October 3, 2006

Debate on the marriage amendment.

The Federalist Society is hosting a debate on "The Constitutionality of Wisconsin's Gay Marriage Amendment" tonight at 7 in Room 2260 here at the University of Wisconsin Law School. This is open to Wisconsin students and faculty. The speakers are Political Science Professor Howard Schweber and ADF Litigator Jordan Lorence. If I have time, I'll attend and blog.

UPDATE: I didn't attend. If you did, tell us about it in the comments.

89 comments:

Fenrisulven said...

Society also has a role in defining marriage, for its own protection and benefit. If we are going to redefine marriage, I'd like someone to find the holes in these points.

1) Polygamy. If same-gender is no longer a disqualifer, then why should # of spouses be one?

2) Incest. Why can't two consenting adults [father is 40, daughter is 20] marry? Technology & adoption can prevent any birth defects, so society's objection is rendered moot.

ie. society draws lines re "deviant" behavior and for good reason. How can homosexual marriage be included within those boudries but not the others? Is there a moral argument that trumps the legal one?

buck turgidson said...

Ah... we have the Rick Santorum sound alike contest. Sorry, fenrisulven, you don't win. Even the original man-on-dog Ricky was more creative.

The argument Ricky et al. make is a non-starter. We are talking about protection of rights. Where rights compete, one has to yield. So even if one were to make an argument for the rights of polygamists and others that are being overwritten, there are other rights that come into play in those cases that have nothing to do with same-sex spouses.

This is not a "lack of compelling state interest" issue, but rather "state's responsibility for protecting the rights of those who cannot protect themselves." This does not come into play in same-sex marriage--unless we are talking about Republican Congressmen.

So quit your whining, fen, and stay on point.

Fenrisulven said...

We are talking about protection of rights.

What rights exactly? Please define.

BTW, I'm asking for others to knock these points down, so that I can too. That you need to lace your counter with ad homs and partisan snarkiness tells me your argument is suspect.

Too Many Jims said...

I just googled "Dale Carpenter incest". Carpenter is a Blogger over at Volokh. I am not sure this is the best articulation of the counter but it is a start. (His argument was too long to cut and paste, per Prof. Althouse's conventions here, so go to the link and search for incest and his answer follows.) He also had this post on Volokh where he linked to a "conservative" federal Judge who was arguing against state and federal marriage amendments.

Mickey said...

next thing you know, people will be allowed to marry animals or...coffee cups

Fenrisulven said...

In other words, to believe that there is a slippery slope to other forms of marriage, one has to misrepresent and oversimplify the argument for gay marriage.

Thanks Jim, that was the opening I was looking for. There's more, but I won't clutter the site here. Its a good read too. Recommended reading.

buck turgidson: See how you're an idiot for using the issue as a political weapon?

Todd said...

Professor Schweber should ask the Alliance Defense Fund litigator exactly how far he thinks the amendment will reach. ADF is currently arguing for very expansive interpretations of the Ohio and Michigan amendments, claiming that they bar public employee domestic partner health benefits.

Additionally, Ohio's Citizens for Community Values, a group afilliated with ADF, submitted a brief to the Ohio Supreme Court arguing that that state's amendment bars application of domestic violence statutes to any unmarried situation. The brief was written by David R. Langdon and Joshua Bolinger, both of whom ADF refers to as "ADF-allied attorneys" in a press release.

It might relatedly be interesting to know how ADF reads the second sentence: as (1) a focus on the protections and obligations provided through civil marriage; or as (2) a focus on any legal recognition of lesbian and gay relationships.

The above-mentioned brief advances the second interpretation: "The focus of the second sentence of the Marriage Amendment is not on the benefits or obligations assigned to those in the relationship which is given a legal status--it is on the status itself." It further argues that the amendment "proscribes the very legal recognition of the relationships in the first place, for any purpose."

Balfegor said...

1) Polygamy. If same-gender is no longer a disqualifer, then why should # of spouses be one?

There's a pragmatic argument here, I think. Homosexuality is an extremely marginal phenomenon, with highly circumscribed appeal to the population at large. How many men are actually all that keen on marrying other men? Very few. The impact of gay marriage is likely to be negligible, because, frankly, there just aren't enough homosexuals for it to matter to anyone but them. We're talking a few percent of the population, at most, of whom (from indications in states that have legalised gay marriage) only a fraction will even be inclined to marry. Add to that the fact that gay marriages are, in themselves sterile -- no children except by piggybacking on heterosexual relations -- and any possible impact is only further reduced. In terms of its impact on the broader culture, gay marriage is a total nullity. We might as well be concerned about the furries.

Polygamy, on the other hand, is a viable (and in some respects attractive, particularly for the wealthy) alternative means of organising society. It's older than monogamy, has a proven track record, etc. etc. It is, from a social perspective, a functioning alternative to heterosexual monogamy, in a way that a marginal phenomenon with limited appeal like gay marriage just isn't. There is, thus, a real risk to the social fabric underlying American society, if we permit polygamy. There's worries about young men not being able to attract spouses, disaffection and social conflict, emergence of large-scale clan structures, etc. Not all of these are likely to emerge as real problems when we legalise polygamy (it's only a matter of time, frankly), but there is real reason to be concerned, I think.

MadisonMan said...

Fenris -- the state has a compelling reason to squelch polygamy : as the number of unattached young males increases, the potential for violence wrought at the hands of these idle young males increases. If one guy is hogging 20 good wives, what are the 19 other young men supposed to do with their time? Both India and China will face real political challenges in the coming years as birth ratio inequalities rear their heads.

Balfegor said...

as the number of unattached young males increases, the potential for violence wrought at the hands of these idle young males increases.

I'm dubious about this kind of reasoning, simply because it doesn't seem to have happened in places like Japan or Korea. There, of course, the problem is not so much women getting snapped up by rich polygamists as young men being unable to find women willing to marry them. Hence Korea's and Japan's extraordinarily low birth rates -- lowest in the industrialised world, I think. Some South Koreans, particularly out in the countryside, rather than in Seoul, are resorting to importing brides from poorer countries, like Vietnam, but many just aren't getting married at all.

Huge numbers of unattached young men unable to find brides/girlfriends hasn't produced massive social dislocation and violence in the 20 years it's been going on in Japan, or the 10 years it's been going on in Korea. It's just produced hikikomori and porn and a failure to breed the next generation -- problems, to be sure (the Japanese shoushika and koureika problems, to be precise), but not "rowdy young men" problems. I don't see why the effect should be markedly different based on why they can't get married.

For China, I think the Japanese and Korean examples are probably a good guide. India's cultural situation is rather different, so there may be different responses.

In any event, being unable to find a wife doesn't make you automatically idle ("idle young males" in your phrase). You can still get a job, even without a wife.

Joe Baby said...

Todd,

My understanding was that this amendment bars benefits to domestic partners (of public employees) based upon a marriage-like status.

It does not prevent public agencies from allowing say, the extension of employee benefits to one adult beneficiary of each employee. But this amendment would prevent it based upon a status similar to that of marriage.

Eli Blake said...

Madison Man:

I disagree that the state has such a compelling interest in squelching polygamy (though I personally don't practice it and have been outspoken against it in cases where children have been involved-- where I live it qualifies as a local issue). The birth ratios in China and India have been much as they are for thousands of years, courtesy of female infanticide. And over that time, China and India have had two of the more relatively stable cultures (tell me, where are the Babylonians, the Scythians and the Songhai today?) In fact for most of those thousands of years, marriages were arranged so the extra men didn't even have a chance to get a spouse (other than perhaps taking a war bride from some other city-state). Also note that it has 'not worked' to the point that China and India are the two most populous nations on the planet. Also in muslim societies a man can have up to four wives if he can afford them. This has also been the case for 1,500 years, and today Islam is second only to Christianity in terms of numbers of adherents. So your point that there is a compelling interest against it based on the stability or inability to thrive of society is rendered invalid by an observation of such societies.

