:

Two years after the Smith decision, the Legislature rewrote the incest statute to broaden the sexual conduct prohibited to include unnatural sexual intercourse. The amendment was in direct response to the Smith decision. No change was made in the definition of incest contained in the statute. It is obvious from this that the Legislature accepted the definition stated in the Smith case, and expressed agreement with the language therein explaining the purpose of the statute.

That being merely a dissent, it is not necessarily a crime, for the time being, for a stepparent to have consensual sex with his or her spouse's sixteen-year-old child. Perhaps some enterprising prosecuter will charge such a parent under the still-extant adultery law, but one can only imagine that the SJC would make short work of that statute, too.

More disturbing is that it's impossible to know what the court will rule next, in a post Lawrence v. Texas world, about non-coital or sterile sex between even biological family members now that it has contradicted its own recent judgment that the crime of incest is not essentially a matter of the existence of a sexualized parent-child relationship.

Worse yet, contrary to assertions throughout Rahim that marriage is a distinct matter, the precedent that courts around the country are busy building is that the right to have sex with another person is the same as the right to marry that person. Lawrence (the U.S. Supreme Court case making sodomy a right) is mentioned frequently in Goodridge, which legalized same-sex marriage in Massachusetts, including as the first citation supporting this comment:

Whether and whom to marry, how to express sexual intimacy, and whether and how to establish a family--these are among the most basic of every individual's liberty and due process rights

Perhaps the Massachusetts legislature would do well to reintroduce its statutes prohibiting marriage to relatives as a constitutional amendment.

Posted by Justin Katz at 12:12 AM | Comments (4)

March 23, 2004

Amendments Around the Net

PROEM:
Just a note for folks coming here from the Corner: if you find this page design difficult to read, click "Turn Light On" at the top of the left-hand column.


Maggie Gallagher has penned today's SSM must-reading:

The very ideas that are being used to promote single-sex marriage are a dagger pointed at the heart of the marriage culture. Marriage, these people are saying, is not a public, social norm, it is an individual civil right, a benefit-dispensing mechanism. Every small town or county can decide for itself what marriage means, with no damage to anything important in our common culture.

The fragmenting of America's marriage culture is going on before our eyes, even as the most stubbornly blind advocates of single-sex marriage continue to insist gay marriage poses no threat. As Bob Herbert wrote in the New York Times, "Those of you who are already married, tell the truth: [Gay marriage] won't make your marriage any weaker, will it?"

She covers all the bases, from the likely shift of a successful same-sex marriage movement toward forcing religious organizations into compliance, to the erroneous declaration that all precedent leaves marriage laws to the states. She also argues against the potential Hatch amendment, which would concentrate marriage amendment efforts on the procedural matter of excluding courts, while leaving state legislatures to do whatever they wish. It is to this portion of Gallagher's piece to which Ramesh Ponnuru responds (read up from the link).

The decisive factor of disagreement is whether the Federal Marriage Amendment, which would actually define marriage, has a chance of passing. Everybody else in the debate is more qualified than I am to judge that. For my part, I continue to think that it would have been a better move all around to withhold whispers of an alternative amendment until this summer — a time at which public support for amendment is trending to cross into "overwhelming majority" territory and at which states such as New Mexico and New York will be taking at least the first steps toward importing Massachusetts same-sex marriages.

Whatever the politics of the situation, Gallagher makes a suggestion in passing that seems to be in line with worries about the Hatch amendment that I share:

There is, however, something wrong with leaving marriage to the states. It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right. And in states that adopt same-sex marriage as a civil right, it won't protect Christian and other traditional religious organizations from persecution in the public square if they teach the sanctity of marriage.

To the first half of that paragraph, Ponnuru responds:

State defense of marriage laws typically have two components: They define marriage as the union of a man and a woman, and they deny recognition to same-sex marriages contracted elsewhere. Under the Hatch language, the Supreme Court has to defer to the state legislatures on the definition of marriage (sentence one) and cannot use any provision of the Constitution to compel a change in that definition (sentence two). Nor can the Supreme Court use the Constitution to compel recognition of out-of-state same-sex marriages, since that would require that benefits be granted in violation of sentence two.

Gallagher seems to be referring to a possibility that I've noted. In short, even as they are blocked from mandating same-sex marriages, federal and/or state courts would have ample room to find pretext to strike down laws that explicitly forbid it. Here's the Hatch amendment, once again:

Marriage and its benefits in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

Ponnuru has argued that this would still forbid anti-miscegenation laws because 1) the first sentence doesn't limit federal courts, and 2) the legislatures would not be "free to ignore other parts of the Constitution." In other words, despite the first sentence, the state legislature cannot define marriage as a union of two people of the same race, because the second sentence only limits the federal judiciary inasmuch as it cannot find that marriage must be "extended" beyond opposite-sex boundaries.

This opens an important crack in Ponnuru's response to Gallagher about what each sentence does. Most obviously, the word "extended" could be construed as allowing the Supreme Court to find that the rights can't be "restricted" to opposite-sex couples. Such reasoning might seem foolish, but as I noted in my earlier post, the Nebraska marriage amendment is already coming under attack on due process grounds — grounds that a U.S. District court thought strong enough to allow the case to go forward. And without further legislation, the courts would decide what the amendment restricts the courts from doing.

If they judge themselves only narrowly restricted, the Hatch amendment would protect the marriage precedent as passed along from common law and as inferable from various statutes and rulings, but courts might bestow the right of activists to perpetually lobby for marriage rights free of explicit discrimination in the law.

Maybe.

Posted by Justin Katz at 2:08 PM | Comments (2)

March 22, 2004

Children Don't Grow on Trees

Something right at the beginning of an article about the San Jose Mercury News's statistical analysis of gay couples in California raises an eyebrow (emphasis added):

A Norman Rockwell painting they're not. But many of California's same-sex households reflect a more traditional lifestyle than is often recognized in the national debate over gay marriage, according to a San Jose Mercury News analysis of census data.

Children from diaper age to high schoolers reside in nearly a third of the state's gay and lesbian households, which also tend to be headed by partners who are better educated and slightly more affluent than married Californians.

More than half of same-sex couples own their own home. And though they can't legally marry, as many as a third have tied the knot before.

As with many of these statistical analyses, tracking down the source data would require some research, and I'm not going to devote the time to the effort. However, I do wonder what, specifically, counted as residing in a household.

Crowley and Rinaldi are among 29 percent of the state's same-sex households that have children under 18 at home, a relatively high proportion considering that more than half the couples are gay men who cannot bear children and face bigger hurdles adopting or gaining custody of children from previous marriages.

It's odd that the influence of custody practices is allowed to pass out of the report so quickly, particularly since it's likely that many of the children in question are from previous marriages:

Like Crowley and Rinaldi, lesbians are more likely to have children living with them, 37 percent statewide, than are gay men, 23 percent. ...

The number of gays and lesbians who have been married before is difficult to pin down. The 2000 census found that 35 percent of same-sex partners in California had once been married, but demographers say that estimate is inaccurate because of a flaw in the U.S. Census Bureau's calculation.

This "more traditional lifestyle" seems largely to be preceded by divorce, with mothers — subsequently lesbians — having the larger share of custody. I'd be curious to see what percentage of single divorced people have children in the household. Yes, the "faces" that the journalist puts on these numbers are more varied than the comparison implies (with adoption and lesbian IVF represented), but it's a Media Reader 101 lesson that one can't take representative profiles as representative.

Posted by Justin Katz at 9:05 PM

The Patchwork Family

Unforeseen difficulties are already starting to pop up with nothing more than state government attempts to address hypothetical same-sex marriages from other states:

"Business must have the right, within existing federal law, to negotiate wages and benefits with employees. The state of Georgia should not limit business practices and make our state different than almost any other state in spelling out the limitations of employee benefits. This also applies to the beneficiaries of employees.

"The drafters of SR 595 may not have intended to regulate business, but the language contained in the second part of this bill could be interpreted as denying employees the right to name whomever they choose to benefit from employers' medical, insurance or other personnel practices."

A patchwork marriage solution will not work, not the least because neither side will want it to.

(via Marriage Debate)

Posted by Justin Katz at 8:41 PM

Disagreeing Back to Back

Sometimes it seems as if it's more difficult to resolve disagreements when they are with folks with whom one shares a majority of premises. It's as if trying to bring disagreement into line with agreement makes misunderstanding inevitable. This may be the problem arising in an exchange between fellow Rhode Island conservative blogger Marc Comtois and myself. He's updated his post in the exchange, and it is obvious that I haven't adequately stated my point about the degree to which having a single-income has become a privilege.

For one thing, it wasn't my intention to "amplify" my thoughts in the entry to which his update is a response, but to clarify them. (I apologize if I came across as hostile.) I was addressing neither the "toys" that require some families to maintain two incomes, nor the age at which couples marry. As a matter of fact, I agree completely with the point that Marc is making, that giving children a stay-at-home parent is worth material sacrifice; I'm just making a different one.

For both my own household and many of those with which I've personal experience, putting off children while developing "a little of a nest egg" would mean putting them off indefinitely. In this discussion, the nest egg is what provides the leeway for one parent to stay home, and the class of couples who have suffered most from this area of social experimentation are those for whom two incomes are necessary even without toys, new cars, and expansive wardrobes.

Without question, such families have always existed. However, I'd suggest that the two-income standard has raised the class level at which a married couple is free of the burden. Expanding on this, I expressed my belief that — in broad, general terms — it isn't outlandish to suggest that the class of women who most insistently sought the career option is now the same class of women with the option to stay home. They can "have it all," in other words, only if they earn enough to be able to afford it. Those who cannot do so wind up forced to settle for what that they didn't necessarily want to begin with.

Posted by Justin Katz at 4:01 PM | Comments (1)

March 20, 2004

The Generational View, the Lifeline View, and Now the Inside View

Oscar Jr. has an interesting analysis of the supposed generation of same-sex marriage supporters that is currently working its way through higher education. Taking note of my previous post on the issue, Oscar suggests that support for same-sex marriage is inversely proportional to having been married. With marriage rates falling, support for same-sex marriage increases accordingly:

If my theory is correct, then the increased support for same-sex marriage that actually has occurred (as opposed to that expected to occur due to a hypothesized "generational shift" in the future) may be due to the fact that fewer people are getting married these days.

This is certainly a factor, and Oscar is correct to glean that I would include marriage as part of the life experience that makes people more conservative as they get older. However, there are a couple of additional considerations that I would suggest. For one thing, he uses "never been married" data, while currently married — and especially, currently happily married — would be more helpful. It certainly has seemed to me that many of same-sex marriage's strongest supporters have been divorced (or would like to be).

That difference might help to alleviate my second concern. As Oscar's chart shows, experience with having been married slopes gradually according to age, and even more so now than in 1970, according to his data. The lack of a gradual slope in either direction on the question of same-sex marriage was the essential reason that I sought a further dynamic.

Data that would be really helpful to Oscar's analysis would be poll results on some previous marital change, such as divorce or contraception rights. All of the same variables would still come into play, but it would offer another example of marriage's correlation to certain opinions about marriage. And maybe some previous pollster would have had the foresight to gather information about respondents' marital status.

Posted by Justin Katz at 11:38 PM

Babies' Fate

To a workaholic, charts are like shots to a drunk.

After my previous post, I thought to take a look at trends in the United States and Northern European nations with respect to childbirth, illegitimacy, and abortion for 1970 to 2000. Live birth and abortion statistics, I took from a source that I've found to be reliable. (It consistently matches up with other data that I find.) Statistics for U.S. births out of wedlock, I took from a CDC PDF. Similar statistics for the European countries, I took from charts in a report (PDF) from a statistics organization in the Netherlands. The most significant quirks of my methodology were that I estimated the European out-of-wedlock percentages from line graphs and that I didn't incorporate miscarriages in my total conception data, but neither of these factors is of much importance for my purposes, here.

The United States has well over twenty times the conceptions of any of the other countries, except for the United Kingdom, than which the U.S. has about six times the conceptions. Overall, the detrimental numbers are waning; abortions are down to late-'70s levels in raw-number terms and early-'70s levels in percentage terms; out-of-wedlock births are still higher than they've ever been, but they are leveling off. There are still too many of each, of course:

In the Netherlands (which I looked at in detail only because it came up in the previous post), births within marriage are being squeezed by abortions and out-of-wedlock births, both of which combined to actually increase the number of conceptions and births, even as births within marriage continue to decrease:

Those numbers made me wonder what the percentages looked like for each category — sort of a rating of the odds faced by conceived children who aren't miscarried. The ugly truth is that, as of 2000, a child conceived in the United States only had a 50% chance of being born within wedlock; for some hopeful news, however, it's also true that abortions have lowered to 25%, while out-of-wedlock births have been leveling off to the same percentage. Children conceived in the Netherlands still had the best chances in 2000 (although there were many fewer of them), with a 66% in-marriage rate, and abortions only crossed the 10% line in the mid-'90s; however, the illegitimacy rate has almost reached the U.S. level.

The Scandinavian picture is more worrying. In Sweden, a baby is 10 percentage points less likely to be born into a marriage than out of one, and almost just as likely to be aborted, a rate that has surpassed that of the United States. While Norway is only slightly better than Sweden, Denmark actually showed signs of improvement in the late-'90s, although my sense (check the comments) is that those gains have turned around in the '00s.

Here's the comparative picture for conceptions. Note that the U.S. is actually 20x the number shown here, and the U.K. is 5x the number shown. Apart from the U.S., the Netherlands was the only country to have seen an increase in the past decade or so, and as I already noted, those are entirely accounted for in the abortion and (more) out-of-wedlock numbers:

Next are the rates of births into marriage. In this context, the Netherlands' percentage seems a little less impressive, while the U.S. looks a little more hopeful (to me, anyway, but I'm biased):

Context paints an even more striking picture around the respective illegitimacy rates:

The abortion statistics, on the other hand, don't reveal much of note when viewed this way, except maybe for the United Kingdom — and not in a good way:

The improvements on the part of Denmark in these last few charts raise an important consideration: the significance of the actual number of births. An improvement of 4.6 percentage points in in-marriage births from 1990 to 2000 in that country only amounts to a difference of 3,628 babies, considering the low overall birth rate. For some perspective, although only 2% of the population is currently Muslim, that amounts to 107,688 people. (Another 3% are Roman Catholic or some Protestant denomination than the majority Evangelical Lutheran.)

I haven't derived any specifically applicable conclusions from this data, but once the bug bit, I had to sort the numbers out. I'm sure they'll come in useful in the future (for me, anyway). And if anybody feels like fact-checking me, I more than welcome correction.

ADDENDUM:
While I've got all the files together and the system down, I thought it might prove useful to run the numbers for the United Kingdom, too. Here's the baby odds figure. The other data has been added to the aggregate charts above.

I've also put together the baby odds figure for France. However, since the graphs above are getting crowded, and since the latest available information for France is from 1998 (which you should remember if you follow that link), I haven't included the country elsewhere. (Note also that the data for France includes abortions performed out of the country. No such data was available for several of the other nations, and where it was available, as in the U.S., it was statistically negligible. However, it did make a little bit of a difference in the '70s for France.)

Posted by Justin Katz at 8:33 PM | Comments (3)

March 19, 2004

Mommy Is a Personal Topic

Marc Comtois has tweaked my post about the type of women who can afford to be stay-at-home moms. I'm not entirely sure what accounts for the difference in our opinions, except perhaps our ages and personal experience. Reacting to my breakdown by class, Marc writes:

The trend is for younger mothers, despite their education level, to choose staying at home. This is probably a result of holding onto the ideal of one parent working/one parent at home, which results from either the fact that that is the type of home the GenX mothers grew up in or its the type of home they wish they grew up in. With this ideal in the back of their mind, I'm guessing that most worked for about a decade, made some money, met the right man and then wanted to start a family.

These women proved that they could make it in the career world, but some realized it wasn't all that it was cracked up to be. ...

The first thing that differs from my experience as one who is about to be a twenty-nine-year-old father of two is the notion that thirtysomething women who have been working for a decade are "younger mothers." Younger than whom? Younger than their own mothers, to be sure, but in a country in which the average age for first-childbirth is 25, these new moms are about a decade behind the curve.

The second, and more to-the-point, thing that differs from my experience is the number of options that newly three-person families actually have. It hardly disproves my contention about privilege to suggest that the women in question have already "proved that they could make it in the career world." And if they've done so, what type of "right man" were they likely to meet? It is the women who either haven't yet become, don't want to be, or aren't capable of being careerists who have been hurt by this wide-scale social experiment. Worse, the men whom they tend to marry are much more likely to be bums like me.

At the lower end of this spectrum, both in age and in income, the choice to stay home or not isn't a matter of fulfillment of an ideal — which is to say that it really isn't much of a choice. Childcare can eat up almost all of one spouse's income, so the choice is between poor while abandoning the kids all day and poor while staying home. At the next level, the extra income is just too necessary to give up.

Again, this is a thorny issue, and there are no easy or universally applicable answers. The fact remains, however, that the impetus for sweeping social change has come at the behest (I almost said "whim") of a class with the resources to keep its fallout in the range of choice.

Posted by Justin Katz at 11:43 PM

The Mommy Class War

My wife and I are about to have our second child, and we would prefer if Mom were able to stay home with the two girls, but we are rapidly losing our belief that I could possibly earn enough to make that possible. It's probably not surprising, therefore, that a cultural trend that Rich Lowry describes represents a sort of bittersweet improvement, from my point of view. Women, as it turns out, are beginning to see staying at home as an increasingly acceptable life decision. However:

According to Time, it has mostly been well-educated white women over 30 who have accounted for the drop in working moms. Twenty-two percent of women with graduate or professional degrees are at home with their kids. One in three women with M.B.A.s is not working full time, in contrast with just one in 20 men. These women have the resources to eschew a paycheck.

Although I would never tar women with the sins of their mothers, so to speak, it doesn't seem presumptuous to suggest that this is the same class of women who pushed their peers out into the workplace to begin with. One consequence of that push was to create economic and cultural pressure making two-income households just about a necessity. Now, that same class of women is sufficiently wealthy to return to the lifestyle that is no longer an option for many others.

Look, everybody ought to have as a full a range of options as individually possible, and we can't do otherwise than take the world as we find it. If my wife and I desire a one-income family, then we'll just have to work for it, and to make some tradeoffs. In our case, we're starting off in a better position to accomplish that than most of our fellow citizens, and we've got other support — such as a large, nearby family — on which to lean if need be.

The point is that modern Western society has developed a tendency to leap into fundamental change on the flimsiest of promises that everything will work out just fine. It takes a few decades to begin to understand (and to be able to admit) the damage, and perhaps some decades more of reform will return a reasonable equilibrium. But in the meantime, families move through the meatier part of their lives gradually fixing what ought to have been only gradually dismantled.

Lowry offers a good suggestion about where to begin with the rehabilitation:

Public policy needs to make it easier for families to choose whether to have mom, or dad, stay home, rather than forcing both parents into the work force. High taxes do just that. About half of married couples with children in the mid-1950s paid no federal income tax, thanks to a generous $3,000 personal exemption. If this exemption had kept up with inflation, it would be $10,000 today.

Although the steadily increasing child tax credit (now $1,000 per child) has eased the burden on families, more tax relief will make it still easier for them. Meanwhile, the tax code's dependent-care tax credit, which is only available for parents who go to licensed day-care providers, could be broadened to include parents who provide their own child care. The tax code could make it easier for moms and dads to maintain home offices as they search for creative ways to spend more time with their children while still working.

There's only so much the government can do, however, and half the country is still intent on rolling down the hill.

Posted by Justin Katz at 7:54 PM | Comments (4)

March 16, 2004

As the Cases Align

I'm not entirely sure why so much of the legal argument surrounding same-sex marriage has focused on the Full Faith and Credit clause. It probably has to do with the fact that, before last year, it was the most plausible mechanism to push SSM through the courts. However, as Matthew Franck explains, it's no longer even the most probable route:

All the ammunition the Court needs is contained in just three cases: Loving, Romer, and last year's Lawrence v. Texas, a due process case in which Justice Kennedy wrote of the Court's heightened solicitude for "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." The Massachusetts high court, in its recent Goodridge decision, took the Court's hint (as Justice Scalia virtually predicted), and held that the state constitution's equality clause condemned heterosexual-only marriage as "irrational," and necessitated, after Lawrence, the full recognition of gay marriage.

Now do a quick head count. Surely Justices Stevens, Souter, Ginsburg, and Breyer would all see the analogy of a gay-marriage case to Loving. They cannot be trusted to notice that "sexuality" and race are hardly in comparable categories of human attributes, and that only one of them has any connection to the historic purposes of the Fourteenth Amendment. American society's legal abandonment of marriage as we have always known it depends on the vote of Justice Kennedy and/or Justice O'Connor. I wouldn't bet against either of them joining the four just mentioned. After all, they were in the majorities in Romer and Lawrence, and Kennedy wrote the incompetent, overreaching opinions in both cases. Don't listen to the "expert" law professors who babble on about full faith and credit as though that were the only constitutional issue in the gay-marriage debate. Watch out for Loving II.

The bottom line: the only way to spring out of this legal mousetrap is to pass a Constitutional amendment. Thereafter, SSM advocates can continue to bring their case to the American people, and if demographic destiny proves to be as it is widely stated to be, the amendment can be overturned by popular vote down the road. Hopefully, too, being thus rebuked, the judicial oligarchy may consider it beneficial to lay low for awhile; perhaps the action will even mark a turning point for judicial activism, as judges who would like to legislate realize that they will have to be more subtle lest they provoke further amendments.

If, on the other hand, no amendment is passed, the courts will nationalize gay marriage (against the loud protests of federalism-touting SSM supporters, I'm sure). That will either spark more-drastic action by the other branches of government or serve as a test case for the next level of sweeping judicial activism — judicial rule.

