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.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.
[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.
Back to Howard:
One question is empirical; does a state need any evidence to demonstrate the existence of this class of persons?Answers?
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.
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210 comments:
«Oldest ‹Older 201 – 210 of 210Seven - You are the idiot.
Where anywhere in the Bible does it say that gays should be killed?
"If a man has sex with another man, kill them both. 20:13 - Leviticus"
"Where does Jesus Christ say that gays should be killed?"
DTL can't tell the difference between Leviticus and the sayings of Jesus. A good example of the factual errors, logical fallacies, and general hysteria on display in his posts above.
Edward, don't give up. The way out of the analytical quagmire of gay-marriage jurisprudence is to focus on what makes gay couples similar to other couples, not on what sets them apart.
Hey fellas, take a sec to consider my post on same sex conception. As Joan said in the first comment on this thread, we don't allow siblings to marry, because we don't think it would be ethical for them to conceive children together. It also is not ethical for a same-sex couple to attempt to conceive children.
Combining the genes from two people of the same sex requires genetic engineering and has major inherent risks, as proved by research in mice and pigs.
Same-sex relationships and both-sex relationships would have different rights, so why try to pretend that they had the same rights by calling them both "marriage?"
While people can concieve without being married these days, marriage still grants conception rights (even same-sex marriages, and yes, even those pesky cousin marriages and incarcerated marriages). There is NO marriage that does not GUARANTEE that the couple has a right to (at some point in the future) conceive children together. So, if we were to ban all genetic engineering such that a person could only be conceived from a man and a woman's natural gametes, but we still allowed same-sex marriage, then we would have changed marriage so that it no longer guaranteed conception rights. This would apply to all marriages, subjecting every marriage's conception to risk assessment and approval. In order to guarantee all of our individual conception rights, we have to preserve marriage's conception rights, as well as everyone's right to marry a person of the other sex.
Banning same-sex conception (and all forms of non egg and sperm conception) is rational, and preserving marriage's conception rights is rational. Ergo, rationally, same sex marriages must be changed to civil unions that do not grant conception rights.
God, I can't stand the Social Darwinist wingnuttery about how marriage is simply the best way of ensuring that the human race continues to reproduce. I know you guys don't believe this, but back when people were living in caves, there were no marriage contracts, and somehow we made it to the present day.
And, of course, it begs the question as to why a hysterectomy or vasectomy does not result in instant, state-mandated divorce. "Sorry, folks. This marriage no longer benefits society."
Furthermore, shouldn't people be required to indicate their intent to produce a child in order to receive a marriage license? Without that, they're no better than those dirty, society-destroying homosexuals that people like Greg D hate so much.
I also like the part about how men are natural philanderers and the only way to get them to settle down is to pair them off with a woman. Even if they're gay.
Tell me something, Greg et al. Do you think Mark Foley would be hitting on little boys if he was in the kind of marriage he plainly requires, instead of living in denial with a sham heterosexual marriage? According to you guys, society should be thankful that he wasn't in a monogamous relationship with a man, because only a woman can stop such impulses. I guess he'd have been really out of control in a gay marriage!
I guess you'll blame his wife for not stopping him from sowing those wild oats. Anything, everything, so that you guys can continue to claim that being gay is merely a choice, even though every gay person who's ever lived will tell you otherwise and it's rather like choosing to be Jewish in Nazi Germany.
Seven: The same passage in Leviticus says that adulterers should be killed (and people who revile their parents should be killed). Unless you're willing to kill all those people, Leviticus isn't relevant. People do cite it though, and they should be harshly criticized if they aren't going to treat other things that are capital offenses in Leviticus equally harshly.
Do my posts show up on your screens?
Actually Seven - Leviticus is used all the time as an attack against gay people. Not to mention Soddom and Gomorrah. And if you're unaware of this - then you're just choosing to close your eyes to some very hateful speech. Go to this site if you want to see what I'm talking about:
http://www.hatecrime.org/subpages/hatespeech/hate.html
Not that I care - the Bible has as much relevancy to me as the script from Airplane II, cause I think both are fiction. But here's some more quotes from the New Testament (some are paraphrases):
"Jehoshaphat "did that which was right in the eyes of the Lord" and "took" the homosexuals (sodomites) "out of the land," or as the RSV says, "he exterminated" them." 22:43, 46 - Kings
Homosexuals (those "without natural affection") and their supporters (those "that have pleasure in them") are "worthy of death." 1:31-32 - Romans
I got the quotes from here:
http://www.skepticsannotatedbible.com/gay/long.htm
Now if you're a fundamentalist Christian and you take every word from the Bible as truth - then you really should have no objection to executing gays. In fact - God pretty much demands it. The Koran is the same thing. The only difference is that this country happens to have secular law that prevents us from becoming a theocracy. But the religious right is doing every thing they can to destroy that tradition by pretending that this country was founded on "Christian" principles.
Ann, I'd be interested to read your response to my posts above. I have introduced a rational basis for banning same-sex marriage: same-sex conception is unethical and would be bad for society even if it were safe (which is certainly isn't and probably never will be), and marriage must continue to protect a couple's right to conceive together. It would be very bad if marriages had to pass a safety test before they were allowed to attempt to conceive.
Note, there's no Leviticus, there's no animosity, there's no tradition, there's only science and law and social utility in this argument.
Civil unions could be exactly like marriages but without the conception rights, which would allow us to prohibit genetic engineering and preserve marriage AND further the cause of same-sex couples that only seek equal rights about things like federal recognition and survivor benefits and more (all?) states to recognize their unions.
Wow, no response, even after calling attention to this post in more current threads in case anyone missed it. There is no argument, because this is a rational basis for banning same-sex marriage.
Before getting upset, realize that with this distinction between civil unions and marriages, it will be much easier to get Congress to recognize civil unions as marriages in terms of tax benefits and survivor benefits. Lives would improve for same-sex couples, most of whom are not interested in freaky experiments to have children or worried about what their union is called. It could be resolved as a compromise, giving up the demand for conception rights, in exchange getting federal recognition.
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