Though I could certainly argue against the dubious benefits of polygamy, I don't see any compelling state interest in banning it, certainly not at the level of a constitutional amendment. So too with gay marriage. It is a fact that gay people in America earn far more money than their straight counterparts. So I would suggest, why not allow them to get married? Subject them to the same 'marriage penalty' that straight couples with two jobs have, and then they can start paying their fair share of taxes (unless fenrisulven and others of his mindset are too foolish to realize that as long as gay people can't get married, the rest of us are in effect subsidizing them by forcing them to both file as single earners with a higher combined deduction.)

As to fenrisulven's original remark, he has pointed out the main problem with incest-- birth defects. Once people are adults, we can't tell them, 'you are free to make your own choices, but only if you choose the way we want you to.'

Simon said...

Presumably, they mean "consistent with the Federal Constitution. An Amendment to the state constitution by definition cannot violate the state constitution.

Simon said...

As to whether the state has a compelling reason for proscribing certain forms of marriage, that misses the point. The state has a compelling interest in defining marriage, period. Absent a specific constitutional prohibition, as in the instant case, it should be defined in whatever way a democratic majority determine. But it is the ability to make the determination that is the compelling interest, not any one, particular definition.

Seven Machos said...

I'm a sucker to get dragged into this, and I know that the archetypically diplomatic and perceptive Buck Turgidson won't even respond to me because I am clearly homophobic, but:

The main issue here is that people overwhelmingly don't want gay marriage in their communities. There are, of course, a few places where gay marriage would be welcomed and encouraged. Those places should allow gay marriage within a restricted area (and in a low-key way), and slowly show the rest of the country that it's not a big deal. It will take decades.

Naturally, the geniuses who have been pushing this issue politically have taken the exact opposite approach: (1) in your face, all the time, and (2) trying to get judges to do what federal, state, and almost all local legislative assemblies would never do. The inevitable result has been what I understand the Wisconsin amendment to be: a sort of edict against something that only a marginal few would otherwise ever spent any political capital or energy being against.

Brilliant! What other great strategies are there?

Fenrisulven said...

Naturally, the geniuses who have been pushing this issue politically have taken the exact opposite approach

Exactly. The tactics of those like Buck and dtl have been as effective as Gay Pride S&M march in San Francisco.

Todd said...

Joe,

The ADF-affiliated, pro-ban organization in Wisconsin, the Family Research Institute, disputes your interpretation. So do the two most vocal ban supporting legislators, Mark Gundrum and Scott Fitzgerald. They all insist that there is no way our amendment will overturn domestic partner registries currently in place in Madison and Milwaukee, or benefits programs offered by public employers throughout the state -- all of which require documentation that the relationship in question is marriage-like.

This, as well as ADF's lead role in pushing an expansive interpretation of other states' bans, is why it would be nice to have an ADF attorney discuss his interpretation before (and if) the amendment passes.

Fenrisulven said...

Madisonman: the state has a compelling reason to squelch polygamy

Even if that argument is valid, it opens up debate on whether the state has a compelling reason to squelch homosexuality. I'll spend the next half-hour of the debate fending off counterpoints re STDs, AIDs, bath houses, etc.

If our laws are nothing more than a codification of morality, then we have to understand WHY societies would ban certain behavior in their tribal laws and religious texts. Was there ever a legitimate reason to discourage homosexuality, and does it still apply in the modern world?

Too Many Jims said...

"The main issue here is that people overwhelmingly don't want gay marriage in their communities."

When I want to start a fight with liberal friends I often tell them that I would vote for a gay marriage amendment in my state if it were ever presented as such. But it never is. If this were just about gay marriage the amendment would be one sentence long and not two.

But it is two, so the people who support the amendment (who often rail about activist judges) will hire their lawyers to get judges to read the amendment the way they want to. If they really hated activist judges, they would delineate what they mean by the second sentence.

mikeyes said...

As far as public policy goes, there is a huge difference between polygamy and gay marriage. Gay marriage is an extension of the rights/privileges of monogamy to same sex couples. The decision to do so is not going to change the idea of marriage in our society as a contract between couples.

Polygamy, on the other hand, will require a huge change in public policy. In the first place, who is married to whom in a polygamous marriage? Since our public policy calls for both sexes to have equal access (and WI is a community property state) is a single male/multiple female marriage still valid if one member divorces or do all of them have to divorce in order to maintain the equality? What if that member is the single male? Are the others still married?

In addition there are the tax problems of dependents, AARP status (when the older member of a marriage turns 50, the spouse automatically gets a membership), status of parenthood and custody, and the issue of incest, etc. On the latter issue, it is common in some polygamous societies to marry sisters since they already get along with each other. Is this marriage an incestuous relationship for the sisters?

Polygamy works in a society in which women are an underclass and can be treated like a commodity. I doubt that it would work well in our society without some basic changes.

Balfegor said...

The decision to do so is not going to change the idea of marriage in our society as a contract between couples.

As always comes up, in these discussions, you beg the question by characterising marriage as nothing more than "a contract between couples." "Couples" here including same-sex couples.

There's plenty of evidence that, historically, in Anglo-American society, the rationale behind marriage has been threefold: (1) procreation, (2) restraint of lusts/fornication, and (3) mutual society, aid, and help (taking the list straight out of the Book of Common Prayer -- the whole iconic "Dearly beloved" spiel).

Of course, not all marriages meet all of these. Plenty of married couples fornicate outside of marriage (2), or hate each other (3), or are infertile/don't want children (1). But the old framework remains, in much of the US, the archetype around which marriage is structured. Gay marriage intrinsically rejects down one of those rationales (procreation), so expanding the state's conception of marriage to include gay marriage is not a trivial thing.

Polygamy works in a society in which women are an underclass and can be treated like a commodity. I doubt that it would work well in our society without some basic changes.

"Serial monogamy" tells me there's not a real social problem here. At the moment, rich men divorce the old wife before marrying the young trophy. If we allowed polygamy, they just cut out that one step. Not much of a change.

Fitz said...

Men and women are members of a class that can produce children. While any member of that class may not or cannot produce a child, they remain members of a class that can produce children. Same sex pairings can never produce children. They are members of a class that can never produce children. Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.


Indeed, Polygamy can provide children with their own natural parents living together in a married household. In this regard it avoids the greatest pitfall of same sex “marriage” by not separating marriage from procreation. However, the same applies to polygamist groups as a class. They cannot (three or more) produce children. Only a coupling of a man and women can produce children. No more, no less, no substitutes possible.


When we speak of natural law we me mean exactly that. This is elemental irrefutable biology. You may refute the contention that the introduction of same sex couples under the rubric of marriage will not have any detrimental effect (or that it will have a positive effect), but it is impossible to argue that such a change is not definitive.

MadisonMan said...

Same sex pairings can never produce children.

Fitz, the lesbian couple 5 houses up from me has a child. How'd that happen? I work with a lesbian; she and her partner have 2 children. How'd that happen?

How is what these couples have done different from a hetero couple with a sterile male?

Fitz said...

Madisonman
“Fitz, the lesbian couple 5 houses up from me has a child. How'd that happen? I work with a lesbian; she and her partner have 2 children. How'd that happen?”

The Child was either the offspring of another (heterosexual) relationship with one or both women, or they acquired sperm from the Childs natural Father and brought the child into this world intentionally with the design of depriving him/her of their Father.

