October 5, 2006

What is the rational basis for banning same-sex marriage?

My colleague in the Political Science department, Howard Schweber, emails a question about same-sex marriage that I know some of my readers will be good at answering. (And he likes the idea of my reprinting this to get answers from people who actually believe in banning same-sex marriage.)
Assuming that rational basis scrutiny is the appropriate level of review (which is far from clear in the majority opinions in Romer and Lawrence, both of which ducked the question), what is the strongest case that can be made for a legitimate state interest in restricting marriage to opposite-sex couples? I take it as given that if the statutes are constitutional, the fear of judicial intervention is an adequate explanation for turning them into constitutional amendments, so it's the original statutes that I am thinking of.

[One answer is] that majoritarian moral preference, standing alone, is an adequate justification for legislation. One reason I have doubts about that principle is its implications for free speech, actually, but let's leave that aside.

Ann made a more empirical suggestion -- I hope I am accurately recounting it as follows:

1. We prefer heterosexual couples to homosexual couples
2. There exist some number of persons, however small, who enter into heterosexual marriages because homosexual marriages are unavailable.
Note that I didn't say that I personally have these preferences. I'm trying to say what a court might find to be a rational basis if it were considering the constitutionality of the state constitutional amendment. As I've said many times on the blog, I support same-sex marriage, and I do not disparage gay relationships. I'm simply saying that a court might find rationality in the expression of special respect for the traditional relationship and that this respect -- with additional benefits and protections -- will encourage more people to form these relationships. I'm not saying this is a good thing to believe, just that it is one belief that is at least rational. I am assuming there are some people who are influenced by social pressure to form traditional male-female families who would, with sufficient social approval, chose a same-sex relationship.

Back to Howard:
One question is empirical; does a state need any evidence to demonstrate the existence of this class of persons?

The other question, it seems to me, is the basis for the preference. Avoiding the appeal to morality, one gets to the policy arguments (better for children, etc.) These seem awfully weak, and indeed analytically incoherent. [One might] say moral preference is enough, but that doesn't necessarily solve the problem. Moral preference between classes of persons, after all, are definitely not a permissible basis for legislation -- it has to be moral preference about conduct (Scalia says "lifestyle,") right? In other words, we are talking about sex.

So we come down to a moral preference for the kinds of sexual conduct that would be engaged in by the class of persons -- perhaps they are bisexual, for example -- who would enter into heterosexual marriages today but would not have done so if the alternative of homosexual marriage were available.

The problem there is selectivity: we don't use any similar moral preferences in determining who may marry in any other context. In the debate the other night I proposed the following indicia for concluding that expressions of a purported state interest are a pretext for animus:

novelty - an argument of a kind we have never heard before
selectivity -- a principle that is not applied in any other context
targeting -- a principle that is not applied to any other class of citizens
extremism -- a principle that if applied consistently would yield obviously unacceptable results.
Answers?

357 comments:

1 – 200 of 357   Newer›   Newest»
Joan said...

The problem there is selectivity: we don't use any similar moral preferences in determining who may marry in any other context.

That's ridiculous. We don't allow brothers and sisters to marry, either. The incest taboo is widespread across cultures, but it's not universal (or has not been, historically.) It's nothing more than a moral preference.

peter hoh said...

It's too long ago for me to remember the details, but I heard a professor from the University of St. Thomas (in St. Paul, MN) give what I thought was the most reasonable argument against same-sex marriage that I had ever heard. I vaguely recall that her argument was a legal one, but I wouldn't bet my house on it.

Greg D said...

1: Marriage is not a "right", it's a benefit society gives to a certain class of people.

2: Society gives the benefits of marriage to heterosexual couples because long experience shows that marriage of heterosexual couples carries a great number of benefits to society (for example: it civilizes men, making them more productive, and less foolhardy (and therefore less destructive) (see lowered car insurance rates for young males who marry)).

3: There is no evidence that homosexual marriage provides similar benefits to society.

4: Following the age old principle that intelligent agreements give benefits to both sides, it is therefore not in society's interest to give homosexual couples benefits that they haven't "earned".


Marriage is a contract. It's a contract between the people getting married. It's also a contract between, that couple. and the State. Valid contracts require that both sides get benefits. What is the benefit to society of giving a marriage contract to homosexual couples?

Until that's answered, there's no rational reason to give homosexual couples such a contract.

optionsgeek said...
This comment has been removed by a blog administrator.
peter hoh said...

My guess is that marriage laws, as they stand now, can't withstand a lot of legal scrutiny on the part of those looking for a "rational basis." Once we start looking for a "rational basis" for every regulation surrounding marriage, we're going to run into problems. There are some sharp differences in the way states regulate marriage, particularly with respect to the minimum age for marriage. Is there a rational basis for laws that restrict the marriages of minors?

sbw said...

Sometimes the first question isn't the best question to ask first. Instead, ask "What is the purpose of marriage?" It's easier to proceed from there.

optionsgeek said...

I believe there is a rational basis argument that's rooted in the state's obligation to act in the best interest of the child.

A necessary precondition for being a well-adjusted adult is an ability to interact effectively and respectfully with members of both genders. A heterosexual marriage is more likely to offer a strong, positive role model for each gender, thereby increasing the opportunity for a child to learn how to deal with member of each gender.

This isn't to say that growing up in a non-traditional family leaves someone incapable of becoming a well-adjusted adult. However, the preponderance of the evidence, as well as common sense, suggests that the child's interests, and therefore the state's, are best served when a child is raised by a man and a woman who are married to each other.

I believe more should be made of this approach when looking for legal justification to banning homosexual marriage.

Sam said...

I'm not a very smart individual, but doesn't Greg's logic circle around on itself? We'll never know if gays are worthy of the recognition of marriage rights if they never have marriage rights. I'm not sure that would stand up in any court of law. And he certainly undercuts his claim by saying that society will derive no benefit from legally married gay couples; if one gay couple adopts one child from protective legal services, that's benefit enough, because the state is no longer forced to care for that child.

Isn't the simplest argument the state's rights argument? That each state has the right to define its own whatevers, including marriage?

Mike Rentner said...

The government has no business in being involved in the personal affairs of its citizens. One exception is that there needs to be a legal recognition of who the parents of children are. This societal need justifies the government recognizing marriage.

Beyond this, there is no need for marriage at all, unless you have some desire for your religion to recognize your marriage. In this case, you're free to be married by your church, but not by the government. It's none of the government's business.

Children need the protection of others knowing who spawned them are are responsible for them. This is the only legitimate excuse for government having any role in marriage whatsoever, and since society wants to encourage fathers and mothers to care for children, it has an interest in giving some benefits, tax breaks, inheritance, etc. for families.

If homosexual people want to be together, no one is stopping them, but there's no need for the government to be involved in their relationship.

Joan said...

what is the strongest case that can be made for a legitimate state interest in restricting marriage to opposite-sex couples?

This question is answered best, I think, by Ann's conjecture:

a court might find rationality in the expression of special respect for the traditional relationship and that this respect -- with additional benefits and protections -- will encourage more people to form these relationships.

Prof Schweber says: Avoiding the appeal to morality, one gets to the policy arguments (better for children, etc.) These seem awfully weak, and indeed analytically incoherent.

"Seem" -- what a weasel word! The arguments are either weak or they are not. We've been over this ground many times here at Althouse, but I've yet to hear an argument that compelling lays my fears of the unintended consequences to rest.

Every single time we have tinkered with laws that underpin our sexual behavior -- availability of birth control, easy divorce, abortion-on-demand -- there have been massive, negative unintended consequences. Megan McArdle's really, really long post is a terrific discussion of these issues from the perspective of an economist. It's not really that long, but it's well worth reading, and explores at least one rational basis for keeping the definition of marriage as it is.

Doyle said...

There is none.

This has been another installment of Short Answers to Easy Questions.

Sharon said...

Greg,

In what sense have heterosexual couples getting married today "earned" the contract of marriage? Because past heterosexual marriage have benefitted society? Gay marriages haven't been given the chance either way. I understand that we couldn't allow them, conclude they don't benefit society and then change our minds; that would be impossible. But according to your logic, gay marriages will never be legal because they will never have a chance to "earn" it.

Maybe you're aware of this already, and that's exactly your point.

chuck b. said...

Don't unintended consequences result from everything? Should we therfore never do anything?

Isn't there an argument that same-sex marriages destroy the meaning of heterosexual marriages? I can't quite wrap my mind about, but that's one you see a lot on Althouse.

The idea that marriage civilizes men doesn't say much about lesbian marriages.

PatCA said...

Your colleague is focusing on the morality question, trying to lead the argument into that corner.

I don't object to gay marriage, but I do object to the implications of redefining the marriage contract, as greg d put it. Why does marriage exist in the first place, if not for societal stability? If gay people are allowed to marry, how can we deny any person or persons the so-called right of marriage; and is pan-marriage better for the US than restricted marriage?

Committed gay relationships are a good thing--I still think we should be talking about how to achieve that without opening the door to polygamy, whether religious or not, incest, etc. Yes, gay people are our brothers and sisters, but what's happening in the "marriage movement" is sibling rivalry, not thoughtful dialogue, and propelled by pols who see an issue they can capitalize on.

peter hoh said...

Joan has rightly pointed out that we don't allow brothers and sisters to marry -- even if they were to be well past the age of childbearing.

Greg suggests that society has the right to give benefits to those couples who have -- in the experience of society -- provided benefit to society. He counts heterosexual couples in that group, and cannot find reasons that same-sex couples would similarly benefit society.

Interesting argument. It should be noted that under our current system, heterosexual affair partners can divorce their respective partners and marry each other. How exactly that benefits society more than a same-sex couple getting married escapes me.

Filbert said...

optionsgeek said...

I believe there is a rational basis argument that's rooted in the state's obligation to act in the best interest of the child.

Ding ding ding! Those who ask "what is the rational basis for the institution of marriage in the first place?" are on the right track.

The State's fundamental interest in marriage is to provide a stable relationship to create and rear children. Other secondary positive effects exist ("civilizing" males, etc.) but it is self-evidently in the State's interest to promote the creation of the next generation of citizens, who will grow up to support (or, in the U.S. to BE) the State.

This isn't "moral preference," it's survival.

Randomscrub said...

I believe this is what the commenter above was referring to:

http://www.stthomas.edu/law/studentlife/journal/vol_2_num_1_articles/How%20will%20gay%20marriage%20weaken%20marriage%20as.pdf

It's by Maggie Gallagher and made a run around the blogosphere when she guest-blogged at the Volokh Conspiracy a while back. The St. Thomas Law Journal had a symposium on the topic in 2005, which is here:

http://www.stthomas.edu/law/studentlife/journal/vol_2_number_1.asp

I hope this is helpful!

anonymous said...

Why does the basis have to be 'rational'? If your definition of 'rational' is strict enough, then nothing whatever can be justified rationally, for one eventually gets back to fundamentally metaphysical questions -- What is the purpose of life? How was the universe created? -- for which no rational answer exists.

I'm a traditionalist; the fact that something is traditional is enough make it presumptively correct. So, if you want to change something -- usury laws, slavery, women's suffrage, abortion, gay marriage, polygamy -- _you_ are the one who has to make a convincing rational argument.

It bothers me that we are willing to make vast societal changes based on the whims of a few. We don't develop and market, say, drugs that way: we expect manufacturers to be sure that their products are safe.

Can any of you gay-marriage advocates _prove_ that no harm whatsoever will result from the enactment of your preferred policy? (And note that that is a necessary, but not sufficient, part of a rational argument for gay marriage.)

yetanotherjohn said...

In some ways I see this turned upside down. The status quo, since the founding of the nation, has been that same sex marriages are banned. Would there be unintended consequences if same sex marriages were allowed? We didn't intend to increase the number of children growing up without fathers and the number of single unmarried women having babies when we started welfare reform, but those unintended consequences came out of the welfare program.

So why haven't the same sex marriage advocates come out with arguments that can be accepted by a majority of the voters? By all accounts, they have failed to produce arguments that an average of more than 2/3 of the voters voting on state constitutional amendments could accept. When you have such an overwhelming rejection of the idea, it seems a bit ludicrous to me to then question why the super-majorities would reject same sex marriage and not question why the arguments for same sex marriage haven't taken hold.

Simply saying "If it ain't broke, don't fix it" is sufficient reason not to change long standing cultural customs. The onus is on those who want to "fix it" to make the sale that "it is broke".

Now we have seen a variety of long standing cultural assumptions put to the test and changed over time. Women voting is a good example. But the change for women voting was not made by judicial fiat, rather through persuasion that such a change was the right thing to do. Perhaps same sex marriage advocates can meet the burden of showing why the good would outweigh the harm, including potential unintended harm, but they obiously haven't met the burden so far based on the voting. And I think their attempts to bypass the hard work of meeting that burden through public discourse, going instead to judicial fiat both angers many and makes others suspect they don't have good reasons behind their case.

The proponent argument tends to boil down to same sex marriage should be allowed because they aren't allowed now and they want to. Would that be a sufficient argument to allow necrophilia? Or should society saying we haven't allowed this in the past and don't see any reason to allow it going forward be sufficient to stop necrophilia.

ELC said...

Anthony Esolen posted a series of "Ten Arguments for Sanity" over the course of a few weeks at the Mere Comments blog. I have them all linked at my blog: Ten Arguments for Sanity.

Decoder said...

What's the rational basis for allowing it?

- It's not equality. The rules are precisely equal right now. Any man, regardless of sexual preference, has the same restrictions on who he can marry: a woman of a certain age, who is not married, not a close relation, consents to get married, etc. There are no extra restrictions on "gay" men or women.

- It's not history. Historically, it's never been allowed in any culture, anywhere, throughout the history of the world.

The rational basis for "banning" (actually, simply not recognizing the relationships as a "legal" marriage) same-sex marriage is that these relationships aren't marriages. They exist for different reasons than traditional marriages.

Marriage is about commitment and responsibility -- joining together to be a family.

Same-sex "marriage" is about benefits (money), social privleges (automatic access to things that are restricted to immediate family), and pretending your relationship is normal rather than extraordinary.

Marriage shouldn't be hijacked to paper-over self-indulgent lifestyles so they can appear virtuous.

ExRat said...

"Render unto Caesar ...."

As I see it there are two components to the idea of marriage as most of us think of it. One component has to do with legal effects and the other has to do with status in the community. The State clearly has an interest in the legal issues, such as rights of inheritance, alimony, child support, property rights and the like, but in my view it doesn't have much interest in the community component, i.e., how the couple is regarded within the circle of friends, neighbors, co-religionists and the like.

I therefore favor the idea that the State should get out of the business of "marriage" and regulate only that component of the relationship that it has an interest in. Under this theory, the State would issue certificates of domestic partnership (by whatever name, but not "marriage licenses") to couples who wish to formalize their relationship, irrespective of gender or sexual orientation. The mere issuance of the certificate would confer upon the couple all the legal rights and responsibilities that we currently associate with "marriage", irrespective of whether the couple participated in a ceremony. The issuance of such a certificate would be a bright-line test: with it, the couple's rights and responsibilities to each other would be defined, and in its absence the couple would have no more rights and responsibilities to each other than roommates. (Obviously, their rights and responsibilities regarding children would have to be regulated in any event, just as they are now when a couple is not "married.")

"Marriage" would be totally a matter for the couple's community. If a couple wanted some kind of ceremony solemnizing their relationship, then they could go to a church or whatever to have that ceremony, and within that community they could be certified as being "married." If a couple wanted a secular ceremony, I suppose a local governmental body could provide the service, but it would have no legal effect. In essence it would have no more legal significance than a birthday party, but like a birthday party, it could be an important event for those attending.

I suspect that most mainstream religions would not agree to perform a "marriage" in the absence of a certificate of domestic partnership, but whether they did or not, a "marriage" would have no legal effect under this theory in the absence of such a certificate.

Full disclosure: I am a pracicing Catholic and I believe that "marriage" is a relationship between one man and one woman, but I also recognize that many gays and lesbians wish to enter into formalized relationships that establish both legal rights and responsibilities and status as a committed couple within their communities. If they are hung up on the word, "marriage," then they should be free to find a clergyman or official who is willing to "marry" them, but I don't think that their sexual orientation ought to have anything to do with their legal rights and obligations.

(Cross posted to my blog.)

Xrlq said...

Marriage is, for all intents and purposes, a three-party contract, so the real question is why the state would want to be a party to some unions of consenting adults but not others. Once you answer that question, it shouldn't be hard to understand why the state have a greater interest in preserving a union between two or more individuals capable of producing offspring than in preserving one that can never amount to anything more than a voluntary union of adults capable of looking out for their own interests.

If you accept that unions that can produce offspring are different in kind from unions that cannot, polygamy and gay marriage are both out, and the only question is whether to make traditional marriage available to all straight couples, or whether to have Big Brother limit it further to ensure that only those with a reasonable likelihood of having children may be legally married. The latter strikes me as a highly intrusive policy that would yield very few tangible benefits in return. Unless, of course, fully addressing the lame "but some straight couples can't have children, either" argument counts as a benefit. It doesn't, in my book, but YMMV.

That said, I think you're being too generous on the issue of constitutional amendments, per se. With top courts in states as liberal as Washington and New York rejecting any "right" to gay marriage, and even ultra-lib courts like the Mass SJC adopting it by only the thinnest of margins, all this hype about how the Supreme Courts of Virginia and Tennessee are fixin' to follow the Mass SJC's footsteps strike me as a bit overblown. Even if we did really think a new right to gay marriage by judicial fiat was looming on the horizon, the appropriate response would be a preemptive "no you dummies" amendment to preclude the courts from construing the constitution to require gay marriage. Instead, we're asked to vote on substantive prohibitions that would effectively make the issue democracy-proof if popular opinions should shift in the future. There's no good reason to do that.

chuck b. said...

"Historically, [gay marriage ha]s never been allowed in any culture, anywhere, throughout the history of the world."

It's legal right now in a few countries.

George said...