Posted by Justin Katz at 7:26 PM

Intellectual Diversity on SSM

Finally, a professor has stepped forward in the letters section of the URI student paper to treat both sides as if there is an actual argument to be had. Unfortunately, Biomedical Sciences Professor Alvin Swonger declares his view as aligned with that of John Kerry, and when he addresses the letter from our on-campus-hero Marcus Ross, some problematic thinking appears that, at the very least, makes it a bit presumptuous to call the argument that he would deflate "false":

False argument # 1 (Ross's principle argument): Heterosexual couples provide better parenting skills because women and men have had different life experiences, which can then be brought to bear in addressing the various needs of sons and daughters. This argument falls apart for two reasons. The issue of marriage is not the same as the issue of parenting. Gay marriages could exist without the right of adoption of children. Second, if having both a male and a female parenting is necessary for childbearing, then society would also need to ban single parent families. Two parents of the same sex would at least provide a wider variety of resources to children than one parent.

Firstly, Marcus and those who agree with him believe that gay marriage is detrimental in part because it implies that there is no link between marriage and parenting. Same-sex marriages cannot exist sans adoption rights without diluting the cultural idea of marriage (which is something that Swonger subsequently suggests that he understands). Secondly, single-parent families do not represent a necessarily permanent state; the damage done to the child's well-being through the lack of one parent would only be exacerbated by tearing him or her away from the other one; and in most cases, children of single-parent families do have a second parent, he or she just lives elsewhere. (That's detrimental in itself, but it is relevant to certain arguments in this line.)

At least Swonger's critical thinking skill's are sufficiently developed to weigh opposing arguments. This is in stark contrast to the inane sarcasm of Chris Ferdinandi, whose letter would have been absolutely unthinkable to publish in a college paper if it handled a different group than conservatives (or Christians) so callously:

WANTED: A few good Conservatives! Are you pissed off that "the Gays" are threatening your sacred institution of marriage, jeopardizing the status quo? Do you despise reform, awareness and activism, as they take away power and privileged from the few and redistribute it to the many? If so, you may be interested in conservatism! ...

If you're a Nazi who loves to wear patriot clothing, then a rewarding career as a conservative might be perfect for you.

Posted by Justin Katz at 7:36 AM

March 15, 2004

Debating the Do-Over Amendment

In an email exchange, Ramesh Ponnuru has assured me that I'm incorrect to believe that the Hatch marriage amendment, while blocking courts from construing same-sex marriage into existence, would leave open the possibility for federal, or even state, courts to strike down laws that explicitly forbid it. But thin pretext is the order of the day, in the world of black robes, and there are plenty of linguistic slots through which that pretext can slip.

To be sure, I can understand why those who would preserve traditional marriage are so quickly willing to compromise, what with theologically and politically conservative ministers placing stones on the bandwagon. Still, as I wrote to Ponnuru, I think there's time and reason to hold off on switching vehicles:

If I were strategizing for the pols, I'd have suggested withholding the Hatch compromise from public view until a state or two were actually forced to recognize another state's marriage. Stanley Kurtz seems to think New Mexico would fall pretty quickly; New York would, too. That'd be a major talking point, particularly since the polls have been going about 1% each direction (for and against) each month simply on the basis of possibility, at which rate the majority would switch hands this summer.

Today, Kurtz argued that, not only will the Hatch amendment ultimately fail even if enacted, but the federalist reservations that inspired its creation are erroneous. Kurtz doesn't say whether he would consider something (Hatch) to be better than nothing (an impassable FMA), but I think he'd agree with me both that it is and that it isn't yet necessary.

For my part, if we're going to abandon the original Federal Marriage Amendment, which I still don't believe we should do, I'm rather inclined to take the posture that my fellow Rhode Islander Saleh Shahid expressed in a letter to the Providence Journal, about the marriage fight in Massachusetts:

When a court orders an executive office to issue gay marriage licenses, or orders a legislature to raise taxes, or orders the secretary of state of New Jersey or Florida to violate their own election laws, there should be only one response: "Make me." The power of police and of pardons both lie in the executive branch. The only intrinsic power judges have over other branches is to ignore laws that appear in their courts (judicial review).

And when a judge abuses power by decreeing Solomonic sentences far beyond precedent or statute (e.g. The court hereby orders you to stop smoking on Wednesdays, to pet a cat every day, or to memorize Terms of Endearment), then legislators must act immediately to remove that judge from his throne.

Most importantly, legislators must realize that constitutional amendments will neither grow them a backbone, nor substitute for one.

Think we could pass a Get a Spine and Act Like Coequal Branches Amendment?

Posted by Justin Katz at 11:12 PM

An Outpost of la Guerra de la Cultura

Apart from congratulations (strictly) for the achievement, there isn't much to say about Rev. Donald Sensing's Opinion Journal piece. It's largely a restructuring (with additions) of some posts on his blog, to some of which I responded extensively in the comment sections. Still, his conclusion is irksome for a few reasons (emphasis in original):

I believe that this state of affairs is contrary to the will of God. But traditionalists, especially Christian traditionalists (in whose ranks I include myself) need to get a clue about what has really been going on and face the fact that same-sex marriage, if it comes about, will not cause the degeneration of the institution of marriage; it is the result of it.

The first issue is that — while I stress my respect for Rev. Sensing — his conclusion is banal. What serious social conservatives and Christian traditionalists don't start from this conclusion? It's so obvious that restating it as if it's new gives advocates of same-sex marriage an excuse to cite it as clear evidence that their opponents are wrong, even though not a single one of their opponents would disagree with the premise.

The second problem is that Rev. Sensing needs "to get a clue about" what this step in marriage's collapse actually entails, and frankly, I continue to be disheartened and amazed that he puts this statement forward as an argument for surrender:

Sex, childbearing and marriage now have no necessary connection to one another, because the biological connection between sex and childbearing is controllable.

Sensing's central point is that sex has been disconnected from childbearing and, therefore, disconnected from marriage, and in that, he's correct. He's correct, too, in his suggestion that there's no necessary link... if necessity is defined as some abstract, the-world-starts-now academic theory. But the truth of the matter is that childbearing is still connected with marriage, and that this connection is necessary to bolster.

A third problem — a big one — comes with Sensing's opening:

Opponents of legalized same-sex marriage say they're trying to protect a beleaguered institution, but they're a little late. The walls of traditional marriage were breached 40 years ago; what we are witnessing now is the storming of the last bastion.

To allow him his metaphor, it's dangerously optimistic to think that the enemy will be satisfied with its newfound territory. Marriage itself isn't the last bastion of traditional morality, and the high, well-fortified ground that the institution of marriage provides will be auspicious territory from which to stage attacks across the civil border into rights of association and speech and even of religion itself. As I wrote in a post entitled "Constructing the Christian Ghetto," in which I responded to Rev. Sensing's earlier suggestion that civil and religious marriage ought to be separated:

Homosexuals are not simply seeking legal rights that, for the most part, they can already secure through other means. They will chase down withheld approbation wherever it remains. In this, they are perhaps representative of secularists more generally. Moral and religious absolutes are strong and true banners when carried forward into cultural conflict, but they make for irresistible flags to capture when safeguarded like treasure within sectarian walls.

Those who believe that they have no use for traditional morality must see the likely outcome, if only deep down in unstated comprehension. How else could one explain the fact that Andrew Sullivan calls "bleeding obvious" the same piece that Glenn Reynolds calls "fascinating"? The only thing that's fascinating — in a morbid way, from my perspective — is that the capitulation is being suggested almost before the battle has begun in earnest, and by a conservative minister.

Posted by Justin Katz at 10:47 PM | Comments (4)

March 14, 2004

Unanimity About Same-Sex Marriage

Phil Lawler asks and answers a couple of questions arising from the "compromise" amendment in Massachusetts:

So you ask yourself: How did a majority of legislators support a measure that has no public backing? The answer to that one is easy: They're gutless, and they thought by temporizing they could dodge the issue entirely.

But then comes a second question: Why didn't the media notice, until days after the vote, that this proposed amendment is a dud? Then you realize: The media can't grasp why some people defend marriage and the family. It's all foreign territory to the reporters; they don't know the people and they don't know the terrain.

Another thing that this failure of understanding leads the media — and, consequently, many who argue the matter — to miss is that opponents of same-sex marriage are largely correct in their assessment of its supporters. It's just that the supporters rephrase the proof in terms of unreasonable discrimination. Consider:

In Vermont, the only state that currently grants civil unions, all state rights apply to same-sex couples, as they would under the Massachusetts proposal.

But because the federal government does not recognize civil unions, the couples lack a multitude of marriage benefits and responsibilities as stipulated in federal laws on everything from Social Security to immigration.

Exactly. They want actual marriage so that the federal government won't be able to differentiate, no matter what the majority of citizens says. The Massachusetts activists had their eye on this ball when they walked into court:

"The federal rights from marriage vary hugely," said Karen Loewy, a staff attorney with Gay and Lesbian Advocates and Defenders. "They're all bread-and-butter issues that affect everyday life."

Loewy is one of five Gay and Lesbian Advocates and Defenders lawyers who represented the plaintiffs in the Massachusetts Supreme Judicial Court case that resulted in the court's ruling last November that same-sex couples have the right to marry in the state.

Goodridge wasn't meant to be about Massachusetts law. It's a wedge to get at federal law.

Not only does civil-union legislation deny same-sex couples federal marriage rights, it eliminates any possibility of seeking those rights, said Loewy, the GLAD lawyer.

At the federal level, she said, "everything's framed in terms of marriage." Because civil unions are not marriages, couples in civil unions have no legal recourse.

Precisely. If civil unions catch on, gay advocates will be left having to argue on the federal stage that civil unions ought to be treated as marriage. If marriage arises within a single state, the less visible path through the judiciary becomes available:

Currently, even if states allowed same-sex marriages, those marriages would not be recognized by the federal government. As a result of the Defense of Marriage Act, passed during the Clinton administration, federal law defines marriage as the union of a man and a woman, and gives states the right to ignore marriage licenses that other states issue to gay couples.

Here again, proponents of a federal marriage amendment are correct in their assessment of the other side; it's gunning for DOMA:

But those laws could change after gay marriages begin. Advocates on both sides of the debate say the Defense of Marriage Act probably would not hold up to a legal challenge.

Loewy said she believes married gay couples would eventually challenge and most likely defeat the federal marriage law, but added that she couldn't predict how long it would take. Massachusetts Rep. Philip Travis, D-Rehoboth, the author of one of three constitutional amendments to ban gay marriage that legislators defeated last month, also said "DOMA will fold."

Federalism, it is clear, is generally only held up as an ideal for the purpose of derailing social conservatives' counter-measures:

Almost four years [after entering into a civil union], [Sherry] Corbin, a spokeswoman for the Vermont Freedom to Marry Task Force, wants her state to allow same-sex marriage. Her civil union, she said, is "worth absolutely nothing outside of Vermont." ...

Also, while marriage licenses in every state are virtually identical, because states other than Vermont lack civil-union mechanisms, the definition of "civil union" is hardly universal, said McCoy, the Vermont Public Health Statistics chief. He said Vermont could even decide not to recognize Massachusetts civil unions.

Haven't SSM advocates been touting the ability of one state to "decide not to recognize" marriage from another state? Yes, but it's still the case that, when it comes right down to it, each state's being able to decide for itself is a problem, not an opportunity for societal evolution, and the answer isn't to persuade the people of each state. The goal, after all, isn't really civil recognition and equal benefits under the law:

Another problem with civil unions, Loewy said, is that they don't receive the social acceptance of marriage. ...

Corbin said her civil union doesn't allow her to connect with the other married women in her family. The union, she said, doesn't carry the emotional weight of marriage.

They want for marriage laws to change opinions, not the other way around, which would be more appropriate — and more feasible. They want the government to grant something that it manifestly cannot, and that means that subsequent steps will have to be taken to knock over social, as opposed to civil, barriers to the intended cultural illusion that there's no difference between the marriages — no difference between men and women and the ways they interact. First, however, the window of time during which the Mass. Supreme Judicial Court has ensured that its dictated law would stand will enable claims that opponents of same-sex marriage were wrong in their fears:

Corbin, however, predicts that civil unions will never become a problem for Massachusetts. By the time the state is in a real position to ban gay marriage and create civil unions, she said, gay marriage will no longer be an issue.

Married gay couples will need only one year to convince the state that they pose no danger to the institution of marriage, she said.

"People are going to see that the sky isn't falling," she said.

Nobody has suggested that the social effects of same-sex marriage will be measurable within a year. Here again, though, opponents and proponents of the change agree, in that the public doesn't want to think about this issue and will be quick to wipe its collective brow and accept the status quo, whatever it is. I've said all along — and I continue to believe — that opposition to same-sex marriage will tend to increase with consideration, but that requires, well, consideration.

Forcing such broad social thinking is the central benefit of our slow, representative, legislative, federal system for the creation of laws. The judiciary is just too quick to ensure that detrimental emphases, or even wholly bad ideas, are weeded out from the worldviews of both sides.

And if same-sex marriages are so sure to win the approval of the people, why force them through the courts?

ADDENDUM:
There are, of course, individuals who don't align with the "Them," even though they take the same side in this struggle. However, a movement can't (and shouldn't) act against individuals, but only against another movement. Those individuals can fight to become representative, but before they can be taken as such, they actually have to be representative.

Posted by Justin Katz at 7:55 PM

March 11, 2004

The Do-Over Amendment

Apparently, even state constitutional amendments aren't safe from federal judicial veto:

The lawsuit's plaintiffs -American Civil Liberties Union Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality - say they are not seeking legal recognition of same-sex marriage in Nebraska.

They claim the amendment violates due process rights because it undermines people's ability to lobby legislators on gay rights issues.

Signed into law by Gov. Mike Johanns in December 2000, the amendment defined marriage as a union between a man and a woman. It also barred state and local government from giving legal recognition to any type of same-sex relationship. ...

Those supporters [of the amendment] suffered a setback last year in the court battle over the amendment.

U.S. District Judge Joseph F. Bataillon of Omaha in November rejected the state's argument that the case should be dismissed because the plaintiffs lacked legal standing to bring the suit.

The judge also said the amendment appeared to go beyond its stated purpose.

"If the purpose, as offered by the (state of Nebraska), is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions," Bataillon wrote.

Should a judge's concept of "the purpose" overrule the plain language of a law? Here's the text of Nebraska's marriage amendment:

Only marriage between a man and a woman shall be valid or recognized in Nebraska . The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Newly converted devotees of federalism argue that the gay marriage issue should be decided state by state. Assuming actual conviction, for this crowd, the "decisions" could be made by either the state legislatures or their corresponding judiciaries. Unfortunately, the moderate position on the other side (either based on ideology or a sense of urgency) seems to be forming into essentially the same thing, only cutting the courts out of the in-state process of defining marriage, hopefully including all-but-name-marriages in the form of civil unions. The "Hatch amendment" is currently being floated as doing just that:

Civil marriage and its benefits shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

The "and its benefits" phrase is a likely addition to a previously revealed first sentence, according to Ramesh Ponnuru. Leaving aside my worries about judicial creativity, this latest version, which Ponnuru supports, would indeed bar judicially created in-state civil unions.

However, the federalism playing field would be left uneven. Under this compromise, such amendments as the one looking likely in Massachusetts, which creates civil unions, or ones that create gay marriage outright would almost definitely stand. On the other hand, an amendment such as that passed by 70% of citizens in Nebraska would face continual challenge in federal court.

In fact, I'd go so far as to suggest that any laws or amendments that seek to confine marriage and/or its benefits to the man-woman construction would come under this federal attack. Federal courts may not be able to construe extension as required, but they'll still be able to construe explicit exclusion as unconstitutional. Ponnuru suggests as much when defending the Hatch amendment against the charge that it creates the possibility of an anti-miscegenation resurgence (emphasis added):

So the question would be: Does the vesting of the power to define marriage with state legislatures in the first sentence bar the federal courts from reviewing the marriage laws for racial discrimination? There are two reasons for thinking that it does not. First, the existence of the second sentence suggests that the first sentence does not limit the federal courts at all. Second, Supreme Court precedent in other cases where the Constitution vests a power with state legislatures does not suggest that those legislatures are free to ignore other parts of the Constitution.

That's what's at issue in Nebraska, and it means that state legislatures (and citizen initiatives) could be limited, if they choose to do any defining, to moving toward gay marriage. Advocates for traditional marriage would be chained to their own goalpost, while advocates for gay marriage would have the full run of the law-creating field.

But as I've suggested, that's not all. I may have been reaching, previously, to suggest that courts could declare themselves as included in "citizens thereof," but law professor Eugene Volokh notes that courts might leverage judicial review in order to include themselves in the legislative process. That would leave even state courts, if not able to require gay marriage, at least authorized to strike down anything that moved to solidify its exclusion. The ability to do that, in turn, would highlight a matter that Ponnuru left unexplored (emphasis added):

What I don't see is what the great harm would be — especially from the perspective of opponents of same-sex marriage — if one state recognized a same-sex couple as married and another state did not. Sure, there would be some thorny legal issues involved. But courts settle conflict-of-law disputes all the time. What we should not want is the settlement of such disputes becoming a pretext for the judicial export of same-sex marriage from one state to the others. The Hatch amendment would block that from happening.

Considering that a New York judge has already begun the process of importing Vermont civil unions on the basis of the state's handling of common-law marriages, I'm not sure what makes Ramesh so confident on this point. Even if courts don't limit "defining marriage" to the internal procedure for issuing marriage licenses, the only way to ensure removal of the pretext of which he warns would be if state legislatures pass laws defining homosexuals out of marriage and civil unions. And such laws would remain vulnerable.

So, imagine a best-case scenario in which the Hatch amendment passes in its latest language. A plausible outcome is one in which state and/or federal courts limit legislatures and citizens to creating definitions ever-closer to gay marriage. As such definitions come into being, courts may still force recognition of out-of-state gay marriages, requiring gay couples only to cross state borders for the ceremonies and increasing pressure to pass laws to remedy what would surely be seen as a foolish requirement.

Such an outcome is by no means certain, but here's the additional catch: if events move in that direction, how likely is it that another federal amendment could be passed?

Posted by Justin Katz at 10:57 PM

Catching Up with the Issue

Today was going to be the day that I finally caught up. It didn't quite work out that way. However, I don't want to let some items having to do with gay marriage go unlinked, so I'm throwing them all into one post.

First up is another great summary column, this time by Thomas Sowell, offering some of the intellectual clarity that can temporarily slip away as one attempts to wrestle specific components to the ground through debate.

Homosexuals were on their strongest ground when they said that what happens between "consenting adults" in private is none of the government's business. But now gay activists are taking the opposite view, that it is government's business -- and that government has an obligation to give its approval.

Sowell's conclusion is particularly important to remember, and particularly quickly left out of much of the debate:

Centuries of experience in trying to cope with the asymmetries of marriage have built up a large body of laws and practices geared to that particular legal relationship. To then transfer all of that to another relationship that was not contemplated when these laws were passed is to make rhetoric more important than reality.

The Boston Globe, meanwhile, reports "the other side" on the social science debate over the effects of same-sex parenting:

Patterson said that, while each study can be criticized, taken as a whole the studies point to a scientifically valid conclusion: Being raised by gay or lesbian parents does not make a child substantially different from his or her peers.

"In the long run, it is not the results obtained from any one specific sample, but the accumulation of findings from many different samples that will be most meaningful," Patterson wrote in one study. She added in a recent interview: "The point is that the studies yield the same results over and over."

It is precisely that consistency that piqued the interest of sociologist Judith Stacey of New York University. To Stacey, it didn't make sense that children raised in somewhat different circumstances would be exactly the same -- findings of "no difference, no difference, no difference, just seemed so implausible," she said. So, she began looking carefully at the existing studies.

In 2001, Stacey and her colleague, Timothy Biblarz, then both at the University of Southern California, published a review of the social science research, stating that not only had researchers actually found some intriguing differences but that they had lowballed them for fear of how the findings would be used.

This has been the way such research has gone from the very beginning. In Andrew Sullivan's Same-Sex Marriage: Pro and Con (which is admirably balanced, particularly given the source and his work subsequent to the book's release in 1997), several "no difference" studies were summarized and followed with a refutation by Philip Belcastro. Belcastro faulted methodological factors, but he also noted that a "disturbing revelation was that some of the published works had to disregard their own results in order to conclude the homosexuals were fit parents." From the three studies that met at least minimal internal validity, Belcastro highlighted some underplayed findings. Here's a sample drawing from them all:

  • Lesbians' daughters were more likely to choose male activities than daughters of heterosexual mothers.
  • Lesbians' sons were more likely to have a strong preference for female activities than heterosexual mothers' sons.
  • Lesbian mothers were less likely to encourage their sons and more likely to encourage their daughters in sex-role behavior than heterosexual mothers.
  • Lesbian children were more likely to draw the family as involved in separate activities than children of heterosexual mothers.
  • Paul (1986) surveyed adult offspring of gay and bisexual households and reported 23.5 percent of the subjects homosexual.

It's true that times were different back then, but gay activist Kate Kendell, one of the witnesses for the first gay marriage in San Francisco, mentioned recent research, in 2001, "that children raised by gay and lesbian parents are somewhat more likely to have a greater fluidity in their sexual expression and may in fact be more likely to identity as lesbian or gay." Of course, proponents of gay marriage — who tend to be anti-judgmentalists, anyway — will simply dismiss such concerns as not really indicative of harm, just difference. Well, those who think this way, and those who don't, won't likely change their minds; however, it behooves we who oppose gay marriage to remember that "no evidence" means no evidence of anything that gay marriage proponents care about.