Two women cannot “have” a Child together (i.e. – cannot produce natural offspring) Unless these children are from previous relationships and in a position were they know their own natural parents, they are being deprived of a relationship with their Father’s.

Part of the problem with this blatant denial of elemental biology is the way makes children into commodities. Human beings are not consumer goods and should not be treated as such.



Jim C

“When I want to start a fight with liberal friends I often tell them that I would vote for a gay marriage amendment in my state if it were ever presented as such. But it never is. If this were just about gay marriage the amendment would be one sentence long and not two.

But it is two, so the people who support the amendment (who often rail about activist judges) will hire their lawyers to get judges to read the amendment the way they want to. If they really hated activist judges, they would delineate what they mean by the second sentence.”




This raises the question of why the amendments ever use language that goes beyond simply defining marriage. An ongoing controversy in Alaska helps answer this.

In February 1998, a trial court judge ruled that Alaska’s marriage law unconstitutionally interfered with a fundamental right to choose one’s life partner. The people of the state overwhelmingly mooted the decision by approving a state marriage amendment in November 1998. (Incidentally, the Alaska Supreme Court had removed the second sentence of the amendment drafted by the legislature before the vote.) The Alaska Civil Liberties Union subsequently brought suit asking that the state and the municipality of Anchorage be required to offer employment benefits to same-sex partners of public employees, on the theory that confining such benefits to spouses was discriminatory because only opposite-sex couples could marry under the state constitution. The Alaska Supreme Court agreed, ordering defendants to come up with a plan to extend the benefits. A trial court judge is overseeing that process. This week, the news is that the supervising judge believes the state’s plan for extending benefits is too stingy and must be reworked.

These kinds of court actions make clear to legislators and citizens that some courts will be unconstrained in using creative legal arguments to justify policy proscriptions not anchored in constitutional provisions. In the context of marriage, legislators and citizens’ groups worry (probably correctly) that if they merely define marriage in an amendment a court will be tempted to order marriage benefits to be extended to unmarried couples. If marriage amendment drafters try to prevent this by also prohibiting the creation of “civil unions,” courts or legislators will create a status called “domestic partnerships,” and so on. Thus, the drafters have felt it necessary to use language that prevents creation of any legal status “substantially equivalent” to marriage or some similar formulation, not knowing exactly what courts might hatch next.

Coming full circle: instead of motivating lawyers and judges to exercise some restraint on their imaginative faculties, however, the lawyers then seize on the broad language to accuse amendment supporters of overreaching. It would be more amusing if the stakes weren’t so high.

From
http://www.marriagedebate.com/mdblog.php

I hope this answers your question as to why such broad language is necessary.

Pogo said...

Like abortion, the gay marriage issue has become a litmus test and lightning rod. To be opposed in any way brings condemnation and catcalls from the progressive left.

A mere decade or so past, this was not even a question posed by the gay community. Now it is portrayed as an essential human right.

I'd be able to understand the extreme urgency and the umbrage over rights forsaken, had the provenance for such an essential "right" extended past the current sixth grade class. Even more if their demands for freedom had extended even for a moment to Islamic cultures which yet today kill their gay subjects. Instead, their arguments are a Potemkin village, all facade and paint and bluster.

They are great debaters, I'll grant. But I am certain equally vociferous arguments could be constructed by the usual logorrheics in a fortnight for whatever right you perceive anew. Add two cups of righteous indignation, and you're all set for a modern leftist demand.

However, I am not content as yet to hack away at a pillar of civilization for such a newly minted belief. I may be proven wrong over time. I can wait. But there seems no good reason for such haste.

Danny said...

If we let the gays marry it'll lead to a slippery slope. Soon people will want to marry their children, their pets, and eventually other people incapable of forming logical analogies!

The Jerk said...

They are members of a class that can never produce children. Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.

So what?

Dust Bunny Queen said...

Buck said: This is not a "lack of compelling state interest" issue, but rather "state's responsibility for protecting the rights of those who cannot protect themselves."

Please define what rights you are talking about and define how homosexuals cannot protect themselves. Most every legal issue can be handled by a competent attorney and estate planning team. Are these the items you are concerned with: being unable to continue with your deceased partner's Social Security payments if they were larger than yours, ability to have a joint and survivor annuity on a pension plan with a non spouse, assuming an IRA as a spouse instead of leaving it as a beneficiary or issues on a State by State basis regarding children? Those are items that can be addressed individually in the tax code. (Yay let's add some more pages to THAT.)

Draw up a trust with a pour over will, establish health directives, hold your property in the correct legal titling to ensure inheritance, give annual gifts of your estate to whom ever you want. Name your significant other as the beneficiary on your insurance, ira, annuity policies. Most health insurance companies and long term care policies allow for non spouse/domestic partners to be dependents.

If the reason that people don't do these things for themselves is cost, then why don't we agitate to provide assistance, not just to gay couples but also to heterosexual couples with marginal incomes who have decided not to get married?

If you are trying to legislate the "right" to be accepted in every walk of life or social setting for a lifestyle that is not the accepted norm, you are doomed to failure. You cannot legislate peoples thoughts, feelings or social attitudes.

MadisonMan said...

Part of the problem with this blatant denial of elemental biology is the way makes children into commodities.

Is this something you honestly believe? That loving parents are treating their children as commodities?

Fitz said...

(I write)
“Therefore same sex “marriage” necessarily severs marriage from procreation. It both androgynizes the institution and separates it from any necessary link to childbearing.”

the Jerk asks “So what?”

An androginized institution that is separated from any necessary connection to child rearing is an inadequate foundation on which to support the moral norm that children should be brought into this world and raised by there natural parents in a committed marriage. This altered definition will fail to capture the popular imagination of the larger community of (heterosexual couples) that not only can, but do produce children. This norm represents a public policy that optimizes family and social stability toward the greater public good.

Marriage is not a vehicle for social inclusion, but rather an institution designed to encourage proper family formation.

Danny said...
This comment has been removed by a blog administrator.
Danny said...

Dust Bunny Queen: You cannot legislate peoples thoughts, feelings or social attitudes...


So in conclusion, we should amend the constitution to protect Wisconsin from homosexuals hell-bent on destroying the holy institution of marriage.

Oh wait--


Crap.

Too Many Jims said...

Fitz,

The Alaska example suggests that more language may be needed. It does not demonstrate that broad and vague language is needed.

Fitz said...

Madisonman
“Is this something you honestly believe? That loving parents are treating their children as commodities?”

Your mistake is in the use of the word “parents”. Inasmuch as they intentionally bring a child into this world and deprive that child (by design) of it own natural Mother or Father they are treating children as commodities….yes.

They may raise the child but are not its natural parents.

This is hardly a novelty in the law, Natural parents have a positive right to their children and duty in the care and upbringing.

Jim C
“The Alaska example suggests that more language may be needed. It does not demonstrate that broad and vague language is needed.

You seem to have missed the point of this...


If marriage amendment drafters try to prevent this by also prohibiting the creation of “civil unions,” courts or legislators will create a status called “domestic partnerships,” and so on. Thus, the drafters have felt it necessary to use language that prevents creation of any legal status “substantially equivalent” to marriage or some similar formulation, not knowing exactly what courts might hatch next.

Todd said...

If marriage amendment drafters try to prevent this by also prohibiting the creation of “civil unions,” courts or legislators will create...

I admire Fitz's honesty. Most ban supporters argue that they're merely trying to prevent judicial overreach. At least Fitz admits he also wants to prevent the will of the people through their elected representatives.

The Jerk said...

An androginized institution that is separated from any necessary connection to child rearing is an inadequate foundation on which to support the moral norm that children should be brought into this world and raised by there natural parents in a committed marriage.