What if the government mandated that all children above the age of, say, seven or, say, 13 should be removed from their homes and thereafter raised in goverment facilities for betterment of society?

We would be horrified. We would say that the risks of raising children in government communes outweigh the benefits. We would contend that many, though not all or necessarily even a majority, of the children would be irreparably harmed.

Therefore, is not the legalization of same-sex marriages a similar form of experimentation on children?

The long-term individual (and societal) results of the raising of children by same-sex parents is imperfectly understood and may be highly detrimental to significant numbers of those children. Why experiment on children in this way?

Filbert said...

The professor of my years-ago college marriage & family class referred to the state marriage license as "a license to breed."

peter hoh said...

No, I wasn't referring to Maggie Gallagher. The St. Thomas prof was a St. Thomas prof, and Ms. Gallagher is not.

craig said...

Tony Esolen did a good series on this a while back at Touchstone magazine's weblog: see http://merecomments.typepad.com/merecomments/2006/08/ten_arguments_f_2.html for a link to all the posts. His argument, although it undoubtedly evidences a Catholic worldview, relies solely on reason and empirical observation and does not appeal to the authority of Scripture or Catholic Tradition. I will not attempt to summarize it here; go and read it all for it is good.

Mickey said...

What is the rational basis for banning same-sex marriage?

Serves no purpose.

Akiva said...

Somehow it's amazing that as a society we've moved having to rationalize non-normative behavior to having to rationalize normative behavior. This is pretty problematic, for the same question could be asked about many other relationship forms which the vast majority would find repusive but could produce no more argument than can be produced in this case.

The contractual partnership of marriage provides only a minimal benefit to society of having a 'partner' available should one of the couple have special care needs. This benefit may be offset by the hassles of having to register, track, and arbitrate breakups of the partnership.

The societal benefit is pretty much exclusively when the partnership turns into a conglomerate, a family. The majority of the laws around marriage, the focus of the resources and the aribtration of any breakup are very much focused on the children. And, as the parents followed by the society have the burden of caring for the next generation, this is widely recognized to be as it should be.

As far as the activity being ok because it's private and between consenting adults, why can't consenting adults choose to murder one another? Or enslave (with consent of course)? In the sexual realm, we could similarly discuss incest, age of consent, group relationships, and human/non-human relationships.

Because either we have standards, or we do not. It's one discussion as to whether private consenting behaviors should be criminalized or even stigmatized, it's another as to whether they should be publically accepted and even lauded.

amy said...

If you are basing your objection to gay marraige on the opinion that it's bad for children - why aren't alcoholics and drug addicts forbidden to marry? One could argue that is far more distructive to a child's psyche than having two male role models.

Also, what of single parents? Are they thus rendered unable to raise their children by this same logic? I am quite sure I know many fully fuctional adults who were raise by a single woman, or a single man, or even (gasp!) a grandparent.

Not to mention the fact that I have never seen any reliable, peer-reviewed, published study showing that children of gay couples are any worse off as adults.

John Lynch said...

A better place to start this discussion is the original assertion of state into cultural, societal, and individual behaviors.

What basis gives the state the right to determine the validity of marriages? Who gave the state those rights? On what basis was the state given those rights? What benefit was the granting of those rights to the state expected to secure for society? Whence “common-law” marriages?

As a believer in minimalist state / maximal individual rights and responsibilities, I believe that state's insertion into this debate began when the state determined that they must issue the right for individuals to marry. From there it is a slippery and inevitable slope to legislating morality.

I do not believe the state should play a significant role in legislating morality, but should only reflect the morality as determined by the people. In other words, the laws should be made by the people, and only when the representatives of the people go through the sausage-making (law making) process designed to be painful, protracted, and difficult. This serves the purpose of restraint in making laws and sufficient debate as to whether the suggested issue is indeed the "will of the people."

The courts, in the absence of clear intent from the legislature, have an even higher duty in restraining themselves from adjudicating morality. Where there is legislative declaration, such as state law, then the duty of the judiciary is clear.

An individual may have the right to determine for themselves the issues of morality involved in their sexuality and in their relationships. The people, in the form of laws, have stated certain clear forms of sexuality and relationship including incest, pedophilia, and polygamy are unacceptable. They have stated certain forms are recognized. They have left unaddressed others.

My position, in case it is unclear, is that not only should the state not recognize same-sex relationships as marriages under the law, but should not insert themselves into a position of approving marriages at all. Approval, should such be necessary, comes from society.

grass said...

I've never heard car insurance rates as a justification against gay marriage - that's classic. As for the argument that marriage "civilises" men, I find that dubious. In fact some studies say that violence is far more likely in marriage (see for example a statement made by the Church of England recently quoting a CPS study).

As to the argument that children are better off in heterosexual marriage - there is a lot of reserach to say that children who grow up with homosexual parents do not suffer any disadvantage in development, and little that says otherwise. Not to mention, if the alternative is the child growing up in a foster home, then the argument, even if true, doesn't hold water. And finally, marriage isn't a prerequisite to parenthood - so banning gay marriage may have little affect on whether or not gay people raise children.

BobH said...

Three different viewpoints on heterosexual marriage:

1. In biology, "heterosexual marriage" is called "long term pair bonding" and it exists because it appears to improve the likelihood of the offspring surviving to reproductive age. (Evolutionary psychologists and biologists have a problem explaining why homosexuality exists at all, but they have problems explaining schizophrenia too. But that's a whole 'nother discussion)

2. Probably the broadest defintion of "marriage" in anthropology is "guaranteed sexual access to a woman of breeding age." Typically, the groom or his family PAYS the bride or her family for this access. (Dowry is the bride's family's contribution to the shared wealth of the newly formed couple and, in the event of their separation, it stays with the bride and/or her children.) So, at the core, heterosexual marriage is just an extended form of prostitution.

3. I think that most people here would accept that a big part of American heterosexual marriage is an implied contract: (1) the man agrees to provide resources and/or services to any children that may result from the marriage and (2) the woman agrees that any children which she bears during the marriage will be his biological offspring, unless he explicitly agrees otherwise. As it turns out, the man's obligation under this contract are legally enforceable, while the woman's aren't. (Google on "paternity fraud".)

Oh, yes. In 97% of mammalian species, the father (i.e., sperm donor) provides no significant investment to the offspring, presumably because, in mammals (and birds) paternity can be faked and "misappropriation of paternal investment in offspring" is possible. Deadbeat dads are the norm.

So, here is my proposal - lets celebrate homosexual marriage but abolish heterosexual marriage.

Decoder said...

To chuck b.:

Historically means "historically" in this case. It does not mean "right now".

To be more precise, there's no anthropological precedent for these relationships as "marriages".

Balfegor said...

wtgxI think Rentner's argument above is the proper starting point here. He says:

The government has no business in being involved in the personal affairs of its citizens. One exception is that there needs to be a legal recognition of who the parents of children are. This societal need justifies the government recognizing marriage.

Beyond this, there is no need for marriage at all . . .

A priori, why would we devise a special status, with special benefits, for any two adult people who happen to decide they want to join in that status? Compare with the corporation, say, where there are status-related benefits (limited liability) where the justification is that limited liability has a beneficial effect on enterprise.

Many times, the argument behind gay marriage is implicitly (or even openly) that if two people love each other, then it's proper for the state to recognise that, and formalise it in marriage. granting special privileges to make it attractive and so forth. But of course, marriage, as a legal construct, has nothing to do with love -- if you show up to get married, I am not aware that the state requires that you profess your love for your soon-to-be-spouse before it will give you your marriage license. And the uses to which legal marriages are put often have little to do with love either -- gold-diggers, for example, who marry rich old men for their money. Both facially (in terms of what the law requires) and in practice, legal marriage has nothing whatsoever to do with the personal affections of the parties involved.

Marriage does, however, have a still-remaining (if attenuated) connection to procreation and child-rearing. Love and mutual support and all that are difficult to connect with the kinds of things necessary for a marriage, but procreative sex is still something implied by the stucture of marriage today. The two plainest examples of this are (1) that marriage is limited to heterosexual couples, and (2) that marriage is forbidden to incestuous couples.

Approaching the second first, why are we concerned with incestuous marital couples? One argument I've heard, which strains to avoid the procreative implications of marriage, is that an incestuous marriage will put undue strains on the family concerned -- what if it breaks up? What if there is a divorce? The family may be torn apart. I don't think that's a reasonable explanation, though, first because people rarely talk about this, and second because if we were really concerned about families being torn apart, we wouldn't have no-fault divorce.

So on the contrary, our concern is probably the concern everyone always expresses about incest -- that our couple will inbreed and produce an abomination with three eyes or somesuch. The actual likelihood of this is remote (it took several generations before the Spanish Hapsburgs fully degenerated), but it is not entirely unreasonable, and is intrinsically connected with the expectation that the participants to the marriage will breed.

Why bar incest if procreation is not implicated by marriage? After all, like a homosexual couple, an incestuous couple could have exclusively nonprocreative relations. The bar on incestuous marriage is inherently overbroad, if the purpose of marriage is anything other than procreation, because then we could allow incestuous marriage, and merely forbid procreation. We don't, though, suggesting that procreation is intrinsic to our conception of marriage.

Moving back to the first, the heterosexuality of a marital couple also implicates procreation. People often object that we permit people who are infertile to marry anyhow (e.g. those "fertile" octogenarians, and so forth). If we permit people who are infertile to marry, how can we say that procreation is implicit in marriage? We can say that, because the form of marriage we implemented in our law (as distinct from marriage as it might arise naturally in society) was designed for procreation, but only loosely tailored to that purpose. If you suggest a pairing of a man and a woman, the archetypes of "man" and "woman" that we (or most of us) hold, conceptually, are fertile men and women, of breeding age, and coupling a man and a woman thus suggests procreation.

People often argue, against this heterosexual=>procreation argument, that the social reality of marriage has changed, and that there are lots of heterosexual couples who get married without the slightest intention of having children. E.g. the "DINK" (Double-Income, No Kids) phenomenon in metropolitan areas. And that, further, because the social reality of marriage has changed, therefore the laws should be rewritten to abandon a limitation born of the state's interest in procreation. But following that line of argument, we run up against the problem Rentner suggests: if not procreation, then what?

Why have marriage at all?

Essentially, boiled down to its essence, this argument is as follows: That the central archetype for marriage is a procreative couple -- man and women, who produce the next (healthy) generation. All kinds of couples who don't quite meet that archetype (e.g. because they are infertile, or have no desire for children anyhow) are included in marriage, because the legal structure is not narrowly tailored to its rationale. It doesn't take into account that not all men and women are fertile, and not all couples want to breed. But at the same time, couples whose composition runs plainly counter to that procreative rationale -- i.e. incestuous or homosexual couples; the first because it is affirmatively bad if they procreate, and the second because they cannot procreate, being either both male or both female, proof by inspection -- are excluded from the scope of legal marriage.

Could we accept both these types of couples without destroying the rationale for marriage? Well, probably yes, which is why I don't have a problem with gay or incestuous marriage. Marriage, as a social institution, really rests on social foundations, after all. The law is sort of incidental. But is there a rational basis for the limitation?

I would say that pretty clearly, there is.

chuck b. said...

Heterosexual marriages should be stripped of all legal benefits until those marriages produce children, either by procreation or adoption. Some benefits can kick in retroactively within a certain time frame.

If marriage is really about protecting children, I think that would make it truly fair for everyone.

Decoder: got it, but I don't understand why that distinction matters. We have the counterexample to study right now. That's better than studying an historical counterexample. We're already not living in the same world our ancestors lived in.

Balfegor said...

I said:

man and women

I meant to say:

man and woman

Whoops. Was not intending to slip in polygamy there.

Peter said...

It is very simple.

There is no rational basis for denying same sex marriage legal status other than the people's desire not to.

But there is also no rational basis for banning multiple partner marriage, or sibling marriage or any other combination other than people's desire not to.

The real question here is will the state recognize it and provide benefits for such couples. If you do it with one, you do it with all.

The idea that "oh that other stuff will never happen." is bogus as nobody prior to 1990 even considered this a non fringe arguement.

The worse part about the lot is apparently the entire nation was only populated by bigots since because they didnt' consider this.

This is not about granting rights, it's about forcing society to bless something it doesn't wish to. All the rights (medical and otherwise) could be achieved by a standard contract.

The only rational basis is for society to decide what kind of system it wants. Since the previous system was abandoned a new one needs to be decided on. Until it is settled this debate will continue.

pettyfog said...

Here's a thought.. let's reserve the term "Marriage" for a religious ceremony of union between a man and a woman. Thus a uniting of families and focussed on the begetting of offspring. In almost every culture that has thrived, that what it is and was.

Let's call all others, including Vegas and Reno Wedding Chapel hook-ups, 'Civil Unions' and give them the same rights and benefits.

Then I dont care if they marry goats. But to FORCE people who have a solemn view of the rite to accept whatever is popular... or to 'validate' what they consider to be perversion, is ludicrous.

And yes, even man-woman civil ceremonies should have been labelled such years ago.

Andrew Graff said...

"Gay marriages haven't been given the chance either way."

I don't think we can assume that.

I think the strongest argument here is that the concept of 'marriage' (husband and wife) is nearly universal in human culture, but the concept of 'same sex marriage' is almost unknown.

If we are to procede from 'rational basis', we can assume that either:

a) There is something about the morals of traditional marriage which is inherent to our genetic makeup. Or else...

b) Or else that traditional marriage is a meme, and that at one point in history the behavior of the human animal preexisted the development of the 'traditional marriage' meme. In other words, we may assume that if our preference for traditional marriage partnerships (and abhorence of same sex ones) is not fixed in our genes, that at some point societies developed the morality involved. If that is the case, then we may treat the memes as if they were genes and assume that at one point there were populations which had marriages of both the traditional and mixed marriage type. The current scarcity of existance of societies with the 'same sex marriage' meme strongly suggests that through much of human history, 'same sex marriage' has carried some strong negative fitness consequence, resulting in the 'same sex marriage' societies losing out to the 'traditional marriage' societies.

In other words, its almost certain that it has been tried. We can get some clues about how well it works out by looking at societies that were very tolerant of homosexuality, for example Spartan greece, and seeing what befell these societies. For example, Spartan greece appears to have experienced a long term population decline, perhaps even a population crash. I would argue that a society that embraces homosexuality undercuts its social drive to produce children for the next generation by undercutting the basis of the sexually productive relationship and replacing it with a sexually sterile one.

Gee, I wonder if we can find societies which are experiencing population declines today?

And this is just the tip of the iceberg when arguing rational reasons to oppose homosexual marriage. Actually, what's amazing to me is that people are acting as if ratonal reasons would be hard to come by. Really?

therealjg said...

One must be very careful of the word, "rational". It is a dangerous word that has long been a rallying cry for the Left. Examples abound. Environmentalist atheists may rationally ask if people make good lampshades, owing especially to the large supply of people and environmental friendliness of vegetable tanning.

LuteLib said...

the gay marriage debate is exhausting. my morals say this! your morals are evil! over and over and over... sigh.

two things:
- optionsgeek, i thought i heard of a recent study that said gay parents were actually (gasp) the same as heterosexual parents (except for the whole gayifying their kids thing)
i did a quick google search and couldn't find that study... but found this a roundup of some other studies.

- i'm waiting for a politician to say, "my church, and several other faiths, choose to have gay marriage. what business does your church have in telling my church what to do?" the law gives marriage rights, not a marriage blessing.

MarkL said...

There are straightforward arguments for the "utility" of gay marriage, which undermine "relative utility" arguments that would prefer straight marriage.

1: As a heterosexual, my health risk is lowered every time two gay males marry, assuming they are monogamous (the same assumption that must underlie the utility of straight marriage). This removes two individuals from the high volume of sexual contact that characterizes single life and, in turn, marginally reduces the transmission of STDs, particularly serious ones. If every gay male were married and monogamous, how far and fast would the AIDS epidemic have spread?

2: Any good marriage provides a small mutual support system for the participants and to some extent helping society to provide care in sickness, unemployment and other travail.

It is just not true that all regulation of marriage is for the protection of children. Most marital property law is intended to protect the weaker spouse from the stronger during divorce. Why is this any less important in the case of a same-sex couple?

optionsgeek said...

Amy and grass (above) point out that there are many types of destructive behavior that parents can engage in, why should government single out homosexual marriage.

The answer is simple - government engages in all sorts of coercive behavior when it determines that doing so can further society's interests. When it does so, government must act in congruence with societal norms. Banning alcoholic from raising kids? Well not in general, but if the situation warrants, the state will step in. Certainly an alcoholic parent has much less chance of getting custody during divorce proceedings.

The question isn't why shouldn't government allow homosexuals to marry - the question is why should they?

nina said...

Commenters keep coming back to the premise of raising children. Both the Hawaii Supreme Court (Baehr 1993)and the Vermont Supreme Court (Baker 1999) have rejected the state's argument that limiting marriage to heterosexual couples serves the interests of family or children.Both courts found that gay couples (and families) are entitled to the same legal protections as heterosexual couples. The state failed to provide the court with convincing evidence that gay marriage harmed children. Indeed, both observed that depriving children in gay families of the protections offered to married couples severely disadvantages the children.
And, if you want to look beyond state borders, you should definitely read Lawrence (Supreme Court 2003) as stating that gay couples deserve protections (privacy in this case), that history has demonstrated that we, as a sociaty are more accepting of gay partnerships. That's a huge difference than, say, our attitude toward polygamy or intra-family marriage, in caseyou do want to go the values route.
Chuck b. is correct: gay marriage is permitted in the Netherlands, Belgium, Spain, Canada....

darth_meister said...

A more revealing question is: "What is the rational basis for banning bisexual marriages?"

If we're going to pooh-pooh moral scruples as well as the fact that the institution of marriage transcends this republic as well as any other existing government, I don't see where the state has any moral or "legal" power to alter the original definition of marriage, that being a legal union between one man and one woman.

