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.
पोस्ट्स
२१० टिप्पण्या:
210 पैकी 1 – 200 नवीन› नवीनतम»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.
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.
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.
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?
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.
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.
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?
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.
There is none.
This has been another installment of Short Answers to Easy Questions.
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.
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.
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.
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.
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!
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.)
"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.)
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.
"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.
No, I wasn't referring to Maggie Gallagher. The St. Thomas prof was a St. Thomas prof, and Ms. Gallagher is not.
What is the rational basis for banning same-sex marriage?
Serves no purpose.
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.
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.
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.
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.
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.
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.
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.
I said:
man and women
I meant to say:
man and woman
Whoops. Was not intending to slip in polygamy there.
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.
"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?
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.
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?
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....
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?
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.
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.
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.
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.
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.
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.
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
"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.
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.
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.
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.
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.
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.
"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).
"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.
Megan McArdle posted a very thoughtful piece on this some months back. Here's a link:
http://www.janegalt.net/archives/005244.html
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.
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.
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.”
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?
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?
"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.
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.
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.
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.
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.
"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.
(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.
(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.
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.
@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.
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.
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).
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.
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.
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.
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.
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.
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?
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.
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?
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.
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.
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.
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.
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.))
Sorry bout the double..don't know what happened
"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 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.
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.
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. :)
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.
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.
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.”
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.
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.'
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.”
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.
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?
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.
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.
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?
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.
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.
if it were a strategy of the gay rights movement to "agitate," it sure picked the least popular method of doing so.
"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.
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.
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.
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.
No I would not. I am simply revulsed by anal sex.
Would you consider being straight for a week?, not "bi" but straight?
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.
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
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!
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.
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.
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.
Cal Court of Appeals opinion on gay marriage, hot off the presses.
Available here.
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?
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.
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
#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”.
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?
Edward said:
"As soon as California has another Democratic governor, gay marriage will become a reality there."
That might be quite a while
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.
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.
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:
Why don't you just answer the questions people ask you before asking more. It's rude
Revenant, a true materialist: all beliefs, and especially supernatural beliefs, have a genetic underpinning.
We think using our brains, in a manner dictated by the structure of our brains, and the structure of our brains is encoded in our DNA. Ergo our genes influence how we think, QED. That does not mean, as you so simplistically assume, that there's a gene for every belief.
What I meant by "the biological underpinnings of supernatural belief" is simply this: Our brains contain structures that produce the feelings people have historically associated with spirituality -- feeling a "presence", feeling "at one with the universe", etc. That's why so many people believe in things like gods, and not things like invisible rhinocerouses, despite there being an equal amount of evidence for both of those things.
Some people, like the Dark Master of this thread, would probably ascribe those parts of the brain to being put there on purpose by God to let us feel His presence. Whatever the case, I imagine that religious parents will want to make sure their children feel that presence, too.
But tell me good sir, is there a gene that causes you to believe in genes?
There is a collection of genes that makes me capable of rational thought, if that's what you mean.
In most states, the political issue before the courts and public is not whether marriages of two men or two women will be "banned" by a state, but rather whether they will be recognized by the state as part of the concept of "marriage".
That is an important distinction to me.
I suspect that an anthropological study of origins of the human concept of "marriage" would yield little evidence that early humanids (e.g. "Lucy" and her progeny) "coupled" up male to male or female to female in any familial way, such as groups, herds, tribes, or the like. You anthropologists out there may have evidence to the contrary, but had they done so, it seems to me the species never would have evolved very far for obvious reasons.
Studies of the world's major religions and the world's governments likewise will show that neither of those institutions has recognized male/male or female/female relationships as being among those for which the institution of "marriage" (or similar institution) was recognized.
On the other hand, both polygamous (one male "husband" many female "wives") and polyandrous (one female "wife", many male "husbands") relationships have over the centuries been observed among humanids and humans by anthropologists, and have been and are being recognized by both religions and governments even today.