Says you. Further, who cares if they are raised by their natural parents or not?

This altered definition will fail to capture the popular imagination of the larger community of (heterosexual couples) that not only can, but do produce children.

Again, says you. Pure speculation.


Marriage is not a vehicle for social inclusion, but rather an institution designed to encourage proper family formation.

Ahistorical. Who designed it?

George said...

Per: the 'slippery slope' comments. It's not a slope, it's a yawning chasm to the abyss...

This summer, various luminaries such as Gloria Steinem, Cornel West, and Barbara Ehrenreich signed their names to a full-page NYT ad calling for the total redefinition of marriage....

"Full of candor, the statement's mission is "to offer friends and colleagues everywhere a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families." The statement lists several examples of such relationships, among them "committed, loving households in which there is more than one conjugal partner"--that is, polygamy and polyamory. But this is mild compared to what follows: demand for the legal recognition of "queer couples who decide to jointly create and raise a child with another queer person or couple, in two households." The language is breathtaking. Queer couples (plural) who jointly create a child? And intentionally raise the child in two (queer) households? Of course, no reference is made to the child's interests or welfare under such an arrangement--only to the fulfillment of adult desires by suitable "creations."

http://www.weeklystandard.com/Content/Public/Articles/000/000/012/591cxhia.asp?pg=1

Joseph Hovsep said...

I think the comments about the state's "compelling interest" in regulating marriage or defining gay couples out of marriage is kind of missing the point. This amendment is a political issue. Its asking the people if they want a state where there can be no same sex marriage (and maybe no similar arrangements either) or a state where there might be same sex marriage someday. The compellingness of the state interest is relevant to the extent that Wisconsin's marriage laws are challenged as unconstitutional in court, which they won't be if the amendment passes. I think its better to look at same sex marriage now as a political issue: would it be a good policy or is it at least questionable enough that we shouldn't constitutionally enshire a ban on it.

However, I think the constitutional arguments can be a useful rubric through which to look at the policy issues and address concerns about polygamy and incest because they really mirror the main substantive policy arguments in favor of same sex marriage. The "equal protection" argument basically says gays should be able to marry because preventing them from doing so unfairly discriminates against gay people as a class. The "due process/privacy" argument basically says that the choice to marry is too personal a choice to let the state to dictate the sex of your partner.

Under the equal protection argument, polygamy and incest are easily disposed of because polygamists and incest-afficionados are not recognized discreet classes of people like gays and lesbians.

The privacy argument is trickier, but still easily distinguishable from polygamy because of the pragmatic difficulties in adapting binary marriage laws to polygamous groups. Adult incest is the hardest for me to distinguish under the privacy argument. The main argument against incest is not genetics, but the fact that most incest is really child molestation or adults who were sexualized as children and maintained sexual bonds with their abusers in adulthood. The need to prevent children from being sexually abused as children seems to me to justify a broad ban on adult incestuous relationships, but I think an argument can be made that, say, adult relatives who never met as children or two elderly sisters who live together as a household may legitimately want access to the marriage regime. But I think those cases are pretty rare.

In any case, I think most people who are sympathetic to the rights of gay couples are sympathetic because they don't think gay people should be discriminated against, not because they believe in the more ethereal idea of privacy. And if we reject the ban on same sex marriage because it unfairly discriminates against gays and lesbians, then polygamy and incest are not on the slope we'd be in danger of sliding down.

Pogo said...

The sheer arrogance and wilfull ignorance of history by those demanding that society be disassembled to meet their evanaescent appetites is a thing to behold.

Like gazing upon Medusa.

Fitz said...

Jerk

I find your crude reductionism to be no less banal than a child who constantly refutes his superior with the taunt “but why?”

A large body of social science research now affirms the importance of marriage for children, adults, and communities? Marriage matters because when fathers are committed to their children (and their children’s mother!), children are most likely to thrive and women are spared the unfair burdens of parenting alone.

Todd
“I admire Fitz's honesty. Most ban supporters argue that they're merely trying to prevent judicial overreach. At least Fitz admits he also wants to prevent the will of the people through their elected representatives.”

The elected representatives of any State are free at any time to enact a constitutional amendment overturning this one, or asserting civil unions as a compromise. (in which case the most recent amendment takes precedent) This is a clear attempt to thwart a drive by the Judicial branch to redefine the institution of marriage. They will do so (as the Alaska example demonstrates) by hook or by crook. Traditionalists are merely using the democratic means at there disposal to preserve a fundamental social institution.

Seven Machos said...

who cares if they are raised by their natural parents or not?

Almost everyone cares if children are raised by their natural parents or not. Off the top of my head, I reckon that about 80 percent of all Americans would agree that it would be best if children are raised by their natural parents.

Elian Gonzales was sent back to Cuba based on this bedrock of public policy. All of American child law is based on this bedrock of public policy.

To believe this, and certainly to say it in polite company, you must be either a hopeless utopian, a socialist of the worst kind, or completely out of touch with the norms of your culture -- perhaps all three.

Danny said...

The sheer arrogance and wilfull ignorance of history by those demanding that society be disassembled to meet their evanaescent appetites is a thing to behold.

Not quite as breathtaking as seeing a younger generation slowly dismantle the outdated ignorances once cherished by previous generations (who, like always, fade out while predicting the downfall of civilization).

Balfegor said...

Under the equal protection argument, polygamy and incest are easily disposed of because polygamists and incest-afficionados are not recognized discreet classes of people like gays and lesbians.

Sexual orientation is not a class subject to heightened scrutiny the way race, or even gender is. There are two reasons the 14th amendment could be pulled in here: first, that leaving marriage laws as is burdens gays and lesbians in the exercise of a fundamental right to marriage. And second, (by analogy to Loving) that the marriage laws discriminate on the basis of gender, which is subject to heightened scrutiny. It's not a matter of sexual orientation being a suspect classification.

At any rate, of those two hooks, the first (burden on exercise of fundamental right to marriage) is just as applicable in the polygamous/incestuous situation as in the homosexual situation.

The Jerk said...

A large body of social science research now affirms the importance of marriage for children, adults, and communities? Marriage matters because when fathers are committed to their children (and their children’s mother!), children are most likely to thrive and women are spared the unfair burdens of parenting alone.

Irrelevant. I never argued that marriage was unimportant. I merely questioned your entirely unsupported assertion that child-rearing must be tied to biology lest the Republic fall.

I find your crude reductionism to be no less banal than a child who constantly refutes his superior with the taunt “but why?”

I find your assertion of highly debatable and contentious propositions as if they were settled fact to be no less pompous and facile than the prattlings of a college sophomore who thinks he's figured out a simple solution to a complex social problem in a late-night fog of marijuana smoke.

Almost everyone cares if children are raised by their natural parents or not.

Of course, the rhetorical device "who cares," is typically a way of asking "why should one care?" rather than a request for a numerical estimate.

Elian Gonzales was sent back to Cuba based on this bedrock of public policy.

False. He was sent back because Juan Gonzalez was his lawful father who had raised him since birth, not because they shared DNA.

I believe this, and certainly to say it in polite company, you must be either a hopeless utopian, a socialist of the worst kind, or completely out of touch with the norms of your culture -- perhaps all three.

I guess when you can't win on the merits, resort to the ad hom. You fail to impress.

Revenant said...

"Polygamy. If same-gender is no longer a disqualifer, then why should # of spouses be one?"

There's a pragmatic argument here, I think.

But not a rights-based one.

Gay marriage activists have claimed that there exists a right to government recognition of their marriage. There isn't a coherent argument for why polygamists don't have such a right, too. We can, as you note, argue that it isn't practical to recognize polygamists, but that's not a valid long-term solution. We aren't supposed to deny people their rights over the long term because allowing them their rights is inconvenient!