And the question itself is a red-herring of sorts. It should be: "What is the rational basis for adopting same-sex marriage?" Instead of letting judicial activists on a court unconstitutionally decided the matter, why hasn't there been a hue and cry to require the homosexual lobby to amend the Constitution like we did with the 18 year old vote with the 26th Amendment? Instead of seeking a constitutional amendment to ban homosexual "marriage", conservatives, traditionalists and strict constructionists should have insisted from the start that it is incumbent upon the counter-culture to avail itself of the amendment process which is the proper way to establish "special rights". The last time I checked, a homosexual can marry anyone of the opposite sex who themselves are willing, they aren't being deprived of equal protection under the law.

Next thing you know polygamists will be standing in line since there is far more of a historical basis for their marital proclivities than there is for homosexual "marriage".

If a civil government feels the need to protect the legal rights of homosexual co-habitors, then it seems to me it's within their power to institute civil unions. I guess the irony of all this is the homosexual lifestyle is based on counter-cultural impulses, yet now those who subscribe to this counter-cultural lifestyle want to legitimize their relationship by committing themselves to the burden of a mainstream institution.

I find it strange that the homosexual lobby says its all about love when the basis of their argument is almost always grounded in monetary matters, visitation rights, inheritance, etc. If it really is only about love then let's let elders marry minors and brothers marry sisters.

Howard Schweber said...

There have been too many comments to respond to all of them, so let me just make three observations.

1. The state always has to justify its classifications. That's what the XIVth Amendment is all about; if the state wants to give benefits, for example, to some people and not to others, the state bears the burden of demonstrating -- at a minimum -- a legitimate purpose that is actually served by their actions.

2. The argument that heterosexual marriage yields great benefits is unquestionably true. The problem is showing how permitting same-sex couples to marry would end or diminish those benefits. Without that causal nexus, there is no way to connect the legitimate state interest to the state's actions. Ann's initial focus on some number of persons in opposite-sex marriages who would have entered into same-sex marriages if those had been available was designed to identify just that nexus; the problem there is justifying the preference. The very low divorce rate in Massachusetts does not prove anything, but it disproves any deterministic claim about the immediate and necessary effects of same-sex marriage on opposite-sex marriage.

3. The argument about the welfare of children is a red herring. The evidence is far from clear, but even if it were demonstrably the case that children are better off being raised in opposite-sex households, there are two enormous built-in assumptions that make that finding irrelevant. First, any such comparison is based on the assumption "all things being equal." But all things are never equal, and no rational person can deny that there are a fair number of cases in which a child is better off with a same-sex parents than with opposite-sex parents. Heterosexuals may be child and spouse abusers, drug and alcohol dependent, gamblers who squander the household resources, abandoners of their families. And so might homosexual parents; that's the point. Any generalized comparison based on a single factor is meaningless in practice. Which raises the question of how the state can justify focusing on one aspect of ideal parenting while ignoring all the others. That's the "selectivity" aspect that suggests a pretext for animus toward the affected class.
But the second assumption built-in assumption is the one that makes the argument from child welfare incoherent. That is the assumption that we are talking about a population of children already in existence, as in the case of adoption. But that is simply false; the discussion has nothing to do with taking children out of heterosexual households and moving them into homosexual households. Either allowing same-sex marriage will or will not result in the birth of children who would not otherwise have been produced. If it will make no difference, then the state is taking the position that the children of same-sex parents are better off being raised out of wedlock. And if it will make a difference -- which seems to me obviously correct -- then the state is taking the position that it is better for a child never to have been born than to have been raised by same-sex parents.

Julian Morrison said...

Also worth asking as a "checksum" is whether your justification could be used to criminalize other sorts of marriage, unintentionally.

Examples:

- welfare of the child argument -> criminalizes trailer trash marriage

- lifestyle disapproval -> would have criminalized interracial marriage in the old south

- childbearing -> criminalizes old or sterile people's marriage, and also may be obviated for gays by the recent advances turn stem cells into gametes that would allow a full biological child of same sex partners.

- they can still marry heterosexually -> would have been applied to mixed race marriages

- require a traditional family -> would ban hippies or other oddballs marrying at all

- conservatism against untried change -> interracial marriage again, some changes are worth it

If, in the end, you can't find an argument not stopped by some "checksum", then it could be that there is no rational basis.

Gerry said...

Wouldn't the natural first question be, what is the state interest in marriage at all?

Balfegor said...

And responding directly here:

The other question, it seems to me, is the basis for the preference. Avoiding the appeal to morality, one gets to the policy arguments (better for children, etc.) These seem awfully weak, and indeed analytically incoherent.

I'm not sure it's a preference for heterosexual couples over homosexual couples, so much as a preference that children who are born be born into families. So to facilitate that, there is marriage. That is, if there are two people likely to have a child, there is this legal form ready and waiting for them, so that their child can be born into a family. They don't have to take advantage of the form -- many people apparently don't (and this is point of concern for the government: the large number of children being born outside of marriage, particularly among the urban poor). And indeed, many people take advantage of the form for entirely different reasons. But this is, I think, our preference.

Advocates of gay marriage point out that lesbian couples, at least, can bear children in their marriage (i.e. one of them is impregnated by a man outside the marriage, or there is artificial insemination of some sort). So aren't they the same? Don't the same rationales apply? I don't see why they would, though, for two reasons. First, because there is then someone outside the marriage with an immediate blood tie to the child. The child is not really being born in the marriage, any more than a child from an adulterous fling is. Second, and more significantly, we don't get the unexpected pregnancy problem with lesbians -- lesbians sleeping with the women they love can't get pregnant by the women they love. There is thus minimal risk of lesbians indulging their sexual appetites coming up pregnant and bringing unanticipated children into the world. On the other hand, there's a big risk of this in heterosexual relationships, which are, after all, where babies come from.

re: Julian Morrison:
If, in the end, you can't find an argument not stopped by some "checksum", then it could be that there is no rational basis.

The problem, of course, is that there's no rational basis for marriage at all by that standard. Why discriminate between married couples and unmarried couples? Why discriminate between married couples and random strangers on the street?

Little Tobacco said...

Whether marriage is a right or not is not really the question. It is the benefits that accrue through other pieces of legislation to individuals who have the status of married that creates the discrimination challenged.

There are tax and pension benefits. Consider as well the compellability and competence of a person to be a witness as against his/her spouse.


The easy solution is for the government get out of the "marriage" business and leave it to the churches. Though I expect that it will be a tad more difficult than that.

Balfegor said...

Re: Howard Schweber:

The argument that heterosexual marriage yields great benefits is unquestionably true. The problem is showing how permitting same-sex couples to marry would end or diminish those benefits. Without that causal nexus, there is no way to connect the legitimate state interest to the state's actions.

This seems like a kind of odd standard to apply, if we step back and think about it. I give group A a benefit, because giving group A that benefit benefits society. Okay. But now, if I give group B the same benefit, well, society isn't actually harmed, (i.e. the benefits aren't diminished or ended), but society isn't notably enriched either. Ergo, I must extend the benefit to group B too?

I don't think that follows. The rational basis is the rational basis underlying the decision to slice up the population in a particular way, no? And it's perfectly rational to target benefits somewhat, even if only imperfectly.

The requisite causal nexus is supplied, I think, if Group A is roughly congruent to the group where the benefits will bring the public good.

fletcher said...

Why can the courts rewrite the marriage law rather than simply ruling it unconstitutional?

In Massachusetts, for example, why did the courts "enact" gay marriage rather than simply rule the existing marriage law unconstitutional?

Citizen Tom said...

Please go back to basics. Why do we have laws? We have laws to protect rights of people? If a law does not protect anybody's rights, it is not needed.

Why do we need a marriage law? Marriage protects the rights of children. It ensures that both of the parties responsible for the conception of a baby take responsibility for the baby's welfare. Hence the law recognizes the union of heterosexuals. Only heterosexual relationships have the potential to produce babies.

Since homosexual relationships do not produce babies, there exists no practical reason for the state to recognize such bonds. Licensing such marriages would only serve as an endorsement by the government. Such is not the role of government.

Captain Holly said...

Was not intending to slip in polygamy there.

Why not? Because I would argue that polygamy offers tangible benefits to society, and it was banned mostly because a solid majority of Americans thought it to be immoral.

Polygamy as originally practiced by Mormons in the 1850's was as much a welfare program as it was a procreative one. Wealthy men who practiced polygamy were expected to take older widows and spinsters as wives in order to provide them with a home and means of support -- an important thing when you're moving several thousand settlers to a wilderness hundreds of miles from the nearest civilization.

Brigham Young, for example, had an estimated 12 such wives, women who lived in his home but did not have sexual relations with him. My own great-great grandfather had two such wives, one of whom was in her 60's when they got married.

The practical benefit of this was to give every woman access to a male provider and protector. While this might sound ridiculous by today's standards, it made economic and social sense on the rugged frontier 150 years ago.

Gay marriage, as best as I can tell, offers no such economic benefits. Legally speaking, if a society can ban polygamy because a majority thinks it's "icky", then it surely can ban gay marriage for the same reason.

Jim said...

Actually the government should not be setting up rules and contracts for people's relationships. They have no interest in doing so.

However, it the case of child bearing couples, the state now does have an interest and thus marriage makes sense in this case.

The logic of this states that couples beyond childbearing years who not qualify for marriage either.

Sl0re said...

The state chose to record marriages, via licenses, for the purpose of tracking it for tax and estate reasons. Now the state is [again, lets not forget infamous past efforts] trying to re-define marriage and/or extend its power into a form of regulating it. This oversteps the state's legitimate authority (i.e., first it put its nose in the tent but now it wants to move in and live there). This is an absurd power grab by the state and actually we should reconsider whether it has any legitimate claim to the authority to define what a marriage is.

optionsgeek said...

Some are proposing that polygamy can offer the same advantages to child as monogamous marriage. I disagree strongly.

One of the chief benefits that monogamous marriage offers to children is that it provides a role model of one man and one woman living in equality (at least in theory). A polygamous marriage is, by definition, not equal - the man enjoys a superior status. Society frowns on polygamous marriage for this very reason.

Freder Frederson said...

Every single time we have tinkered with laws that underpin our sexual behavior -- availability of birth control, easy divorce, abortion-on-demand -- there have been massive, negative unintended consequences.

Gee, what about the massive, positive consequences? Lowered infant mortality and maternal death during childbirth. Women being able to choose the time and number of children and a lower overall birthrate that lowers the constant pressure on resources that has meant that most of human history has meant a constant fight for survival for the vast majority of mankind. Greater resources to spend on the rearing of children. More independence for women. The end, for the most part, of infanticide, which was an all-too common way to deal with unwanted children.

Dogtown said...

If homosexuals receive the right to marry, what's to say that other forms of relationships won't seek the same right? For instance, sisters who are unmarried but live together and form their own family unit? Or groups of adults (women only, men only, or mixed)whom live together in a "committed" fashion? It may not be called a marriage, but won't they be able to make a case for the same government rights as married couples? After all, won't they be able to say that they're as committed to each other's well being, and therefore entitled to the same privileges as their married counterparts?

The awarding of marriage rights to homosexuals will gradually dilute the value of marriage, turning it into another interest group entitlement. There will then be an attempt by religious communities to reclaim the meaning of marriage, and establish a more "authentic" version of the contract.

Marriage, for those left who value it (and I am one), shall be left to those who can procreate for the benefit of the larger society, and that society should take a reciprocal interest in those same children and bestow on them certain benefits for the parents and their offspring. Otherwise, it should get out of the marriage business altogether, and admit that the marriage contract is not an important component of American society.

Balfegor said...

Re: Captain Holly:
Why not? Because I would argue that polygamy offers tangible benefits to society, and it was banned mostly because a solid majority of Americans thought it to be immoral.

I wasn't intending to slip it in, not because I disagree with the general thrust of what you said, but because the issues with polygamy are rather different from those with incest and homosexuality, both of which implicate the procreative rationale underlying marriage. Polygamy, obviously enough, does not.

Ron Chusid said...

If it would be of help, Ronald Dworkin had a good article in The New York Review of books a few weeks ago which discussed three issues, including same-sex marriage.

I have a condensed version, quoting the key portions, at Liberal Values:

http://liberalvaluesblog.com/?p=314

paul a'barge said...

"Avoiding the appeal to morality" ...

Why are we avoiding this?

Is not the avoidance of morality at the fulcrum of the long list of problems we've managed to generate in "our age." I'm thinking culture war here.

I'm sure the Amish parents of those murdered children might have something to say about avoiding the appeal to morality.

By the way, did you know that the two Columbine mass murderers made many references to evolution and survival of the fittest as justification for their acts?

The father of one of the boys murdered in Columbine said on the O'Reilly report that the police in Colorado are refusing to release the tapes and papers of the mass murderers, but that evolution is listed throughout the boys' documents.

My point? Moral relativism, including the use of the scientific theory of evolution to attack religion and traditional American western values, is a large part of the blame for much of the bad stuff we are experiencing, and same-sex marriage is part of that moral relativism and its agenda.

Filbert said...

If the idea of marriage as an institution dedicated to the raising of children can be dismissed merely by saying "it's a red herring," then so can any other conceivable public policy rationale for the institution.

Absent child-rearing, you're left with the task of justifying, on a public policy basis, a state-sanctioned contractual relationship between two adults, which will be called for convenience "marriage."

Why should the state do this? If the child-rearing justification does not meet the test, does any argument for state-sanctioned marriage meet the test?

What possible justification exists for these private contracts having any special treatment or status before the law?

And, parenthetically, the fact that courts have ruled that the child-raising rationale for marriage is not sufficient is not necessarily persuasive--courts issue erroneous rulings all the time. Most of the time, they are corrected eventually.

I have no particular animus towards same-sex adult contractual relationships. I also have no particular animus towards heterosexual monogamous childless relationships (being in one myself).

I fully understand the selfish motivations of those within those relationships to enjoy the protections of legal recognition of those relationships. Mine, being heterosexual, happens to be "marriage" as commonly understood for centuries.

This entire conversation revolves around the answer to the question "what is marriage?"

Can anyone answer that in a final and authoritative way, using 100 words or less?

Dave said...

Marriage is a sham foisted upom us by Hallmark and sentimentalists.

If gays want to be duped into the same fraud as we straight people, then come on over! You'll tire of it quite quickly, I'm sure. Or else be miserable.

Scott W. Somerville said...

If marriage is viewed solely as a contract for mutual sexual favors, there is no rational basis for regulating it at all.

Sexual activity between two consenting adults has the odd side effect of occasionally producing an unconsenting minor. Marriage builds a structure in which that minor's contingent future existence and legal rights are considered and protected.

Adoption provides a similar structure for the legal rights of children who enter into a family by some means other than birth.

Before the Pilgrims came to Massachusetts, marriage, adoption, and inheritance issues were all a part of ecclesiastical law. This was because marriage was a "sacrament," to Catholics, just as much as Mass or baptism.

Historically, marriage was a religious covenant governed by the church. Today, it is a contract governed by the state. Given our modern attitudes towards sex and procreation, and new reproductive technology, the question is not "why ban same-sex marriage," but "why regulate marriage at all'?

Brad said...

The rational reason is economics. The insurance industry alone would be forced to re-examine all of their actuarial tables and adjust rates on life and health insurance accordingly. Think of the impact on Social Security benefits by adding a new class of spouses. Sorry, I need ot see a thorough economic impact analysis before I can support such a radical change to the status quo.

Sam said...

Too obvious? This just demonstrates the stupidity of intellectuals. Marriage exists for the obvious purpose of recognizing and standardizing the ages-old social structure that perpetuates the species in a safe environment where children are raised by a mother and a father. As long as it can be argued that it is rational for society to favor that children be raised by their mothers and fathers, (intellectuals don't doubt that yet, do they?) it is possible to rationally limit marriage to a relationship between one man and one woman.

Sex and companionship are merely the happy payoffs for entering committed relationships for the creation and rearing of children, yet this is the primary goal of homosexual marriage--the raising of children under the protection and socialization of a mother and a father do not factor in gay relationships. Now, somewhere along the way, much of the culture began to think superficially of sex and companionship as the essence of marriage, and for them it becomes difficult to fend off the slippery slope when anyone wanting sex and companionship begins to demand state recognition. Yet, the primary justification remains--marriage is the creation of a family, not merely state-subsidized sex. The fact that the heterosexual institution as it stands in popular culture does not perfectly fit the legitimate goal of perpetuating the human species, does not make the male/female requirement irrational.

Balfegor said...

This entire conversation revolves around the answer to the question "what is marriage?"

Can anyone answer that in a final and authoritative way, using 100 words or less?

"Marriage is a union of families, signified by the product of marriage, a child heir to both lineages."

Hahaha.

Zainuddin Banatwala said...

Does it make sense that the state has a rational interest in ensuring that there will be future citizens to ensure the continuity of the state. Homosexual marriage does not provide future citizens to ensure this continuity. The state is therefore entitled to provide inducements to Heterosexual marriage to ensure its own continued existence. It is not, however, entitled to prevent Homosexuals from pursuing their chosen lifestyle.

Sean Gleeson said...

I disagree at the outset with this "rational basis" test. I know this puts me outside of the vogue of Constitutional theory, and perhaps should recuse me from this discussion. But I'll volunteer my thoughts as an amicus.

What is the basis for banning prostitution? I know there are "rational" arguments against prostitution, but could they survive the scrutiny that the homosexual marriage proponents are applying to marriage? If we say "prostitution leads to organized crime," isn't that circular reasoning, because legalized prostitution wouldn't be a crime? And if we say "prostitution corrupts the values of our community," haven't we departed from the "rational" test altogether, by imposing moral judgments?

How about animal cruelty, bestiality, cannibalism, cocaine abuse, incest, pederasty, polygamy, and pornography? All of these are illegal (in most of the country) , even though I would be hard-pressed to pinpoint the purely "rational" state interests which justify banning any of them. These behaviors are illegal simply because the people, believing them to be intolerable, have outlawed them. I think that subjecting them consistently to a "rational basis" (which I might remind you is nowhere in the Constitution) would nullify all of these bans.