With that historical background, then, there is rational basis for a state to fail to recognize same sex relationships as those for which the legal relationship of "marriage" is appropriate. It is simply the state's selection of which among the many observed and recognized models of human familial organization is to be recognized by a particular governmental entity.
If the state can fail to recognize relationships that have been observed by anthropologists, and recognized by governments and religions, why cannot the state fail to recognize relationships that have no anthropological, religious or governmental recognition among the possible family organizational models available?
Edward:
I didn't your original comment referencing your "experiment," though I saw several later ones. In the first one, where you say you asked all heterosexuals, were you including females?
Anyway.
My first thought--which frankly surprised me--was: Lesbian or gay male?
My hesitation about the latter--and, again, this surprised me--is that apparently I'm not 100% sure about being male, period, regardless of orientation, for a week! (Because I did that thought experiment, too. I guess maleness itself, on some fundamental level, seems so foreign to my core sense of my own self.) (Hmmm. Won't digress further on that one.)
All that aside, I'd participate in your experiment--and regardless of what you meant: a bit out of curiosity over the outlooks and experience of other people, but more because of my close friend P. I'd like to have better insight into what he's gone through over the decades, and what it took to get in the comfortable place he's reached now. Because I love him dearly, and as an invested and caring bystander for close to 25 years, it's been very clear that he's had some rather large prices exacted at various points, and for a very long time.
There is at least something to that mile-in-moccasins things, after all.
Edward said...
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.
That's objectively false. Homosexuality is clearly a biological defect of the reproductive system, since it prevents reproduction.
For example, would you be willing to really be gay for a week.
No, why should I? While many heteros use anal sex for variety, they engage in vaginal sex far more often, since it works and feels better. Since gays don't have that option, why would I give it up?
Edward:
A few points:
Edward: Noah: You’re being totally unfair to me, and you’re not carefully reading what I’m writing.
HM: Frankly, no one cares what you wrote. It's a hypothetical. The "unfairness" you sense is an unwillingness to see the world exactly as you wish it seen.
Edward: 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.
HM: See what I mean. "This is what an honest hetero would do. Obviously, I'm a dishonest one. Asked and answered counselor. Let's move on.
Edward: Was your question whether I would be willing to become heterosexual for a week? Sure, but I would probably want to change back to gay after a week, because I really do believe that the gay rights movement is only going to get more interesting and exciting in future years.
HM: Well, at least you're open-minded about your ridiculous little experiment. What's your control group? And you're obviously not interested about how it "feels" to be a hetero. This is clearly political. More "Politics of Meaning" bullshit from the left side of the spectrum.
But let's get back on point:
Edward: California will enact same-sex marriage sometime in the next decade or two.
HM: Goody for the left-coast. Gays still won't be married. "Gay marriage" is an oxymoron, like a clever brand-name.
Silly Putty
Liquid Nails
Gay Marriage
Putty can't be silly, nails can't be liquid, and marriage can't be gay. Clever marketing though.
Oh, and I don't what to be gay for a week. It would totally freak my kids out.
Edward says:
If the people answering the question were really honest, and if they were willing to say yes, they would have to admit that they don’t know for sure what the experience would be like, because so far they’ve never been gay a day in their lives.
I had rather assumed that being gay was just like being straight, only you get aroused by men, not women, and that in all other respects, gays are, psychologically, just like the rest of us (excluding any systematic psychological impact from discrimination and the like, which wouldn't be implicated in Edward's hypothetical). Admittedly, there's no good way of testing this, as there aren't many people who can switch between being gay and being straight so as to check, but . . . is there reason to believe that gays are -- apart from the issue of sexual attraction -- psychologically different from heterosexuals? I know people used to say that kind of thing all the time, but it always got shouted down as "homophobia" before.
Re: Edward:
cool rationality.
I'm biased because I read posts on the internet, where no one is shewn to best effect, but I would not characterise pro-gay marriage advocates as . . . overflowing with "cool rationality."
Edward: "Most of the people writing in opposition to same-sex marriage here are angry and mean in what they write."
HM: Oh, for the love of God.....