People who say that legal recognition of gay marriage will lead to legal recognition of polygamy are entirely correct. It will, IF gay marriage is recognized due to the discovery of some spurious "right to recognized marriage" rather than due to the democratic process of passing a law granting such recognition.

Seven Machos said...

Balfegor -- The entire line of fundamental rights cases in mularkey. Courts would have to go in this direction. Slipper slope really is the problem. The trouble is, no one's right to marriage is being violated. Gay people are free to marry anyone of the opposite gender. What about my fundamental right to marry six women, or to marry my dog, or to marry one single Victoria's Secret model? (And don't tell me she doesn't want to marry me. I'm talking about my fundamental right here.)

Regarding your second argument -- marriage laws discriminate on the basis of gender -- which gender?

Pogo said...

Re: "who, like always, fade out while predicting the downfall of civilization"

Yeah, the fall of Greece, then of Rome, then the Dark Ages, the World Wars of the 20th century, the 100 million dead under communist rule.

Never happened. Civilization just goes on and on.
Feh.
Danny, you quite clearly know precious little about either history or culture.

Joseph Hovsep said...

Balgafor, My point is that parsing the constitutional caselaw on how to define a suspect class is not relevant to the political discussion of whether allowing same sex marriage makes good policy. I'm saying that if the people view sexual orientation as a suspect class entitled to the kinds of protections that are recognized for race or religion, and they support same sex marriage for that reason, then we should look at how that specific rationale plays out in the slippery slope analysis. I don't think its plausible that people who want to include sexual orientation as a class that should not be discriminated against would use that same logic to allow incest and polygamy. You simply state that the same logic applies, but don't explain.

Seven Machos said...

Jerk -- Do you think you have shown that children being raised by their natural parents is not a bedrock of American law? I know I fail to impress -- that goes without saying -- but I don't think you have really shown what you purport to show.

MadisonMan said...

Seven, you know where I stand on this, and I know where you stand on this, but I'll still say that, regardless of how many people prefer a child be raised by its natural parents, a larger percentage prefer it raised in a loving and nurturing environment.

Danny said...

Yeah, the fall of Greece, then of Rome, then the Dark Ages, the World Wars of the 20th century, the 100 million dead under communist rule.

And now you're arguing that gay marriage will lead to a catastrophic fall of human civilization. I had no idea President Ahmadinejad frequented Althouse!

Fitz said...

Jerk
“I merely questioned your entirely unsupported assertion that child-rearing must be tied to biology lest the Republic fall.”

I don’t remember asserting that the “republic would fall” – only that it would further separate marriage from procreation and androgynize the institution.

My contention is that the standard of marriage we hold as a society reflects the presence of that standard in a society. As for support as the the importance of this assertion…it remains widespread.

“High rates of family fragmentation contribute to a broad array of social
problems for communities and taxpayers, including increasing rates of poverty,
crime, juvenile delinquency, substance abuse, teen pregnancy, and other social
problems.11 We are concerned first about the suffering and risk to children whose
parents part. But because marriage is an important generator of human and social
capital, we are also concerned with the ways that adults as well as whole communities
suffer when a marriage culture frays.

The decline of marriage creates serious inequalities of opportunity, affecting
poor children and racial minorities disproportionately. Marriage is a wealth-building
institution, a profound source of social and human capital.12 Today many American
children, through no fault of their own, are deprived of the significant social, educational,
economic, spiritual, emotional, and psychological advantages of functioning,
intact married families. “


If you’re looking for actual fire & brimstone you will probably be disappointed. If your looking for a seamless academic argument that convinces even the most obtuse post-modern sensibility I cant help you. If you’re looking for sound public policy backed by years of social scientific consensus and backed by supermajorities of the American electorate….then traditional marriage is what you want.

Maidisonman
“but I'll still say that, regardless of how many people prefer a child be raised by its natural parents, a larger percentage prefer it raised in a loving and nurturing environment.”

Such soft sentimentality distorts the issue. What family form should the government privilege in the law and culture? Given that only men & women produce children together it is prudent to encourage stable family formation amongst the only group whose maintenance it requires.

From the New York Supreme Court Ruling

“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes -- but the Legislature could find that the general rule will usually hold.”

Pogo said...

Re: "regardless of how many people prefer a child be raised by its natural parents, a larger percentage prefer it raised in a loving and nurturing environment"
1. These are not opposites.
2. There is no evidence that gay couples have any lesser frequency of abuse, neglect, or abandonment than among heterosexual couples.

Pogo said...

Re: "And now you're arguing that gay marriage will lead to a catastrophic fall of human civilization."
Catastrophic? Yes.
Immediate? No.
But by progressive decay, as in Greece and Rome and Russia and China and Cambodia and North Korea and Iran and across much of Africa and in all the history you don't seem to know anything about at all.

Too Many Jims said...

Fitz said . . .

You seem to have missed the point of this...

Let me summarize the argument: We need the second sentence because, in some states, activist judges have taken our amendment which is simple and unambiguous (e.g. "Marriage is between one man and one woman.") and eviscerated the amendment by interpreting the amenmdnet so as to prohibit "marriage" but to permit relationships that are "identical or substantially similar to that of marriage for unmarried individuals". Therefore, we need to add some broad (and vague) language to prohibit activist judges from eviscerating the intent of the amendment.

If activist judges can complicate something simple, what makes you think that activist judges are going to read this in a manner consistent with the intent of the voters (assuming there was one intent).

There is a finite (but very long) list of things that make up "marriage". They run from the mundane (e.g. can I file a joint tax return with this person?) to the serious (e.g. can I visit (or be prohibited from visiting) this person if they are in the hospital?). So I propose instead of the second sentence, you make a list of "cannots" (e.g. "The state shall not permit two unmarried people from filing joint tax returns.") and a list of "cans" (e.g. "Nothing herein shall be interpreted to prohbit unmarried individuals from entering into contractual relationships wherby they can visit each other . . .").

If the list needs to be altered, you can always fire up the amendment process again.

Seven Machos said...

Every single time this issue has been put to an electorate, gay marriage has lost in a route. Maybe it's time to cut it out with the contemptuous, I'm-so-sophisticated pose toward all the rubes you come out and wallop you on election day. Maybe it's time to address the concerns of your opponents rationally, and even to try to understand some of their concerns so that a fruitful compromise might be reached.

I'm not talking to all the people on the left of this issue. Madison Man: you get a medal from me. But so many on the pro-gay marriage side are just politically tone deaf and stupid. It amazes me.

MadisonMan said...

2. There is no evidence that gay couples have any lesser frequency of abuse, neglect, or abandonment than among heterosexual couples.

None that I'm aware of. All gay couples I know that have been blessed with children have very deliberately chosen to have children. And they're great parents. I don't know if that's the norm of not. I know several heterosexual couples who seem to have fallen accidentally into parenthood, and some of them aren't very happy about it. Or maybe they're just not happy period. In any event, they are not stellar parental examples. Not a statistically valid sample, I realize, but it's the evidence I see.

MadisonMan said...

I meant to add: this isn't about the marriage amendment anymore, so let me check out.

Fitz said...

“So I propose instead of the second sentence, you make a list of "cannots"… and a list of "cans".

This approach is ungainly, unnecessary, and unpopular. So many states now have marriage amendments with similar broad language that a set common law precedents is being developed for their interpretation. Michigan recently denied State government benefits to same-sex couples, but has not prohibited private contractual rights or patient advocacy measures.

Its important for constitutional amendments to not just protect a word but the institution itself. Broad language such as Wisconsin’s Amendment allows for judicial interpretation and the margins while still supporting the broad consensus of voters in protecting traditional marriage.