I say, let's test the rational basis test itself with the rational basis test. Does the state have a compelling interest in imposing this novel test on all of our laws? No. Is it being applied selectively? Yes. Would it yield unacceptable results if applied consistently? Yes. So let's get rid of it, and go back to whatever we were doing before.

Matt said...

The fact that gay couples are incapable of producing children seems to be significantly outweighed by the fact that they're quite capable of adopting them.

Balfegor said...

And engaging with the OP again, let's run through the animus list with the "procreation" rationale.

novelty - an argument of a kind we have never heard before

The procreation rationale dates back at least to 1662. Not novel. At all.

selectivity -- a principle that is not applied in any other context

This is a bit harder. We used to be able to point to laws against adultery and fornication here. Now, all we have is the tax code (child tax credit), as far as I know.

targeting -- a principle that is not applied to any other class of citizens

Procreative rationale is applied against incestuous couples, albeit in a slightly different way.

extremism -- a principle that if applied consistently would yield obviously unacceptable results.

I don't think the results applied consistently would be unacceptable -- the suggestions that marriage benefits should be conferred only once a child is born into the marriage are not actually particularly unreasonable. On the other hand, that's not actually something it would be possible at present, because the people who wouldn't be married under the new standard would kick up an awful fuss. So the results aren't obviously unacceptable to me, but to people who might find themselves de-married, I suppose they might find the results unacceptable. I suspect a large fraction of those people already support gay marriage, though.

Michael Farris said...

"What is the rational basis for banning same-sex marriage?"

Isn't the question really:

"What is the rational basis for banning same-sex marriage while leaving the rest of marriage laws exactly as they are?"

Since most of the arguments given here against gay marriage if carried to their more or less logical conclusions would require moderate to radical rewriting of existing marriage laws (no sterile couples, no divorce in the absence of physical abuse, no weirdos etc).

Smilin' Jack said...

"What is the rational basis for banning same-sex marriage?"

Does anyone outside law schools believe rationality has anything to do with law?

Here in NY it's illegal to buy beer before noon on Sunday.

chickenlittle said...

Megan McArdle posted a very thoughtful piece on this some months back. Here's a link:

http://www.janegalt.net/archives/005244.html

Balfegor said...

Re: Michael Farris:
Isn't the question really:

"What is the rational basis for banning same-sex marriage while leaving the rest of marriage laws exactly as they are?"

You're shifting the burdens here. The real question is:

"What is the rational basis for leaving marriage laws exactly as they are?"

The way you put it makes it seem as though there's some narrow tailoring obligation, which I do not think is the case. Certainly not under rational basis, which is the test we're considering here.

Fritz said...

Today is October 5, 2006. 2006? That is Christian! By having the Christian calendar as the official calendar, does that violate the Establishment Clause? Marriage is a religious sacrament like the calendar, an accepted settled definition. Non-Christians aren't forced to believe in Christ nor in the sacrament of marriage, they have Liberty to ignore both as monolithic. A Court that would define gay civil unions as marriage, would violate the Establishment Clause.

Fitz said...

Question - "What is the rational basis for banning same-sex marriage while leaving the rest of marriage laws exactly as they are?"

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.
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.


New York Supreme Court

#1. “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.”

#2. “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.”

mjc said...

Marriage isn't a privilege. It's a right. The right is established by common law and by statute. The equal protection issue requires that if the right is granted to one class of persons but denied to another class, there must be some rational basis to distinguish one class from the other with respect to allowing or denying that right. Nobody has stated such a thing so far.

Mortimer Brezny said...

what is the strongest case that can be made for a legitimate state interest in restricting marriage to opposite-sex couples?

The problem is the professor's frame of the question.

He assumes that there is "restriction," which is question-begging. He also presumes that rational-basis scrutiny requires the strongest case that can be made, when all it requires is a conceivable argument. It also reverses burdens. The burden is on people like the professor to prove there is categorically no reason to justify marriage laws as they presently exist. The professor further begs the question as to whether there can be same-sex marriages by positing the redundancy "opposite-sex marriage". There is no such thing as a "marriage" that is not "opposite-sex" if "marriage" is defined as "the union between a man and a woman".

Without question-begging, the proper formulation is:

Is it inconceivable that a state has a reason to issue marriage licenses to men and women who are married and not to couples consisting of men and men or women and women who seek to change the marriage law?

The answer is obvious. The law hasn't been changed yet. If men and men or women and women want marriage licenses, they can go change the marriage law or persuade their political allies to do so, e.g., the Democratic Party.

Another, independent answer is that gay sex is not criminal, nor is having a religious ceremony in a church that santifies gay unions. Thus, the question is whether the federal government should subsidize gay unions and whether the public at-large should be forced to publicly solemnize unions they believe are immoral.

In that sense, the argument against public federal gay marriage is no different than the argument against federal funding of controversial art. Why should I have to pay for it?

George said...

Two civilizations:

Society A: Extremists here believe that all that is worth knowing arises from one central nucleus. However, like a black hole, this civilization has collapsed in upon itself. In the process, its most disaffected members have become disoriented and are causing great harm. Most members of Society A feel helpless in the face of the center’s severely confining gravitational pull.

Society B: Extremists here are like excited particles inside a sun that may or may not go supernova. There are several intertwined nuclei here, but the extremists no longer feel bound by any of their gravitational forces, largely because they have observed other atoms become successfully liberated. Most members of Society B feel helpless because those who control the nuclei have become entangled in arcane, abstract orbits while trying with little, if any, success to rein in the wayward atoms.

Societies A and B warily orbit each other, spewing fireballs in each other’s direction.

Meanwhile, Society C is showing signs of running circles around both of them.

Mortimer Brezny said...

I would note that the argument against gay marriage on the state level is exactly the same. Do what you will in your church and your house, but why should I have to pay for it?

Sam said...

"most of the arguments given here against gay marriage if carried to their more or less logical conclusions would require moderate to radical rewriting of existing marriage laws (no sterile couples, no divorce in the absence of physical abuse, no weirdos etc)."

And carrying rational arguments about drug use, statutory rape, prostitution, treason, gun possession, child pron, child labor laws, or most anything to their more or less less logical conclusions would require radical rewriting of existing laws about just about anything. So what? The fact that you can dream up scenerios where the categorization fails to achieve its intended ends does not delegitimize the general categorization.

Mortimer Brezny said...

The fact that you can dream up scenerios where the categorization fails to achieve its intended ends does not delegitimize the general categorization.

Nor does it recognize that there are limited dollars in state or federal coffers, and the majority may prefer to spend its resources on carrying to their logical conclusions only those laws that actually provide public goods in sufficient quantity to justify their cost.

Mortimer Brezny said...

Has the professor ever considered that a gay marriage law would be a waste of money? There isn't even solid majority support for gay marriage within the gay community.

Fitz said...

MCJ

“Marriage isn't a privilege. It's a right. The right is established by common law and by statute. “

Inasmuch as it is a “right” it is a common law right based in natural law. That right rests in the contention that men & women have the “right” to get married for the purposes of bearing and raising children (see Griswold vs. Connecticut)
This “fundamental right” is secured by the definition of marriage, it is not a right to redefine the institution. (just as your fundamental right to property doesn’t allow you to define someone else’s goods as your property)



“The equal protection issue requires that if the right is granted to one class of persons but denied to another class, there must be some rational basis to distinguish one class from the other with respect to allowing or denying that right. Nobody has stated such a thing so far.”

I just did (and several others, including the quote from the N.Y Court) see above.

Fritz said...

mjc,
Nothing prevents the male class of persons from marrying the female class of persons. You are creating a new class of persons based on sexual orientation not enshrined in the Constitution.

Sam said...

"The equal protection issue requires that if the right is granted to one class of persons but denied to another class, there must be some rational basis to distinguish one class from the other with respect to allowing or denying that right. Nobody has stated such a thing so far."

Um. A man and a woman can have a child and raise the child with a mother and father. A man and man or a woman and a woman cannot. Looks like a distinction.

Moreover, a distinction between heterosexuals and homosexuals is not the real matter here. The matter is that marriage requires one man and one woman. Both homosexuals and heterosexuals fit those two categories. Everyone fitting those two categories is then free to enter a marriage. A person who is neither male nor female MIGHT have a constitutional gripe. But so far such a being has not materialized.

Marriage--a man and a woman--is open to everyone. The fact, however, is that homosexuals simply aren't interested in that institution. There can be no equal protection violation when a person is free to enter an institution but chooses not to, instead demanding that the institution change itself to a form more appealing.

darth_meister said...

The argument advanced by the homosexual lobby: "How would homosexual 'marriages' diminish heterosexual 'marriages'?" is another red-herring.

I ask, how does a rancher marrying a goat he loves diminish heterosexual "marriage"? At a practical level it doesn't, but I think we all would recoil at such a suggestion, that is unless you are Hindu. In India a man recently married his grandmother and his favorite goat.

So with our Supreme Court justices now looking to foreign law and practices to redefine American constitutional rights, how long will we have to wait before this argument is being made here by special interests opposed to "specieism"?

And how long will it be before the same kind of cultural relativism guides us down the road which breaks down the legal barriers between consenting minors and consenting adults ... hmmmmmmm?

Don't think that can't happen becacuse just thirty short years ago there was NO ONE who was seriously arguing for homosexual marriages. But look at how far we've traveled down that slippery slope of rationalization.

People who opine that by using the argument of pro-creation to define the exclusivity of marriage to male and female (drop the polygamy angle for the moment)are then compelled to deny marriage rights to those who can't have children (which they often don't know until after they've been married) or those who are past their child bearing age is a classic example of left-wing philosophical philandering. Isn't it patently obvious in cases like those that one does not let the exception prove a new rule? In law, hard cases make bad law and the attempt to chip away at the concept of traditional marriage by those who always dream up exceptions is peforming a real disservice to serious debate. Though those couples may techically be childless (the older couple would still be parents of their children despite the advanced age of all those concerned), they still qualify as one man and one woman having entered into the bonds of holy matrimony.

Fitz said...

(From the)
United Nations - Universal Declaration of Human Rights

Article 16.

(1)Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

altoids1306 said...

(Just as an FYI, while I think a yes/no answer to gay marriage is little simplistic, if only given these two choices, I would support legalizing gay marriage. I'm just attempting to present a rational case against legalization.)

Ok, so, a rational basis for banning same-sex marriage.

The former prime-minister of Singapore once suggested that one-person, one-vote, might not be the best way to run a democracy. He wondered whether extra weight should be given to the votes of parents of children in Singapore, between certain ages (25-50, or something like that).

The rationale is clear - those with a demonstrated, vested interest in the country should have a greater say in the direction of the country, rather than the single expat who has kept sought his fortune and happiness elsewhere. In other words, the national interest is more accurately represented by the vote of families, who have a multi-generational investment in that country.

This is not a new concept. Many tribes and cities of antiquity measured their strength not by the size of their treasuries, or by the number of men under arms, but by the number of families, or family farms. The decline of Sparta can be traced to the decreasing number of Spartan families.

The question today is, is this belief rational? Is heterosexual marriage the core strength of a nation? This is a non-trivial question, because is it really just coincidence that all surviving civilizations recognize marriage as between male and female(s)?

Even legalization-of-gay-marriage supporters (and I count myself among them) should recognize that at the very least, this is a social experiment with unforeseen possible consequences. Environmentalists have pointed nerviously for decades at CO2 levels and global temperatures. Social conservatives have done the same at divorce and fertility rates, as well as a host of other indicators. We should recognize their reservations as rational. Civilizations before us have had homosexuality. We would be the first (to my knowledge) to call it marriage.

You might consider the "better-safe-than-sorry" reasoning a little weak. Here are some other reasons:

1. At the very least, heterosexual marriage provides the next generation of citizens. Yes, there is gay adoption and a host of biotechnologies that might make it possible for same-sex partners to have children, but it is clearly wishful thinking to believe that same-sex couples will ever match the fertility rates of heterosexual couples in the foreseeable future. Given the looming spectre of the baby bust, this is a relevant concern.

2. "Think of the children!" The *scientific* evidence is ambiguous (or "incoherent"). Personally, I don't put much stock in social science studies. There are studies that prove/disprove every politically-correct belief under the sun. Certainly, as the Lawrence Summers affair demostrates, little tolerance is given in the humanities and social sciences for even the suggestion of un-PC beliefs. Until the question of "Will children be equally well-off in gay families?" is responsibly resolved, it remains a valid concern.

Mark said...

Pardon my lack of legal jargon, I am not a lawyer.

But there are only recent "bans" on same sex marriage because previously nobody thought that anyone would try to re-define the concept of marriage in the first place. Same sex marriage is not marriage by any meaning of the word throughout all of history until very recently in a scant few countries (none of which most Americans would like to emulate, I'd wager).

Asking for a rational basis for banning same sex marriage is like asking for a rational basis for "banning" the use of a baseball bat in a soccer game or the use of a calculator for an English test.

Whatever same sex marriage is trying to accomplish, it isn't marriage.

Fritz said...

So I would say, the rational basis for the Amendment, to enshrine the settled definition of marriage into the State Constitution to prevent judicial redefinition.

BJK said...

@mjc

As has been mentioned here, the question is not whether there is a "right" to marriage, but the limitations on that right.

It is entirely legitimate to argue (as decoder has in this thread) that the "right" of marriage is narrowly defined as unions to a member of the opposite sex. In that way, the right is not being denied to homosexuals - a gay man has the same right to marry a woman as a straight man does.

It's not simple enough to say that the gay man's loving relationship to another man isn't recognized by the law, as there are many other forms of would-be marriage that have been denied the very same right (e.g., marriage between siblings, or to persons already married to 3rd parties). Additionally, I've never heard of a male - female marriage denied because the parties didn't actually love one another (absent some additional benefit - like legal residence - being conferred).

For the same reasons, no matter how much you love a tree frog - and that love is reciprocated - you don't have the right to marry said tree frog.

If framed as marriage = 1 man + 1 woman (in conjunction with other restrictions), that right isn't being denied to anyone....it's just not being used.

DANEgerus said...

Everybody can get married, just not to someone of the same sex.

So no one is "banning" same-sex marriage.

If you are advocating expanding marriage to include same-sex couples...

The burden of proof that there are reasons for that CHANGE fall upon the advocate for the change.

It isn't up to everybody else to prove the negative, it is up to the advocates for change to prove the positive.

dreamingmonkey said...

Gay marriage is a benefit to society because each marital partner assumes the legal (and enforceable) burden of providing for the upkeep of the other, thereby diminishing the likelihood that either will wind up becoming a ward of the state.

Furthermore, if society was really so interested in having children, it should withhold the legal benefits of marriage until couples produce (or adopt?) children! That would be something no gays could complain about.

Notwithstanding the above, it seems to me that the rational basis is just plain old public morality. I'm not saying I agree with the general public's view of morality in this instance, but I don't see why morality should fail to provide a rational basis to enact a law. Unless, if I remember con law correctly (I probably don't), gays are a protected class, in which case it might take something more. Are they?

Freder Frederson said...

My point? Moral relativism, including the use of the scientific theory of evolution to attack religion and traditional American western values, is a large part of the blame for much of the bad stuff we are experiencing, and same-sex marriage is part of that moral relativism and its agenda.

Now I've heard everything. Evolution is to blame! If everybody remains ignorant we won't have any problems. You shouldn't even be on the computer. Better burn all your books too.

Balfegor said...

Re: DANEgerous:
Everybody can get married, just not to someone of the same sex.

So no one is "banning" same-sex marriage.

I think this argument has already appeared a few times in this thread. As a response to the question here, it's inadequate. After all, one could have made a similar argument with respect to Loving v. Virginia (finding anti-miscegenation laws unconstitutional), but that didn't actually resolve the issue. "Marriage right = right to marry someone of your own race" wasn't a satisfactory explanation. Here, as in Loving, some further justification for the scope of the limitation is required (and here, unlike in Loving, race is not involved so we are not in strict scrutiny land).

dreamingmonkey said...

Everybody can get married, just not to someone of the same sex.

This is definitely the modern version of Anatole France's comment about rich and poor alike being prohibited from sleeping under bridges :-)

Engram said...

Well, here I argue that the rational basis for banning same-sex marriage derives from the fact that the rational basis for marriage is not sexual attraction per se. It is the fact that the common sexual attraction between a man and a woman often yields a child. This is also the rational basis for marriage involving 2 instead of 3 or more people.

The fact that there is a rational basis for banning same sex marriage and for banning marriages between 3 people does not necessarily mean that we should ban those things.

Les said...

Wow, how exhausting. And the constant comparisons of same-sex marriages to incest, necrophilia, and so on are, well, just pathetic.

Obviously I'm just old-fashioned, or naive, but marriage to some of us old-fashioned folks is not merely a legal construct having to do with procreation or this or that or blah blah blah blah. It's saying "we're a unit, we can depend on each other, we're there for each other" etc. It's no different really, whether it's male-female, or same-sex. THAT's what, to me at least, makes it worthwhile. But this whole debate is turning marriage into a "rational", legal construct that really is quite unappealing. I'd be interested to know how many people who reduce marriage to such a stripped-down, overly pragmatic are themselves happily married - I'd imagine happily married folks would not have such a dim view of what marriage is.

But then again, I'm just naive and old-fashioned, apparently. I'm certainly not a law expert, and maybe I'm just worn out from hearing the same tenuous, ridiculous arguments against gay marriage, but all this just takes on the tone of buzzing flourescent light fixtures....

Mark said...

[i]My point? Moral relativism, including the use of the scientific theory of evolution to attack religion and traditional American western values, is a large part of the blame for much of the bad stuff we are experiencing, and same-sex marriage is part of that moral relativism and its agenda.

-Now I've heard everything. Evolution is to blame! If everybody remains ignorant we won't have any problems. You shouldn't even be on the computer. Better burn all your books too.[/i]

Instead of attacking the commenter by bringing up Nazism in your reply (always the sign of a strong rebuttal) you might have actually addressed the quesiton of whether "traditional moral values" is a rational basis for law.