"I’m also completely convinced that being gay is not in any way a biological or genetic defect."
That's objectively false. Homosexuality is clearly a biological defect of the reproductive system, since it prevents reproduction.
A gene that prevents reproduction is not automatically a genetic defect. Honeybees, for example, aren't genetically defective, even though virtually all of them are females possess of genes that prevent them from reproducing.
From an evolutionary perspective, a genetic defect is something which makes it less likely that genes will be passed along. But gay men aren't the only ones with their genes -- their siblings and relatives have them to. It may be that homosexual family members provide enough of a benefit to the family that the net result is that the family's genes get passed down.
Also note that homosexuality doesn't *prevent* reproduction. It didn't even make it all that much less likely, for most of human history, since there were social and pragmatic reasons for gays to have heterosexual sex for children. In the modern day it makes reproduction less likely, of course. But then again, in the modern day there are numerous other ways to pass along your genes.
And in any case, things that make reproduction less likely aren't always considered defects. We don't say that women with small breasts are genetically defective, even though they're less likely to attract a desirable mate.
Reader_iam: I certainly didn’t mean to be sexist in asking the question. In fact, I’m not sure that I was sexist.
Whoa! Whoa! Wh-oa-oa.
Where the heck did I say or imply sexism? I'll tell you flat out: That thought didn't enter my mind. (And, I'm sure--or at least I hope--others could attest here, if I HAD thought that, I'd have jolly well said so. Flat out.)
I saw only your later posts (which I noted, for crying out loud), which were addressed to males. That's the alpha and omega of that.
I made the distinction between lesbians and gay males specifically because I was--as I also noted--surprised that the distinction arose in my mind. And for the REASON I thought I stated pretty clearly.
I neither thought nor said--nor do I think I implied--that you were sexist. (If I did imply that, it wasn't my intention, and if that's the general consensus, then I screwed up. And I apologize, in that case, for the screw-up).
Now, however, I AM considering whether or not you were asking that question in good faith.
And whether I was a fool (and how big of one) to sally forth based on that premise.
Except for the fact that the rest of us aren't prohibited from marrying the people we love. Except for the fact that no one has ever been beaten, tied to a fence and [blah blah blah]
Oh for Pete's sake. ONE SENTENCE after the section you quoted, Balfegor said:
excluding any systematic psychological impact from discrimination and the like
Did you not read it, or did you just decide to ignore it and go on a rant anyway?
And by the way, gays are not prohibited from marrying gays and haven't been for years. They just don't get government benefits for BEING married.
the rational basis = AIDS prevention
So let me get this straight: in order to prevent AIDS, the government must discourage gays from entering into permanent monogamous relationships?
Out of curiousity, what color's the sky on your world?
The discussion on this thread leaves me feeling very conflicted.
Speaking as a lawyer, I have to admit that the rational basis test sets the threshold very low. Since a reviewing court applying this standard must give so much deference to legislative choices, many of the justifications offered here clearly suffice. The most convincing are those relating to child-rearing.
Speaking as a gay man, I have to admit that some of the other justifications offered above are shocking in their stupidity -- "if we let gays marry, nobody will have children anymore because we'll all be fornicating with wild animals." Get a grip. Social change is a constant. Change is healthiest when it is incremental and occurs by consent rather than by judical fiat. But attempts to stop change altogether are unhealthiest of all.
A lot of comments from non-lawyers who have no clue what "rational basis" actually means.
I know what it means, but I'm not a lawyer, so I'm not going to even attempt to answer this question.
I just know that I have never met a person who opposed gay marriage who didn't have complete contempt for gay people.
But putting the bigots aside - that doesn't mean there is a rational basis for same-sex marriage.
Rational basis for banning same-sex marriage? There is no compelling state interest for having same-sex 'marriage'. A written legal contract will serve as well as what many homosexuals claim to want -- marriage. Moreover, a denial of this type of 'marriage' will prevent the state from having to assert a compelling interest against having consanguineous, polygamous, or inter-species marriages (as recently happened in Sudan/Somalia, somewhere Islamic, where a man was forced to marry a goat cuz he had sex with it.).