On a related note, Elizabeth Marquardt argues that children will actively seek to hide some of the sorts of things that will more universally be seen as "harm":

Here's the problem, from an investigative point of view: Children love their parents, and children notice when their parents are vulnerable. In my own study of children of divorce they are much more likely to say they felt protective of their mothers, especially, than children of intact families are. Many other studies confirm this. They tried to hide their own feelings from their mother in order to protect her. I can only imagine that children of gays and lesbians feel even more protective of their parents who are stigmatized by society. Moreover, children themselves are vulnerable. They need their parents' love, attention, and affection. It takes a very secure child to make what sounds like significant criticisms of choices his or her parents have made (such as saying "Yes, I wish I had a mom") when he or she is not even a teenager yet, especially when the parents are sitting right there for the interview.

Another type of underplayed "evidence," it has seemed to me, is that homosexuals generally, and those who support their cause, have been keeping mum about any doubts that they might have about gays and marriage. The Marriage Debate blog quotes from the New York Times fashion section, which is hardly the first place for the matter to leak through the informational movement, so to speak:

Many gay men and lesbians--in fact most of the ones I know--are not jumping to jump the broom. They like their status as couples living between the lines, free of all the societal expectations that marriage brings. But since they don't want to feed politicians using gay marriage as an election issue, they are largely mum.

"It's very hard to speak freely right now," said Judith Butler, a gender theorist and professor at the University of California, Berkeley. "But many gay people are uncomfortable with all this, because they feel their sense of an alternative movement is dying. Sexual politics was supposed to be about finding alternatives to marriage."...

That's not to say that there isn't a reason to fight for a basic civil right. But ask around. You'll find more than a few gays questioning an institution that mixes property rights with love, church with state. Some also complain that a legal and legislative process that should take time to evolve has become a media circus. They even wonder if they will be forced to marry to receive domestic partnership benefits from their employers. And of course, given the present divorce rate, many feel that most civil unions are more civilized than marriages.

Note that "mixes church with state" objection, which represents a whole other aspect of the gay marriage battle to watch. The idea of separating civil marriage from religious marriage has hit the Senate:

Sen. Mark Dayton said Wednesday that marriage should be redefined as a religious ceremony, allowing for a civil "marital contracts'' for both gay and heterosexual couples.

"The Bible said, 'Render unto Caesar that which is Caesar's, and unto God that which is God's,'" Dayton said in a conference call with reporters.

"Under the separation of Church and state, federal and state governments should leave marriage to God and to the religions of this country,'' he said, "and separate out the civil aspects of what is now termed marriage as a different term, whether it's legal union or marital contract.''

It's hardly even arguable, anymore, that the movement that would bring gay marriage is likely to dilute civil marriage out of existence, one way or another. From the religious perspective, as I've written before, either the movement will seek to force churches and synagogs to perform the ceremonies, or they will seek to make religious ceremonies irrelevant in the civil sphere.

Posted by Justin Katz at 7:52 PM | Comments (1)

March 8, 2004

Another Mayor Who Would Be King and an Amendment That Would Be Overthrown

Here's another item for the "forcing gay marriage to cross borders" file:

Six same-sex couples filed a lawsuit Monday seeking the right to get married after they were refused marriage licenses by a sympathetic public official, as [Seattle] mayor [Greg Nickels] ordered the city to recognize the marriages of gay city employees who tie the knot elsewhere.

But that's not all:

He also proposed an ordinance to extend protections for gay married couples throughout the city.

Nickels also said he'll ask the City Council to protect gay married couples throughout the city from discrimination in employment, housing or the use of parks or other city facilities. If the council approves the ordinance, it also would require contractors doing business with the city to recognize gay marriages among their own employees.

Mayor Nickels is giving us all a sneak preview of the next steps. (And who comes after private businesses?) Although some on both sides might think the legitimacy of the mayor's actions honestly debatable, there's a pretty significant problem:

State lawmakers passed a "Defense of Marriage Act" in 1998, making Washington one of 38 states defining marriage as the union of a man and a woman. Gov. Gary Locke vetoed the law, but lawmakers overrode the veto.

The bottom line is that the elite class has decided that it wants this cutting-edge social policy and will push it through any means possible — whether that possibility is a matter of law or of raw power. That's what makes this so thorough a manifestation of the culture war. If the public finds a way, through the legitimate exercise of legal and Constitutional processes, to rebuff even this narrow representative movement of a larger coup, a major step will have been taken back toward civil sanity. If not, the opposite will be true.

As if to add an exclamation point to the tacit statement of how much effort will be expended pushing gay marriage, the Providence Journal today ran an AP report on the topic in its business section. The article is about the inconveniences of establishing full legal ties without marriage. Conspicuously absent from the 950-word piece is any perspective on how many couples this problem affects.

Of course, it wouldn't be a culture war if one side were entirely silenced, and Jeff Jacoby leveraged his column in the Boston Globe to uphold the right side. After offering some historical perspective on the "lunch counter" civil rights claims, Jacoby writes:

The marriage radicals, on the other hand, seek to restore nothing. They have not been deprived of the right to marry -- only of the right to insist that a single-sex union is a "marriage." They cloak their demands in the language of civil rights because it sounds so much better than the truth: They don't want to accept or reject marriage on the same terms that it is available to everyone else. They want it on entirely new terms. They want it to be given a meaning it has never before had, and they prefer that it be done undemocratically -- by judicial fiat, for example, or by mayors flouting the law. Whatever else that may be, it isn't civil rights. But dare to speak against it, and you are no better than Bull Connor.

I, for one, am heartened to have Jacoby pulling for traditional marriage. Unfortunately, I'm disheartened by the work that lays ahead of us, even among our own ranks. Following the National Review editorial that I addressed on Saturday, John Hawkins throws his support behind the Orrin Hatch marriage amendment as a fallback, on the assumption that it certainly could be passed. I'm not so sure about that, nor am I enthusiastic about this amendment's being out there as an alternative.

Unlike the folks over at NR, I don't think Hatch's amendment holds the line more strongly than tweezers where a monkey wrench is needed. I see nothing in it to fulfill its promise that state judiciaries will be out of the gay marriage business, nor am I optimistic that the Supreme Court would find it sufficiently clear as to discourage clever maneuvers to undermine it. Moreover, with the Hatch amendment out there as a false compromise, citizens and legislators who are on the fence will have less incentive to really consider the issue and discover why the FMA as proposed is so necessary.

Posted by Justin Katz at 8:04 PM

March 6, 2004

An Inadequate Plan B

Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

This, according to a National Review editorial, is the text of a proposed alternative amendment from Senator Orrin Hatch. Although I've disagreed with particular arguments from NR before, this is the first statement that I can recall to which I've reacted, "Huh?":

This amendment would not only clearly allow civil unions to be enacted by legislatures; it would even allow legislatures to enact full-fledged same-sex marriage. But it would bar federal or state courts from imposing either.

I see nothing in that text to so much as increase the difficulty faced by a state judiciary that wishes to demand civil unions. To the contrary, it seems to me that the inclusion of the words "or its benefits" in the second sentence implies that in-state benefits aren't protected by the first sentence. However marriage is defined, in other words, the courts could find that the state must grant equivalent benefits to homosexual couples.

Worse yet, if the courts see themselves as acting on behalf of the "the citizens thereof" — and they are, after all, civil servants, defenders of individual rights against the tyranny of the majority — then this amendment wouldn't stop them from redefining marriage; they'd merely be doing their duty on behalf of the citizens. Barring that, they would only have to be sufficiently creative to find a way to argue that the state's constitution and/or previous laws of the legislature or citizenry "defined" gays into marriage by requiring equal treatment, or whatever pretext would have been used to grant gay marriage to begin with.

Elsewhere, the editorial touts "the additional advantage of being clear and understandable to the layman." The legal class, however, has built an entire industry around the practice of making layman-comprehensible terms and concepts mean their opposite. Is it really "extending" the benefits of marriage, for example, to find that the Constitution requires us to believe them inherently granted by the law?

I understand the desire to find language with broader appeal, and I realize that something is better than nothing (if nothing looks to be the likely outcome). This proposed amendment, however, reads to me like an invitation for judges to expand their penchant for parsing, not to pull it back.

Posted by Justin Katz at 11:49 PM | Comments (3)

Some Diversity on Gay Marriage

Delving, as I do, into the depths of every tributary to the gay marriage debate, it is always refreshing to come across pieces that summarize the debate in the space of a single column, as does Rod Dreher:

If you want to see what happens when marriage loses its ability to bind community behavior, look at the inner cities. In the suburbs, the 1970s divorce revolution damaged a generation of children in ways sociologists are just beginning to understand. And now comes the most radical attempt yet to disestablish traditional marriage as normative.

Happily, attitudes toward gays and lesbians have changed for the better and still are evolving. But now, 60 percent of Americans oppose gay marriage, and they are right to wonder if we should be so quick to tear down this ancient edifice without asking why it was put up.

But the demolishers don't care to ask. Gay activists and sympathetic jurists have forced the question onto the national agenda through aggressive legal maneuvering. State litigation makes it almost certain that the Supreme Court will be asked to nationalize gay marriage. Recent rulings have laid clear jurisprudential groundwork for it.

A huge number of people out there just need to be awoken to the realities of this issue. Another huge number require explanation that, yes, there are legitimate reasons to take the stance that you suspect is correct. It's also refreshing that Rod is out there in the mainstream press at all.

If much of the media is ideologically sympathetic to the views that Brent Bozell examines with respect to The Passion of the Christ, it is beyond important to infiltrate the medium with people who don't, as it happens, believe that True Christianity is dissenting Christianity. (A bit like "true patriotism," that.) That way, folks like Rod can stand in prescient contrast when events unfold as Bozell describes:

The residents of Gypsum, Colorado were in for a surprise the other day. Someone hit the wrong button in the county’s communications center, triggering an automatic broadcast over four radio stations warning residents to evacuate immediately on account of the tsunami headed their way. That’s an interesting weather development for this landlocked community, 6,334 feet above sea level.

It’s not often screaming alarms are so demonstrably false, and the wise course of action at times like this is simply to turn them off and publicly recognize the error.

So why, then, won’t the false-alarm-clanging critics leave “The Passion of the Christ” alone? After all the trashing of the film (and its creator), and all those warning bells about potential anti-Semitic violence, what’s happened? Only this: the movie’s $150 million take after only one week makes this one of the most successful films in the history of Hollywood. And the anti-Semitic backlash? Zero. Zilch.

The Washington Times is valuable in that respect, as well. It's no surprise, for example, that a story about blacks' becoming fed up with elite homosexuals' glomming their history appeared in that paper:

Black Americans have been liberal on many social issues, "but not this one," according to Star Parker, a California-based conservative leader.

The homosexual "marriage" issue "is where we get off the bus," she said.

Several black pastors are gathering today in San Francisco for the first of several rallies to denounce same-sex "marriage." Others are planning rallies in Boston on March 11, when Massachusetts lawmakers reconvene to consider an amendment upholding traditional marriage.

As I noted a while back, the Gay Power comments of the "married" couple that won The Amazing Race last season were emblematically jarring, particularly considering the many other significant qualities that they shared with the previous winners, many of which can be seen by simply comparing their pictures.

Given all of the diversity of opinion on this matter, as well as the intellectually stimulating questions that arise from the redrawing of lines that the battle has caused, it mightn't be presumptuous to suggest that American universities would do their students a good turn by bringing some speakers to campus to highlight them. After all, when 44 out of 45 student senators at the University of Rhode Island vote to endorse gay marriage laws and oppose the FMA, red flags ought to go up in campus diversity offices and the teachers' lounges of departments that claim to value critical thinking.

(By the way, should anybody so desire, I'll make myself available as a rhetorical target a speaker on this matter. No school is too big; no fee is too big.)

Posted by Justin Katz at 12:07 PM

Doing a Split on the Apex

Prof. Rosenberg has responded to my thoughts of a few posts ago. First, just to clarify, I don't "have a problem" with anything that he has written in the sense that phrase can be seen to have. ("Hey, you gotta problem?") Second, it seems a large part of the disagreement has to do with what the disagreement is. He writes:

The question over interracial marriage was whether race can be used as a basis to deny marital recognition. The question over same-sex marriage is whether sex can be used.

Those aren't the relevant questions to this particular discussion, at least as I've assessed it. The question is whether the irrelevance of race to marriage somehow leads into the debate about whether sex is irrelevant, as well. Rosenberg's are good, interesting, and important questions, but they are not the questions that Volokh was answering. Of more concern to my argument is that skipping this connection skips my essential point: the racial comparison is raised mainly as another immutable, readily identifiable attribute that once presented barriers to marriage.

However, society's acceptance of interracial couples isn't significantly relevant to the debate over same-sex couples. Similarly, I suggested, faith is not either. Therefore, it sidesteps my point and Volokh's for Rosenberg to write, "We no longer use race as a basis to deny recognition, and the argument is that similarly we should no longer use sex." We're saying that the "similarly" does not apply.

Moving to the occupational segment of the discussion, I have to admit to being a little disconcerted by this:

My argument, though, was the government should be hesitant to use gender at all. If they do decide to use it they must justify that use as vitally necessary. If we simply allowed the government to use gender whenver the majority thought it was relevant we would be back in a time when women were not allowed into certain professions.

I note, in passing, that I truly don't see that as the argument presented in his previous post. The scale by which the government discerns gender distinctions justifiable didn't come up at all. Rather, the argument was that equality should be measured from the individual's perspective (which, if one so desired, could bring the discussion back to incest and polygamy). Letting that slide, for now, what I find disconcerting in this quotation are the related points that the government can, in the right circumstances, differentiate by gender and that the majority oughtn't decide when those circumstances have been achieved. If it doesn't fall to the majority to decide such things, then to whom?

That was the point of my painter analogy. I'll side with Prof. Rosenberg in having a problem "with the government telling the painter he has to hire a man for his model" — if we're understanding the painter as a private entity. The metaphor, however, is for private versus public employment. It is our project. We hire the painter. It is up to us all, therefore, to decide what sort of Adam we want painted.

When it comes to civil recognition of marriage, the public is commissioning a relationship, as it were, and the public has a right to decide what the project is meant to accomplish and what factors are relevant to that goal. In the metaphor, as originally used to address Prof. Rosenberg's previous argument, he was suggesting that the model — the individual — ought to be the judge of his or her own relevancy. Rosenberg would have had every right to be "livid if [he] had been denied a marriage license becuase the state didn't think [his] wife was right for [him]," but when he sought that license, he had selected a mate and approached the desk with a person within the parameters that society has set: over the age of consent, singular, and of the opposite sex.

Further, the professor elides a central piece of the argument when he asks, "So why should the government have wanted me to marry a woman?" It wasn't, given the context of our current debate, that the government wanted him to marry a woman. (That's another part of the total issue — the stability/mutual care aspect — that is best left out of this thread for now.) It was more that, since his relationship was with a woman, the government wanted them to get married. The government, as it happens, still gives homosexuals "a lot of leeway" in deciding with whom to form extended relationships. For a variety of reasons, it just doesn't equate those relationships with marriage.

ADDENDUM:
I want to comment, in a separated way, on something that is probably inadvertent on Professor Rosenberg's part, but relevant nonetheless, particularly in light of his comment about the majority:

They would have allowed me to marry an axe murderer, a child abuser, an idiot, a person on their deathbed, etc.

It has long seemed to me that intellectuals go much too far in presuming the importance of their intelligence. An axe murderer, a child abuser, and an idiot? How about a rapist, a child beater, and a cerebral relativist? If you ask me, certain family lines would do well, for the mental health of progeny, to leaven their brainpower.

Posted by Justin Katz at 12:01 AM | Comments (30)

March 5, 2004

What Marriage Essentially Isn't

The problem with defending a definition is that those on offense have a nigh unlimited number of examples of what the thing isn't and qualities that might be shared nonetheless. Imagine somebody insists that her cat is a dog. Once the initial incredulity that she's serious has been overcome, how does one argue the point? It's too small; poodles are small. Too feline; well, fish aren't feline, are they dogs?

I'm starting to get a bit of this sense (though, of course, less ridiculously) with the gay marriage debate. Consider a post by Gabriel Rosenberg:

[Eugene Volokh] first distinguishes between race and sex by noting that race is only skin deep while there are deep biological and social differences between men and women. ... That still doesn't answer whether one should be able to use these differences as a basis to refuse to recognize one's marriage. For example, consider the case of religious faith. One's religion can certainly affect one's parenting style. Would Professor Volokh think it was legitimate for society to set up same-faith couples as the preferred, most legally and socially sanctioned mode and refuse to recognize interfaith marriages?

Let's get our bearings; Volokh is responding to the common argument that the gay marriage debate ought to follow on the miscegenation debate. Rosenberg changes the question, so of course Volokh "still doesn't answer" an argument he wasn't trying to answer. More to my point, Rosenberg changes the question in such a way as to make exactly opposite assumptions about the issue at hand.

Interracial marriage is brought up in this debate — apart from the fact that it went the way that SSM advocates want their cause to go — because race and orientation/gender are presumed to be immutable, just the way people are. Religion, in contrast, is ultimately an option, at least in that it can be changed over time. So to which does homosexuality compare? If it's ultimately a choice, then there's no basis to claim a civil-rights violation, because gays have the ability to marry a person of the opposite sex.

Moreover, if the civil-rights claim is thus muted, and if balancing parental gender is considered to be important for society's purpose for marriage, then there's no basis to claim a right to gay marriage, let alone sufficient basis to push it through the judiciary. The fact of the matter is that we do impinge upon some religions' teachings for the purpose of marriage by, among other things, restricting the number and insisting on civil equality between spouses for matters from finances to divorce.

If, on the other hand, homosexuality is immutable, then it is much more accurate to make distinctions on its basis than it would be to do so on the basis of, say, employment. Distinctions by gender can be implemented without requiring excessive infringement on a couple's privacy and can maintain the simple clarity that makes the institution so effective a social force.

But the essential point, on Volokh's end, is that one is free to argue on behalf of gay marriage — indeed, he supports it — but miscegenation isn't adequate precedent. Following on that point, I'd argue the same (though disagreeing with the preferred policy outcome) with respect to religion: the example doesn't bring anything of utility to the argument. It isn't a test of whether SSM advocates can pull their opponents off a path; it's a requirement that the advocates stay on it. Those two arguments run off the path. Find another.

To that end, Rosenberg switches the perspective: "'equal' should be viewed in terms of the person seeking equality and not as group judgments is quite important when it comes to sex discrimination." He uses the example of occupation:

To the person being denied the opportunity the two paths (lawyer and childrearer) may not be equal. This is not to say that one is better than the other, but the two are different and one shouldn't be denied such an opportunity simply because of his or her sex. This is true no matter the biological or deeply-rooted social differences between the sexes. I find it hard to reconcile the belief that it's unacceptable to dictate one's professional opportunities based on sex with the view that it's somehow all right to dictate one's most intimate choice of spouse on this basis.

This, it seems to me, abandons the question that Rosenberg sought to impose upon Volokh: is gender relevant to the occupation in question? In looking to hire a model to pose as Adam for a nude painting, it would be legitimate to disqualify women. Legitimacy wouldn't even come into question if the job were such that it required something that only a male or female body could do or produce. (I leave examples up to the reader, here... for obvious reasons.) I submit that being of opposite gender from one's partner is similarly intrinsic to the position of "spouse."

One can go further with Rosenberg's second argument, however, because the government isn't any longer in the business of determining intimacy. Gay couples are just as free to enter into committed relationships as women are free to seek private employment as models of Adam. Perhaps Prof. Rosenberg's intended meaning would be such that the Evely Adam would be adequate; for my rendition, she wouldn't be. Alternately, perhaps he has the resources to waste auditioning women for a role they could never fill; I do not. In the public sphere, however, the decision belongs to us all.

One can argue the merits of the two aesthetic approaches, but I'm sure the professor would agree that it is far from invidious discrimination to exclude women from the auditions for that particular role, particularly when they are free to take the complementary one.

Posted by Justin Katz at 11:55 AM | Comments (26)

March 4, 2004

Letting the Slip Slip

We all know it to be true, but it really is eye-opening — scandalous, even — to note the dearth of breadth and depth to the thinking on topical matters on college campuses. I sent a much-shortened version of my post defending URI's seemingly lone opponent of same-sex marriage, Marcus Ross, to the student paper, and they've apparently opted not to publish it. Instead, they've printed a steady flow of missives from the other side, including an editorial.

Frankly, I would have hoped (if I weren't so jaded) that a professor might have leapt in to offer at least support for Ross's intelligent argument, if only for its intelligence, not its substance. Instead, we get Ph.D. wielding "lecturers" like Donna Bickford, who is so brazen in her arrogance that she lets slip her entire ulterior agenda. (Let's put aside the truly bizarre notion that the President's measured and delayed support for an amendment is indicative of "enthusiastic willingness.")

Despite Ross' mockery of the argument "it isn't fair," the President's actions directly and blatantly contradict the ideals of our supposedly democratic and egalitarian country. These ideals rely on notions of basic fairness.

So a movement to prevent imposition of new public policy through the judiciary by leveraging a very difficult legislative procedure contradicts democracy? And why is it that those who throw about words such as "egalitarian" are the same people who seem inclined to flatten our nation's much-richer intellectual foundation in such a way as to assert the superiority of the elite? We expect such things from Women's Studies professors, of course. Unfortunately, we also expect such hateful comments as this:

All of our children need a wide variety of role models - both male and female, and of all ages. Heterosexual marriage is not the only, or necessarily the best, way to achieve this. In fact, a shockingly high percentage of child abuse is enacted on our children by heterosexual male family members (fathers, uncles, grandfathers, brothers). The "unique perspective that males have," which Ross is so eager to celebrate, is one that many children might willingly relinquish.