Engram said...

Well, here I argue that the rational basis for banning same-sex marriage derives from the fact that the rational basis for marriage is not sexual attraction per se. It is the fact that the common sexual attraction between a man and a woman often yields a child. This is also the rational basis for marriage involving 2 instead of 3 or more people.

The fact that there is a rational basis for banning same sex marriage and for banning marriages between 3 people does not necessarily mean that we should ban those things.

Seven Machos said...

A very thought-provoking post and, mostly, thread. My initial response would be that whenever you ask the question "is there a rational basis?" in a constitutional context, the answer almost always ends up being "yes."

May rational bases have been put suggested in previous threads on this topic. If gay marriage were actually prohibited, and an attempt made to stamp it out (a highly dubious if), gays would still have the same rights to marry heterosexually that everyone else has.

Seven Machos said...
This comment has been removed by a blog administrator.
Fitz said...

UN Convention on the Rights of the Child,

(The Implementation Handbook for the Convention makes clear that the word 'parents' in this statement refers in the first instance to biological parents.)

Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

David Walser said...

Too many arguments, too little time. The only one I'll focus on is the supposedly rhetorical question: "How can homosexual marriage weaken traditional marriage?" For the purposes of this argument, let me state two assumptions: First, society benefits from traditional marriage (how and why is unimportant to my argument). Second, to secure these benefits, society has found it necessary to create incentives for people to marry and to remain married. That is, absent these incentives, an non-immaterial number of marriages would not exist and society would not reap the benefits that would have been produced by these marriages. (Note: I'm taking as a given that society benefits from these marriages. Whether it does or not is a subject for another debate.)

So, given these assumptions, how might homosexual marriage harm traditional marriage? It would do so by weakening the incentives for traditional marriage. Same sex marriage would weaken the incentives in two general ways: First, it would diminish the status associated with marriage. Part of the incentive to marry is that it is seen as part of growing up and obtaining a seat at the adult table. By expanding the definition of marriage to include any committed relationship, the social status of marriage is reduced -- if only a very little bit. Yes, some of this social status comes from all the non-governmental trappings associated with marriage -- the church wedding, the reception, and the honeymoon. However, all these non-governmental trappings are available to same sex couples. Yet, we are told, they still crave the good-housekeeping-seal-of-approval that comes with government sanction. By granting same sex couples access to that sanction, the exclusiveness of marriage is reduced. We are all sitting at the same table, but it's no longer the table reserved for adults. The incentive has been diluted.

Second, many of the incentives society provides traditional marriages are financial. These incentives, such as lower tax rates for "married filing jointly", cost society. Society is unlikely to continue footing these costs if the benefits from the expenditure is reduced. Either the governmental benefit will be reduced in an attempt to reduce the cost or the benefit will be made universally available. Either way, the incentive for traditional marriage is reduced. (Making the benefit universally available reduces the incentive because you no longer need to be married to receive it. For example, if two straight men can enter into a "committed relationship" and thereby get the benefits previously reserved for marriage, the incentive from those benefits to marry is reduced.)

Note: These arguments do not have to be proven true to meet the rational basis test. This test, if it applies, only requires that it be reasonable to believe (for the reasons I've articulated or any others) that homosexual marriage would adversely affect traditional marriage.

Peter said...

I am not a lawyer, instead a retired Deputy Sheriff. I am not competent to discuss the legal issues. I do know that gay relationships tend to be much more volatile that an ordinary marriage. There tends to be a higher turnover and more violence.
I know of no studies on this, I suspect an academic would be shunned, if not burned alived, for even thinking about such a study. I have my suspicions about why the relationships are so volatile and violent, much of it is simply that they are men.
I am not sure that lesbian relationships are more volatile. I also am unsure about whether they are more often violent although when violence pops up it is generally a real doozie.
I was a rural LEO, the big city cops I know think pretty much the same although I have never worked with a cop from a city like San Francisco to hear the stories of working in a city where gays are more the norm. So I do not know the role that societal pressures add or subtract. Nor do I have any idea of the percentage of gay relationships that have no violence. People didn't call me to their homes to watch TV.
Academia could help here but the disease of PC would prevent such a study.

Mortimer Brezny said...

I'd be interested to know how many people who reduce marriage to such a stripped-down, overly pragmatic are themselves happily married - I'd imagine happily married folks would not have such a dim view of what marriage is.

Let's assume there are given, traditional definition of what marriage is and then your newfangled ideals. Why should your ideals of what marriage is overrule the traditional definition when we're both willing to pay for the traditional version, but I'd have to be forced against my will to pay for yours?

Why is force better than consent simply because it might produce what you believe is progress? Wasn't that Bush's argument in favor of the war in Iraq?

Balfegor said...

Re: Les:
But then again, I'm just naive and old-fashioned, apparently.

Not that old-fashioned, if you think considering procreation one of the core purposes of marriage is novel. Of course, the argument about mutual support is equally old, appearing in the same 1662 source (the Anglican Common Book of Prayer) that the procreation argument does. But both have been out there for a long time.

Mortimer Brezny said...

Why is force better than consent simply because it might produce what you believe is progress?

And to the extent I'm being forced to subsidize a public speech act -- solemnizing gay unions -- isn't this a First Amendment compelled speech claim?

Geek, Esq. said...

It all depends on how one characterizes it.

If it's a matter of "banning gay marriage" then there is no rational basis.

If it's a matter of "failing to extend marriage benefits to same-sex couples" then one can simply point out that if the goal of marriage is to provide stable family units for newborn children. In that case, marriage as a social benefit only makes sense as applied to a category of potentially reproductive couples. Since homosexuals NEVER belong to that category, it would be IRRATIONAL to include them in the benefit.

I'm not saying I buy it, but it's enough to sail by rational review.

dreamingmonkey said...

For example, if two straight men can enter into a "committed relationship" and thereby get the benefits previously reserved for marriage, the incentive from those benefits to marry is reduced.)

This has all the makings of a great sitcom. They have to act gay, at least around the IRS agent (who lives upstairs and is also the landlord) in order to maintain the tax benefits derived by their sham gay marriage. It would star Martin Short and Tom Hanks for sure.

HM said...

Compare:

happy marriage
estranged marriage
open marriage

to:

gay marriage

In each of these cases, we have used a modifier to the noun "marriage". In the first three, we have descriptively enhanced "marriage". In the last, we have changed the meaning of the word "marriage" tremendously. It is as logical as "liquid wood".

Marriage places upon its entrants societal expectations. Mutual support, a family, monogamy, and the like are expected by society because society is strengthened by their presence. While marriage is sadly somewhat troubled in very recent times, it is still one of the bedrocks of our society. "Gay Marriage" does not bring those benefits to society, and is not accepted by society. A pig in a dress is still a pig.

Courts can not redefine marriage any more than they can redefine air. Looking for a rational basis why courts would "allow" "gay marriage" is a silly exercise. They've tried to "redefine" it, and society has rebelled loudly, and put their little antics to rest quite efficiently in several states.

State laws regulating marriage are not state commandments to the people. They are merely codification of societal expectations. When courts play games with such things, they tend to get burned, and have been. Like "Roe v. Wade", this is another issue that the social engineers are deathly afraid of letting democracy touch, so they go through the courts, the least democratic of our governmental institutions. And they'll lose, just like they will eventually lose abortion.

chickenlittle said...

I personally don't need or desire the right to marry someone of the same sex. If this right were granted to all, it would needlessly grant rights to a majority who neither need nor desire them.
Of course, the majority has always granted such "excess" rights, and will so again, when sufficiently ready.
But that won't make a rite out of a right, nor take away the sin.

HM said...

Compare:

happy marriage
estranged marriage
open marriage

to:

gay marriage

In each of these cases, we have used a modifier to the noun "marriage". In the first three, we have descriptively enhanced "marriage". In the last, we have changed the meaning of the word "marriage" tremendously. It is as logical as "liquid wood".

Marriage places upon its entrants societal expectations. Mutual support, a family, monogamy, and the like are expected by society because society is strengthened by their presence. While marriage is sadly somewhat troubled in very recent times, it is still one of the bedrocks of our society. "Gay Marriage" does not bring those benefits to society, and is not accepted by society. A pig in a dress is still a pig.

Courts can not redefine marriage any more than they can redefine air. Looking for a rational basis why courts would "allow" "gay marriage" is a silly exercise. They've tried to "redefine" it, and society has rebelled loudly, and put their little antics to rest quite efficiently in several states.

State laws regulating marriage are not state commandments to the people. They are merely codification of societal expectations. When courts play games with such things, they tend to get burned, and have been. Like "Roe v. Wade", this is another issue that the social engineers are deathly afraid of letting democracy touch, so they go through the courts, the least democratic of our governmental institutions. And they'll lose, just like they will eventually lose abortion.

Sam said...

Actually balfegor, I would say the answer you dismiss is on point, while you are the one obfuscating. Loving is not on point.

Miscegenation meant that a man could not marry the woman he chose because of the color of his skin. A black man could not marry the same woman a white man could marry. Things were not equal. Today things are equal. A man is free to marry anyone any other man is free to marry. A heterosexual man is prohibited from "marrying" his brother, his sister, his best male friend--same as a gay man. No discrimination.

However, homosexuals are simply not satisfied with the available choices. They demand choices that are not available to anyone. That's not discrimination any more than it's discrimination when I can't get lutefisk at McDonalds.

Liberal: I'd like some lutefisk, please.

McDonalds worker: Sorry, that's not on the menu. Would you like a burger?

Liberal: Yuck. No. I want lutefisk. This is just like in the 60s when you wouldn't serve black people.

McDonalds worker: No, we serve burgers to anyone. Even people who might prefer lutefisk.

Liberal: I don't want a burger! Meet my preferences! Burgerist!

((Predicted response: "That's absurd!" Touche.))

HM said...

Sorry bout the double..don't know what happened

Julian Morrison said...

Balfegor replies to my "checksum" idea, saying "The problem, of course, is that there's no rational basis for marriage at all by that standard."

I don't agree. The point of my "checksum" is to require you to be consistent with yourself.

If you want to ban because it could be disadvantageous to the child, to be consistent you have to ask what other marriages would be disadvantageous. Oops, alcoholics can't marry. But that's an unwanted consequence, so you can't afford to apply a legal ban on "disadvantage to the child" in a way that's properly fair and unbiased.

If you have to apply a test in a way that unfair and knowingly biased, then you're not applying a test at all, you're applying an excuse. Which is ruled out of consideration by the premise of searching for a rational basis.

Fitz said...

"For example, if two straight men can enter into a "committed relationship" and thereby get the benefits previously reserved for marriage, the incentive from those benefits to marry is reduced.)"

This is called either the “buddy marriage” scenario or “sham marriage” scenario.

Several news articles already report this phenomenon in Europe, When significant benefits result from “marriage” people tend to seek those benefits. The problem is evident tin the U.S. when one talks of naturalization of spouses (the immigration service is constantly weighing the “validity” of marriages) Or in the Military were extensive benefits are given to married couples (you find Buddy or Sham marriages that investigators have to uncover)
Once we start talking about survivor benefits Social Security, Insurance, the right to sue for wrongful death (potentially tens of billions of dollars) . the incentive is manifest.

Once SS “m” is legalized, this encourages people to view marriage as a source of benefits, reduces the stigma to buddy marriages of convenience, and encourages single people to maximize their benefits by partaking in such a sham marriage.

(all this further reduces the institution in the eyes of society overall)

The Right Reverend Rabbi Judah said...

The problem isn't gay marriage. The problem is gay divorce. Look at what happened when Ellen DeGeneres and Ann Heche split up, and they weren't even married. Divorces tend to bring out people's dirty laundry, too. Which is bad enough when you're dealing with Liza Minnelli and David Gest. But do we really want to know what goes on behind closed doors at Rosie O'Donnell's place?

Marriage is fine. But for God's sake, don't let these people get divorced.

Vik Rubenfeld said...

There are laws restricting all kinds of things that are considered to be potentially bad for the people doing them, e.g. smoking, gambling, etc.

No one yet knows what the cause is of homosexual behavior. It is not yet established that such behavior is genetic. Many gay people state that they would never have chosen to be gay. It may be that gay behavior is contrary to the genetics of those doing it.

The question is then asked, well then why are they doing something that is bad for them? However, it is well-known that for some odd reason people are famous for doing things that are bad for them, from smoking, to drug-dealing, to drug-using, etc. etc. Just because there are people doing something, is not in and of itself proof, that the thing they are doing is good for them.

So a powerful argument for banning same-sex mariage is that, it may be bad, not only for society as a whole, but for the people doing it as well.

Until science has definitively established the reasons for homosexuality, it is not safe to massively change our society, to something that thousands of years of human experience has found to be deleterious to society.

Chairman eDog said...

I'm not against gay marriage (and I distinguish between that and being for it)but let me try to provide a rational argument for banning. Actually, let me make a rational argument for not sanctioning it, which is a subtle but important distinction. It's important to remember that there's no law against gays having a marriage ceremony and calling themselves betrothed; there's only a set of privileges that the state ascribes to certain types of marriage.

Ideally, the state wouldn't be in the marriage business at all. A marriage is traditionally a covenant between couples and God. At the very least, it's not the business of politicians to define the terms of such a covenant. Marriage, consequently, has been defined over thousands of years of practice in a certain way, generally as a covenant between a man and a woman. A strict liberatarian or secularist would object to the government affording any recognition to any marriage, but there is a noticeable degree of difference between recognizing a firmly established institution and completely redefining or even obliterating one. The former is a pragmatic adaptation of a rational government to a religious tradition; the latter constitutes an attempt for the government to affect changes to religious traditions by fiat, which totally goes against the concept of separation of church and state. This might sound far fetched, but then ask yourself why gay marriage activists specifically want gay "marriage" rather than a civil union that would afford gay couples all of the benefits of marriage and be a marriage in every way but name. It's because gay marriage advocates want the government to specifically redefine an inherently religious institution.

How does that sound?

David Walser said...

Ann,

You asked for answers. Thanks for not grading these answers as if this were a law school exam. I'm not sure my ego could handle it. :)

Dash said...

The whole debate rests on a false premise. Gays are seeking the right to "marry" not because it will add anything to their life style, but because they are hoping that it will lend them a measure of acceptance and legitamacy in the broader culture.

It won't. People who are repulsed by the gay life style will be more put off by a married gay lifestyle not less so.

Politically, this movement has been a huge mistake for the gay lobby and the sooner they move on to something else the better off they will be.

amzbd said...

Yes...why the rational basis test? Science is almost to the point where homosexuality will be considered discrete and insular, thus requiring strict scrutiny. I don't hear any arguments of a compelling state interest here.

Revenant said...

Balfegor,

After all, one could have made a similar argument with respect to Loving v. Virginia (finding anti-miscegenation laws unconstitutional)

Virginia had made it *illegal* to marry someone of a different race, even if you didn't apply for state recognition of that marriage (i.e., a marriage license). So the argument is really quite different. The Lovings had been given a (suspended) sentence for actual prison time for marrying each other.

Of course, some of the states passing constitutional amendments banning recognition of same-sex marriage have also attempted to outlaw gay marriage altogether. So in those cases, the parallel holds. But by and large this is an argument over what tax bracket people fall into, not over fundamental marriage rights.

darth_meister said...

I don't know about most of you but I'm getting tired of government forcing me to applaud (accept) what homosexuals do in the bedroom. And now the specter of being forced to applaud (accept) homosexual marriage as some kind of "progressive cultural evolution" is just as odious to tens of American couples who have played by the rules and cherished the traditions of the divine institution of marriage.

I guess we can expect the Supreme Court to force a new definition of God on the American people, too, eh? Judicial activism which legislates from the bench is great, isn't it? That's why the homosexual lobby should be forced to amend the Constitution since we are indeed talking about a "new right". My previous reference to the 26th Amendment and the "new right" of the 18 year old vote still stands. I don't remember an activist judge bequeathing that right in 1971 by judicial fiat, do you?

In this light, I do find the following argument very compelling:

Why should your (new fangled) ideals of what marriage is overrule the traditional definition when we're both willing to pay for the traditional version, but I'd have to be forced against my will to pay for yours?

Bravo.

Fitz said...

amzbd said...
“Yes...why the rational basis test? Science is almost to the point where homosexuality will be considered discrete and insular, thus requiring strict scrutiny. “
Hardly…
(1) Science is not at that point, 7 even if it were the same would apply to a propensity to alcoholism, violence, or gender roles. (a predisposition towards )
“I don't hear any arguments of a compelling state interest here.”
In a recent decision handed down by the SUPREME COURT OF THE STATE OF WASHINGTON two justices in the majority, James Johnson and Richard Sanders, agreed with the outcome but more actively opposed gay marriage.
Johnson wrote that the Legislature had “a compelling governmental interest in preserving the institution of marriage, as well as the healthy families and children it promotes. This conclusion may not be changed by mere passage of time or currents of public favor and surely not changed by courts.”

Yoda said...

Marriage is about planning, commitment & stability prior to procreation.

Homosexual couples cannot procreate (naturally).

Post-procreation you can add the nurturing factor.

There is no evidence that homosexual couples (two-men or two-women) can offer the same nurturing environment that a man and a woman together can.

Study after study after study have shown that children without a father (or father figure) in the home negatively affects a child’s development and social skills. This is an accepted fact! I imagine that the same is true for children raised completely with a mother (or mother figure).

Homesexual partners will always be lacking one of these very-important ingredients to successful child-rearing.

-Yoda

Balfegor said...

Morrison says:
I don't agree. The point of my "checksum" is to require you to be consistent with yourself.

If you want to ban because it could be disadvantageous to the child, to be consistent you have to ask what other marriages would be disadvantageous. Oops, alcoholics can't marry. But that's an unwanted consequence, so you can't afford to apply a legal ban on "disadvantage to the child" in a way that's properly fair and unbiased.