Same-sex 'marriage' serves no good purpose with regard to the human species and, thus, to the state. It is contrary to the continuation of the species; it weakens marriage as a cultural institution which pre-dated the state—for, as we know from Sweden, where same-sex 'marriage' is allowed, the incidence of heterosexual marriage declines because it seems they perceive that the sanctity of the union has been undermined and made unnecessary to familial stability and order.
The family unit is a microcosm of society, and the marital relationship between heterosexual individuals is a type of the social contract the individual has with the community and state. If he's not willing to enter into such a relationship for the sake of stability and security (emotionally) of the family, then it is unlikely that he'll be unwilling to stand up for the community and state.
Same-sex 'marriage' is a social option that is not necessary to the well-being and stability of the community and state; that weakens the social contract; and fulfills no compelling state interest, not even justice inasmuch as the personal and legal bonds can be ratified via a well-written contract.
The Jerk:
"Gay marriage" is an oxymoron, like a clever brand-name.
How silly. Marriage is a legal concept, defined by the state.
HM: Uh, no, and that's been my point all along. Marriage is a social concept, merely reflected by the state. Marriage pre-exists the state by a long shot. Thanks for the history lesson though. How long have you been in academe?
Edward - I have a lot more respect for the bigots who are open about their bigotry.
That's why I read Pat Buchanan. He doesn't try to cover up what he really thinks. His bigotry is just out there. He's wrong - yeah. But at least he's honest. He hates gays and he thinks God hates them too. Fine - let him think that.
Much better than the people who try to say that all gays are pedophiles (Fenrisulven, Wall Street Journal editorial page for the last two days, etc.) and then act horrified when people say they are bigoted.
A written legal contract will serve as well as what many homosexuals claim to want -- marriage.
Wow. How stupid are you?
Here's one example of something I can't get via a "contract". The right to not testify against my spouse in court.
Edward: downtownlad: I like your comment that you’ve never met an opponent of gay marriage who didn’t have complete contempt for gay people.
It’s similar to my earlier comment that I detect a lot of anger and meanness in the posts here of people who oppose gay marriage.
They would probably never admit the anger and meanness contained in what they write, but it’s there, and -- you know what? – I suspect it’s not psychologically healthy for them. It probably hurts them even more than it hurts gay people.
HM: Thanks for the free psychoanalysis, boys. Gee, you don't seem real "tolerant" of people who oppose flipping society's building blocks around like Legos just to fit the narcissistic wishes of a tiny minority, do you?
Ya know, I'm sorry you're not able to marry. I really am. But you can't, because you're gay. Whether homosexuality is by choice or innate, doesn't matter. I'm 5'6", something obviously innate, and I can't play in the NBA. Life ain't fair, and it's never going to be.
This has degenerated into silliness, and worse. Those who call opponents of "gay marriage" ignorant, intolerant, homophobes, and whatever else they come up with seem unable to face the fact that us "norms" aren't really prepared to uproot society root and branch because they are a "squeaky wheel". The veiled "they're {perjorative here}" references are quite tired. Screw "tolerance". My job as a parent is not to teach "tolerance". It is to teach that which is utterly intolerable. One of those things is the idea that a tyranny of the minority can overthrow western civilation's finer points with a slogan like "We're here, We're Queer, get used to it."
Frankly, a lot of us there red-statin' Jesus-landers are mighty hoppin' sick of being told what to think, feel, and believe by those who reject the society that allows them to act like fools. Not homosexuals, per se, who have always been a part of society. But homosexuals who clamor for "accept me" hugs to be codified as the secular gospel. This is a Republic, and laws matter here. They reflect society's ordering.
Homosexuals have made great strides in recent years, but demanding that all of society sanction homosexual unions on an even plane with marriage is easily a "Bridge to Far". Stop while you're ahead.