Talk about creating a hostile environment! Even stilted language such as "enacted on our children" can't disguise the disgust. (I wonder what word she had in there before she hit the thesaurus button and inserted "enacted.") Why, one might ask, would such a woman support families that put two of that evil gender in the same household? The answer, as Doc Bickford is only too happy to explain, is that she's not a fan of keeping marriage around, anyway:

The real inequality here is that our society is willing to confer benefits on those who marry and deny them to the rest of us. This implies that somehow those of us who have the ability to choose to marry, and do so, are more worthy and more valuable than those of us who don't. There is a long list of benefits and privileges, at both the state and federal level, which are automatically given to married couples. I object to this linking of benefits with marriage. However, as long as we live in a society that does attach benefits and full citizenship to marriage, we cannot deny gay and lesbian couples this basic and fundamental civil right.

This is who gets in the door — well, farther in the door — along with gay marriage as currently promoted. Gay marriage, it is quite clear, isn't just a slippery slope; it's the apex at which multiple slippery slopes meet. How perfect, then, that final sentence! What other "fundamental civil right" do activists believe ought to be abolished?

(By the way, if anybody in the Rhode Island government reads this, may I have back whatever portion of my tax dollars went to pay for the lectures of Ms. Bickford? I'd hate to think that my hard-earned money, and that of every other man in the state, is funding the inculcation of our iniquity.)

Posted by Justin Katz at 11:39 PM

Building the Marriage Trap

Stanley Kurtz notes that, even where the direct actions of gay marriage advocates are rebuffed, the crowbar is pushed in a bit more:

Essentially, Spitzer held that out-of-state same-sex marriages should (and will) be recognized in New York — not because the full-faith-and-credit clause requires it, but on grounds of equal protection and due process. Given the federal constitution's provisions of equal protection and due process, given similar provisions in every state constitution, and given the precedent of Lawrence, such an analysis is entirely unsurprising. Above all, Spitzer's opinion shows how weak the "public-policy exception" will be as a barrier to cross state recognition of out-of-state same-sex marriages.

Kurtz mentions that case in which one member of a gay NY couple who had procured a Vermont civil union was a victim of a hit-and-run spree and later died in the hospital's care. As has become typical of all rulings involving homosexuals, lately, the judge didn't just find some very narrow loophole through which to slip the specific case. He threw open the door through which Spitzer is now striding.

I wrote about that case at the end of January. It might (might) be going too far to see an orchestrated campaign behind the various events across the country over the past few months, but it can't be denied how quickly the cause is moving. Marriage in Massachusetts; Vermont civil unions in New York; mayoral rebellion. If gay marriage arrives as a direct, unobstructed result of this push, it will not only arrive in the worst conceivable way for our culture, and the gay subculture, but it will also have torn a gaping hole in the law on its way.

Whether you're for or against gay marriage as a cultural decision, in considering your position, you simply don't have the liberty of forgetting that They are going to push it through. The clarity of precedent required to ensure measured implementation simply does not exist. The brazenness of this movement is simply stunning, increasingly so, and the only way to tame it is a Constitutional amendment.

Posted by Justin Katz at 1:48 PM | Comments (1)

February 27, 2004

And then the Wave of Similitude

Well, Marcus Ross today opened his student paper to discover something that brings back memories of my own time at his university: a unanimous cry that he's wrong. Some letters poorly written. Some hilarious. One from a professor. Marcus ought, of course, to be allowed the learning experience of juggling these various tints of monochrome minds; if he intends to remain in the Northeast and to proudly wear the label of "conservative," he'll need the experience.

But I can't resist dipping in.

First up is Katie Block, who writes from the broadly researched position of one who has interviewed her friends on the matter:

In recent days I have walked around the University of Rhode Island campus talking to people I know about gay marriage. Everyone I have talked to has simply said that homosexuals should have the right to marry, it just makes sense.

Such are the critical thinking skills of the acquaintances of a member of Students for Social Change. Well, yes, I suppose that, if one's defining cause is "social change," then redefining marriage does, indeed, "just make sense." Of course, if Ms. Block wishes to further her personal cause of making sense, I'd suggest that she spend some time researching Constitutional law:

My answer to this is that as far as I can remember there is supposed to be a separation of church and state. Therefore, this amendment President Bush wants to put in which defines marriage is unconstitutional in itself. Marriage has no place in the Constitution if it is taken as a religious entity. The government has no right to define marriage. It does, however, have the obligation to uphold the Constitution which, if I remember correctly, says that all men are created equal.

Alright. Maybe it would be a bit ambitious for her to begin with Constitutional law, because one would presume that such studies require some knowledge of what's actually in the Constitution. That stuff about all men being created equal is in the Declaration of Independence. Moreover, specifically speaking, the Establishment Clause, debatably rendered as "separation of church and state," is in the Bill of Rights, or the first ten amendments to the Constitution, following which are the other amendments. All of these amendments are, by definition, "constitutional," and since the Federal Marriage Amendment would go at the end of that list, it, too, would acquire that adjective.

With this as a foundation, perhaps Ms. Block could begin pondering such questions as:

  • If the government has no right to define marriage, why are activists appealing to it to redefine the institution?
  • And how can a young woman devoted to "social change" consider a document written hundreds of years ago to be immutable?

Once these points are considered, perhaps she can move on to the next level of profundity:

  • Whom does she believe created men so equally?
  • And wasn't Mr. Ross's central complaint about gay marriage that men are created just a bit too equally to be complementary parents?

After all of this hard learning and deep thinking, it might be healthy to inject a bit of levity into the debate. For this, we turn to Keri Mirkovich, who begins:

Marcus Ross, in his recent opinion of the regulation of same-sex marriages, made the same mistake as every other pundit trying to push for the abolishment of gay marriage: assuming that he could truly understand the other side of the argument.

Of course, one could get bogged down in taking offense at the blithe declaration that opponents of gay marriage are just too dumb to understand the minds of its supporters. But let's move along to the very next line, which couldn't have been written better by even our side's least-dumb parodist:

The only argument against gay marriage is religious. Period.

As it happens, in the twisting of things, Ms. Mirkovich concludes by making a superb argument for a Constitutional amendment:

The Supreme Court should be brought this issue as soon as possible so that finally this matter can be settled.

Lastly, we come to the smashing of Ross's "ill-reasoned recent publication" by Library and Political Science Professor Olivier Vocino. Quothe the professor:

Marcus wrote, "What's to stop a 42-year-old man from "marrying" his 15-year-old boyfriend?" The law, Marcus, would stop such a silly thing.

Oh silly Marcus. Of course, the law currently stops homosexuals from marrying, and the basis for the law is precisely what Ross was addressing:

If the definition of marriage is to be so radically altered, as the gay community argues it should, then we as a society require rigorous justification for that change, as well as an understanding of what the new boundaries will be. If the reasoning for allowing same-sex marriage is "because I love them and they love me" coupled with "it isn't fair otherwise" then this is shoddy reasoning indeed. How can this protect our society from truly egregious behavior such as incest and molestation (where minors could be pressured to affirm consent) without appealing to something entirely arbitrary? What's to stop a 42-year-old man from "marrying" his 15-year-old boyfriend?

Rather than researching age-of-consent laws, Prof. Vocino might have better spent his time rereading young Marcus's piece. He's asking about reasoning, not mechanism. At least Cheryl Jacques, of the Human Rights Campaign, got that far when she gave the reason, "Because I don't approve of that."

The professor swings and misses, again:

Or, Marcus, you also said, "If the reasoning for allowing same-sex marriage is 'because I love them and they love me'....is 'shoddy reasoning.'" I'd like to know why heterosexuals marry. It can't because they love each other....I assume you think that is "shoddy reasoning," too.

To the text, Professor! Ross referenced "the reasoning for allowing," not the reason that they would want to be allowed. Ben Franklin may have been correct to quip that "a reasonable Creature" is capable of creating a reason for anything he "has a mind to do," but even that venerable statesman, whose name Ms. Block will find when she peruses the Constitution, left open the reasoning his fellow citizens ought to apply to the question of allowing it. (Although he did move to open each session of the Constitutional convention with a prayer for God's illumination on the obscurity of "political truth.")

For my part, I'll leave it to Mr. Ross to discern what "real issue" Prof. Vocino might present for "good conservatives to be concerned with."

Posted by Justin Katz at 1:14 PM | Comments (6)

February 26, 2004

Mothers Can Like Sports, Too

[Gabriel Rosenberg made a comment to this post that I thought sufficiently important to put my reply in the main body of the blog. (It also didn't hurt that it took me so long to write it.)]

He talks about a Dad making it to more baseball games. In my family, it was my Mom who was the big baseball fan. My Dad preferred football. If he thinks it is important for his children to have a parent of each gender, he should marry someone of the opposite gender. In our society we generally allow parents to decide what is best for their own children.

— I'll admit that this is an attractive argument. The catch is that the well-being of young Gabriel Rosenberg isn't, of itself, a tremendously "compelling state interest." Let's leave aside that these examples, such as the sports reference, are meant to capture much more intricate arguments about much more subtle relationships. If your mother truly was a baseball enthusiast and wasn't just supporting her son's endeavors, she was unique in that respect.

But again, the sports reference is only emblematic. Allow me to quote our friend Andrew Sullivan in a New York Times Magazine piece on testosterone:

And the difference is a real one. This is so obvious a point that we sometimes miss it. But without that difference, it would be hard to justify separate sports leagues for men and women, just as it would be hard not to suspect judicial bias behind the fact that of the 98 people executed last year in the United States, 100 percent came from a group that composes a little less than 50 percent of the population; that is, men. When the discrepancy is racial, we wring our hands. That it is sexual raises no red flags. Similarly, it is not surprising that 55 percent of everyone arrested in 1998 was under the age of 25 -- the years when male testosterone levels are at their natural peak.

Of course, Sullivan's example isn't a shining one for the male parent (although he elsewhere notes that testosterone levels drop in men in stable marriages); his point throughout is that testosterone affects a person in every way, and "an average woman has 40 to 60 nanograms of testosterone in a deciliter of blood plasma. An average man has 300 to 1,000 nanograms per deciliter." My point, because I am most definitely not a biology-is-destiny type, is that, no matter how you approach the question, men and woman are different in significant ways. To argue that they are not is, resurrecting a metaphor, akin to arguing that triangles and rectangles are not different in significant ways when it comes to skyscraper construction.

This doesn't quite reach your point. Even so, you'll say, it is a matter of opinion whether those differences, however significant they may be, are crucial contributors to the proper development of a child. That they are indeed strikes me as obvious, and I believe recent sociological research backs up what just about everybody believes to be true anyway. At the very least, we can say that your proposal is entirely untested on a societal scale (a scale at which no individual can possibly comprehend every relevant factor), and that the stakes gambled to test it are cataclysmically high.

The entire point of encouraging marriage in any civic form is to address society-wide realities. When it comes to civil marriage, that is, your individualistic point, as emotionally compelling as it may be, is either irrelevant or subversive of the civil institution. Now, you can argue to the public that men and women are not, on average, significantly different when it comes to childrearing. Or you can argue that civil marriage ought to be abolished. But you can't argue that parents have a right to receive public endorsements for every choice that they make in contravention of public belief.

Posted by Justin Katz at 7:38 PM | Comments (1)

The Gay Marriage Debate in Satire

Scott Ott had two satires reacting from the President's announcement of support for a marriage amendment that I didn't get around to linking to. "Bush Backs Amendment Defining 'Mayor'" brought to mind Gabriel Rosenberg's comment to a recent post, here, asking whether the courts had a right to redefine "governor" to include women.

Meanwhile, "Bush Backs Traditional Marriage, AndrewSullivan.com Hardest Hit" is a humorous reminder of the odd position in which pundits who advocate for a particular cause are in. Whether their side wins or loses a particular significant event, the pundits are likely to experience a career boost. There isn't inherently anything wrong with that — advocates of non-economic causes have to manage somehow — but I thought this part of Ott's piece aptly cutting:

"Not only will AndrewSullivan.com be hard hit," said an unnamed expert in constitutional PR, "But Mr. Sullivan's PayPal donation link will take a beating as liberals and homosexuals race to combat the amendment by funding Andrew's promotional efforts."

Mr. Sullivan could not be reached for comment since he is appearing on several dozen news and talk shows.

Posted by Justin Katz at 5:33 PM

Signs of Intelligence

Keeping up my small-scale efforts to encourage youngsters to think like me, I'd like to take a moment to congratulate Marcus Ross of the University of Rhode Island's Students for the Awareness of Conservatism for braving the zeitgeist to enunciate, intelligently, academic blasphemy:

Proponents of same-sex marriage insist their quest for marriage is the same as the fight to abolish laws prohibiting interracial marriage during the Civil Rights era. But here's where the analogy of interracial and same-sex marriage breaks down: there are no fundamental differences between black, white, Asian or Latino males. Skin color is superficial and (to me, anyway) irrelevant as to who someone wants to marry. But the differences between a man and a woman (irrespective of race)? Those are relevant. Males and females are certainly equal, but they clearly are not identical, nor are the types of relationships in which they engage.
Posted by Justin Katz at 5:17 PM | Comments (4)

February 25, 2004

More Advocacy from the Velvet Rag

The Providence Journal, which has barely mentioned a major protest against gay marriage in Boston and not so much as whispered about smaller protests in closer cities for which it serves as the major paper, is giving top billing to a small gathering of the most liberal of liberal ministers in Rhode Island.

It's just shameful. Saddening and shameful. In an article about religious people, on a topic for which the biggest strawman is that the only arguments against gay marriage are religious, the paper didn't offer a single opposing argument. We're told that the Catholic Church opposes gay marriage, and we get this:

"This group of clergy got together to announce and demonstrate to the public that they, a respectable church, and members of other respectable churches -- in distinction from only the Roman Catholic Church -- were in support of this change in social policy," Perry said after the news conference.

Earlier this month, a spokesman for Bishop Robert Mulvee, the head of the Providence Catholic Diocese, said the bishop would work to oppose any bills legalizing gay marriage.

While most speakers at the event yesterday did not specifically refer to the Catholic Church, some urged legislators not to oppose gay marriage on religious grounds.

Instead, it would seem, legislators are to support it on religious grounds:

The Rev. Dr. William C. Trench, of the United Methodist Church in East Greenwich, said his support for gay marriage is based on his religious beliefs.

Marriage, he said, "is a promise made before God and the community to love one another forever."

And the Velvet Rag continues to sell its soul for gay marriage.

Posted by Justin Katz at 11:49 AM

Too Much Class

I'm starting to think that the gay marriage debate is indicative of nothing so much as class differences. Consider Glenn Reynolds's thoughts:

That said, I'm still against it, just as I was against the Defense of Marriage Act that Bill Clinton signed. I know plenty of gay people who are, for all practical purposes, married. I don't see what's wrong with them getting married. I don't understand how letting gay people get married threatens heterosexual marriage (here's an amusing post on that subject). And, in fact, I suspect that to the extent it makes any difference at all in the wider society, gay marriage will prove to be a fundamentally conservative institution, with married gays taking the role of solid citizens that married people have traditionally taken.

I continue to be disappointed by what is essentially a position dismissing all concerns — even more so because this position hasn't changed one bit since June. How does one argue with a perspective that puts aside thousands of words of argument and various social-study analyses on the basis of a few acquaintances? I don't know Prof. Reynolds's gay friends, but is the professorial class really one on which to base cultural policy?

It's not unlike Andrew Sullivan's declaration that "the living, breathing reality of civil marriage in America" is that it's more about coupling than childbearing and family. As I've shown, this is nonsense. Last night, I walked into the living room during a commercial and asked my wife what she was watching. To paraphrase: "That show with the married guy and the kids." I laughed, because there are any number of shows that fit the description.

I mean no disrespect to Prof. Reynolds, of course, but the vision of marriage in academia or in the blue-state jet-set in which Sullivan lives simply don't constitute a plausible — or sane — model for the whole of society. Add to this that middle and working class folks who argue for gay marriage seem disproportionately likely to have had bad experiences with marriage, and it doesn't evince paranoia to suggest that at issue is the removal of perhaps the most significant cultural guardrail.

And, frankly, I'd be much more comfortable with the expressed opinions of the likes of Prof. Reynolds if they took to the time to address others' concerns more extensively than with reference to friends and shows of hand in the law-school classroom.

ADDENDUM:
Just to clarify: "People I know" isn't inadmissible as evidence; it just isn't wholly adequate. It requires, at least, some justification for believing that those people are representative and a willingness to address conflicts between experience and broader information.

Posted by Justin Katz at 11:20 AM | Comments (7)

February 24, 2004

Fair-Minded Extremism

I had just about decided not to post my thoughts on the comments to an entry by Roger Simon. What strikes me is the sheer extremism, the fundamentalist confidence, and the belief that only hateful people could take a contrary position. There's no concern for the way in which the "right" policy is implemented. There's no concern about the adverse consequences that accompany even the most righteous change, when that change is as profound as gay marriage would be.

The reason I wasn't going to mention those comments is that they got me thinking that perhaps it would be worth exploring the extent to which Internet demographics play into the arguments. If I had to characterize the standard online position on my side, it would be that tying up some legal issues for gay couples would be fair and compassionate, but that there are reasons for society to single out male-female unions for special approval. There's a quip here, an expression of disbelief there, but for the most part, it is understood, at the very least, that there are shades of motivation and reasonableness on the other side of the issue.

Of course, I'm aware that there are probably chat rooms and certainly computerless folks out there who would put Simon's commenters to shame in the vitriol department with the opposite point of view. That's why I began to wonder whether one could generalize about the relative ages and social positions of those who take both sides on the Internet. The "college kid" corollary on the conservative side of the gay marriage issue is probably far less likely to have ready access to a computer and sufficient interest to read and comment on political blogs than would be an actual college kid.

Anyway, as I implied, there's much to be considered here, and it's hardly so obvious that it can be stated confidently, and I don't have the highest confidence in my ponderosity today. But... then I came across Andrew Sullivan's screed, which could really knock a person back a step. Support for the marriage amendment, according to Sullivan, can be nothing other than a hateful political ploy. That's it. End of story.

Now, I have sympathy for Sullivan in this. Not only is he gay, and not only does he seem to have identified the right to marry as some sort of balm that would retroactively heal the wounds of his childhood, but he's devoted a substantial portion of the latter half of his life to this cause. It would, in fact, be a bit surprising, perhaps disconcerting, if his blog-speed reaction had been of completely even temper.

Nonetheless, I can't help but feel that he's let something more constant show through. I'll be exploring some of this in greater depth in the very near future, but Sullivan changes tone so dramatically when he feels he's got the upper hand versus when he feels he's losing leverage that it's reasonable to be wary of making any judgments based on promises of magnanimity when he thinks the issue is going his way. Frankly, I suspect he's not alone, among gay marriage supporters, in this. He's said that the civil-rights, gay-marriage-supporting, assimilationist side of the gay community has won some sort of internal battle of ideologies. I'm not so sure that's what's happened; I'm not even sure that can be said of Sullivan himself.

So, in short, I think it worth your time to read Sullivan's comments; he hasn't summarized his talking points more concisely anywhere. From the "sacred document" appeal, to race baiting, to accusations of politics, to — yes — assumption of bigotry:

That very tactic is so shocking in its prejudice, so clear in its intent, so extreme in its implications that it leaves people of good will little lee-way.

If you're of good will, in other words, you must oppose this President. If this feeling is deeper than just-stung swearing, I fear Sullivan is badly misunderstanding which way this issue is going to go:

We must appeal to the fair-minded center of the country that balks at the hatred and fear that much of the religious right feeds on.

You may support gay marriage. You may even believe that, deep down, opposition to it stems from some sort of prejudice. But one thing it is delusional to believe is that the "fair-minded center" will look at the President's speech this morning and see hatred and fear of homosexuals. The actual direction in which those emotions are running couldn't be clearer.

Posted by Justin Katz at 3:14 PM

Here We Go

Well, sides are being taken, and the President has just chosen his:

The union of man and woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Marriage cannot be severed from its cultural, religious or natural roots without weakening the good influence of society today.

I actually didn't catch the speech, so I'll have to keep an eye out for transcripts or streaming media. (Shouldn't those things be just about instantaneous nowadays?) Check the Corner, up from here, for some coverage.

While I'm there, I thought I'd address a couple of things that Ramesh Ponnuru has said. First, there's his response to Andrew Sullivan, who asked whether civil union laws already on the books would be nullified by the FMA. Here's Ponnuru:

The amendment is supposed to block recurrences of such judicial edicts--so you would not see other states following the same pattern. Whether the existing civil unions and civil-unions laws would be nullified is, I think, unanswerable based on FMA alone. It would depend on the applicable law regarding how to handle retrospective changes to the law. Supporters of FMA who agree with one another about every other detail of what its impact would be may well disagree on this question.

I don't know what laws there are pertaining to the continuation of pre-amendment laws. However, changing the question just a little to address whether other states could pass the same laws after the FMA is passed, I'd have to say that I don't believe so. At least Vermont's and California's civil union laws pretty explicitly grant incidents of marriage, as such, to unmarried couples.

In a tangential post, Tim Graham asks:

Ramesh, in your wire story there, isn't it funny that the media always use the term "ban" so-called gay marriages? How do you "ban" something that is presently not officially recognized in most states?

Ponnuru's response is that "it's not inaccurate as a description of a forward-looking prohibition." That's true enough, but I don't think it covers Graham's intended quip. The media has been using "ban" all along, as in: "The SJC today struck down the ban on gay marriages." Personally, this particular instance of spin has bugged me for a while.