Balfegor said...

Joseph --

You say:
You simply state that the same logic applies, but don't explain.

My point is that under the law as it stands today, gays and lesbians are no more recognised as a suspect classification than are gays and lesbians. They get, at most, a kind of rational basis on steroids, as in Lawrence v. Texas. But no formal classification, as far as I know.

With respect to the equal protection clause, gay marriage isn't problematic because it singles out gays and lesbians on its face (it doesn't -- it talks, at most, about gender), it's problematic because it involves gender discrimination, or because it burdens the exercise of a fundamental right to marriage.

The slippery slope applies to the fundamental right to marriage, because inbreeders and polygamists experience the same burden on their right to marriage as gays and lesbians do: they're not allowed to marry a person of their choice. If preventing gay marriage is against the Constitution because it burdens the exercise of that fundamental right, so is preventing incestuous or polygamous marriage -- the burden is the same. The question then becomes what public rationales you can offer against polygamy or incest (because we're in strict scrutiny territory, IIRC).

I'm saying that if the people view sexual orientation as a suspect class entitled to the kinds of protections that are recognized for race or religion, and they support same sex marriage for that reason, then we should look at how that specific rationale plays out in the slippery slope analysis. I don't think its plausible that people who want to include sexual orientation as a class that should not be discriminated against would use that same logic to allow incest and polygamy.

Well no. Of course they wouldn't. Because they think incest and polygamy are disgusting.

People can recognise gays and lesbians as a class but refuse to grant inbreeders and polygamists the same dignity. There's freedom of thought. They can think what they like.

But frankly, you don't need to dress up arguments about public opinion in fancy rhetoric about "equal protection." The hard truth (for inbreeders and polygamists) is that naked prejudice needs no reason. Inbreeders and polygamists will never be allowed to marry so long as the public overwhelmingly views their desires as sick and wrong. Whether that's fair or not is entirely beside the point -- the public is under no obligation to be fair.

Too Many Jims said...

Ungainly? Probably. Unpopular? Wouldn't surprise me. Unecessary? I'll agree as long as you are ok with courts deciding on the one hand that the state's domestic violence statute does not apply to a guy who beats up his girlfriend and on the other hand that California style "civil unions" are o.k. because they aren't "quite" substantially similar to marriage.

Pogo said...

Re; "In any event, they are not stellar parental examples. Not a statistically valid sample, I realize, but it's the evidence I see."

Lesbian Partner Abuse: Differences from Heterosexual Victims of Abuse. A Review from the Literature
Kansas Nurse, Oct 2005 by Patzel, Brenda
"Although estimates place the incidence of lesbian partner abuse at a rate similar to that of heterosexual couples, given the perceived stigma of abuse within such relationships, combined with that of partner abuse, it is doubtful that an accurate estimate of prevalence can be made (Renzetti, 1992). Even so, estimates of the incidence of lesbian partner abuse are very similar to estimates of rates of abuse among heterosexual couples."

The idea that gay couples would be any less abusive to kids than they are to each other needs better data than folks you happen to know (and filtered through you inherent bias).

Pogo said...

Re: "Well no. Of course they wouldn't. Because they think incest and polygamy are disgusting."

And what standard or norm are you invoking, and on what basis, to support this, when you decline a similar appeal for the very same reason against gay marriage?

Fitz said...

Jim C

“I'll agree as long as you are ok with courts deciding on the one hand that the state's domestic violence statute does not apply to a guy who beats up his girlfriend and on the other hand that California style "civil unions" are o.k. because they aren't "quite" substantially similar to marriage.”

I’m always and everywhere against poor judicial reasoning. The approach you suggest however is one were the courts are deemed incapable or untrustworthy of upholding the purpose of an amendment. California is a great example, they have a voter referendum defining marriage yet the legislature has been able to enact substantially similar arrangements under “domestic partner registries” – in order to prevent this, the people will need an actual amendment with language similar to Wisconsin’s. Domestic violence statues may need to be re-written, but chances are this one example (from –Ohio) has already been overruled and likely will be in other States.

There is no perfect way to restrain anti-democratic Judges when they have bent their will on obtaining something. Requiring the people to create laundry list Amendments to their constitution only shows the folly of trying to deal with tyrants. What is required is a respect on the part of Judges for the institution of marriage, rather than a parlor-game over the definition of a word. The current spate of Amendments & court rulings will hopefully instill this lesson.

Balfegor said...

Pogo:
And what standard or norm are you invoking, and on what basis, to support this, when you decline a similar appeal for the very same reason against gay marriage?

None at all. In my case, if you recall, my position is:

A) I have no particular problem with homosexuality, incest, or polygamy -- years of watching Japanese cartoons full of homosexuality and incest has utterly destroyed my sense of revulsion, and polygamy isn't particularly revolting anyhow -- and

B) I don't have much of a problem allowing gay marriage, incestuous marriage, or polygamous marriage. They are all fine with me. However,

C) I have yet to hear an argument affirmatively in favour of gay marriage that struck me as remotely persuasive -- generally they just strike me as obtuse and self-righteous. And often delivered extremely rudely.

D) BUT, I don't actually have any major objections to gay marriage. SO

E) I'm mildly in favour of it. And mildly in favour of incestuous marriage. And mildly in favour of polygamy. Although I am not enthusiastic about any of them. SO

F) I'm not especially opposed to keeping marriage the way it is right now either.

Too Many Jims said...

Fitz,

So what is "substantially similar" to marriage? Or is it like pornography, "I'll know it when I see it"?

Fitz said...

Jim C

This is precisely why we have courts, to apply the facts and the law on a case by case basis. We can’t get around the need for a court to define “substantially similar” anymore than “pornographic” or “rational basis” or “compelling state interest”. The language itself is no more vague (and therefore potentially dangerous) than most judicial language. It gets the idea across without tying Judges hands unreasonably.

Too Many Jims said...

Fitz,

Fine as long as you promise me that I don't have to listen to proponents of this whine about "activist" judges. You don't want activist judges, write clear legislation (or in this case amendments).

Revenant said...

Yeah, the fall of Greece, then of Rome, then the Dark Ages, the World Wars of the 20th century, the 100 million dead under communist rule.

I promise that if we get sacked by Visigoths I'll track you down and apologize for making fun of the whole "fall of civilization" thing.

But the interesting thing about your use of WW2 and Communism as examples is that Communism, Nazism, and Fascism were all sold as *antidotes* to the so-called "fall of civilization". Their proponents insisted that civilization was on a short, steep road to hell and drastic measures were the only appropriate solution.

People who ignored them and went on living in their "declining civilizations" (e.g. the United States) didn't see their governments taken over by Commies and fascists (unless invaded from the outside of course).

Revenant said...

Balfegor,

Nicely summarized. :)

The Jerk said...

Jerk -- Do you think you have shown that children being raised by their natural parents is not a bedrock of American law?

Nope. I've only shown that you haven't demonstrated that it is. This fixation with natural parents is mystifying. Should we ban adoption?

I don’t remember asserting that the “republic would fall” – only that it would further separate marriage from procreation and androgynize the institution.

A bit of hyperbole - you're not as hysterical on the subject as Pogo, I'll grant. But presumably you do think the consequences will be at least somewhat negative?

Maybe it's time to address the concerns of your opponents rationally

But it's difficult when the opponents are unable to put forth a serious argument. I think people should be able to do what they wish to do, unless there is a compelling reason to prohibit them from doing so. Nobody has ever been able to trace any plausible chain of causation from the legalization of gay marriage to concrete social costs. The best that can be offered is the slippery slope fallacy and a fallacious appeal to tradition. Such transparently bad arguments receive the contempt they deserve.