This article is a couple of years old, but it's one of the best treatments of the issue I've come across.
http://www.city-journal.org/html/14_3_gay_marriage.html
HM: It is to teach that which is utterly intolerable
HM: Never post in haste my friends, or you say exactly the wrong thing. Can't wait to hear the Freudian references on this one.
;-)
{Preview is my friend....}
Stop while you're ahead.
Is that a threat? Sorry - I'm not scared.
Or maybe it was supposed to be advice???? Ha!
And why exactly are gay people supposed to take advice from anti-gay bigots?
I imagine that this is what the KKK was telling black people in 1960: "Stop while you're ahead".
Edward, this is not personal.
Drop the armchair psychologist bit. It's really tired. You don't know me, and you can not know my feelings about homosexuality. They are also irrelevant to this discussion.
I am damned sick and tired of being called names when I make my thoughts known. I can take it. I'm a big boy. Doesn't mean it isn't a tired ploy.
The demand being made by advocates of "gay marriage" is that we literally reorder society for a tiny percentage of our citizens. We must change the meanings of words. We must rearrange 1500 years of thinking. We must ignore the very bases of western civilation and create a "Brave New World". Sorry. Ain't up for that tonight. Or tomorrow.
I empathize with gays in our society, actually. Gotta be damn hard in a lot of ways. Well, tough. That's life, and it's not going to get any better by whining.
I'm a bill collector. (Waits for hisses to die down). One of my favorites from debtors is "Why won't you work with me?"
Well, it's because you mean "working with me" as "my way or the highway", which doesn't even come close to filling my bill in these circumstances. It's the same with "gay marriage". The strident demands just don't come close to being realistic. Even in Vermont the closest they could come was "civil unions". Even those liberals up there said "just don't call it marriage".
It's not meanness, Edward. It's not "homophobia" or ignorance or intolerance, either. It's frustration that people pushing for this won't even look up long enough to see what they're pushing against. And what you're pushing against is worth something, too.
I just have to laugh at straight people who pretend that they know what it's like to be gay.
They have no freaking clue and never will. Why even try to explain it to them? It's like trying to teach them to wear fashionable clothes. It's utterly useless.
Downtownlad:
That's right, I'm a racist as well as an "anti-gay bigot". Not in the KKK, though. Not much of a joiner..... (with apologies to the author)
And no that wasn't a threat. It was more of a plea to stop the damned whining....
Downtownlad: I just have to laugh at straight people who pretend that they know what it's like to be gay.
They have no freaking clue and never will. Why even try to explain it to them? It's like trying to teach them to wear fashionable clothes. It's utterly useless.
HM: Victimhood, veiled ignorance accusations, and fashion parodies.
Aaaah.....nothing like the internet
I think it's time to change tactics. They won't let gays get married. Fine.
Now my mission is to destroy marriage entirely.
We can start by shaming any straight people who get married into thinking they are participating in a bigoted institution.
I definitely think this has the potential to catch on amongst the younger generation. And if we can convince enough straight people to no longer get married, then marriage will whittle away entirely.
hm - Just because you're a bigot does not make me a victim.
I have a personal hobby of getting revenge. That is the opposite of victim in my book.
Daryl - You forgot the fact that gays contribute signifcantly more towards civilization than straight people do. That is an indisputable fact.
If you just take a look at history and take an inventory of the best artists, the best writers, the best scientists, etc. - gays vastly outnumber their presence in society as a whole.
Same with the Jews.
Did I forget to add that I'm a gay Jew?
Tyler:
You damned near make a point with your rebuttal to me, but you ignore the definition of marriage. Committed relationships among gays are commendable, but they can't be marriage. Try again.
(I mean it. Keep trying. Refute my definition of marriage or accept and work with it. Sometimes passionate argument leads to a solution. Not that its going to happen tonight of course) ;-)
Conserv-a-drip - Damn right I will burn the whole place down. You're not really leaving us with any options though, are you? With your bigoted constitutional amendments that not only ban gay marriage, but any contracts between gay people whatsoever.
But we really should get off this topic. We are not answering Ann's question.
"Rational basis", you know.