This doesn't actually respond to my point, which is that there's no underlying rationale for marriage that doesn't break down somewhere. I mean, the classic alternative rationale people propose is "two people who love each other," but that kind of leaves arranged marriages out in the cold, doesn't it? Maybe they'll love each other later, but at the time they marry, they probably don't particularly. When it comes down to it, under your "checksum" test, every rationale for marriage that I have ever heard fails.

The natural conclusion, under your test, would be that we can't have marriage without inappropriate discrimination against someone, ergo we shouldn't have marriage at all. Which, to be fair, is a solution some in this thread have proposed (i.e. the state gets out of the marriage business entirely).

----

Now some people (e.g. me) are comfortable considering a marriage incomplete until it's been consummated with a child ("Blessed," I might say, were I religious). And others are, I suppose, comfortable considering an arranged marriage to be something other than a "real" marriage. But in terms of enacting our ideal forms of marriage in the public sphere, we're hampered by competing visions of marriage -- I can't ban non-procreative marriages, and other people can't ban arranged marriages, and so on. So what we get is (roughly) the traditional form, as it's survived down the centuries. A kludge, perhaps, but it serves many masters.

---

On another level, we're talking about rational basis -- but you're imposing strict scrutiny, requiring not only that (a)the rationale be rational, but also (b) that the legislative solution be narrowly tailored to the fulfillment of that rational rationale, i.e. that no extra people get the benefit, and that no qualifying people are excluded. That's not the standard at issue here.

Howard Schweber said...

The discussion thus far has ranged far and wide, which is both to be expected and a fine thing. But the original question was framed within a specifically constitutional legal framework, and that requires recognizing certain basic principles that are missing in a number of these posts.

1. The "right to marry" is not at issue. That is, courts have repeatedly recognized a fundamental right to marry, meaning that to deny that right triggers strict scrutiny. But that's not what this particular discussion is about. This particular discussion is about

2. The state always has the burden of justifying its classifications. This is not a novel idea; the very earliest cases interpreting the XIVth Amendment rested on this premise. Any time the state extends benefits to one group of people and not to another, the burden is on the state to justify that choice. This means, precisely, that the state has to justify its definitions; those definitions are not natural objects around which the constitutional guarantee of equal protection must operate. The fact that someone challenging those definitions is proposing change in an existing practice does not change the equation; a commitment to constitutionalism entails testing existing practices against constitutional principles -- that's pretty much the definition of the term.

3. "Marriage" is a state creation, and in America always has been (including in the period of Puritan settlement.) Marriage ceremonies sometimes take place in churches, but it is the state's decision to recognize that ceremony that conveys the legal benefits of being "married" -- hence the ubiquitous phrase "by the power vested in me." Many churches and synagogues today perform same-sex marriage ceremonies that the states decline to recognize, for example (people concerned with religious freedom might consider that phenomenon). States are under no obligation to recognize religious practices, although they may do so. But the fact that Wisconsin was compelled to grant Amish parents an exemption from the requirements of public education did not mean that public education had to be dismantled, and the fact that Oregon chose to grant the Native American Church exemption from laws against the use of peyote in order to accomodate their religious sacramental practices did not require the abolition of laws against peyote for everyone else. No one suggests that any church anywhere would ever be compelled to perform same-sex marriages: the question, if one wants to put it this way, is how the state justifies declining to recognize those marriages if churches choose to perform them. And in fact, religious instituions are not essential elements of this discussion at all.

4. Children. It is simply not true that same-sex couples do not produce and raise children. If the welfare of children is to be the crux of the argument, the burden is on the state to demonstrate that its classification -- that is, how it defines "marriage" for legal purposes -- serves that goal. At present, states other than Mass. are in the position of punishing the children of same-sex couples for the sins of their parents, which is not permissible as a matter of basic due process. And again, the selectivity of the application of this principle raises grave concerns that it is a pretext for simple animus toward the class in question.

5. Chldren, version 2. A variation: The state may choose to provide incentives for behaviors and not others. Absolutely true, and a state may conclude (although the empirical evidence is scant) that all things being equal, opposite-sex parent couples are the ideal. The problem, as I have stated before, is justifying that set of incentives in light of the evident facts that: a) all things are not equal, b) no other qualities of parenting are given any kind of incentive in this situation, and c) the negative effects on the children of same-sex couples. Remember: a legitimate state purpose CANNOT consist of expressing disapproval for a category of persons, and incentive schemes have to be justified just like any other state action. Of course state classifications require generalizations, but those generalizations cannot rely on mere prejudice or stereotype assumptions. How are my children better off (I am a married heterosexual parent) by depriving the children of same-sex couples of the protections and prerogatives that the legal status of marriage provides? How can the harm to the children of same-sex couples be justifed as a benefit to the welfare of children? An answer that says "we only want to benefit certain kinds of children" is a blatant violation of equal protection.

5. The statement that "we've always done it this way" is not a constitutional argument. Practices prior to the adoption of the XIVth Amendment, for example, cannot define the requirements of that amendment. In adopting a constitutional provision we commit ourselves to a set of principles. Many of those principles have required us to abandon traditions that were thousands of years old: slavery, theocracy, monarchy, the classification of citizens into aristocrats and commoners, the suppression of political dissent, the subordination of women, freedom of religious dissent. In every one of these cases, defenders of ancient practices insisted that change threatened the very fabric of society. In every case they were wrong, but that's not really the point: unless and until we amend our constitution, we are bound to evaluate our principles by its terms and not the other way around.

6. The claim that new "rights" (this is not really about rights, it is about the limits of state authority) are being invoked is not informative. It took 50 years to realize that the XIVth Amendment meant protections for free speech; 70 years to determine the same thing for freedom of religion; 100 years to discover the rights of criminal defendants; and more than 130 years to realize that "liberty" includes the freedom of competent consenting adults to choose their intimate relationships. The notion that we have exhausted the implications of a commtiment to equal protection and due process is both arrogant and foolish.

darth_meister said...

I know gay people who loathe the whole idea of homosexuality actually having a genetic basis. There is also a persuasive argument with Christian circles that even if a genetic basis for homosexuality proves to be true, this kind of genetic predeterminism might also prove true in the case of adultery, thievery, lying, murdering, cheating ... it would simply be a physical/biological confirmation that man is flawed even down to the genetic level as a result of original sin. Of course the secular mind would fit this genetic construct within their own evolutionary scheme of survivalism ... which actually argues against homosexuality, too.

As one homosexual fearfully confessed to me, "If homosexuality is genetic-based instead of a matter of choice, then how long before homosexuality is considered a genetic defect?"

Can you imagine future parents actually deciding to turn off the "homosexual gene" in their unborn baby because doing so would confer greater societal advantages and acceptance for their child if he/she were heterosexual?

"Scientists" with ideological axes to grind had better be very careful about the unintended social consequences of their genetic theories about human behavior. Genetic-based behavioral predeterminism is just as loathesome to me as 5-point Calvinism.

Holden said...

I think this is the wrong question. Rather, I think the question is what is the legitimate state interest in treating married persons differently from single persons.

Marriage is a series of default contractual positions imposed by society on two persons entering into a relationship. These persons would probably be happier contracting around these default positions to suit their own needs and preferences. Unfortunately, this is often not done.
Which brings us to society's interest in setting these default positions - namely protecting the offspring of the marriage.

Thus, things like different tax treatment, or laws governing the disposal of assets upon death of one or either member of the couple must, ultimately, have to center on this goal. Note that the majority of these differences could be simulated by private contract or other legal devices such as wills and trusts.

As far as homosexual unions are considered, there are no natural offspring of the union, but rather any progeny will have to be carefully scientifically, and/or legally planned for. It does not make sense to impose a series of default contractual positions on a couple when society does not have the same imperative to protect unplanned for offspring of that union. Such an imposition increases transaction costs and places a burden on family law systems which could be lessened by simply encouraging those couples to enter into living agreements contractually spelling out their rights and responsibilities while together, and upon dissolution.

To the extent there are other rights provided to married couples that are unavailable to couples living in these arrangments.

Therefore, the rational basis in allowing male/female marriage while disallowing same sex unions is to protect the offspring of the union.

Please don't tell me that we let infertile couples or octagenarians marry. In a rational basis test we do not have to see if the means is narrowly tailored, but only if it is rationally related.

Eli Blake said...

Vik Rubenfeld:

You state that there are laws restricting access to smoking, gambling, etc.

That isn't the same as banning it. If I wanted to gamble (which being a statistician by training, I know better than), I could go to the casino over on the Apache reservation that is about two hours south of here. So it is not inaccessible if I want to gamble. If I wanted to smoke (which, having common sense, I also know better than) I could go across the street to the Flying J convenience store and buy cigarettes. So your equating this to gay marriage, which would require one to go out of the country (or at least to MA) to get, does not hold water. A 'restriction' is not the same thing as a 'ban.'

Also, you say,

So a powerful argument for banning same-sex mariage is that, it may be bad, not only for society as a whole, but for the people doing it as well.

Not proven of course that it is bad for society, but your argument that it may be bad for the practicioners is ludicrous. Considering the risks of the alternative (not being married), marriage promotes monogamy and hence LESS exposure to diseases. And there is NO EVIDENCE at all that gay marriage is harmful. So you are arguing in favor of banning something based on an 'unproven assertion' (funny, but conservatives always pull that out when the topic of greenhouse gas emissions comes up, despite the fact that there is a growing body of evidence that in fact they are causing global warming.)

Further, suppose we accept this ridiculous assertion at face value. We know that smoking is harmful. We know that alcohol is harmful. We know that eating fried food is harmful. But that still isn't a reason to ban any of those things. Our nation was founded on the rights to 'life, liberty and the pursuit of happiness.' Restricting liberty in order to prevent people from being happy just doesn't do justice to these words.

So your argument is not 'powerful,' it is more like 'desperate.'

Fitz said...

Howard Schweber said...

#4.- Children. It is simply not true that same-sex couples do not produce (?)and raise children. If the welfare of children is to be the crux of the argument, the burden is on the state to demonstrate that its classification -- that is, how it defines "marriage" for legal purposes -- serves that goal.”

(I say)

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.
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.


New York Supreme Court
(says)

#1. “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.”

#2. “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.”

A Hermit said...

"What is the rational basis for banning same-sex marriage?"

There isn't one; just bigotry, fear and ignorance.

Couple of hasty thoughts here:

My great-aunt and her "lady friend" have been together for thirty five years. Anyone who meets them can't help but see them as an old married couple. Denying them the same rights and benefits as other married couples makes no sense. Their relationship has lasted a lot longer than a lot of others I can think of; my wife and I have been together for a little over twenty years and I think I know something about what a real marriage is. Those two ladies have one, in all but the legal sense.

As for the procreation issue, it's completely irrelevant. After my Grandmother died my Grandfather remarried. His new wife was also a widow with five children of her own. All their kids were grown up, they were too old to start a new family but they got married anyway; for the same reason most of us get married; companionship. The same child-centred arguments used against gay marriage would apply also to the relationship between my Grandfather and the woman I always knew as "Grandma", yet they were a well respected, married couple.

All the pretzel logic in the world can't diguise what's really behind the opposition to gay marriage; and it's anything but rational.

Balfegor said...

Any time the state extends benefits to one group of people and not to another, the burden is on the state to justify that choice. This means, precisely, that the state has to justify its definitions; those definitions are not natural objects around which the constitutional guarantee of equal protection must operate.

If only this were true. What a field day we could have with the tax code.

Anyhow, I think you're not taking into account the fact that we're discussing the situation under the assumption that the rational basis is the appropriate standard. It's possible that it's not (e.g. because marriage is a fundamental right, triggering strict scrutiny), but that's a different matter.

The question here is thus only whether the means the government has chosen (marriage) are rationally related to a legitimate government interest.

chickenlittle said...

Howard said:

"1. The "right to marry" is not at issue...."

We are talking about a ban on something So did the right always exist which we are only now talking about denying? I believe what people here are talking about is a change in the metes and bounds of a term with legal meaning.

"2. The state always has the burden of justifying its classifications."

I presume that ban would apply to straights as well as gays, men and women alike so where's the discrimination?

Balfegor said...

This has come up a few times in this thread already, but just to put it in plainly:

Suppose gay marriage is mandated under equal protection, under a rational basis standard.

Then a single person comes up and contests benefits awarded to married couples and not to him, claiming that under the equal protection clause, he's being denied equal treatment, on the basis of marital and nonmarital status.

What happens?

What legitimate state interest is marriage rationally related to, that it justifies discriminatory treatment of married and unmarried people?

If the non-individual nature of many marriage benefits (e.g. marital testimony privilege) is problematic here, suppose it's the petitioner and his roommate.

I'm asking this honestly -- I don't have any fixed idea of what the answer is, because I haven't thought about it. Obviously, my opinion is that there's no rational basis left any more, (possibly depending on exactly how the many bases offered in this thread are dismissed as "irrational") but I would be interested in seeing peoples' opinions.

Fitz said...

A Hermit ( said...)

“As for the procreation issue, it's completely irrelevant. After my Grandmother died my Grandfather remarried. His new wife was also a widow with five children of her own. All their kids were grown up, they were too old to start a new family but they got married anyway; for the same reason most of us get married; companionship. The same child-centred arguments used against gay marriage would apply also to the relationship between my Grandfather and the woman I always knew as "Grandma", yet they were a well respected, married couple.

All the pretzel logic in the world can't diguise what's really behind the opposition to gay marriage; and it's anything but rational.”


(I say….) {I hate having to repeat & elaborate, however….)


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.

This is so because it opens it to a class (same-sex couples ) that are everywhere and always incapable of childbearing. While maintaining the present definition limits marriage to the class of men and women that is the only distinct class that can produce children.
Its not terribly complicated - people understand it intuitively and support it in vast numbers. Few courts thus far have reasoned otherwise.
The states interest in marriage largely hinges on its focus on the bearing and rearing of children. So far it has chosen to offer those protections and benefits to a limited class of people. In this case those of the class capable of childbearing.
This is solidly objective. The term necessarily is a philosophical one. It means it follows by means of internally consistent logic by definition. The class of people marriage is reseved for can produce children (as a class) While same -sex couples cannot produce children.(as a class)
As marriage currently is defined it is reserved to the one class of people that can produce children. Your example of Career women or post menopausal women are (even though barren) still remain part of a class (when coupled with a man) that can produce children. Ergo - Marriage can be said to be necessarily linked to childbearing.
If we add to the definition of marriage a class of people (same-sex couples) that everywhere and always cannot bear children...it becomes impossible to state "marriage is necessarily related to childbearing"
This reasoning is philosophically unassailable enough to be reduced to a logical proof.
Now- you are correct to say that I have a bias. The bias I am illustrating is one that wishes to maintain the necessary connection of marriage to childbearing by limiting it to the class of men and women.
Otherwise marriage becomes in substance (not merely incident)a display of affection and commitment with no necessary connection to childbearing.

LuteLib said...

i wasn’t going to comment because you can't really change people's minds about this (unless they have a child who's gay), but some comments got me going.

here is a multiple choice question:

suppose you're in total and complete love with your partner and that this love is blessed by your church. however, you cannot participate in the ultimate expression of commitment and love, because you're gay. (assuming for a minute that this type of love "is possible") why can't you enjoy the respect and legal rights that marriage entails?

because…
a. “gay” it is a “modifier” of my current definition of marriage. nevermind the whole interracial modifier, and the religious arguments used against that adjective. when we do not allow gays to marry, we encourage monogamy and family. (hm)
b. the existence of a sham marriage. the possibility of fraud outweighs your loving commitment. if we discriminate based your sexual orientation, we prevent reducing the institution of marriage. (fitz)
c. it’s bad for you, like smoking or eating too many hamburgers. science needs to know what is going on first! you are a new phenomenon -- before people didn’t love the same sex. now they do and we must study why your love is such a destructive behavior. while we're in the lab, your gay relationship shouldn’t get rights and respect. (vik rubenfeld)
d. your relationship is just for show. you’re not really in a loving relationship, you just want to rub it in people’s faces. (dash)
e. george w.’s government is making me sick talking about all those gays in the bedroom all the time – i know you're in love, just don't change my established “rules” (darth_metister)
f. despite several studies, i haven’t seen any evidence. (yoda)

if you were gay, would any of those make the least bit of sense?

Balfegor said...

Chris:

I think the problem is here:

however, you cannot participate in the ultimate expression of commitment and love, because you're gay.

Why am I considering a legal formality which doesn't talk about love, or even commitment (see, e.g. no-fault divorce, and adultery laws) to be the ultimate expression of commitment and love?

Your question the hypothetical me is asking makes perfect sense if I am, say, a gay Catholic distressed that I cannot be married in the eyes of the Church and Christ and all that. But the hypothetical gay me is taking particular idealised associations we tie to the social institution of marriage (that it's the ultimate expression of love and commitment, as opposed to, say, one too many tequilas in Las Vegas) and projecting them onto a legal formality.

Seven Machos said...

Howard -- You are wrong. Marriage is a private creation. The State has chosen to prohibit certain of these (e.g., polygamy), to recognize others (heterosexual unions), and to not care about others (e.g., gay marriages.

Show me the homosexuals who go to jail or get in any trouble whatsoever with the State for marrying. If you can't, please can it with the stories of woe.

The only reason this is on any ballot is because of a poorly-thought out, agitating strategy on the part of some gay people. It is backfiring.

Fitz said...

Balfegor (asks)
“I'm asking this honestly -- I don't have any fixed idea of what the answer is, because I haven't thought about it. Obviously, my opinion is that there's no rational basis left any more, (possibly depending on exactly how the many bases offered in this thread are dismissed as "irrational") but I would be interested in seeing peoples' opinions.”

The answer is what you think it is….The state (under your scenario) shouldn’t be able to “discriminate” between the couples & uncoupled.

This is what occurs when we fetishize the 16th Amendment. It is only a single one of many amendments and coupled to an entire constitutional structure premised on popular sovereignty.