The Exalted said...

pogo,

please explain the "progressive decay" of "Greece and Rome and Russia and China and Cambodia and North Korea and Iran and across much of Africa and in all the history" and how this relates to current times.

because, see, from what i recall, rome and russia and china were ALWAYS BRUTAL TYRANNIES. and, perhaps if you yourself had any perspective, you'd realize that, before its fall into total disrepair, the Roman Empire had only but recently (relatively) adopted Christianity and expelled paganism. How does this fit into your cultural decay argument? perhaps, in your rose colored history book, you can drum up some support for your "gay marriage = cultural armageddon" argument.

i know, i know, the use of actual "history" isn't fair.

Fitz said...

Jerk
“ I've only shown that you haven't demonstrated that it is.”
Does he have to? As a matter of fact it is. The natural family holds common (& legislative) law privilege in matters from intestate succession, & paternity, to requirements that a martial act be “consummated” in order to be valid. Dower is fixed in the Magna Carta?

“This fixation with natural parents is mystifying. Should we ban adoption?”
Perhaps you prefer the mist? Every adoption represents a breakdown in principles of traditional morality. A child is brought into the world outside of a married family that desires a child. That child is given up for adoption. The preferred new home is one with a man & women in an intact marriage. The closest possible assimilation to the child’s natural environment. Did this slip by in the mist?

“But presumably you do think the consequences will be at least somewhat negative?”

I know the consequences in separating marriage and procreation are very negative. (as I laid out above) Women have never been more likely to live in poverty. Upwards of 80% of prison inmates never had their Father in the home while growing up. (its more of a causal indicator than race or poverty) The social science surrounding the importance of family formation since the 1970’s now commands a wide consensus.

“I think people should be able to do what they wish to do, unless there is a compelling reason to prohibit them from doing so.”
But no one is talking about prohibiting people from doing what they want. Were talking about what we collectively as a society (through law, taxation, & social esteem) decide to privilege.
Certainly your not so misty a libertarian that you think everyone has a “right” to public subsidy?

“Nobody has ever been able to trace any plausible chain of causation from the legalization of gay marriage to concrete social costs.”
#1. You don’t read much, do you?
#2. Social Science requires years of “experiment” and mountains of data to “prove” causation. (as it has on optimal family formation)
#3. The burden of proof is on those who advocate change (especially over widespread democratic opposition) What a silly standard you have for giving something the force of law & color of the State.

“it's difficult when the opponents are unable to put forth a serious argument”
“Such transparently bad arguments receive the contempt they deserve.”

I think you protest to much.

Revenant said...

from what i recall, rome and russia and china were ALWAYS BRUTAL TYRANNIES

Rome wasn't. For a while there it was a brutal republic. :)

Revenant said...

The burden of proof is on those who advocate change

Actually, the burden of proof is on those who want to prevent the majority from doing what it wants. If the burden of proof was on those who advocate change, no societal change of *any* sort would ever be allowable (as it is never possible to prove what the effects of a societal change will be) and we'd still be living in grass huts in Africa someplace.

At the moment, that's the gay marriage crowd. In another ten or fifteen years it will be the gay marriage opponents. That's why there's a big push, now, to get these amendments enacted -- so that once there's a pro-gay-marriage democratic majority in place they *still* won't be able to get what they want.

Fenrisulven said...

please explain the "progressive decay" of "Greece and Rome

That reminds me, in my reading loooong ago I came across a quote re the fall of the roman empire - something about the 5[?] Signs of a Nation in Decline? One of them was society's embrace of homosexuality. I've forgotten the source.

Don't want to get into a debate about it here, just wondering if any of you brilliant people can point me towards the work.

tjl said...

I'm baffled by those who see gay marriage as the prelude to the collapse of western civilization -- if anything is a threat to western civ at the moment, it's radical Islam with its penchant for executing gays rather than marrying them off.

Equally unconvincing are the attempts to draw parallels with Greece and Rome. There's no doubt that the summit of Greek cultural achievement came in 5th-century Athens, when Socrates was presiding at Symposia whose subject was love between men. As for Rome, the state retained its vigor while Petronius was doing party-planning for Nero. Rome's decline and fall took place only after Constantine made Christianity the state religion and put an end to paganism and its laissez-faire attitudes.

It's been a couple of years now since the Goodridge decision, and so far the social order of Massachusetts is no closer to collapse than it was before. Why not defer activism on both sides for a while, let passions cool, and then let the democratic process play out in the state legislatures?

Revenant said...

Equally unconvincing are the attempts to draw parallels with Greece and Rome. There's no doubt that the summit of Greek cultural achievement came in 5th-century Athens, when Socrates was presiding at Symposia whose subject was love between men.

I don't for a minute believe in the "omfg our culture will catch teh gh3y" meme of cultural decline some people are arguing for here.

However.

Your example isn't a good one for supporting your point. The thing about a "summit of achievement" is that, by definition, it is followed by a decline. So if the summit of Greek culture was acceptance of homosexuality, that means that the decline of Greek culture occurred following Greek acceptance of homosexuality -- and even though it wasn't the *cause*, it does kind of look bad if things happened in that order.

Rome's decline and fall took place only after Constantine made Christianity the state religion and put an end to paganism and its laissez-faire attitudes

Nah, Rome's decline began long before that. Its cultural trimuphs were largely those of the Republic. The Imperial period did little besides shed a lot of blood and waste a lot of wealth.

Eli Blake said...

You know, some of these arguments, about how our civilization is going to die if we allow two people who love each other to get married, are way out there.

What I never understood was people whose purpose in life is to make it harder for other people, who they've never met, and who they won't be one iota affected by whether they succeed or not. I just don't get it.

Then again, maybe someone can explain to me the thinking of a guy like anti-gay activist Earl Kimmerling of Anderson, Indiana-- who with his wife Shaundra went to court and fought tooth and nail to prevent a gay man from adopting a nine year old girl. Kimmerling succeeded in 1998 only because he found a heterosexual couple who were willing to adopt the girl instead-- himself and his wife. In 2000, Kimmerling went to prison to begin serving a forty year sentence for molesting the same girl. But dang, he saved her from being raised by the gay man!

Seven Machos said...

Eli -- Nice strawman. Even named Earl.

Spare me. What about:

1. The guy with the Confederate flag hanging out his dorm room window?

2. A group of parents that wants to have an all-white private school?

3. The guy who wants to own a bunch of automatic weapons?

4. A weird group of Branch Davidians who want to live on a compound in Texas?

No one else is "one iota affected" in these examples. And I could go on and on. Please don't try to counter these specific examples. The larger point is that you "won't be one iota affected by whether" these people "succeed or not," but I would venture to say that at least one of these examples goes against your values.

You can say you are an idealistic libertarian but probably you aren't (and full-bore libertarianism dones't work anyway, which is why most libertarians grow up to be conservatives.)

You have a hypocrisy problem. When something you view as okay happens, it's all live-and-let-live. But when someone else does something that offends your values, you (like most other people) probably want to legislate against it. Drop the live-and-let-live pose, which you almost certainly only use when it suits you. Embrace democracy. Embrace government of the people, by the people, and for the people. It is good when people actively decide how their own communities are organized.

tjl said...

Not to ride the historical analogies into the ground, but:

"if the summit of Greek culture was acceptance of homosexuality, that means that the decline of Greek culture occurred following Greek acceptance of homosexuality."

Homosexuality was a strand that ran through Greek culture from the beginning. In the Iliad, the earliest Greek literary work, the most intense emotional bond shown is the relationship of Achilles and Patroklos. Following this Homeric tradition were the Athenian tyrannicides Harmodios and Aristogeiton,the Theban Sacred Band, and Alexander and Hephaistion.