ADDENDUM:
The White House's Web site has a transcript and video.

Posted by Justin Katz at 11:32 AM | Comments (13)

February 23, 2004

Right on Track with the Trends

Back in early January, I noted that Andrew Sullivan was evincing a selective memory when he declared, "When gay marriage gets an actual popular majority, as it soon will in Massachusetts, they won't be able to hide behind their argument about 'judicial activism' and will have to be candid that their real, anti-gay goal."

At the time, a new Zogby poll was indicating that the trend was precisely the opposite. While just after Goodridge a Boston Globe survey found a majority of Massachusetts supporting gay marriage (50% to 38%) and opposed to a man-woman-marriage amendment (53% to 36%), the Zogby poll reversed the results of the first question (42% support for versus 52% opposition to gay marriage) and narrowed the second (49% opposition to versus 48% support for an amendment).

Well, Stanley Kurtz points out that the first trend has continued. The Globe has released the results of another poll. Now, only 35% support gay marriage, while 53% oppose it. The question of the amendment, however, has splintered into a more complicated matter, in part as a result of the legislature's attempts to find compromise amendments, with each option polling as follows:

Restrict marriage to heterosexuals: 45% yes, 47% no
Heterosexual marriage, but mandated civil unions: 36% yes, 49% no
Heterosexual marriage, with civil unions defined by legislature: 30% yes, 55% no

At least part of the problem seems to be a misunderstanding of the legal contingencies (which is, of course, absolutely understandable). 71% wanted the issue to be decided by voters in a statewide referendum, and 57% wanted voters to be presented with several options. It seems likely that, as voters come to understand that the only way for them to have a say is if there's an amendment, support will climb, and that they'll choose the option allowing them the most direct control. In that respect, they run right into the linguistic problems arising with the FMA — how to allow something for the people and their representatives while blocking the courts.

Incidentally, I think these numbers indicate another dynamic that I've come to see as likely: whichever way the battle goes, ultimately, there will be a temporary uptick in marriage and decrease in divorce, because the issue of marriage has been on people's minds. Whether as a result of folks' pondering what, in their marriages, is or ought to be blocked to gays or touting the benefits of marriage to which gays ought to have access, the perceived value of the institution rises. If gay marriage wins out, however, this advance will be short lived as the issue fades and as newlyweds enter the scene having never given the matter such deep thought.

Posted by Justin Katz at 12:50 PM

We Can Be Reasonable, Here

In addressing some of the objections to the FMA that I've fielded recently, Ramesh Ponnuru offers a reminder of something that it's easy to forget: agreement with the marriage amendment in whatever form those negotiating the wording think can pass doesn't mean there won't be degrees of preferred policy different. I could back this, for example, if it would help the cause:

As for the suggestion that no possible language will work, let me offer a suggestion: Strike the words "state or" from the second sentence of the amendment. That is to say, make it possible for a state law to be construed to require the conferral of benefits on same-sex couples. But continue to block the construal of a state constitution that way. That deletion should make Volokh's scenario go away. And amendment supporters would not be giving up very much. What they are most concerned about is the idea that a court will take one of the "majestic generalities" typically found in constitutions and give it a specific meaning they do not believe it can bear. Statutes, by their nature, are less susceptible to this kind of thing. And if a state court took interpretive liberties with a statute, it would be much easier for the state legislature to correct the problem — it would simply need to pass a new statute.

To be sure, if changes are to be made, I'd rather they just clarify what I believe that the FMA already does: allows civil unions as long as they're built without reference to marriage. But that's a subtle point, in the big picture, that I would gladly trade. Particularly if polls continue to trend as I'll be noting in a post or two...

Posted by Justin Katz at 11:45 AM

February 21, 2004

Two Women, No Men

The discovery that the first lesbian couple married as if for real in the United States were, in fact, old-time man-haters brought forward an interesting paradox. Here are two women who, if their lesbianism was an inherent, unchangeable aspect of their psychological composition, spent years and expended copious effort attempting to liberate other women from bonds that the pair, themselves, would never have chosen to enter in the first place.

It would be a safe bet that Phyllis Lyon and Del Martin have, at some point in each of their lives, spoken the phrase, "I don't need a man to make me whole." And yet, central to the rights-based argument for gay marriage is the rhetoric that being unable to marry makes homosexuals "less than human." Perhaps it's a little trite, but the take-away message seems to be that straights don't need marriage to be complete, but gays do.

Talk about a reversal of natural law!

Now here's an interesting question. Several of the most vocal proponents of gay marriage have made the distinction between gay marriage and polygamy that, with the latter, there would be a valid concern about the development of a bachelor underclass. Anthropological history, as I understand, makes that a pretty safe bet.

At the same time, some of those same SSM proponents have admitted that they believe women's sexuality to be more fluid, more of a choice. Once the choice is made, lesbians, where given the chance, are more likely to marry than gay men (Vermont civil unions are two to one). Similarly, the "superfidelity" of female-female unions has been often touted as canceling out the likely higher rates of infidelity among male-male unions. Now throw on this mound of factors the reality that the "glass ceiling" is just about gone and adoption rights are sure to follow marriage rights, and that revolutionary techniques in fertility and artificial conception are coming into their own.

It seems to me that female-female unions might be just as likely to have the male-underclass effect as polygamy. Maybe more likely. After all, if a man marries two women, there's only one man left out; if a woman marries a woman, there are two resulting bachelors. Of course, this is in a realm of unknowability about the effects of gay marriage, but at the very least, it would seem a reasonable challenge to the blithe leveraging of lesbians as self-evidently good for the institution of marriage as a whole.

Posted by Justin Katz at 7:54 PM | Comments (4)

The Soul of an Amendment

Given the rules for passage of a Constitutional amendment, balances and compromises must certainly be struck. As I noted yesterday, Jonathan Rauch (who is personally against any amendment having to do with marriage, anyway) has suggested that it would be easier to pass an amendment that does nothing more than restrict the gay marriage movement to state-by-state action. He would even leave state judiciaries free to do as the Massachusetts Supreme Judicial Court has done.

I've already suggested that such an amendment would sap the motivation of the amendment's strongest supporters, and I just recalled something that one such supporter, Robert Knight, said back in 2001:

Once you abandon morality, you must rely solely on utilitarian arguments. This is one of the weaknesses of the current campaign for the Federal Marriage Amendment: Its defenders have purposely avoided making moral arguments. No constitutional amendment campaign can succeed without a great moral principle driving it. Curbing judicial power is appealing, to be sure, but it is not enough to motivate the mass movement necessary to generate success. Nobody goes into the trenches to preserve a "national debate." Just because homosexual pressure groups are attacking the proposal with vehemence does not mean it is the best vehicle. They react with outrage at any resistance to their agenda.

Seen in this light, Rauch's proposal would siphon off even the "moral principle" having to do with curbing judicial power. By hammering conservatives for abandoning federalism, he seeks to enshrine it as the sole motivation for acting at all. The balance of principle between morality, social requirements, separation of powers, and federalism would be completely restricted to what — for me, at least — ought to be seen as more of a guideline for action rather than its purpose.

Of further interest is that the aspect of the FMA that Rauch would keep is mainly that expressed in the second sentence. In his own attacks on the FMA (which are too plentiful for me to go sifting through right now), Andrew Sullivan has taken the opposite approach, concentrating on limiting conservatives' action merely to the man-and-woman definition.

And this, ultimately, highlights a bit of sleight of hand on Rauch's part. He is characterizing his solution as "to constitutionalize DOMA." But the Defense of Marriage Act, itself, defines marriage as between a man and a woman. In effect, therefore, the FMA as it currently stands does essentially what Rauch is claiming his amendment would do.

Posted by Justin Katz at 2:28 PM | Comments (22)

More Objective News About Gay Marriage

Victor Lams brought my attention to an AP report on MSNBC regarding the latest legal happenings in San Francisco. Thereon, I noticed an interactive map with information about the various states' laws regarding gay marriage.

Look closely, and you'll see that the map is provided by Lambda Legal, a major — and I mean central — advocate for gay marriage. Hardly an objective source! And, not surprisingly, if you click on Rhode Island, the following text appears:

A bill is pending that would legalize and allow for same sex marriage in Rhode Island. It is the only pro-same sex marriage bill to have a hearing in the country

Of course, also having a hearing is a bill to ban same-sex marriage, a factoid that Lamda apparently didn't think worthy of mention. Wonder what else goes without saying.

Posted by Justin Katz at 12:41 AM

February 20, 2004

The Wisdom of Fools

Among the hardest to take of the arguments of gay marriage's proponents is that Jesus never said anything about homosexuality. I find myself rubbing my eyes when I read something like this from Andrew Sullivan:

Jesus said nothing about homosexuality. But he was adamant about the impermissibility of divorce. How can the Protestant right ignore his direct teachings on one and yet demand Constitutional action against the other?

He links to a piece by Jack Miles that imagines a young conservative Christian — such as myself — attempting to explain to Jesus why the Defense of Marriage Act isn't a prohibition of divorce. The implication is that Christians have no business opposing gay marriage. Personally, were Jesus to read Miles's column, I think His reaction might be more along the lines of, "Are you people nuts?"

Okay, okay. Of course that wouldn't be His reaction. However, He might say, "Didn't Paul tell you that my Father made His nature and, therefore, His will plain? And didn't he warn that, in wickedness, men would suppress the truth? That, claiming to be wise, they would become fools?

"If you will not believe Paul in what he has told you, perhaps you will look to what is plain in what I said about divorce. 'At the beginning the Creator made them male and female.' And when my disciples protested that my prohibition of divorce was so difficult as to make it better never to marry, is it not plain what I meant by marriage in the way in which I responded?"

It may be a debating point that one must look outside of the Gospels for an explicit condemnation of homosexuality. That does not mean, however, that it doesn't push the boundaries of credulity into foolish wisdom to suggest that Jesus wouldn't have objected to gay marriage.

(Note: Of course, being a member of the Catholic right, I'm presumably in the clear vis-a-vis the speck/plank thing.)

Posted by Justin Katz at 5:17 PM | Comments (2)

Allowing the Other Side to Mend Our Own Divisions

There's a gang of relatively well-known conservatives who seem inclined to walk a difficult line of amicability between warring factions on both sides of social disputes. Sometimes, however, it seems to present a problem for them to remain within the boundaries beyond which mainstream friends, like Andrew Sullivan, would start calling them names like "poseur" or "theocon."

Jonah Goldberg, amicable as he is, has been among the most visibly affected by this dilemma, and he solidified his standing with a vaguely disconcerting column that virtually pulsated with his frustration at the growing discomfort of the strategy of doing nothing, to which he's inclined:

I also suspect that millions of Americans share my attitude toward the subject of gay marriage: Enough already. Whether you're for it or against it, many of us just don't want to hear about it anymore — like those commercials featuring mothers and daughters walking on the beach having conversations nobody ever wanted to overhear.

Just make it go away!

But, of course, it won't just go away. There are two sides with irreconcilable intentions. Unfortunately, as Jonah's compatriot Nick Schulz makes clear, it looks as if some number of folks who share Goldberg's frustration are preparing to pounce on a suggestion by Jonathan Rauch as some sort of ideological and emotional life raft. Rauch writes:

So if the problem is the worry that federal judges will impose Massachusetts's gay marriages on the entire country, the way to take care of that would be to constitutionalize DOMA. The sample wording I give in my book is:

'Nothing in this Constitution requires any state or the federal government to recognize anything other than the union of one man and one woman as a marriage.'

Somehow it has gone without mention that Jonathan Rauch has long been a key figure pushing gay marriage; Schulz even calls him a "non-partisan writer." Non-partisan in what sense? Here he is in 2001:

I know, I know. Kurtz will simply insist that real, committed marriage will never be normative for homosexuals; gays just don't have that "dynamic of male-female sexuality" thing. Unfortunately, I don't think I can persuade him by telling him about all the gay people I know who have committed their enduring love and care to each other. I doubt I could persuade him even by telling him about all the men I know who have fed and comforted and carried their dying partners, and covered their partners with their bodies to keep them warm, and held their hands at the end and then sobbed and sobbed. Who is more fit to marry, the homosexual who comes home every night to wipe the vomit from the chin of his wasting partner, or the heterosexual who serves his first wife with divorce papers while she is in the hospital with cancer so that he can get on with marrying his second wife? Alas, I think I know what Kurtz would say.

To be sure, Rauch has no particular qualms about pursuing nationalization through litigation, an option that he has left open with his latest proposal. As he slips into his email to Schulz (parenthetically), "Activist state judges are the states' business, so long as no state can impose its own decision on others."

And that's the part that makes it a bit optimistic of Rauch and Schulz to present this amendment as more easily passed. Maybe those who don't want to take a position on the cultural question of gay marriage — as opposed to the easy procedural principle of federalism — will jump to it, but support will be lost among those who are most firmly convinced that action of some kind is necessary in the first place. One need only recall the arguments over sodomy, Lawrence, and Santorum to realize that this expanded apathy won't be shared by gay marriage activists who will apply national pressures and resources to the legal battle in each individual state. And in each individual state, it won't take more than a handful of judges to pound that gavel in their favor.

It ought to be seen as peculiar, to say the least, that passionate supporters of gay marriage would presume to propose a compromise for factions on the other side. And it certainly oughtn't be taken at face value. The day after he wrote the passionate argument that homosexuals deserve marriage, presented above, Rauch expressed a willingness to add "or any state's Constitution" to his proposed amendment. Since he wouldn't support it in any form, suggested by him or otherwise, and probably suspects that watering it down will make it less likely to pass, not more, Rauch is free to negotiate text as convenient.

Which leads us to the shining light of wisdom with which Goldberg closed his latest column:

The trouble with all of this is that a federalism-based compromise only works if you trust that the other side is acting in good faith. If Frank & Co. have no respect for the law of California, why should we expect them to respect the laws anywhere?

Both those who tout federalism uber alles and those who would prefer that the gay marriage debate just go away would best serve their interests by backing the two-sentence Federal Marriage Amendment. It will take the urgency out of the fight. It will allow homosexual advocates to work toward procuring rights for their unions in each state — through the legislature. And it will still leave open the possibility that, through assimilation and interpersonal relationships, homosexuals will change their culture and the larger one that we share such that ambivalence isn't a matter of internal conflict, but of measured experience.

ADDENDUM:
I thought it pertinent to mention, here, that I've responded to Jonah's justified complaint.

Posted by Justin Katz at 11:47 AM

A Piling of Argument

Links to worthwhile pieces about gay marriage have begun to clog my bookmarks file, so I thought I'd put them all together in one post. They're all related, inherently, anyway.

Let me start with an anecdote. My wife teaches third grade, and the mother of one of the girls in her class mentioned that the gay marriage debate has found its way into her daughter's head. The girl saw something about it on the news and turned around to declare, "I don't see what the problem is. They're just people; let them marry." I haven't fully explored the implications, myself, but my initial reactions are to be bemused that many adults aren't managing deeper thought than that little girl and to recoil some from the reality that, to address the girl's question, one would have to skirt such topics as are known to sap innocence.

The always-worth-reading Boston University professor Peter Wood brought that anecdote to mind with a piece on NRO looking at gay marriage — and civil unions — from his anthropological point of view:

He noted that, as he has gone around and talked to people in the state about the issue, he has found many who are diffident. They have essentially bought the line, "Why should I care? If two gay people get married, how does that hurt me?" In truth, it probably wouldn't. The destructive consequences would fall mainly on the young and the vulnerable who would grow up in a society without the bulwark of traditional marriage protecting them against the excesses of their own immature appetites and the rapacious desire of older males ever eager to expand the zone of sexual permissiveness.

That "expanding zone of sexual permissiveness" isn't just the paranoid vision of conservatives unable to deal with shifting mores. As Christopher Johnson notes, pedophiles are beginning to feel the pull of their right to be free of "adultist oppression":

For most of his life, he has buried his emotions and masked his long-secreted attraction. It wasn't until recently that Ashford decided to throw off the shackles of pedophilia and shed light on what he says is a misunderstood "sexual orientation." Last year, he became perhaps one of the first pedophiles in the world to put his name and face on a Web site to publicly profess his love for children.

Of course, the anthropological view is only one way of looking at a problem and, therefore, isn't wholly sufficient to require a particular policy. Yet, the indications that the adverse shifts in culture of which Prof. Wood warns and that Mr. Ashford's pleas make tangible are coming from many directions. Stanley Kurtz, for example, tells of the intentions of family law professors to leverage gay marriage to introduce group marriage, and not just for the purposes of increasing the potential for lawyers' fees:

These contracts would recognize marriages in any combination of number or gender. Ertman's goal is to render distinctions between any possible sexual grouping "morally neutral." Again, what’s interesting here is that all of these radicals favor gay marriage. Yet each sees gay marriage as a stepping stone to the effective abolition of marriage itself.

Linda Chavez, meanwhile, notes that gay marriage advocates "reject the notion that there is anything radical about their demand or that it would do harm to the institution of marriage itself," yet while spying in the liberal quarters of the radio spectrum:

Jonathan Katz [no relation], the executive director of the Larry Kramer Initiative for Gay and Lesbian Studies at Yale University (named for the founder of the confrontational gay rights group ACT-UP) admitted on National Public Radio's "Talk of the Nation" this week that gay marriage "would revolutionize the institution of marriage itself. The advent of lesbian and gay marriage might, in fact, serve to not only reinvigorate but to redefine an institution that is increasingly viewed by many in our culture as having outlived its usefulness."

One thing, we can hope, that has not outlived its usefulness is the law. Domenico Bettinelli thinks it might be possible that Massachusetts law would permit "Gov. Mitt Romney... simply to declare the judiciary has overreached into executive powers and issue an executive order stating to that effect." While such action on the East Coast front of the battle would require some governmental spine, the administrators of California's government have recourse to a more obvious and less controversial justification for upholding the rule of law. As David Morrison quotes:

"Instead of saying bride or groom, the form in San Francisco says applicant one and applicant two," Lafaro said. The license form also uses the terms "unmarried individuals" rather than "unmarried man" or "unmarried woman.

"The changes make the licenses invalid," Evans said.

Nice 'n' neat. Of course, this is going to be a messy cultural struggle, without those straightforward defenses always available, and without the administrative confidence always to exploit them. To help bolster the spine (or change the mind) of your particular representatives, you might do as Lane Core has done.

Posted by Justin Katz at 10:13 AM | Comments (1)

February 19, 2004

One Thing Leads to Another

Well, just as I was about to wrap up the blogging for today, I noticed an interesting exchange between Eve Tushnet and Barry Deutsch on the Marriage Debate blog (scroll up from here). Deutsch writes, back on his own blog, in the context of couples' varying sacrifices for the benefit of society, and I don't want to jump into the middle of the debate in that context, so I'll stick to a matter that runs through the middle of it.

Although he tries to cover it up with a reference to discrimination, the very first commenter to Deutsch's post brings up a useful analogue: public schools, which even childless folks are deprived of income to support. The benefit to society of public schools isn't, strictly speaking, the increased knowledge of a particular child. Timmy could, after all, move to Mongolia and live like a king, to no benefit whatsoever to the people back in Duluth. The benefit to society is an educated citizenry, and that derives from the general prioritization of education.

Just so, the relevant (the central) benefit of marital law is to ensure that as many children as possible are born into and raised within marital relationships. It's an on-average thing, of course, and people will rightly make different judgments for their own lives. Put succinctly, the benefit to society is that childbearing and parenthood be culturally linked with marriage. This provides some of the perspective that I think Deutsch misses. It isn't one couple's sacrifice for the benefit of another couple's children; it's a small minority of couples' sacrifice for American children's benefit as a whole (and gay parents are an even smaller minority).

Deutsch makes an interesting comment that highlights the reason this benefit must derive from a general cultural understanding rather than an explicit rule:

She talks about "men who father children when they wish they hadn't" - a reference, I think, to forcing noncustodial fathers to pay child support (among other policies). I agree with that - but noncustodial mothers should also be forced to pay child support. And if child support laws protected the children of straight fathers, but not the children of gay fathers, that would be disgusting.

The obvious question is: how did those gay fathers come to have children? Straight men can father children by accident, which is part of why we encourage straight couples to marry even when they have no intention of becoming parents. Infertile straight couples, on the other hand, don't know that they can't have children until they're already trying, and only about 1% of couples prove, ultimately, to be sterile. But even sterility can't be made a bar to marriage because the level of intrusiveness to check would act as a disincentive to marriage.

In contrast, homosexual couples that have children have had to make a deliberate effort to become parents. Society can be confident, in other words, that the small percentage of homosexuals who are parents have already bought into at least some of the culture of parenthood. This also indicates a truth that gets lost in all of the fighting over civil marriage: homosexuals aren't prevented from forming whatever relationships they like and calling them whatever they like. To the extent that they are barred from marriage, as society defines it, it is a function of their biology, not of legal whim.

This is why it's ludicrous for Deutsch to posit a world in which it would be possible for "a social scientist put together reams of evidence proving that it doesn't benefit society when Jews get married." Religious and ethnic distinctions are of an entirely different type than distinctions by orientation. More importantly, the central distinctions of marriage have everything to do, in definition and in practice, with the way in which homosexuals differ from heterosexuals.

ADDENDUM:
I just want to clarify that I've left aside all of Deutsch's assumptions and the various offshoot disputes that arise out of this complicated debate that aren't immediately relevant to the specific point that I wanted to make. On the matter of gay parenting, for example, there are discussions that must be had (elsewhere and eventually) regarding such things as the ethics and social complications of artificial conception methods, as well as the sociological debate with respect to adoption. In essence, I've assumed the best all around.