I would remind thinkers like Howard Schweber & others that the 19th Amendment (women’s suffrage) was adopted AFTER the 16th Amendment . Why did we ever go through such a bother? If the right to vote is not fundamental under Equal Protection & Due Process than what is?

Currently we permit discrimination (on the basis of race no less, what the 16th amendment was specifically drafted to prevent) Under the Guise of Affirmative Action, regarding “diversity” as a “Compelling State Interest” (think about it) Yet children being raised by there mother and father is not even a RATIONAL BASIS!!!! (hah).

Title IV requires “equal gender representation” in colligate athletics(?) yet the same principle applied to a child’s own parents is considered “mere animus” !???!!!

No Balfegor, I’m afraid the 16th amendment did not swallow the Constitution itself. It is not the Swiss army knife of amendments. What we have is people who wont submit themselves to the political process & prefer to make strained interpretations of the law in an effort to tyrannically impose their vision on their fellow citizens.

LuteLib said...

if it were a strategy of the gay rights movement to "agitate," it sure picked the least popular method of doing so.

Michael Farris said...

"In that case, marriage as a social benefit only makes sense as applied to a category of potentially reproductive couples"

Which _still_ excludes a non-trivial number of people. Couples where one or both of the partners is sterile (for whatever reason) absolutely do not belong to the category of 'potentially reproductive couples' except symbolically and symbolism isn't a 'rational basis' unless 'rational' has a different meaning in law.

Revenant said...

There's something vaguely amusing about a Christian calling himself "Darth Meister".

Anyway,

Of course the secular mind would fit this genetic construct within their own evolutionary scheme of survivalism ... which actually argues against homosexuality, too.

I'm afraid you've fallen victim to a common failing among creationists -- namely, assuming that people who accept the idea of natural selection equate "what is selected for" with "what is desirable" and equate "evolution" with "goodness". That natural selection causes evolution is just a fact of the world we live in, like the Earth revolving around the sun. There's no moral weight to it one way or the other.

If homosexuality is genetic and the genes involved don't confer some other benefit on their carriers (as, for example, the genes for sickle-cell anemia do) then homosexuality will indeed be selected against. But there is no reason for any of *us* to care.

Can you imagine future parents actually deciding to turn off the "homosexual gene" in their unborn baby because doing so would confer greater societal advantages and acceptance for their child if he/she were heterosexual?

I not only can imagine it, I fully expect it to happen. I also expect, once we understand what the biological underpinnings are of supernatural belief, for religious parents to make sure their children possess the genes involved in that, too.

Richard Dolan said...

This is a long and interesting string, but it's so long that I've only skimmed it.

Even from a quick skim, however, there are common elements in the arguments, both pro and con. The side favoring the traditional definition of marriage claims that the rational basis can be found in various social outcomes that are better if the traditional definition is retained. Some cite benefits to children or child rearing; others think the traditional definition fosters forms of social stability that are valuable; and still others offer various economic arguments. Those opposed say that the social outcomes are worse if the traditional definition of marriage is retained, or alternatively that the social benefits of maintaining it are outweighed by its harmful impacts.

As for the arguments from tradition, there is a similar disagreement about whether the social costs of abandoning long-held understandings of a fundamental social unit such as the marriage-created family are outweighed by the benefits of expanding such traditional understandings. The continuing fracas over abortion, some 35 years after Roe supposedly settled the issue, offers a cautionary tale to any who think that those arguments will ever be settled.

The touchstone of all of the competing arguments is ultimately whether either side can demonstrate that the social outcomes from its position are "better" or "worse." The premise of the entire inquiry is that a rational basis is established only if the state can plausibly offer a scenario where the social outcomes are "better" with the traditional definition.

But "better" and "worse" in this context are entirely normative; all that one can say empirically is that the outcomes will be different. Normative propositions, rooted as they always are in value judgments, are not provable in any relevant sense. And even if they were, in order to do so, one would first have to come up with objective standards to measure the outcomes on a "better/worse" scale that would be mutually acceptable to the competing sides. Good luck.

This will always be a problem when a state-drawn distinction is challenged on equal protection grounds, but the distinction does not turn on any characteristic rule out as an acceptable basis for such line-drawing by a specific constitutional provision (e.g., race). The equal protection clause itself can never provide the relevant standard, since by definition any distinction drawn by a State always creates at least two classes. To decide whether the distinction is acceptable requires the invocation of some factual-normative proposition, and thus we're back to the impossibility of measuring normative propositions empirically.

That basic problem provides the answer to the "rational basis" inquiry that got this string started. An earlier commenter quoted portions of the NY Court of Appeals decision rejecting an equal protection challenge to NY's traditional definition of marriage. In doing so, the Court offered a series of normative hypotheticals that the Legislature might have concluded justified the current statutory definition of marriage.

A challenger to the traditional definition of marriage must show that the State's normative justifications for the traditional definition of marriage are insubstantial. How to do that, if those justifications are not open to empirical proof because at their core they involve value judgments about what is a "better/worse" outcome? A court has no special institutional competence in deciding normative questions about the what type of social set-up is better than another, at least where the Constitution itself fails to provide the relevant substantive standard to make that judgment.

Thus, the proponent of a "rational basis" challenge to the traditional definition of marriage loses on burden of proof grounds. he cannot show, and a court cannot find, that the State's justification is not a rational basis, where the justification necessarily turns on a value judgment about social outcomes.

This approach leaves this issue (and would have left the abortion issue and will leave almost ever other issue in the "culture wars" not turning on racial classifications) where it should be left -- with the Legislature, and subject to the very messy process of legislative compromise.

HM said...

Fritz:

I'm sure you meant 14th Amendment. But I have officially commandeered your reference to it as "the Swiss Army knife" of amendments. That is precious.

Edward said...

I’m going to make an argument that I don’t think I’ve ever seen made in one of Ann Althouse’s many threads on gay rights. Unusual as it may sound at first, I think it actually goes to the heart of these controversies, and I think it will greatly stimulate discussion here. I’ll start the argument with the question.

A key premise of this question is that most of the contributors to this thread are heterosexual, not gay, which I think is rather obvious from the most casual reading of the thread. Actually, I pose the question only to the heterosexuals here.

If homosexuality is biologically determined (as I myself am fully sure that it is, and as scientific evidence will increasingly demonstrate to be the case), and if science ever advanced to the point where adults could actually change their sexual orientation in either direction (straight to gay, or gay to straight), would you be willing at least temporarily to change your orientation to gay.

For example, would you be willing to really be gay for a week. I’m not talking about merely acting gay and saying that you’re gay. I mean, assuming that science could turn you gay (and then turn you back heterosexual a week later), would you be willing to do that, for the sake of the experience?

Let me tell you several things about myself, particularly for those of you who have not read my posts in previous threads.

I’m gay. I convinced that homosexuality is biologically determined, but I’m also completely convinced that being gay is not in any way a biological or genetic defect.

In fact, I think being gay is great. I mean great as a physical sensation. I also mean great in and of itself, apart from whether I’m actually in love at any given moment, and also apart from sex.

By the way, I’m single, and I do not at all believe in promiscuity, which is one reason I believe so strongly in gay marriage.

Oh, here’s an addition to my main question. During the week that you’re gay, you would be under no obligation at all ever to have sex with anyone. You wouldn’t even be required to tell anyone that you’ve been made gay for a week. You could do both these things, but you wouldn’t be required to do either of the. The main purpose of this experiment would simply be for you to experience what it feels like to be gay.

From my perspective, the only thing that makes being difficult gay difficult right now is the anti-gay bigotry and prejudice that still run rampant in certain sectors of American society. Other than that, being gay is great, and the bigotry and prejudice are decreasing with each passing year.

I also think that the mere existence of gay people contributes enormously to society. This happens in many ways, but the most obvious way is by enhancing the diversity of our population.

I think that many of you who oppose gay marriage are hiding behind a bunch of ridiculous verbiage and rationalizations. Most of you who oppose gay marriage are homophobic in the most basic sense. To varying degrees, you are literally afraid of homosexuality and afraid of gay people. You are contemptuous of any suggestion that you are afraid, but I am convinced that fear is what motivates you on these issues.

If you are truly not afraid of homosexuality, but if you answer “No, I would not be willing to be gay for a week,” I would love to know why not.

Finally, I think we’re in for a lot of exciting scientific discoveries over the next decades, and I’m convinced these discoveries are going to benefit gay rights, not harm them.

Jonathan said...

If homosexuality were biological, would you not be fearful that the state could isolate such a gene and use it to abort homosexuals before they were born?

chickenlittle said...

No I would not. I am simply revulsed by anal sex.

Would you consider being straight for a week?, not "bi" but straight?

Daryl Herbert said...

Here's a rational basis for banning same-sex marriage:

The sham marriage scenario, but instead of two straight guys looking for tax breaks, make it two pedophiles (gay or straight) looking for access to children.

This is a lot more likely to happen with 2 men than 1 man/1 woman. Getting a woman to go along with them is usually a child molester's biggest barrier to access to children.

Before I'm flamed:

1 - I never said gays were more likely to molest children, or that most gay parents couldn't be fine parents.

2 - Consider that a very similar argument has been made against home schooling.

Could fear of a scenario like this serve as a rational basis for being against gay marriage?

Edward said...

Jonathan: Did you see my question? If so, I wish you would answer it. Would you be willing to be gay for a week?

I'm not afraid of the abortion issue, because I'm totally convinced that being gay is not a defect and also that gay people contribute tremendously to society. They will contribute even more in the future as discriminatory laws and policies against them are abolished.

Daryl Herbert said...

If homosexuality were biological, would you not be fearful that the state could isolate such a gene and use it to abort homosexuals before they were born?

Genetics is just a sub-section of biology. Not all biological theories of gayness involve genetics.

The most plausible theories I've seen involve the mother's increased levels of testosterone while the child is in the womb. Being exposed to hormones is "biological," but it doesn't have a genetic on/off switch.

Balfegor said...

Re: Michael Farris:

Couples where one or both of the partners is sterile (for whatever reason) absolutely do not belong to the category of 'potentially reproductive couples' except symbolically and symbolism isn't a 'rational basis' unless 'rational' has a different meaning in law.

I think it has. People have been going on about the fact that rational basis does not require narrow tailoring a lot, and that's kind of important. Here's a good statement of the rational basis standard, from the case Williamson v. Lee Optical:

But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.

This is a highly deferential standard, and one that does not require that every application of the law be consonant with its proposed rationale.

Jonathan said...

My point is that...what if the state saw HS as a defect?

That said, why should the state ask you or classify you based on homosexuality? or heterosexuality?

Edward said...

chickenlittle: If being gay is biological, however, then during the week that you were gay you would not be disgusted by anal sex. Also, there’s a lot more (much, much more, in fact) to being gay than anal sex. In addition, some gay people don’t practice anal sex.

Please remember that I said no one would actually be required to have sex during the week that they were gay.

Are you so intellectually incurious that you would absolutely refuse to have this experience?

I think that most opposition to gay rights is based not only on unacknowledged fear, but also on a shameful lack of curiosity and imagination.

noah said...

If homosexuality is genetic in origin, I guess I might give homosexuals a pass. If not it is an enormouse sin against your parents.

But on the other hand we don't give sociopaths a pass altho that too may have a genetic basis.

But basically I have a hard time getting past the yuck factor. But then I don't like the idea of eating spiders either. Call it cultural conditioning...generally the multicults want us not to be judgemental about other cultures...but don't we have a culture? And isn't democratic expression of that culture basically ok?

Fitz said...

The following are two excellent articles about same-sex “marriage” (They are intellectually substantive, nuanced, well researched, and poignantly argued)

The first one forwards a libertarian argument against same-sex “marriage”

http://www.policyreview.org/apr05/morse.html

The second article is by a gay man who argues against same-sex “marriage” from a social/historical perspective.

http://www.policyreview.org/jun05/harris.html

Edward said...

Jonathan: The state is never, ever going to force anyone to have an abortion because of homosexuality.

Jonathan said...

Edward: China?

The bottom line is that you can't trust the state....what if it no longer becomes benevolent? I think the horrors of Germany this century show that even a constitution is no protection against a government who wishes to intrude on the citizens' lives.

Edward said...

Noah and Fitz: Would you be willing to be gay for a week, if that were possible?

Look at my earlier post where I ask this question of all the heterosexuals contributing to this thread.

Daryl Herbert said...

If you want to ban because it could be disadvantageous to the child, to be consistent you have to ask what other marriages would be disadvantageous. Oops, alcoholics can't marry. But that's an unwanted consequence, so you can't afford to apply a legal ban on "disadvantage to the child" in a way that's properly fair and unbiased. (emphasis added)

Who says you have to be consistent, fair or unbiased? We're talking about the rational basis test here.

Here's a hypothetical: Congress finds that wearing blue shirts increased the risk of getting hit by a car by 20%, and red shirts increased the risk by 10%.

Ignoring the 1st Amendment, Congress would have a "rational basis" for banning red and blue shirts, banning just blue shirts, banning just red shirts, or not banning any shirts at all. You could find rational bases for all four of those positions.

Balfegor said it best: [Rational basis] is a highly deferential standard, and one that does not require that every application of the law be consonant with its proposed rationale.

Daryl Herbert said...

Would you consider being straight for a week?, not "bi" but straight?

Most gays try being straight for years before they break down and admit what they are.

Les said...

Sheesh. Regardless of all these arguments, I'm sure same-sex marriage will be legal in my lifetime, not through the bungling attempts of gay activists (who, please note, do not speak for all gay people, though they think they do - many of us find their reflexive left-wing responses to everything repellant) but simply through the changing attitudes people have towards gay people - it will happen, and that's why so many other people are twisting themselves into pretzels finding ways to rationalize being against same-sex marriage.

On one hand I'm hearing "oh but why should all of us against it who outnumber the gay people be forced to support it since there's so few of them" then on the other hand, I'm hearing "oh but same-sex marriage would be such a massive change to society that it's just too much and we shouldn't risk that". So which is it, are we a tiny minority trying to force our lifestyle down everyone else's unwilling throats or are our marriages a massive threat to the stability of society? I guess the answer to that question comes down to what conveniently supports one's argument at that moment, doesn't it?

And now we've got people comparing gay relationships to gambling and drug dealing??? If only some of these comments were parodies, it would be comedy gold - er, am I on the Phil Hendrie show? D'oh!!! Jokes on me! You got me!

Buzzzzzzzzzzzzzzzzz.

Edward said...

Jonathan: No free, democratic state is ever going to force anyone to have an abortion due to homosexuality.

Democracy is the way of the future, and even China is slowly democratizing.

Finally, as long as China remains autocratic and un-free, I bet the authorities there would actually encourage couples to have gay children, if that could be arranged. It would help with their population control problem.

noah said...

Nope...remember yuck? Plus when I was much much younger a scuzzy queer accosted me in the men's room at a Bus station...didn't leave a good impression.

Let the queers be queer...stop trying to shove it down my throat so to speak!

Dej said...

chickenlittle

This has little to do with the original post re: rational basis for banning ss m, but I couldn't help but respond. You can bet your chicken wings that I would love to be straight for one week! Besides wanting to know how it feels to hold my wife's hand in public without fear, I'm dying to know how it feels to have these rights granted automatically to me: to make health decisions for my wife; to assume paternity; to sue for wrongful death if my wife is negligently killed; to visit my wife in the hospital; to file joint tax returns; and so forth -- there are more than one hundred rights, responsibilities, and protections granted to married straight couples.

But I wouldn't want to be straight for any longer than a week, because I'd miss my sweetie!

Fitz said...

Edward

I would be happy to be gay for a week (or a month, a year, or the rest of my life)

Under which condition I would promptly “out” myself, and proceed to stridently appose same-sex “marriage” (as the author of the above link does) on the grounds that marriage needs to be honored exclusively between a man & a women in order to insure (as much a society can) that children are born into married families made up of their own natural parents.

I believe the addition of me being gay would be a tremendous boom to this venture!

Edward said...

Noah: You didn’t read my earlier post at all.

The premise of my question is that homosexuality is biologically determined. Another premise is that science has advanced to the point where it can actually turn straight people gay and vice versa.

I know you’re heterosexual. I’m not asking whether you would be in a gay relationship for a week as you currently are.

I’m asking whether you would be willing to allow scientists to turn you gay for just a week, if the technology existed to make that possible.

You wouldn’t be required to have any gay sex for that week. You would just have the experience of what it’s like to be gay. You would have the feelings that a gay person has.

noah said...

Edward, assuming I accept your premises which I most emphatically do not, you are asking me to let somebody fuck with my brain so that I can understand what it is like to be gay? Is this part of the Democratic party platform...everyone must experience being gay, woman, man, pedophile, etc in order to increase social harmony? Talk about fascism!

Check back when you have submitted to the procedure yourself.

Godfrey said...

I am approaching this from an ethical rather than a legal stanpoint, as many here have done.

First of all, the question is formulated in such a way as to presuppose that there *is* a rational basis for banning same-sex marriage. It would be more prudent to ask if a rational basis for governmental involvement in private social contracts exists—whether we’re talking about a ban on certain types of marriage or an approval of other types of marriage.

As a non-religious, quasi-conservative libertarian, my answer is no.

Fritz says: Marriage is a religious sacrament and goes on to say that advocating gay marriage constitutes a violation of the Establishment Clause. If marriage were indeed merely a religious ritual he might have a point…although the logical extension of that argument is that advocating straight marriage would also violate the Clause.

However the concept of "marriage" is much too complex to be classified as merely a "religious rite". The religious component is only one facet of marriage. Likewise the debate on gay marriage is an immensely complicated matter, but it doesn't really have to be. It is in fact a distraction from the more relevant question I outlined above: should marriage be the province of government at all?

First (and with apologies in advance for the length of this post) we should try to determine what marriage really is. As I see it there are three primary components of marriage: social, civil and religious.