"Rome's decline began long before that. Its cultural triumphs were largely those of the Republic. The Imperial period did little besides shed a lot of blood."

Judging by the archeological evidence, the period of Rome's greatest material prosperity was the 2d century AD, the era Gibbon describes as the time when "the bulk of the human race was richest and happiest." This was also the period when Emperor Hadrian was cluttering the Empire with statues of his lover Antinous.

As for the Republic, Suetonius says Julius Caesar's bisexual exploits were so well known that his troops referred to him as "every man's wife and every woman's husband."

Pogo said...

My point about the decline of civilizations had nothing to do with homosexuality at all. Rather, it was to point out to an adolescent comment by Danny that decried "outdated ignorances once cherished by previous generations (who, like always, fade out while predicting the downfall of civilization".

Danny, like many others, seems unaware that civilizations have fallen into barbarism, even in the recent past. Why did they fall?

At a minimum, rejection of tradition and custom and norms which made life tolerable risks, at a minimum worsening our lives, and at worst, repeating the fall of civilization into barbarism, as exists now in North Korea and Iran.

In this case, I see marriage as an institution being dismantled (see the NYT ad endorsed by leftists Gloria Steinem, Cornel West, and Barbara Ehrenreich above), and suggest this might be deletirious for the rest of us over time.

While each age must filter the traditions and prescriptions from our forebears, and discard those practices that should now be sloughed off, this must only be done after sober consideration to be sure we are actually filtering and not simply allowing our heritage to run down the drain.

And sober consideration is thus far sorely lacking.

Fenrisulven said...

long ago I came across a quote re the fall of the roman empire - something about the 5[?] Signs of a Nation in Decline? I've forgotten the source...just wondering if any of you brilliant people can point me towards the work.

Echo? Not to pester - I'm just a novice who's wandered into a convention of experts here. Lil help?

The Jerk said...

The closest possible assimilation to the child’s natural environment.

Why allow this if natural parents are so important? Why not legally require the birth parents to raise the child?

The social science surrounding the importance of family formation since the 1970’s now commands a wide consensus.

Nobody's arguing that families aren't important. You haven't established that gay marriage will lead to fewer families. Try to address the actual issue rather than repeating commonplaces that are not disputed.

#1. You don’t read much, do you?

You don't think much, do you?

#2. Social Science requires years of “experiment” and mountains of data to “prove” causation. (as it has on optimal family formation)

So then you admit that nobody has demonstrated that gay marriage leads to the breakdown of families?

Why don't you try to trace a causal link using concrete examples, or even a hypothetical, rather than the blithe assertion of cliches?

#3. The burden of proof is on those who advocate change (especially over widespread democratic opposition) What a silly standard you have for giving something the force of law & color of the State.

What can I say? I like freedom. Do you have anything better than an appeal to tradition and popularity?

But no one is talking about prohibiting people from doing what they want.

Except for prohibiting gay people who wish to be legally married from doing so.

Fitz said...

Back in the 1960’s when the cultural left was arguing for no-fault divorce laws; one common refrain often heard was: “What do two people getting divorced have to do with your marriage?”
Another varient is “If the couple down the street gets divorced how does that effect your marriage?”
The divorce rate at the time was around 8%
The slant of the question is meant to put the questioner on the defensive. To put the burden of proof that SS”M” will effect the overall marriage culture on the social conservatives.
Its really telling tacticly. More to the point however its telling morally. Here are people arguing who (generally) cant even posit an overall moral enviroment. The vary concept of public morality is foreign to their thinking. As if everyone exists in a self contained atonymous bubble. As if every man is an island onto himself.

Thing is its not all about Gays. You can agree for any allowance you want to try and win what you want. Problem is the cultural left has a pedigree. They think marriage is archaic and patriarchal.
When Senator Daniel Patrick Monihan published his famous “Report on the Negro family” the cultural left called him a bigot.
When Dan Qualye eschewed Murphy Brown for making single Motherhood “just another lifestyle choice” the cultural left called him a bigot.
This Blog is replete with articles from the NYT and other sources of the cultural left about single women and men “choosing” to raise youngsters on their own. No moral condemnation is made or even suggested.
So called gay “marriage” does two things necessarily. (that is it follows axiomatically from the very definitional change)
#1. It androgynies the institution.
#2. It separates it from any necessary connection to procreation.
You can have this type of yuppie coupling as our ideal, but it fails to promote (and indeed undermines) the integration of the two sexes as a essential part of marriage. Most people are heterosexual and only opposite sex pairs can conceive children. Your standard explicitly states that a child’s natural Father (or Mother) is non-essential to marriage. That any combination of adult is sufficient.
It further reinforces and locks in the notion that all family forms are inherently equal. They are not.


there is a philosophical maxim that reads – “If it’s everything it’s nothing”. We cant defend what we cant define. You are attempting to severe marriage from its historical and biological heritage, this will have a net effect. (leaving aside the already discernable effects in Europe) That effect is that marriage is outdated and any family form including single parenting is acceptable.
Of coarse I’m going further than that. Mine is not a defensive crouch. I find you to be deeply inhumane and narcissistic in your demands. 40 years of a sexual revolution has given us 50% divorce rates, 70% illegitimacy rates and falling rates of marriage overall, cohabitation and un-chosen childlessness. The social scientific evidence for divorce and Fatherless-ness is in. It leads to sky high crime, depression, suicide, violence, gang activity, and a perpetual cycle of child abandonment.
For gays to throw the entire institution up for redefinition is the height of self absorption.
We can and must rebuild the social institution of marriage. Its important that all children are born into married households with their own natural parents. This standard should be advanced not undermined. The institution of marriage is infinitely more important than a vehicle for homosexual inclusion.

Greg D said...

We are talking about protection of rights.

You know, that's the claim that makes me most hostile to "Gay marriage."

No, it's not about "rights", and it's not about the couple that wants to get married. It's about society giving benefits to people who are doing things that benefit society.

Heterosexual marraige benefits society. Therefore it is rational for society to reward people for getting married.

If there's any evidence that homosexual marraige would benefit society, I've yet to hear about it. The fact that its supporters focus their whining on "rights" argues to me that there is no reason to believe that there's any benefit to the rest of us from those unions.

Which is a strong argument for why we shouldn't recogize such unions.

Seven Machos said...

Gay people are not prohibited from being married.

Matt Berg said...

I live-blogged it (as best I could) over at Students for a Fair Wisconsin.

Synova said...

Homosexual marriage could benefit society. The reason we don't hear about this is because proponents want to talk about rights instead of explaining how same-sex marriage could be good for everyone.

Disposable marriage is bad for everyone. Easy divorces. Single parents. Children born out of wedlock. The people who fear that marriage is being destroyed have real fears based on the fact that marriage *is* in danger. As someone mentioned, it's seen as archaic and actively bad for women. A remnant of the patriarchy. Defending it gets one labled as sexist or a bigot or who knows.

Homosexuals have the opportunity (and should take it) to put themselves on the *pro* marriage side of the equation. To make clear that marriage is not disposable. That a declaration of monogamy deserves to be honored. That even without children, that a marriage is the basic unit of social welfare, people pledging to care for each other and use their resources to care for each other.

For better or worse, in sickness and health, is a pledge to take responsibility for the care of the other person and that is important, even without children, in taking a significant burden off of state welfare resources.

If people want to be married for *real*, for what it really means to commit to another person, and want to promote the insitution of marriage, that's a good thing for everyone.

Frankly, I think that homosexuals, by and large, *do* want what most heterosexuals view as old fashioned and unimportant.