Posted by Justin Katz at 6:34 PM

Divinely Defined Incidents

Jacob Levy has responded to the post in which I addressed his argument about the FMA. He says (Levy's emphasis):

If "incidents of marriage" really has nothing to do with civil unions, then it has nothing to do with them for either the legislature or the judiciary. And the judiciary, empowered to construe the Civil Unions Act as granting some privileges to gay couples because those privileges are not incidents of marriage, must also be empowered to construe other sources of law as granting, or requiring the grant, of those privileges.

In addressing the FMA without reference to the legal context in which it would exist, it seems to me that Levy comes close to defining away the distinctions between legislation and adjudication. Because, as I said, the FMA doesn't contain the words "civil union," a legislature could pass a law creating something with that name, but with a purpose having nothing to do with marriage-like relationships. At the same time, unless there's some constitutional mandate requiring them, the judiciary can't legislate them into existence.

Suppose the legislature created "civil unions" whereby a person could receive certain benefits for registering to pay somebody else's college loans. The fact that the legislature can do so does not mean, of itself, that the corresponding judiciary could declare that people deserve to have somebody else pay off their debts, or that people who pay others' loans deserve some sort of benefit. Or take healthcare. A legislature could pass a law giving civil employees the ability to include a single other person under their health coverage. That, of itself, doesn't mean that a judge could declare that every civil employee already has that ability as a right.

Moreover, a legislature could put restrictions on this benefit — say, only permitting elderly parents to be the non-employee beneficiaries. In contrast, while it is possible to imagine, theoretically, that a judge could find some law somewhere to construe as requiring healthcare benefits to all, it's quite a bit more difficult to imagine a basis on which the judge could limit that right to a specific group. This is why, in Massachusetts, civil unions would have been a wholly political compromise, not founded in the rights-based language of Goodridge. With this in mind, return to Levy:

Any civil unions created by the legislature that included any right or privilege traditionally associated with marriage forces the judiciary to decide: have "incidents of marriage" been distributed here?

Levy's insertion of the word "traditionally" is arbitrary. "Traditionally" in what sense? To whom? Are tax benefits traditional? Is the "marriage penalty"? Traditional incidents of marriage can fall away, and the government can add incidents to marriage or take them away — a special first-time home buyer plan, for example.

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.

Posted by Justin Katz at 3:07 PM

February 18, 2004

The FMA Will Work as Promised and Doesn't Change the Rules of Government

PROEM:
If you don't like the layout of this page, click "Turn Light On" at the top of the left-hand column.


My recent mentions of some of the key players in the San Francisco marriage coup notwithstanding, I don't believe there to be an active conspiracy to institute gay marriage across the country. I do believe, however, that there's a sort of incidental conspiracy, just as a function of variation among its proponents. So, for example, you get old-school lesbian feminists and anti-assimilationists working with public officials in San Francisco to disregard the law sufficiently to allow a wedge to be inserted. Meanwhile, you get folks like Andrew Sullivan pushing the case on the terms of those who prefer to work within the law. Thus, Sullivan stokes doubts and inspires certain strategies among his opposition, while San Fran Mayor Newsom and lesbian activist Kate Kendell undermine the very foundations on which fair-minded strategies for resolution could be formed.

University of Chicago PoliSci Professor Jacob Levy today joins Sullivan in the attempt to whittle away at the confidence of those who wish to halt or slow the advance of gay marriage. First, Levy rephrases a point that Sullivan has made before, with a new wrinkle at the end:

The second sentence has become the focus of controversy because of the undefined scope of the phrase "legal incidents thereof," which some FMA supporters have said they mean to ban judicially- but not legislatively-created civil unions. But the text doesn't actually do that.

The reason has to do with the mechanics of how the state would go about "creating" civil unions. In the normal course of things, the legislature would write a civil unions law--let's call it the "Civil Unions Act of 2004"--which the judiciary would then deem to have created a civil union. The problem is that, if you allow the judiciary to deem that the Civil Unions Act of 2004 has created a right to a civil union--in other words, to "construe" a the legislation as doing so--you also have to allow the judiciary to construe other sources of law--for example, the equal protection clause of a state constitution--as creating that right as well.

Why is this important? Because the converse is also true. If you try to prevent the judiciary from deeming that something like the equal protection clause creates a civil union--which is what supporters of the FMA hope to do--then you also prevent the judiciary from deeming that the "Civil Unions Act of 2004" creates a civil union.

The problem with this arises when one realizes, having read the Federal Marriage Amendment dozens of times, that nowhere therein are the words "civil union." Here, read it again:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

Consider, a state legislature could pass that CUA of '04 granting couples merely the right to a slip of government-stamped paper with the partners' names and a big smiley face sticker on it. There being nothing in the FMA about smiley-faced papers, and the judiciary not having the power to insist that stamping them is a service that the state must offer, we see how a legislature could do what the courts could not.

Of course, the "incidents of marriage" phrase is the rub. But here again, the principle holds, because the legislature could grant specifically enumerated rights to civil unions — without reference to marriage — thereby making those rights no longer exclusively "incidents of marriage." Imagine that the state's marriage licenses happen to be the only official documents that are currently marked with smiley faces. The FMA would forbid a judge from declaring that civil unions deserve to be marked with the same stickers on the basis that they are used for marriages. However, the legislature could simply define the visual approbation as a newly minted incident of civil unions.

This is a point that I've argued — and have been largely ignored by those to whom I've been responding — many, many times. However, Levy adds a new point to the debate, leveraging, as Sullivan has done, another principle that conservatives hold dear along with their belief in the importance of traditional families: federalism.

There is another, subtler problem with the FMA's second sentence: It does not merely limit and constrain state laws. It dictates a rule about how state laws and state constitutions will be construed and interpreted by the state's own courts. That is an unprecedented intrusion into the autonomy of the states' legal systems. Instead of limiting state law with federal law, from the outside, it would distort state law from within.

In trying to limit the scope of their infringement of states' practical rights — whether for political or principled reasons — the supporters of the FMA have, according to Levy, intruded upon a procedural right. The complaint seems to be that, rather than declaring that a state can't say something to be true, the amendment would play a sort of governmental mind game whereby the state could say it, but couldn't mean it. This is an important distinction, in Levy's view, because:

A state's law prohibiting miscegenation... will be overridden by federal courts enforcing the federal Constitution. But the federal courts are interpreting federal law when they do so, not state law. It is an important principle of American federalism that only state courts may do the latter. ...

The FMA... would compel not the conclusion that federal law overrides any state's attempt to create gay marriage or civil unions, but the conclusion that, no matter what the state's legislature, constitutional convention or referendum, or judiciary decided, state law never created gay marriage or civil unions in the first place. For example, if a state's legislature and voters agreed... to amend their state constitutions to say that "Civil marriage in this state shall be available to couples of the same sex," state judges would be compelled, by their oaths to the federal Constitution and its supremacy clause, to deny that the state constitution meant what it said.

The Fourteenth Amendment includes language that draws this distinction (emphasis added):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States

The legislature cannot make such a law, and the judiciary could not enforce it. In effect, the FMA would, Levy is arguing, allow the former, but not the latter by forcing the court to declare that the "making" was a meaningless gesture, and this crosses some line of principle across which... what? Well, on that count, I'm not sure. For one thing, I'm not convinced that the line hasn't already been crossed in certain cases. The 14th is rather more specific in this respect than other amendments. The 15th Amendment, for example, merely declares that the right "to vote shall not be denied or abridged by... any State on account of race, color, or previous condition of servitude." Can the law be made? Or just not enforced? Or believed to do what it claims to do? The 13th Amendment is even worse (emphasis added):

Neither slavery nor involuntary servitude... shall exist within the United States, or any place subject to their jurisdiction.

It seems to me that, while it isn't specifically mentioned, the Rhode Island legislature, for example, could pass a law saying that conservatives may be retained by private parties for "compulsory labor," but that the judiciary would thereafter have to rule that I (for instance) could not be treated as such because the state of being into which the law claims to place me does not, in fact, exist — much as Levy suggests a court would have to conclude that civil unions don't exist, no matter what the law says.

It's an instructive comparison. It isn't difficult to model a movement challenging the very definition of "slavery." A conservative, in this analogy, isn't really a person, inasmuch personhood requires a soul, as made evident by agreement with certain reasonable and humane policies. Therefore, since the Constitution doesn't explicitly limit a person's right to own a "conservative," a court could find that right to exist already therein. Moreover, this must be the case, because exploiting a conservative's natural drive to work hard, even for pay, is akin to "slavery," which must, therefore, be permitted so as to allow conservatives to live full and productive lives. To finesse a way through this, a Constitutional amendment could be proposed to (1) affirm the definition of slavery, (2) allow states to pass laws permitting the hiring of conservatives, and (3) forbid courts from declaring such employment to be unconstitutional slavery.

This is, of course, a silly comparison, but remember: Levy is talking about a principle, which as such must be always and everywhere true if it is to have the force that Levy is claiming for it. Otherwise, Levy would have to argue, instead, that the principle isn't worth breaking in this case. If he were to do so, I'd argue that he is wrong. But as the conservative bondage scenario illustrates to ridiculous degree, the proper answer for those who support the current definition of "marriage" to the objection that Levy is actually making is: So what!

We're making use of a mechanism that exists within the law to address a specific and unforeseen problem. That doesn't necessitate that the same mechanism be used in the same fashion in the future any more than the rarity of Constitutional amendment forbids it.

(via Instapundit)

ADDENDUM:
Mr. Levy has responded here, and I've continued the discussion here.

Posted by Justin Katz at 3:35 PM | Comments (5)

Anti-Assimilationist Marriage

Sorry to belabor this San Francisco matter, but I'm fascinated by it. You see, all this time, I've been under the impression that I'm arguing with advocates for gay marriage in good faith — that homosexuals want in. They don't want to be locked out of the American family anymore. That is, in fact, their best argument.

But this San Francisco "civil disobedience" is bringing some interesting characters into the story. As I pointed out in the previous post, we've got the 1970s man-hating lesbians in the mix. Apparently, they were called in by Kate Kendell (the weepy woman all the way on the left of this photo). Investigating Ms. Kendell, I came across this from 2001 (emphasis added):

What I think is going to happen as we grow in numbers is the importance of legal protections will become an absolute demand. ... It will be a demand of our community that our relationships and our children are entitled to equal opportunities and protection, and we will be less focused on an assimilation model. Because, for example, we have recent research - which those of us who have been parents of young adults have known all along - that children raised by gay and lesbian parents are somewhat more likely to have a greater fluidity in their sexual expression and may in fact be more likely to identity as lesbian or gay. And given this research, what we as parents and advocates have to do is unshackle our selves from internal homophobia and celebrate the fact that our kids are being raised in households where their sexual orientation is not rigidly dictated by societal messages about heterosexuality.

Frankly, I don't think very many people who support gay marriage, for one reason or another, understand the intentions of its other advocates. For some mainstream gay activists, like Ms. Kendell, it isn't a matter of formulating a policy to deal with homosexuals in our midst, as Andrew Sullivan suggests. For her, it is about an expanding, independent class of people rejecting "rigidly dictated" social norms.

Posted by Justin Katz at 12:14 AM | Comments (2)

February 17, 2004

Well, How About That

You've seen the picture of the first two lesbians married in San Francisco? Phyllis Lyon and Del Martin? According to the Associated Press, "San Francisco officials" worked to keep the marriage quiet so the radical ceremony could be completed before anybody could move to stop it. Also according to the AP, the pair are "longtime lesbian activists."

Well, Craig Henry has pointed me to Richard Bennett's explanation of some of Del Martin's activism, which included a book called Battered Wives and a penchant for fabricating anti-male statistics and historical revisionism. As Radley Balko reluctantly admits, "they're lifelong she-woman man-hating feminists." Balko goes on:

Of course, that the one couple AP snapped to represent the city's act of gay marriage civil disobedience turned out, in that one instance, to validate conservatives' worst fears about gay marriage doesn't validate those fears in any broader sense.

But what if that one "snapped" couple was the very first — and part of an orchestrated, secretive assault on California's marriage laws? Heterosexuals may have done a whole lot of damage to the institution of marriage over the decades, but these two ladies have been more than willing to help them along. Wrote Ms. Martin in 1977:

The nuclear family is the building block of American society, and the social, religious, educational and economic institutions of society are designed to maintain, support and strengthen family ties even if the people involved can't stand the sight of one another.

Somehow, I think supporters of traditional marriage have quite a bit of leeway to raise questions before they can be accused of paranoia. And anybody interested in fair dealing and public discourse ought to have some questions, as well.

Posted by Justin Katz at 9:29 PM | Comments (1)

No Plain Dealing

One way in which Andrew Sullivan's advocacy-over-argument approach becomes apparent is in how he reacts when he begins to see where he's been arguing from a mistaken premise. For example, it seems that he no longer feels secure in denying that the FMA will do exactly as I and others have said it will do, but rather than openly explore the foundations of his heated rhetoric, unpacking the new implications, he tweaks his language:

The possibility of civil unions - as the equivalent or simulacrum of civil marriage for gay couples - would be removed everywhere by this amendment.

Exactly. But by simply inserting the phrase, "as the equivalent or simulacrum of civil marriage," he avoids defining the boundaries of the forms that civil unions could take. Thus, he still feels comfortable sliding right back into his erroneous demagoguery:

In practice, those civil unions could contain nothing that marriage contains, because none of these "incidents" could be upheld or enforced by the courts. Yes, we'll allow you to have a car, but you have to remove the engine and the wheels. That appears to be the real agenda. The FMA is one of the most radical attempts to disenfranchise a group of citizens in history. No air-brushing or spin or sloppy journalism should be allowed to disguise that naked and alarming fact.

The sleight of hand is readily apparent in the way he argues himself from statement to implication. Moreover, he inadvertently illustrates the reason that "simulacrum unions" must be barred if our system of government is to handle this issue effectively.

As evidence that "the religious right would spring into action and sue to gut" civil unions, he cites litigation against California's "gay marriage" law, AB 205. Of course, it requires Sullivan to make recourse to a peculiar form of paranoia to forget that the religious right isn't the only interest group poised to "spring into action." Moreover, it requires an astounding degree of chutzpa for him to point to a legal case that the religious right is losing for this purpose. All he can do, therefore, is suggest with heavy breath (where he uses italics), "imagine that such a suit occurs after the FMA."

But this case is evidence that an amendment imposing some restrictions on civil unions is necessary and desirable. As you may or may not know, California's citizens passed Prop. 22 to legislate that:

Only marriage between a man and a women is valid or recognized in California.

To the extent that lawmakers aren't willing to openly defy that mandate, they have already attempted to work around the law as created through referendum. Consider the text of AB 205:

This bill would extend the rights and duties of marriage to persons registered as domestic partners on and after January 1, 2005. ...

297.5. (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

Thus, the legislature has played, and the judiciary is in the process of allowing, word games to thwart the clearly expressed will of the people of California. Such an action would — and should — be barred by the FMA. However, that certainly doesn't mean that every "incident" of marriage is thereby untouchable. That simply couldn't be true, because many incidents of marriage are and always have been shared by other legal entities (e.g., a will or a power of attorney agreement).

What the FMA will require is for the legislature to take the time to describe all of those rights, protections, benefits, responsibilities, obligations, and duties within the law creating civil unions. How closely they'll be able to come to simply writing out a simulacrum of marriage will be a matter of debate and litigation. Quite obviously, in California, both the legislature and the judiciary would work to get pretty close to marriage. The only danger to the civil-union project, therefore, would be that the people of California would object more strenuously to clearer changes in the law. Fearing such a reality is to distrust our system of government.

Other states would draw a wider margin around marriage, into which civil unions could not penetrate. And through this federalist project, the country would by necessity pursue debate and encourage consideration of the roles of both marriage and homosexuals in society. What conclusion would be reached only time will tell. On one end, perhaps civil unions would carry little more weight (although many more legal benefits) than pinning once did. On the other end, perhaps the country will define them so closely to marriage that the FMA would be repealed.

Either way, that the question is open at all is a testament to the strides that homosexuals have made over the past decades. To allow them to avoid this process of public definition — and perhaps what Sullivan truly desires — is to allow them to avoid the work of cultural assimilation now that they have secured public tolerance.

Posted by Justin Katz at 12:18 PM | Comments (3)

Kurtz Nails Sullivan

Stanley Kurtz has put his finger on the reason that Andrew Sullivan can't be treated as if he acts from anything more circumspect and objective than outright advocacy:

As best I can discern it, this is Andrew Sullivan's position on gay marriage: 1) I am willing to argue as if it matters whether gay marriage undermines marriage or not. But if it is shown that gay marriage really does harm marriage, that is irrelevant. Gay marriage is a civil right, and must be granted regardless of its effect on the institution. 2) I am willing to argue as if I expect and prefer to see gay marriage adopted slowly and legislatively on a state by state basis. But if gay marriage is imposed by the courts in Massachusetts, and if that kicks off a process of nationalization, that is irrelevant. Gay marriage is a civil right, and must be granted, even if it is imposed on the nation by a few liberal judges. 3) I am willing to argue as if I believe in the democratic process and respect for law. But if gay marriage is forced on the nation through a campaign of civil disobedience, that is irrelevant. Gay marriage is a civil right, and must be granted, even if it is undertaken in clear violation of the law, and in clear violation of the will of the people of California as expressed in a legally binding democratic referendum.

Read down and up from that link for the full argument. Unfortunately, Sullivan has been extraordinarily effective in setting the terms of this debate in ways that disguise those overriding opinions that ought to make his counsel suspect.

Posted by Justin Katz at 11:31 AM | Comments (2)

February 16, 2004

The Change We Want to See in the World

Donald Sensing reminds us that our governmental problem isn't just that the judiciary is grabbing power, but also that legislatures are willingly handing it over:

What's in it for the legislators or Senators? By applying political, rather than jurisprudential litmus tests to appointees, the elected legislators get to pass the buck for the political agendas off to unelected judges, using them as shields to hide behind when facing the voters. Knowing that major elements of such agendas would never pass the people's muster, politicizing the appointment process has enabled the legislatures to legislate through the judiciary rather than enactments.

In so doing, the people are shunted aside. The power to make the most major decisions affecting the order of society are taken from their hands by subterfuge. Increasingly, our votes at the ballot have less and less effect on what happens in government - and thus, what happens to us.

Frankly, I find the outlook bleak. Reclaiming the government is going to require sustained exertion of political will by large numbers of people. And I'm not sanguine about the chances of accomplishing that. The class that is pushing the change knows its game; usurpation is dressed up as new freedom; changes will be gradual, best-face-forward affairs. There probably won't be a notable leap into totalitarianism, as the Left claims to fear so much from the Patriot Act.

More likely, if the trend can't be reversed or diverted, what we'll see is the steady march of emotionally satisfying, but socially destructive, innovations couched in the terms of moral superiority, followed by invasive and ineffective strategies for handling the damage that results. Living in such a way as to feed superficial appetites with wonders of quick gratification will be facilitated, while life in pursuit of deeper satisfaction and larger meaning, with an emphasis on rational thought and mature policy, will be presented with obstacles and disincentives.

In a way, the gay marriage debate offers, at the very least, a test case. The changes are sought on behalf of a group that is relatively privileged, and whose defining behaviors accord with the elite worldview. Homosexuals are not a minority group with an intergenerational memory, inasmuch as any adverse conditions aren't handed down from gay parent to gay child, in the pattern that digs racial, ethnic, and religious minorities into further squalor. And Andrew Sullivan enunciates the dramatist's lingo with perfection:

Instead of begging for the basic right to marry, gay couples are now demanding it. In San Francisco, they are simply getting married as an act of civil disobedience. And that is also happening across the country. This will alter the debate - as will the actual existence of marriages in Massachusetts in May. The debate will become how to tear gay couples apart, how to demean and marginalize them, rather than an abstract debate about theories of marriage. And as these couples begin to feel what marriage is like, as they experience what civil equality actually is, they will become emboldened. Just as those who refused to leave segregated lunch-counters began to deepen their sense of moral outrage and conviction, so the act of getting married - something heterosexuals simply assume they have - is empowering. When Massachusetts becomes the first free state for gay citizens, the movement will explode. I predict thousands of couples from all over the country and the world will arrive to claim their dignity and rights - and this experience will help transform the argument. I've always believed that if we could get every gay man and lesbian to fully internalize their own equality, to get past the brutalization that society has wrought upon their souls, nothing could stop us from achieving our dream.

Powerful, if overwrought, language, to be sure. But look at what lies beneath it. This tiny minority is simply going to force sweeping social change. There is no plea. There is no appeal to the goodwill of the majority, nor promise of magnanimity. There is no "long federal debate," as Sullivan has so often claimed to value. All arguments on behalf of the long-honed and proven institution of traditional marriage are cast aside as "an abstract debate about theories of marriage." There is, instead, emboldenment. There are declarations that, "when the religious right try to strip us of those marriages, and force us back into second-class status, then we will see something else: resistance." And then? The eye turns toward the institutions of that dreaded "religious right" that still refuse to grant their approval, all in the name of rights and equality.

But this is an insult to the civil rights movements — the "civil disobedience" — that went before. If this is to be equated with courageous blacks sitting at segregated lunch counters, then let's fill out the analogy. In this scenario, the mayor is serving the lunches, and there is no risk to shouting down those who oppose. The power of the media, of the elite, of the university, of the newly enthroned judiciary, and of unelected international bureaucracies is all behind the movement. Saddest of all, the moral power claimed through the sweat and blood of truly oppressed minority groups — the language of freedom made forceful through the humanity of a people clawing their way from slavery and segregation — is being snatched.