Social: The social component is the most important. The practice itself (i.e. two people committing to a monogamous relationship) has underpinned human societies throughout history. It is important that society have a framework such as marriage because it promotes cohesion within the family unit and therefore within the community. Arguments which claim that marriage ensures procreation are incorrect: sex drive does that. An absence of marriage would not result in less children…it would only result in less happy, stable children who grow up to be happy, stable adults (who in turn rear happy, stable children etc.).

We've already seen the effects of a weak marriage ethic upon certain segments of society—look to the American inner cities. The most deplorable of these effects are upon children, who eventually grow up to procreate themselves, resulting in a downward spiral effecting everything from education to economics for generations.

Marriage as a social contract is of inestimable importance.

It is also of great importance as an emotional bond between two people who care about each other, to such an extent that for many people marriage becomes one of life's great goals. Marriage is usually considered a defining characteristic by married people.

Civil: That said, marriage is something that would exist with or without government approval. The government exists to protect its citizens from outside enemies and from domestic criminals. It exists to ensure infrastructure (roads, aviation safety, etc.). It is neither equipped to address nor justified in interfering with social contracts, whether on the micro level of granting tax credits and other benefits to married couples or on the macro level of dictating who is entitled to marry and who is not.

In short, government should be silent on the subject. It should neither ban nor advocate social contracts between individuals of any race or sexual orientation, whether marriage or for any other purpose which does not directly harm its citizens. For this reason I chafe at what Balfegor calls “the state's interest in procreation”. The “state” should have no interest in such things or in marriage at all except insomuch as it applies to the state’s obligation to protect people from harm (i.e. the children of an incestuous marriage).

Religious: The religious component of marriage is completely different from the social and the civil. It views marriage in terms of morality and religious dogma. I see the religious component as a positive thing in that it provides extra layer of commitment for married couples who happen to be religious. It strengthens marriage and therefore strengthens our society.

However this strength comes at a cost, for it is the nature of strongly religious people to see their perception of marriage (and pretty much everything else) as the only acceptable way, ordained or authorized, as it supposedly is, by God. While this approach is consistent given their worldview it can become unwieldy and oppressive when attempts are made to impose it on people whose worldview is different.

Reverting to Fritz' invocation of the Establishment Clause, the religious component rightfully becomes the sole province of religious organizations and religious-minded individuals. As such it should be completely separated from the civil component and should have no place in the debate over whether a ban on gay marriage (or any other law) should be passed. Religious dogma should not be a factor in any governmental action or consideration except in order to guarantee our basic religious freedoms.

The end result...a result based, I believe, on logic rather than on emotion or indignation...is that there should not be an amendment prohibiting gay marriage any more than there should be an amendment prohibiting or promoting straight marriage. Such pronouncements are simply not within the government’s purview.

Nor, however, should there be any penalties, legal or otherwise, imposed upon churches, organizations or individuals who refuse to conduct or honor gay marriages or against anyone who speaks out against the practice.

Marriage should not be viewed in terms of a “right”. It is not a right, it is a strong gesture and a social commitment, a promise of fidelity between two people and, if those people are religious, between the couple and God. It should not involve government in any way whatsoever. Nor should it require the approval of others (or the “forced” blessing of society, as Peter says above).

If you look at marriage from a libertarian perspective—keep government out of it and let people and religious organizations do what they want, including entering into and approving of whatever social contracts they see fit—most of the controversy over the matter would not exist.

Daryl Herbert said...

"Scientists" with ideological axes to grind had better be very careful about the unintended social consequences of their genetic theories about human behavior. Genetic-based behavioral predeterminism is just as loathesome to me as 5-point Calvinism.

Or maybe scientists should just do their jobs, let the chips fall where they may, and refuse to be bullied by ideologues.

Fitz said...

Dej

“Besides wanting to know how it feels to hold my wife's hand in public without fear, I'm dying to know how it feels to have these rights granted automatically to me: to make health decisions for my wife; to assume paternity; to sue for wrongful death if my wife is negligently killed; to visit my wife in the hospital; to file joint tax returns; and so forth”

Get a lawyer for a lot of these….Its not that spectacular.
The hospital visitation can be obtained with a “patient advocacy form” available free at any library.
Singing Joint tax returns is highly overrated… (I prefer poison -ivy myself)

The other rights and duties are reserved for married men & women to help promote children being born into intact families by their own Mother & Father.

Paul Zrimsek said...

Edward is to homosexuality what Al Gore is to global warming:

If homosexuality is biologically determined (as I myself am fully sure that it is, and as scientific evidence will increasingly demonstrate to be the case)....

Is anyone else getting sick and tired of paying those dullards in our research institutions good money just to rediscover what Edward already knows?

I guess I'd be willing to be gay for a week, though it strikes me as a fairly dull experiment compared to, say, being a woman for a week.

Joe Baby said...
This comment has been removed by a blog administrator.
Mortimer Brezny said...

Howard: the question, if one wants to put it this way, is how the state justifies declining to recognize those marriages if churches choose to perform them.

The professor responds to a number of arguments, but he, apparently does not respond to any of mine, and he again begs the question and shifts the burden. The persons bringing the claim -- in this case -- the two people married by the church, have to prove there is no conceivable rationale supporting the awarding of a tax-benefit and public recognition of other people's marriages, but not theirs. But this is rather easy to do.

1. Some marriages produce more social benefits than others; the government can incentivize some behavior and not other behavior simply from a monetary standpoint; it may also ignore the benefits of certain behavior because it costs too much and has other budgetary priorities. Call this the Tax Code argument.

2. The right to public recognition of marriage is distinct from the right to marry, and the conferral of public recognition is like selecting the Poet Laureate. There is no guarantee that a gay poet who is a noted queer theorist will ever be picked, and the mere fact that one never has been is not proof of bias, just proof that gay poets who write stanzas about queer theory are not reflective of America's conception of what is poetry. Gay poets into queer theory are free to form their own associations and confer their own awards in private organizations without state interference.

3. Federal expenditures are restrictions of liberty and the government conferring legitimacy on a union is a form of speech. Taking my cash to force me to recognize something that I don't recognize is forced speech. I shouldn't have to pay for controversial art, so I damn well shouldn't have to subsidize gay marriages or abortions.

4. Gay sex is not criminal and gay marriages can occur in willing churches -- so this has nothing to do with the State interfering with the liberties of gay people. To the extent this raises "equality" issues, then Balfegor was right to note that then all lobbying and the entire Tax Code is suspect: how dare the legislature prefer optometrists to opthamologists!

5. Good citizenship requires voting and engaging in public debate and going to the legislature and trying to forge political compromise before taking fundamental political questions to the courts. Trying to short-circuit democracy is arrogant, elitist, and bad citizenship and it results in backlash. It also means respecting venerated traditions and customs that others hold dear, rather than trying to deconstruct them just because you personally subscribe to anarchist or nihilist views. It doesn't take a scholar to know you get more flies with honey than vinegar.

Paul Zrimsek said...

P.S. Lighten up, Noah: it's nothing but a thought experiment.

Dej said...

Get a lawyer for a lot of these….Its not that spectacular.

We will go around in circles over this. My point is that if you don't have to pay for a lawyer, I should not have to pay for a lawyer or spend the time consulting one. For me, getting a lawyer is spectacular: my wife's and my combined income is less than $45,000, and when we subtract taxes from that, we're not with much left over for legal fees.

Second, that you do not prefer joint tax returns does not govern my preference.

Joe Baby said...

Cal Court of Appeals opinion on gay marriage, hot off the presses.

Available here.

Edward said...

Noah: You’re being totally unfair to me, and you’re not carefully reading what I’m writing.

I’m not saying the government or anyone else would force you to do this at all.

I’m asking whether you might freely choose – this a totally free choice – to allow scientists to turn you gay for a week.

Sexual and romantic feelings are extremely pleasurable. Furthermore, we all know that our orientation affects a lot more than our sexual and romantic feelings.

You’re not in the least bit interested to see what it’s like to have a totally new and different set of sexual and romantic feelings?

What if I make as another premise of my question that this happens in the future, when there is no longer any prejudice or discrimination against gay people? What if I promised that you would not be harmed or discriminated against during the week that you were gay?

By the way, I'm already gay, and I think it's great.

Mortimer Brezny said...

By the way, I'm already gay, and I think it's great.

Great! But why do I owe you a tribute in the form of tax dollarS?

flenser said...

What is the rational basis for the rational basis test?

On what grounds does the Court presume to strike down laws which are otherwise constitutional because they are not "rational" in its own eyes?

During the Constitutional Convention there was some discussion as to whether or not the SCOTUS should be able to strike down any laws, or only those which violated the Constitution. The latter postition prevailed at the time, but it seems as if the court has interpeted its powers to include some which were not granted it.

Fitz said...

Joe Baby & Others

Skim reveals this Relevant Part

"We conclude California’s historical definition of marriage does not deprive
individuals of a vested fundamental right or discriminate against a suspect class, and thus
we analyze the marriage statutes to determine whether the opposite-sex requirement is
rationally related to a legitimate government interest. According the Legislature the
extreme deference that rational basis review requires, we conclude the marriage statutes
are constitutional."

Edward said...

Joe Baby and Fitz: As I’m sure you both already know, California already has near-marriage for gay couples in the form of civil partnerships.

In addition, the California legislature has already enacted real same-sex marriage, but the Republican governor vetoed it.

As soon as California has another Democratic governor, gay marriage will become a reality there.

Fitz said...

Edward

#1. I answered your question (and was serious) Why no response?

#2. California DPB doesn’t allow for any of the federal protections, & (as in Massachusetts) The citizens are hard at work on a Marriage Protection Amendment to secure this foundational institution.

#3. We all have a interest in solid legal reasoning irrespective of our opinions on SS”M”.

AlaskaJack said...

Revenant, a true materialist: all beliefs, and especially supernatural beliefs, have a genetic underpinning.

But tell me good sir, is there a gene that causes you to believe in genes? If so, how can you be sure this gene is truthful?

chickenlittle said...

Edward said:
"As soon as California has another Democratic governor, gay marriage will become a reality there."

That might be quite a while

Eli Blake said...

Edward:

I don't think I would, because I'm already married to my wife and committed to her. But then I don't look at anyone else either. If I was single (i.e. widowed), I might try your experiment. As a socially conscious liberal though it would mostly be to experience what it is like in terms of discrimination etc.

That said, your question is a good one. And I agree with you that science will provide a lot of answers. I've actually thought (as a statistician-- see my post refuting Vic at 2:59) of a couple of survey type studies that could be carried out to test a couple of hypotheses I have as to how a gene for gayness could easily be carried through the population from one generation to the next.

The main one (which also explains the nicely bisexuality) is that sexual orientation is what is called a 'sex-influenced' gene. Another example of this is height-- in general, men are taller than women. However, underneath this height is a combination of a number of genes and runs in families (i.e. if you meet a 5'4" man and learn that he has a sister, then even though you've never met her you can take a very good guess that she is short). Added to the gender factor, you have a range of heights that overlap. Now suppose that there is a hormone related to sexual orientation (for example, a lot of it causes attraction to females and a smaller amount towards males, or the reverse.) In general, men would fall on the end of the scale where they would be attracted to females and women would fall on the end where they would be attracted to males. However, given the other factors, this (like height) might vary by family-- so that if a family had the gene enhancing attraction to males, a lot of the men might be gay or bisexual, but it would be compensated for genetically (and therefore passed on) by oversexed women who had a lot of kids. Alternatively, if the underlying family genetics caused attraction to females, then some of the girls might be lesbians but their brothers might be Casanovas.

What gave me that thought in the first place was anecdotal observation-- not perfectly (my sister is gay but I'm happily monogamous) but I've known several families that had gay people in them (including one where two of their three daughters were gay but their sons were in various degrees philanderers, paying lots of child support, and in one case happily married but with nine kids.)

My concern though is that if (when) it is found to be genetic, conservatives will not give up on trying to punish homosexuals, they will try to push a 'straight' pill that reverses whatever the effects are. Just leaving people alone is a novel concept which just does not come naturally to them.

Greg D said...

Some people have basically said "fine, how do we 'prove' that homosexual marriages benefit society?"

1: MA has homosexual marriages. We'll get evidence from there.

2: Nothing prohibits gay people from making, and keeping, commitments to each other.

A: Are they now doing that? If no, then what makes you think that getting a piece of paper from the government will cause them to start making such commitments?

If yes, check out those people. How many of them are young males? Are young males in such relationships maturing the way young males in heterosexual relationships? How many of them are having kids? How long is the lifetime of the average such relationship?

Does this allow gays to get "marriage" right now? No, it doesn't. Tough. You want society to change a fundamental institution, the burden of proof is on you that making the change will be good for society.

If you can't make that case, then you shouldn't get your desired change.

Edward said...

Fitz: The federal marriage amendment is never going to pass. California will enact same-sex marriage sometime in the next decade or two.

As for your response to my hypothetical question, I don’t think you ever really answered it. You thought you were being clever giving the answer that you gave, but all you really showed is how obsessed you are with opposing gay marriage.

I think you’re intellectually dishonest and spending any time at all reflecting on my question. Since you’re not gay, the experience of being gay for a week would be very new to you in many ways.

No matter how much you’ve learned about homosexuality from books – and I know that you claim to have read virtually everything worth reading – you are simply proving my point about the lack of curiosity and imagination of gay rights opponents by answering my question as tersely as you do.

Let’s face it: you hardly answered it all. An honest response that a sincere heterosexual would give to my question is something like this: “Yes, I’d be willing to be gay for a week, and I’d be very interested in exploring the new feelings that I would have as a result. I can’t really say whether or not the experience would change my opinions about homosexuality, gay people, or gay rights, because the experience would be so very new for me, and I would need time to think about all that. I might still have the same opinions as before, but I can’t be 100 per cent sure of that.”

There’s a lot more that could be said, be you just gave the response that you thought would trump me in this debate. That’s not really thinking about the question at all.

Jonathan Card said...

My understanding is that, in the few, very recent, attempts to legalize gay marriage, homosexuals rarely got married (after an initial flurry) but the rate of heterosexual marriage went down. The explanations of this involve the idea that basing the definition of marriage on sexuality rather than a merging of essential masculine and feminine presents marriage as more difficult than it is worth; the payoff sexually isn't very great, but the payoff in wisdom when merging such different mindsets as men and women is very great. However, there is a very large correlation between high marriage rates and successful economies and vice versa, so there is an interest of the state to promote marriage rates. I'm not myself a supporter of the Federal Marriage Amendment, but I'd support such a ban at the local level for these reasons.

Edward said...

Eli blake: Don’t forget that the original premise of my question is that you could turn back straight again in a week. Your marriage would not in any way be harmed.

Another premise that I gave later is that this experiment takes place in the future, when there is no longer any prejudice and discrimination against homosexuality. You would not be harmed or discriminated against in any way during the week that you’re gay.

The purpose of this experiment is not to “experience discrimination,” which you can already do by relocating to the most homophobic town you can think of and simply by lying to people by telling them that you’re gay.

I mean something much more basic than that, and something which is obviously impossible to do right now. I mean scientifically and biologically become gay, without making any other changes to your person.

You still wouldn’t be curious to know what it’s like to have an entirely different set of sexual and romantic feelings? You wouldn’t have to act on those feelings, of course. You could just experience them.

Let me change the question: would you be willing to be gay for an hour or a day? That length of time certainly wouldn’t affect your marriage.

Edward said...

Jonathan card: The research that you cite on heterosexual marriage rates has all been disproven. Jonathan Rauch has done excellent work highlighting the flaws in that research. If interested, you can Google his name and search for his writings on this subject.

chickenlittle said...

Edward:

Why don't you just answer the questions people ask you before asking more. It's rude

Charlie said...

The Declaration of Independence guarantees the "pursuit of happiness." The phrase does not appear in the US Constitution, though it does appear in several state constitutions. Furthermore, the Declaration of Independence and certain other founding documents and treaties have been held to have the force of law, though I am personally ignorant of the precise import of that.

It is unimaginable that someone is free to pursue happiness who cannot shape and define the major milestones of his/her life. Marriage is one of the two or three major milestones of life. (Indeed, the SC has ruled precisely this, in both Loving and Zablocki.) It would seem inarguable that people are free to marry anyone (two?) of their choosing according to that most widely known and quoted of our founding sentiments.

To make a legal argument against that, it seems to me, one would have to hold that happiness is not happiness any ol' way you want it but "happiness, the norm," the happiness that the mayor and the preacher and the town scold can all get behind.

This would seem to be a difficult argument to pull off as "pursuit of happiness" comes embedded in the phrase, "That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." "Free" carries legal weight, namely, not being subject to constraint by any other person. So, the mayor and the preacher and the town scold don't get a say when one is free.

As it stands now, anyone is free to marry any one or two or more other people or, to a lesser degree, even outside the species. Marriage is a legal status, yes, but not solely a legal status. No law stops you from just "shacking up." No law stops you from calling yourselves married (unless fraud is being pursued). And no law even stops you from staging a wedding ceremony for the people who matter to you, those you would have consider you wedded, even if the marriage that ensues is not recognized by the state.

The rub comes in with all the ancillary laws--visitation rights in hospitals and prisons, rights of survivorship, sharing of property and so on, where legally recognized marriage has unique privileges. This state of affairs seems prejudicial not only to those desiring marriage outside the norm but to unmarrieds as well. There are millions out there I imagine who would love to be able to designate in effect, "this is the person who's got my back." Simple courthouse filings, amendments and revocations ought to be able to take care of that.

Though I would not care to see same-sex marriage widely practiced without considerable more dialogue and debate than we've had to this point, I really don't see any strong legal argument against it, that is, unless we aren't really serious about people pursuing their own version of happiness.

At the same time, I simply don't see why gays and lesbians are battering at the gates of the citadel to be accepted under the law. Why not create their own status of marriage, publish the results in their own periodicals, have gay and lesbian associations promulgate benefits and set up funds to ameliorate the legal shortfall as much as possible? Get that momentum going, and one day the doors will simply have to open. Conservatives should give some blessing to that too as the specter in the alternative is promiscuity.

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