In the comments to his post, Rev. Sensing protests that his central concern is the activism of the judiciary, not the issue of gay marriage, itself. But the two cannot so easily be teased apart in the form in which they've entered the political scene. The crisis facing our nation at this point in history lays out for us to see the full range of the problem — down from an internationalist order that seeks to consolidate global power, through a federal and state system in which too many feel that the right to vote is worth about as much as the right to change the channel, through the full range of cultural institutions in which diversity of skin has been made a distraction from the homogeneity of thinking, right on through to individuals who are not satisfied that their rights allow "begging" for redefinition of the basic structural unit of society.

They will not beg? They will not even ask!

It may be that I'm making too much of this. Perhaps the combination of my long involvement in the debate and adverse geographical location is leading me to lose the necessary perspective. Surely the debate will change again when other states with stronger bars to gay marriage and citizens who do not share my region's apathy are dragged into the battle.

But I'm just beginning to piece together the enormity of this moment. A nation that has only just begun to awaken from a decades-long fantasy is being called upon to fight for its very foundation. To take the lead in doing so.

We'll see.

Posted by Justin Katz at 9:19 AM

February 14, 2004

Giggles in the Echo Chamber

The Providence Journal has a Valentines Day column about gay marriage today. You'll never guess which side it takes. It's by Unitarian minister — and lawyer — Catherine Cullen. (Honest question: Have I gotten the wrong impression, or is Unitarianism essentially liberalism rephrased as a religion?) Writes Rev. Cullen Esq.:

The right to marry the person we love is a fundamental human right -- perhaps the most fundamental human right.

— Sorry, had to break in: "We" love one person? I wonder if Ms. Cullen is hoping to minimize the necessary rephrasing when the issue moves on to polygamy. —

Same-sex couples in love are members of our families and our communities. They are our neighbors, our co-workers, our friends. They deserve a full acceptance and respect for their loving, committed relationship. They represent a minority, not an abnormality. Homosexuality occurs among us about 10 percent of the time -- the same percentage that left-handedness occurs. Should we ban a left-handed couple from marriage?

This is worthy of publication in the mainstream press? This is serious thought in support of same-sex marriage?

Posted by Justin Katz at 10:35 PM | Comments (1)

February 13, 2004

So Much to Which to Object

You may or may not believe this, but I'm tired of thinking, writing, caring about issues surrounding homosexuality. When I began doing so a few years ago, it was predominantly as an intellectual question; Andrew Sullivan dragged me in, essentially, with his dubious argumentation in response to Stanley Kurtz. Nonetheless, I'm working on a related major project at the moment (you'll see), and then I intend to write out my comprehensive stance.

For that reason, I'm not going to address fellow Rhode Island blogger Marc Comtois's "treatise" on the subject comprehensively. Many of his points are where the argument begins, and I'm too in the thick of it to backtrack at this moment in time. However, I do want to note one point that he makes:

I believe that the proponents of gay marriage have needlessly approached this from an antagonistic angle. They have essentially attempted to ram this idea down the throats of the public. Most Americans are tolerant. They don't really care, but if their cherished institutions, as they define them, whether historically accurate or not, are perceived to be under attack, they will resist.

It isn't just on the basis of the institution of marriage that people ought to be offended. In San Francisco, for example, the mayor and some hundreds of homosexuals have given the finger (in Rush Limbaugh's words) to anybody who's concerned about the rule of law (as if the Mass. court didn't do that more extensively, if less dramatically). As the AP report notes, this is not yet another instance of wacky West Coast behavior that the rest of us can laugh off:

Around the country, gays and lesbians emboldened by San Francisco's move and by the constitutional debate over gay marriage in Massachusetts went to courthouses Thursday and Friday demanding their own marriage licenses - and getting summarily rejected, since every state in the nation bans gay marriage.

Personally, I'm not laughing at much of anything related to this topic today. The Providence Journal has taken its relentless advocacy for gay marriage to the next level. Here's part of a letter to the editor from Richard A. Matera (Providence) that ran today:

If the courts are saying that all couples, regardless of who they are, are entitled to the rights of marriage granted by the state, then the religious ceremony should be separated from the civil. This would preserve marriage as defined by religious groups while opening it up to everyone. (It would mean that those having a relious ceremony would also need a civil ceremony.)

Marc suggests some version of this, but Mr. Matera cuts right to the fatal flaw in Marc's more-reasonable approach: this movement is subversive to its core. There are no two ways about it. In order to force affirmation of a minority lifestyle, homosexual activists and utopianist dictator-in-a-bottle liberals will push culturally established, nationally understood acceptance of religious ceremonies out of the public square. To liberate sex from the restraints of parenthood and responsibility, religion must go in the closet.

It wouldn't, apparently, be good enough to declare that homosexuals can be married by whoever will marry them, whether religious or secular; either the movement will seek to force churches and synagogs to perform the ceremonies, or they will, as Matera has suggested, seek to make religious ceremonies irrelevant in the civil sphere. That somebody as considerate, respectful of religion, and conservative as Marc has come darn close to the same solution shows how persuasive the argument could be.

In the more official capacity of a column, the Providence Journal gives voice to a bit of arrogant jeering from Brown anthropology professor William O. Beeman:

How will we know if a married couple is really a man and a woman? The answer is: We can't for sure!

Legislative attempts to restrict marriage are doomed to be ground to powder through repeated litigation in the courts because there is no clear, scientific and strict definition of "man" and "woman." There are millions of people with ambiguous gender in America -- many of them already married -- who render these absolute categories invalid.

In the few legal cases that have emerged in recent years it is clear that courts in different states are defining gender according to completely different criteria. Soon we will not only have different marriage laws in each state, but different gender-definition laws.

There are at least three ways one might try to codify gender under law -- biologically, psychologically and culturally. On close inspection, all of them fail.

And there you have it. Gay marriage has brought the most inane over-intellectualized academic relativism into mainstream thought. Beeman declares that the FMA would ultimately "falter" on the basis of one of the "thousands of existing marriages" in which one of the partners' biology conflicts with his or her genetic makeup. There are 290,342,554 people in the United States. Percentage-wise, those "thousands" barely register. And Beeman believes this "should worry all Americans"? I find the fact that people like Mr. Beeman have access to young minds and mainstream column inches to be far more worrying.

How perfectly Beeman's thinking illustrates the relationship between the corrosive nature of the exception and the tyranny of the minority! The exception is made to invalidate the applicability of the rule to social construction, and a legal principle emphasizing equality forces the claims of the majority to the fringes of the law. The institutional bulwarks of Western civilization — the very standards, practices, and tacit ethics that have enabled our society to accomplish what it has — are to be trampled for the sake of an intellectual joke! And who will drown in the wave of corruption and misery that will inevitably follow? Not Ivy League professors, that's for sure.

The determination to force the gay marriage change and the raw political power of the social elite in my region have left me discouraged, lately. But one doesn't have to look far to discover why the fight must be kept up, and the arrogance of that elite perhaps justifies hope that the great bulk of people, who just want these maddening issues to leave them alone, one way or another, will be snapped into the realization of what's at stake.

Folks like Andrew Sullivan and Jonathan Rauch make their "conservative case" for gay marriage persuasively. We cannot forget, however, that if we who oppose gay marriage lose the fight, Andrew and Jonathan aren't the ones who win.

Posted by Justin Katz at 3:57 PM | Comments (2)

February 12, 2004

Stickiness for a "First Amendment Absolutist"

Andrew Sullivan has ignored the argument that I've made that the two-sentence FMA would allow states to set up civil unions, provided they enumerate the rights, privileges, and responsibilities granted, and I'm pretty sure he's done so deliberately. I've just assumed that was another facet of his ongoing attempt to paint the FMA in the blood red of fundamentalist oppression.

But there may very well be a more-specific reason for his wanting to leave the point out of the debate, having to do with uncomfortable questions that it would raise. An obvious talking point for those who support the FMA that, surprisingly, I haven't heard mentioned is that, with full marriage, homosexuals become entitled to anything that heterosexual spouses are entitled to — public or private. If an employer provides health benefits, say, to an employee's spouse, it won't make a legal difference whether that spouse is the same sex as the employee or not. Now consider this from an email related to the FMA that Sullivan posted back in July:

Suppose a state enacts a statute that: (1) establishes civil unions, which may include same-sex partners; (2) makes it incumbent upon employers to extend the same domestic partnership benefits to employees' "civil union" spouses that it does to employees' "marriage" spouses; and (3) creates a cause of action against any employer that fails to comply with (2). Suppose then that a gay man enters a civil union with his partner, requests the domestic partnership benefits, and the employer refuses. Employee sues. It seems to me that under the statute, in order for a court to grant relief, it will have to find that the language of the statute conferrs "legal incidents of marriage" on an unmarried couple. Just because the "plain reading" of the statute provides a legal incident of marriage doesn't mean that the court is not "construing" the statute when it grants relief. The FMA would prohibit the court from doing that, making parts (2) and (3) of the statute unenforceable. At that point, what's left of the civil union that distinguishes it from a novelty marriage license won at a carnival?

This is similar to the scenario that Eugene Volokh has imagined, except that Volokh had the good sense to make the hypothetical homosexual employed by the state. It's ridiculous to suggest that private companies' benefits are all that separate marriage from "novelty marriage." What Sullivan's version highlights is that he wants to ensure that "civil union" becomes defined in the public eye as "might as well be marriage." It highlights something a bit more insidious in context of my reading of the two-sentence FMA.

In that reading, a state legislature could pass a bill that mandates for "civil unions" every single right, privilege, or responsibility that it grants to married couples. What the amendment disallows the legislature to do is to force private entities to equate marriage and civil unions. Personally, in the generic company, I oppose discrimination against homosexuals (although I think it ought to be a right that employers have). However, a law that forces any employer who offers benefits to spouses to also offer those benefits to civil unioned gay partners crosses the line into forcing that employer to "approve" of the homosexual relationship itself.

Of course, even with the FMA, the legislature has a way around this problem, but that way highlights Constitutional questions — already inherent in the full gay marriage — that Sullivan and other SSM supporters would prefer remain without voice. With the latter, a marriage is a marriage is a marriage. With the former, a legislature could just add a "public or private institution" clause to bring about the same effect. In the language Sullivan's reader uses, private employers are specifically required to "extend the same domestic partnership benefits." That's already more specific than an FMA without the second sentence would require.

I can't say definitively, but it seems to me that a legislature, abetted by its state's judiciary, could get around even the two-sentence FMA by taking pains to find some reference other than "marriage" and avoiding language like "extend." Be that as it may, Sullivan's objection, put in practical terms, is that a Federal Marriage Amendment would make it somewhat harder for the government to force private entities and citizens to treat homosexual unions as marriages.

Rather than say as much, it's much more politically savvy to disguise the ease with which gay marriage would yield the same results behind rhetoric about "a very clever device to strip gay couples of any civil protections whatsoever."

Posted by Justin Katz at 4:59 PM | Comments (4)

February 11, 2004

Final Thoughts on SSM... for Today... Probably

In passing, I caught a little bit of rhetoric from a Massachusetts legislator on television, just now, and what he was saying reinforced something that has been puzzling me ever since the court unequivocally made the issue all or nothing.

He was saying something about how, if the court had found the right to gay marriage in the U.S. Constitution's 14th Amendment under "strict scrutiny," the matter would have gone straight to the Supreme Court. In my years of discussing this issue, I've never heard that put forward as a possibility. In other words, either that legislator let slip some secret plan of the gay marriage forces, or he erroneously put asterisks around the controversy for anybody whose main objection is judicial tyranny.

He also put asterisks around a broader trend that I've been noticing: supporters of gay marriage have been moving quickly to erase any chance of civil unions as a middle ground. They're going for the gold ring — all or nothing. The two bills that are coming to the Rhode Island legislature are just that: traditional marriage or genderless marriage.

I'm not so sure that it's the case, but if the common knowledge is that, barring a Constitutional amendment, gay marriage is inevitable based purely on public support, I'm in a quandary as to the thinking of its supporters. The only thing that I can imagine is that they've got more complete information confirming what I've said before about people tending to oppose gay marriage, and especially its judicial imposition, when they are forced to actually think about it. Even so, the more-substantial trend is the one that they've declared among younger Americans.

Unless they've got information suggesting that the tide is turning against them in that demographic (as I suspect it will), one would think they'd take a different approach. If Stanley Kurtz is right that gay marriage is going to be a huge issue over the coming year, a factor that will hurt the cause, its proponents should be seeking to put a rational, patient face on their advocacy. They might, for example, actually support the intriguing strategy of declaring a moratorium on gay marriages until the people have had their say. If that's too much of a risk, not leaving enough time to flush the old fogies out of the demographic picture, then one would think, at the very least, they'd frequently cite the quirk in Massachusetts law, noted by Kurtz, that forbids marriage licenses' being granted to out-of-staters whose marriages would be illegal in their home states (sections 10–13 here).

Do undisclosed polls indicate that support of gay marriage was a function of apathy? Is there new data suggesting that kids aren't as liberally minded as previously thought? Or do things look so sunny for the FMA that same-sex marriage supporters feel compelled to hurry their desired outcome through the courts?

I don't know, yet, but the political fight surrounding the issue is sure to be enthralling throughout the year.

Posted by Justin Katz at 6:21 PM | Comments (3)

Complete Agreement... Sort Of

I agree with Karen S. Hayes of Narragansett, Rhode Island, 100% when she writes: "It's time to stop letting narrow-minded zealots define [the gay marriage] issue." It would be wonderful, for example, if Andrew Sullivan would stop calling Republicans "theocons" and writing stuff like this:

But their second sentence is a stealth bomb aimed directly at gay couples, stripping them of any rights or benefits or protections. If the president endorses the Musgrave Amendment, he will be declaring war on gay couples, in order to boost his political fortunes. That's the reality, however they want to dress it up.

Even assuming he were correct about the stripped rights, benefits, and protections (and he's not correct), it would be possible for people to suggest differently without its being a "stealth bomb." And surely, the President could back the amendment in such a way as to avoid "declaring war."

Ms. Hayes goes on to ask a question that I've pondered myself: "why don't they stop playing on people's fears and address the real issues?" For example, Glenn Reynolds cuts out a whole slew of political and legal issues when he declares: "Those pushing the FMA are, in fact, afraid of democracy -- trying to lock in their eroding position on gay marriage against future democratic change." Surely the professor knows that the most the FMA can be said to do is to require that fully indistinguishable gay marriage rights be granted by means of another Constitutional amendment, rather than read into a Constitution by a handful of judges. After all, I don't imagine he wants gay marriage to be mandated nationwide through such methods as brought it to Massachusetts, when he's written the following about Goodridge:

Though I'm in favor of gay marriage, the Massachusetts opinion is just unpersuasive. There's astonishingly little in the way of actual legal analysis there, and that hurts them.

Moreover, I've often found myself wondering about those who are pushing for further innovations in marital law what Ms. Hayes expresses here:

Why don't they talk about why it's easier to get married than to get a driver's license; why so many men abuse their partners and so many women think they deserve abuse; why there's so little political debate about what it would really take to keep marriages and families strong?

I know I've long worried about the effects of divorce, and my concern ratchets everytime National Review or some other conservative periodical mentions the problems of "no fault" divorce. The FMA clearly must be seen as only a first step in marriage reform; as Ms. Hayes so movingly writes, "no constitutional amendment defining marriage as a union of a man and a woman could have saved my parents' marriage, or my own."

Of course, keeping with what seems to be a pervasive trend, this divorced child of divorce is actually writing in favor of gay marriage, and calling conservatives bigots. After all, how could SSM affect her marriage? It's over! And if marriage means so little to such people... hey, why not just grant the "right" to everybody? (Although, I'm not quite sure how to reconcile her support for SSM with her complaint about the ease of obtaining a license.)

As she says, "marriage and the 'traditional family' have been in trouble for decades." Now is not the time to start drawing lines in its demise. Darn it, that would be unfair. Instead, we should relive the high of those social movements that were just kicking into gear as marriage began to deteriorate and "stand up for justice and the pursuit of happiness for all Americans."

And there could be no better way to accomplish that goal than to broaden the rules for entry into the institution of which Karen S. Hayes of Narragansett, Rhode Island, has such a high opinion and that has brought her, personally, so much justice and happiness.

Posted by Justin Katz at 4:34 PM | Comments (1)

Smaller Hurdles to a Steamroller

Gabriel Rosenberg, with whom I had what turned out to be a preliminary discussion of the implications of the Massachusetts gay marriage decision for such next-step innovations as incest and polygamy has now expanded his thoughts into two posts. When it comes right down to it, while he has made some reasonable arguments — ones to which I may very well refer if things devolve so dramatically in the future — and considered various angles, the whole endeavor strikes me as beside the point.

The reason I say that is the tenuousness of the distinction between abstract contemplation and practical, political considerations. Look, even, at Dr. Rosenberg's closing sentence:

Of course, I believe the US Constitution's 14th amendment requires same-sex marriage everywhere, but until the time that is recogized I do not buy arguments that a federal marriage amendment is needed to avoid the chaos of differing state regulations.

So, he believes that one state's gay marriage laws ought to be federalized, and he would presumably oppose an amendment even if that proved to be the case, but he intends to dismiss arguments on behalf of the amendment until it is too late for them to have any chance of being put into effect. That's a bit like a supporter of abortion declaring in 1970 that the issue oughtn't be federalized until the Supreme Court writes the "right" into the Constitution.

I'm grateful to Dr. Rosenberg for his cordial interaction with me, thus far, so I hope he won't consider this to be a break in that standard, but I must say that his arguments throughout are typical of the strategy of the more intellectual of gay marriage's supporters. The strategy is merely to mollify concerns and to cast objections as unreasonable... until their objective is a fait accompli. A movement that has pushed its cause through the courts has almost no credibility to argue that further undesirable advances will find the way blocked.

Moreover, the arguments put forward for same sex marriage — issues of privacy, consensuality, discrimination, civil rights, personal love and humanity, practical necessity for mutual care — easily overcome the vague principles suggested as barriers to such things as incest and polygamy. This is true for the simple reason that almost none of the barriers — with the exception of parent/child incest — has self-evidently, or even arguably (in some cases), better foundation than maintaining the link between marriage, procreation, and child rearing.

Sure, a marital relationship would violate a sibling relationship, and even just the possibility of the former would have detrimental effects on the latter. But if marriage is only a public concern because it encourages stability and takes on some of the responsibility for mutual care — and if it is not the homosexual sex act, itself, that the government is encouraging via SSM — then it is difficult to see why a sibling relationship, in which the government currently expresses no, or minimal, public interest, couldn't simply be strengthened into a marital relationship. Dr. Rosenberg writes:

I should also note that it is possible to view the right to marry as a right as more of a right to designate someone as kin. Under this view a person wishing to marry kin is not being unjustly denied this right since they are already related.

As it happens, more rights and responsibilities accrue to "marital kin" than do to biological kin. The right being denied, therefore, is the right to designate a person as a kin of primary mutual responsibility. In short, while "role conflict" may be sociological and anthropological concern, the gay marriage debate, by its very approach, has stressed the public policy and legality concerns.

In light of the gay marriage issue, consider Dr. Rosenberg's mention that "some states allow first cousins to marry provided they are incapable of procreation"; with same-sex couples, this concern is entirely eliminated. More directly, the government's right to make judgments based upon what relationships are sexualized, or even whether sex can or cannot be presumed, is a central assumption under assault by the panoply of arguments being made for gay marriage. Thanks to such judicial decisions as Griswold (marital privacy with respect to contraception) and Lawrence (personal privacy with respect to sodomy), the moral and interpersonal aspects of public policy are of diminished applicability — a fact that bleeds into the legal concern.

A look at Massachuetts's laws concerning sex shows the related thinking and trends in thinking. Sodomy was a "crime against nature" (gay and bestiality) punishable with up to 20 years in prison or an "unnatural and lascivious act" (heterosexual) punishable for less. The 1974 case Commonwealth v. Balthazar restricted the illegality of the latter to public behavior, "inapplicable to private, consensual conduct of adults," with the former following by extension in a 2002 case.

Fornication was from the beginning a much lesser offense. In 1981, Fort v. Fort linked it with adultery and cohabitation: "The crimes of fornication, adultery, and lewd and lascivious cohabitation are never, or substantially never, made the subject of prosecution." Subsequently, a 1994 court questioned the fornication law's constitutionality.

The distinct track from sodomy, which won the race to full legality, is interesting. What's the main difference between sodomy and fornication, adultery, and cohabitation? The potential for conception outside of marriage. With the link between sex and childbearing eroding with relation to diminishing concern about fornication, a judgment in which a 1983 court upheld the constitutionality of the adultery statute would seem to come into question. Thus, just as sodomy laws ceased to be an impediment to gay marriage, laws against adultery and sexualized cohabitation may not long be an impediment to group marriage.

For its part, the wording of the incest statute is best seen in context of two points from Dr. Rosenberg:

So what specific role conflicts emerge from allowing polgyamy or incestuous marriage? Foremost is the legal right of a married couple to have sexual relations conflicting with the legal prohibitions of adultery and incest. ...

Some have argued that [taking on an additional spouse] would be okay if the old spouse consents. ... just how is the old spouse supposed to grant this consent? Tom wants to marry Sally, so he goes to Sue to ask for permission. I think it's reasonable to assume that just asking Sue could cause some problems in their marriage. Suppose Sue doesn't want to give her consent. She risks losing her spouse if she doesn't accede. I believe this is a case where consent can't freely be given. A similar issue of consent arises with regards to incest especially parent-child.

The first significant piece, here, is that the argument with respect to polygamy/adultery is circular. Unlike SSM/sodomy, adultery is defined by the marital relationship. Yes, wedding band — no, adultery. As for consent, the idea that the fear of losing a relationship constitutes loss of the ability to consent would cover any sexual act one could think to mention. With loosened public restraints on private sexual behavior, with the ease of divorce, and with the defining public interest in marriage being mutual care, the government's right to say "no" on behalf of Sue is a shaky matter, indeed.

As Dr. Rosenberg states, even just Tom's asking would rock the stability of the marriage... if Sue objects. But asking is not illegal, and extramarital affairs are barely illegal. Moreover, Sue can sleep with Sally just as well as Tom can, and if marriage is reduced to a set of privileges, responsibilities, and benefits bequeathed through public contract, then there's little reason to prevent a married couple — as a single public entity — from extending the contract to another person.

Now, here's Massachusetts's statute on incest:

Persons within degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void, who intermarry or have sexual intercourse with each other, or who engage in sexual activities with each other, including but not limited to, oral or anal intercourse, fellatio, cunnilingus, or other penetration of a part of a person's body, or insertion of an object into the genital or anal opening of another person's body, or the manual manipulation of the genitalia of another person's body, shall be punished by imprisonment in the state prison for not more than 20 years or in the house of correction for not more than 21/2 years.

Once again, with respect to the question of consanguineous marriage, we've got a circular dimension: if it's not forbidden as a matter of marriage, it's not forbidden as a matter of sex. Moreover, if the law against fornication is deemed unconstitutional, none of the enumerated sexual acts are forbidden of themselves — not the sodomy, for moral reasons, and not the intercourse, for reasons having to do with conception.

At the risk of tying the matter up too cutely, one can take the sentencing limit for incest as a final, poignant symbol. It is pretty much identical to the original sentencing limit for gay sex.

My objective with this post is not to argue that, if gay marriage is allowed, then polygamous or incestuous marriages ought to follow. It is also not to suggest that I disagree with Dr. Rosenberg's reasoning. However, the bottom line is that, if I can find these legal holes — without recourse to bookshelves of laws and legal precedent from which to pick and choose quotations — then some lawyer, somewhere, certainly can do much better.

The point is that our system has gone well beyond the point at which the judiciary can be trusted to judge the balance between private liberties and legitimate public claims to restrict them. That being the case, we who oppose gay marriage cannot afford to accept dubious reassurances from those on the other side that they'll be able to close the door to the courthouse behind them.

Posted by Justin Katz at 1:15 PM | Comments (2)

February 10, 2004

Spiritual Intimacy

Domenico Bettinelli has a first-hand account of the Boston rally against gay marriage. One important factor that he highlights is that the overtly religious groups who represent the central pillar of opposition have to be careful not to forget that many of their allies are such for secular reasons, and that many among their own ranks (such as myself) actually prefer to make civil arguments against civil changes in the definition of marriage.

The religious aspect comes in ultimately, of course, as it must for anything in life, if we acknowledge that God is part of life. However, it isn't the stronger argument in the public square, and there are legitimate reasons for keeping our religious beliefs distinct from our political opinions. With the culture as it currently stands, even in the secular state, gay marriage presents an unacceptable amount of risk. However, under the right circumstances, some form of it could actually be beneficial.

Many people who read this blog would probably consider that to be a radical statement, and in some ways it is. If we really dig down to what is important in life, though, it oughtn't be difficult to imagine circumstances and to formulate an institution that would move forward even the most fundamental Christian objectives. Here's David Morrison describing his own relationship, which is, essentially, a same-sex union, but one founded on emotional fidelity and spiritual growth:

Intimacy. Real intimacy, not the euphamism for sexual activity that the word so often provides nowadays. Real intimacy is characterized by honesty and trust, two qualities which can only arise over time. These are important because they are the stuff that everyone genuinely needs to have in their lives; the stuff that is the most enduring. We live a deeper and more committed life as a chaste couple now than we ever did when we were sexually active.

Couldn't even the Catholic Church recognize and encourage such partnerships? Not right now, of course; the endeavor would simply create a wink-wink, nudge-nudge structure to bypass dogma. But I can't help but feel that if we acknowledge that there is some irreducible minority of people whose emotions will simply be stronger toward those of the same sex, and if we place relationships such as David's as a model for homosexuals, with the real — if distant — prospect of institutional recognition, then we could break this stalemate, which is ultimately untenable and destructive. We could redirect this particular manifestation of progress toward conservative ends.

ADDENDUM:
David has responded to this post, advising against movement toward what I advise above. I suppose I should stress that I'm really just thinking out loud. This is part of a larger, much more involved, view of potential public and religious policies that I've been developing that includes many other aspects and considerations, to be addressed over time. Of course, I don't envision a straight line into such a society; each step will require benchmarks and the sort of social pressure that tends not to become available when ideas are put into practice. Some of the ideals, however, and even just the initiation of some sort of goal, even if undefined, would surely do some good.

David notes, specifically, one of the aspects that has been a central component to my thinking in this area, but that I didn't touch on, here: friendship. Ultimately, that's what the "spiritual unions" would be, and as such, there would have to be an ethic involved that allowed for transition into marriage with a person of the opposite sex.

Again, we're not talking about anything that can be put forward as actionable in the foreseeable future. In fact, the first step of my inchoate "plan" is the enactment of the Federal Marriage Amendment, including, as it would, the abolition of most civil union/domestic partnership laws on the books (but only to the extent that they explicitly pin civil unions to the marriage). But I guess what I'm trying to formulate is a way to begin to shift the views of homosexuals such that they don't see living within the Church as an impossible achievement and to give them a way to recast their understanding of themselves and their relationship with God.

This would require social views to change not just among homosexuals, but among the entire population, and I suspect that the broader shift in perspective would be profoundly healthy. I'm convinced, for example, that just the debate over gay marriage, itself, has the potential to strengthen some heterosexuals' understanding of and approach to their own marriages — to the extent that they don't conclude, as so many do, that marriage is "all about" the love of two adults for each other.

Moreover, the issue obviously has such tremendous resonance that it would be a tremendous loss of opportunity not to harness it for the cause of social and spiritual betterment. Without some long-term strategy, assuming we win the gay marriage battle, American culture will just sink back into the same ol' mutual animosity and heterosexual apathy about what it is marriages represent.

Posted by Justin Katz at 4:11 PM | Comments (1)

February 9, 2004

Don't Know Why It's So Confusing

Ramesh Ponnuru has responded to Andrew Sullivan's (probably) mistaken characterization of the two-sentence FMA with a similar argument to the one that I made yesterday. Eugene Volokh has already argued that Ramesh is wrong.

I'm not a lawyer, as Mr. Volokh is, but it seems to me that his argument makes complex something that is relatively simple. (Of course, some might suggest that that's the way law works.) The following passages don't capture Volokh's argument, but they contain the points that I wish to rebut:

As I've argued earlier, imagine that the New York legislature or the California voters decide to create a "civil union" statute, under which gays can enter into such a union. The statute then requires all state and local government officials to treat civil unions as tantamount to marriages, for purposes of child custody, divorce, intestate succession, wrongful death litigation, and so on. ...

So[, Ponnuru argues,] a legislatively created civil union statute that (for instance) completely tracks all the benefits and burdens of marriage wouldn't have to be "construed to require that . . . the legal incidents [of marital status] . . . be conferred upon unmarried couples" -- rather, it will simply be construed to eliminate any "incidents" of marriage under state law, except for the label "marriage."

This is a creative argument, but I don't think it's quite right.

I think Volokh has argued around the simple solution in such a way as to misconstrue what Ponnuru is saying. In short, Volokh is correct that a legislature couldn't create a short-hand civil union law that "completely tracks all the benefits and burdens of marriage." The matter that he doesn't address at all is the possibility of a legislature's specifically enumerating the rights that accrue to a civil union.

For example, one part could declare that "those entered into a civil union will have full familial hospital visitation rights" (or whatever the language might be). Alternately, as was done with parts of the Patriot Act, the legislature could pass civil union statutes that amend the laws in which marriage rights are granted. So, keeping with the hospital example, the new law would declare that "[the hospital visitation law] is hereby amended to include 'or civil union partner' after the word 'spouse.'"

In this way, nobody is "construing" anything. The legislatures are simply making particular — specific — incidents of marriage incidents of civil unions, as well.

Posted by Justin Katz at 9:33 PM

Something I Need to Work On

AM 630 WPRO talk host Dan Yorke just roped me into listening to his show for longer than just my round-trip to the post office, which is my habit. He's talking about gay marriage, and he told an anecdote about a friend of his. The friend was thinking about leaving his wife, and Yorke suggested therapy, not even thinking to suggest a priest (they're both Catholic), an oversight that blamed on the Church.

Well, to get to the point: I emailed him, hoping to make a reasonable statement, but for the second time in my interaction with his show, Mr. Yorke read the preliminary buildup but stopped at the sentence at which my argument began. It's largely my fault; my initial rhetoric is far too stringent, considering the dynamic and relative power inherent in the format. But here's the email, which Mr. Yorke stopped reading when he got to "not unlike a job."

Dan,

I've resisted calling in regarding the gay marriage matter because I don't even know where to start. Frankly, I don't even think you're asking the right question. It isn't a question of whether a particular gay marriage will harm your marriage; it's a question of the larger institution. It's more about your daughter's marriage, someday, than yours.

There are a variety of arguments that I'll leave aside just now, but I think your story about your friend creates an opening. First, the fact that you see your failure to advise your friend to see a priest as the fault of the Church illustrates how little you see marriage as a crucial matter of one's life and relationship with God, taking it to be a secular responsibility not unlike a job. Second, the fact that your friend is considering leaving his wife because "it's not there anymore" and it's "like being married to his sister" shows how much marriage has become a contract of romantic love rather than a commitment to stability no matter what.

That second point relates to the central factor that gives the government any legitimate reason to dabble in affairs of the heart in the first place: children. I don't know whether your friend has children or not, but civil marriage is a pointless exercise if it doesn't keep couples together even when they feel compelled to leave, and the reason that it doesn't do so as effectively as it once did is that we have this idea that it's all about passion and romantic love. On the basis of their biology, folding homosexuals into the institution --- at least for now, and particularly by judicial activism --- would write adult love into the law as the only defining attribute of civil marriage.

If it's all about adult love, then the government has no place getting mixed up in it. If it's only about mutual care, then any two people, or group of people, have a claim, and marriage means nothing.

I can promise you that I will never feel myself justified in writing self-help books about making friends and networking. I also suspect that my declining devotion to talk radio is a trend founded in wisdom.

But I'll tell ya: the broader, most reasonable arguments against gay marriage are locked out of the Rhode Island media, as far as I've been able to tell.

ADDENDUM:
Incidentally, I'm sure the gay marriage issue is going to hit Rhode Island in the not-too-distant future, and if the debate remains as one-sided as it is now, I don't see much room for hope.

On further reflection, it seems to me that the long pause when Yorke stopped reading my email could have indicated that he read more and decided that it didn't make the point he wanted to make. He also did little more than scoff off my point about what the real question should be. Adding that observation to my having been disconnected before hitting the air on the same issue a while back makes me wonder how much of the publicly aired debate is being deliberately crafted by WPRO, as it obviously is by the print media. This strikes me as among the most dangerous attributes of the gay marriage battle.

My reach isn't very far, but — perhaps contradictory to what one would expect — it's even less far within the context of Rhode Island. If anybody's got any ideas about ways to force the other side of the debate — which conforms with the majority opinion, after all — into the public view, I'd love to hear them.

Posted by Justin Katz at 5:19 PM

February 8, 2004

Does He Not See It, or Not Want to See It?

Having read hundreds of thousands of words by Andrew Sullivan over the past couple of weeks, I've gained in sympathy and respect for him. But he's simply off his rocker when it comes to this Federal Marriage Amendment. It's as if decades of advocacy and the high and disappointment of the Hawaii battle in the late '90s have made him unable to address the amendment with a level head. (Whether it's deception or error, I won't guess.) Consider the way in which he handles the probability that the two-sentence version of the FMA will be the one put forward:

My italics. All the legal incidents thereof. That language doesn't need to be in there if you're just banning marriage for gays. If you merely wanted to keep the word marriage from gays, you would simply withhold "marital status." But by barring "all the legal incidents" of marriage - in state or federal law - the amendment would render all civil unions and domestic partnerships legally and constitutionally void everywhere in America. The religious right know what they're doing. And they use the word "construe" - not "judicially construe" - but simpy "construe" to make this amendment as devastating to gay couples' rights as they possibly can. This isn't just about restraining courts from protecting gay couples. It isn't about protecting the word marriage. It's about removing every single civil and legal protection gay couples have. That's why the religious right has signed on.

What Sullivan pretends, or mistakenly believes, here, is that the "incidents" of marriage are some universal truth written in the DNA of society. The incidents of marriage vary from culture to culture, from country to country, and from state to state. All this language prevents is the sort of "civil union" that the Massachusetts legislature put forward in an attempt to "compromise" with its corresponding judiciary — essentially defining a "civil union" as a marriage without the word "marriage."

As I've argued extensively, legislatures will still be able to define "civil unions" with incidentses (sic) similar to those of marriage. In fact, with respect to the two- and three-sentence versions, Sullivan has it backwards. The three-sentence version would require that all civil unions thus created be open to everybody; the two-sentence version leaves more room for legislatures to experiment with gender distinctions.

From the point of view of Sullivan and his fellow gay marriage advocates, this will require only that the debate be fought on a sort of per-benefit basis. States will be able to determine the degree and method of encouraging homosexuals to remain committed, of rewarding any pair for providing mutual care, and of preserving the overwhelmingly understood purpose of marriage: the birth and rearing of future generations.

Posted by Justin Katz at 4:22 PM

February 6, 2004

Everybody's Got an Argument Now

Well, hey, what could be more stable than a relationship of one?

Posted by Justin Katz at 3:53 PM

Mawage

Having reread the Goodridge decision last night, I see that I overstated the court's reasoning in the comments to this post, but only to the extent that I suggested that it was explicit rather than implicit. The difference, here, is instructive toward understanding the magnitude of what the court has done.

An argument based on definition is inherently circular to some degree. Obviously, if the definition of marriage is "the union of a man and a woman," arguing that it fixes discrimination against homosexuals to change the definition assumes that there existed a relevant discrimination. In other words, it presumes that there is some more essentially true definition of marriage than that which Massachusetts law has always considered to be the case. Thus, the "remedy" is to make the legal definition accord with the actual definition, the latter being presumed by the assertion that there is discrimination.

The court has relied heavily on its ability to "refine" common-law so as to redefine a term whose meaning and usage it admits. To illustrate this, create a new word that means, by the relationship that it intends to describe, "the union of a man and a woman" — "mawage" — in contrast to a new word that means "the union of a man and a man or a woman and a woman" — "fratrage." One could go through all of Massachusetts's law and legal precedent, therefore, and replace "marriage" with "mawage" without changing the meaning one bit. Inasmuch as nobody would prevent a gay man from marrying a lesbian, homosexuals are not barred from entering into mawage. Similarly, neither homosexuals nor heterosexuals have a right to receive recognition nor benefits for entering into fratrage.

Furthermore, every bit of law that the court cited either to affirm its decision or to dismiss the arguments of the state, contains within it the understanding, tacit or otherwise, that marriage was still mawage. Previous decisions, made in the knowledge that they were exceptions, bounded by the definition of mawage, are now cited to illustrate "intent" that marriage not be definingly procreative (for example).

Keeping with that example, it is plain that the procreative nature of marriage was protected and regulated for by the very definition of the people involved. For a variety of reasons, many of which should be obvious, it was deemed best that this regulation be "soft" and, in related fashion, that exceptions were neutral toward the social understanding of marriage and even furthered some of those aims. The court argued that Massachusetts's laws "do not privilege procreative heterosexual intercourse between married people above every other form of adult intimacy and every other means of creating a family." But the point is that marriage — mawage — was the way in which that intercourse was privileged.

Ignoring the degree to which precedent was determined by its larger context, the court simply dismisses such arguments as those involving stability and optimal parentage and asserts its belief that same-sex marriage does not threaten the larger institution. Being a little flip, admittedly, one could suggest that previous courts' determination that such things as grandparent visitation rights would not threaten marriage has been transformed into self-evident precedent that gay marriage will not do so.

In short, the court has determined that there is, in fact, no difference — not only legally, but socially — between mawage and fratrage. And the only way that this can be true is if there is no difference between men and women. These are determinations that a society can make, of course, even if it is wrong to do so. However, if such judgments are not the purpose for and do not indicate the importance of representative democracy rather than judicial oligarchy, I don't know what could possibly be or do so.

Posted by Justin Katz at 11:17 AM | Comments (2)

February 5, 2004

From My Email to the Public's Ear

Oops. When I responded to George McAllister's questions about same-sex marriages in history — tired and ill as I was — it didn't occur to me that the email might be published.

I don't mean to suggest that my points weren't considered, just that they weren't said as well as they might have been. That'll learn me!

Posted by Justin Katz at 3:38 PM

The Day After

Well, I can't say I'm impressed with the President's statement:

Today's ruling of the Massachusetts Supreme Judicial Court is deeply troubling. Marriage is a sacred institution between a man and a woman. If activist judges insist on re-defining marriage by court order, the only alternative will be the constitutional process. We must do what is legally necessary to defend the sanctity of marriage.

When will we be justified in dropping the "if"? Of course, we already know that "activist" judges will so insist, but when can we declare there to be enough of them? Two states? Three? The twelve (I think) with legislatures that haven't passed DOMAs? The thirteenth? Whenever the issue hits the Supreme Court?

Part of what we're now seeing, I think, is the downside of elected officials. Judges who are appointed needn't fear a public opinion that they may or may not realize exists. Those politicians who put reelection above right have to guess which way public opinion will fall. As Hadley Arkes, who has been fighting this fight since the mid-'90s, points out, the other branches are not without power:

In the meantime, it might be said that the court itself has offered a series of slogans searching for a principle; and yet that may impute too high a reach to Chief Justice Marshall and her colleagues. The judges in the majority were mainly making it clear that they were in charge, and would have nothing less than what they had "invited" the legislature to produce. Those folks seasoned in the legislature must retain some ordinary reflexes found among ordinary human beings, and if they retain at least some minimal self-respect, this gesture of contempt by the court should be enough to push them over the edge. It is not enough to put off for two years a constitutional amendment. There are things to be done even now. The governor seems to be studying again the lessons taught by Lincoln on the limits of the court and the constitutional responsibilities of the political branches. As Lincoln reminded us, the executive and the legislature could respect the disposition of any case in regard to the litigants, but they may not be obliged to accept the principle articulated by the court. The court might issue injunctions to registrars throughout the state, ordering them to give marriage licenses to people of the same sex.

But the constitution of the state is clear that the laws on marriage belong mainly in the domain of the legislature, and the legislature has the decisive authority to determine the terms on which courts may issue injunctions.

For his part, Stanley Kurtz keeps up the point-counterpoint with Andrew Sullivan — with a sometimes futile tenacity and patience that fills me with admiration. This time around, Mr. Kurtz (in addition to linking to me) notes that the Scandinavian experience suggests that the push for gay marriage may have the effect of bringing about all of the harm of which we who oppose it speak, while producing none of the benefits to society that the proponents promise.

Meanwhile, Andrew Sullivan applies to the federalism vs. courts problem a similar strategy to that which characterizes his handling of the promiscuity problem. On the latter count, he has responded to the objection that homosexual inclinations toward monogamy are, at best, unknown by declaring that he, personally, believes that "adultery should be as anathema as it is in heterosexual marriage" (Virtually Normal, 221) — although it's not clear how much "as it is" should be — without reference to those who would necessarily walk through the door with him. Now, he declares that he, personally, would prefer the public debate the issue and come to agreement with him, but if the courts step in and decide that he's right, he wouldn't be in a position to complain.

For another perspective (that agrees with him), Sullivan points to Armed Liberal, who, despite being twice divorced and currently cohabiting, presumes to define the whatfor of marriage. Here's the first and lesser of two areas of error (emphasis in original):

Historically, [marriage] has been tied to sex and procreation - which means heterosexual sex - but that tie is eroding, in the face of the increasing sexualization of society.

Eroding? It's eroded, folks. Paris Hilton may be 'deeply shamed' by the release of her self-made video; but the next celebrity won't be, and soon we'll have migrated celebrity to something like Gibson's character Tally Isham, whose entire life (especially the naughty bits) becomes the subject of a reality show. Soon we'll be just a credit card away from the weekend cavorts of our media stars, whose stardom will be reinforced, not destroyed, by granting us this access.

No, actually, that tie is nowhere near eroded. The tie of marriage to procreation remains strong despite "the increasing sexualization of society." It appears that the issue that A.L. is substituting for the point that he's trying to make is the link between sex and procreation, on which matter I couldn't rationally disagree, but when sex becomes procreative in the U.S., it is almost universally expected to be within marriage.

This confusion of the relationships between sex, procreation, and marriage surely relate to A.L.'s second, more pernicious, error, which might as well be exhibit C in the case of those who argue that gay marriage will further damage the utility of marriage to encourage the healthy raising of children (emphasis added):

It means that I will take care of her, and be taken care of by her in turn, and that in the time where long shadows come over our lives, we won't be alone in facing them. And it has primacy over your other relationships. The act of saying to this person "You are the most important person in my life. Not my children, not my boss, not my pastor or anyone else matters more to me than you do," fundamentally changes both one's life and one's relationships to others.

And there you have it. The feelings of adults are sacred. The kids? They'll adjust.

Posted by Justin Katz at 3:27 PM

February 4, 2004

The What Now in Massachusetts

I can't believe that anybody expected the civil union diversion to work in the case of Massachusetts. The court's Goodridge decision was built around 1) a redefinition of marriage, and 2) the application of a pure equal treatment rule to that definition. To allow a civil union compromise (which, given that the word following "civil" would have been the only difference, mattered hardly at all) would have been to admit the contempt for representative democracy that the Goodridge decision represente