Downtownlad: I have a personal hobby of getting revenge. That is the opposite of victim in my book
HM: Now THAT was a threat.
You ever hear of the "Iron Fist Rule of Internet Posting"? It was coined by a poster on little green footballs named "Iron Fist". It goes like this:
"If you think you're too drunk to post, then you're too drunk to post"
I'm just sayin, is all
Hm - You don't have a monopoly on the word marriage.
Not everone believes in that Jesus dude.
Reformed Jews, and soon to be Conservative Jews, will happily allow gays to get married.
Unlike you - who thinks gay people "choose" to be gay - Reformed Jews believe being gay is a gift from God.
Riiiight. And we should only pay attention to fenrisulven when he false claims AGAIN and AGAIN and AGAIN that all gays are pedophiles.
But gasp! - Don't call him an anti-gay bigot when he spreads those NABMA lies.
Thank you downtownlad.
L'shanah Tovah
Revenant: We don't say that women with small breasts are genetically defective
Speak for yourself
HM: No one can now argue my previous point that this thread has degraded beyond repair...
LMAO
But back to Ann's quesiton - if being gay is not a choice, but is a biological fact - then there is most likely NO rational basis for banning gay marriage. The case would be almost identical to Loving V. Virginia.
If it is a choice - then there could conceivably be a rational basis, i.e. encouraging people to marry someone of the opposite sex instead.
Of course all gay people know it's not a choice. And many bigots probably know that as well, but they spread the lie that it is a choice (even though they'll admit they never chose THEIR sexuality), because that's the only way to keep gay people as second class citizens.
Of course another solution for this - is for openly gay people to go out and find some gullible Christian fundamentalist, and then try to seduce and marry them. Promptly divorce them - so then they'll think they're going to hell for the rest of their life, since divorce isn't allowed. That would be a cool form of revenge too.
hm - I might be Jewish, but I don't actually believe in that stuff. Please.
Although I do fast on Yom Kippur. Gays love that holiday. Great way to lose weight.
Although I do fast on Yom Kippur. Gays love that holiday. Great way to lose weight
HM: Atonement. Tone up. Same thing, right?
wow..... (See "Iron Fist". Above)
No one can now argue my previous point that this thread has degraded beyond repair...
It was lost from the beginning. Everyone ignored Ann's QUESTION.
Rational Basis!
But that didn't matter to the British government, compared to his homosexuality.
Kind of like gay, Arabic translators. Better to be killed by terrorists than to have a few gays in the military deciphering terrorists' plans.
John - I'm in better shape than you - trust me. Just check out my typing speed.
Breathing exercises are for wimps.
downtownlad: It was lost from the beginning. Everyone ignored Ann's QUESTION
HM: No, you prove the point on the whole rational basis thing. You shouldn't be allowed to breed. But I guess that's not too likely now is it?
LMAO ;-)
I go to the sperm bank weekly hm.
Sorry to disappoint you.
I know, I know. I'm feeding the troll.....
Well, thanks for the entertainment. Especially you, downtownlad. You're quite amusing.
Night all
Night.
Utterly, utterly apart from this original post and its question, or any of the interesting and valid threads in this comments section:
having more productive adults per child means society can afford to provide better education to the children
That's at the front end. And what are the implications of that ratio when the "more productive adults" get way up there in age, as we all do, and the dependency is reversed?
I found this comment absolutely amazing in its insouciance.
Nothing to do with gayness, gay marriage, straight marriage: rather, demographics and the clash between generational benefits, expectation, realities, and assumptions, realistic or otherwise.
Just wow, that a statement like that could be just thrown out.
If that's your assumption Daryl, that being gay is not a choice - but the behaviour is - I STILL don't think a court would say that there is a rational basis for banning gay marriage, especially in the light of Lawrence which granted the right to sexual privacy. But I don't have enough of a legal foundation to argue this entirely.
If you think being gay is a choice, then Lawrence, etc. - all falls by the wayside.
Not to mention that the original statement contains at least one assumption that doesn't automatically hold water.
[end OT, 'cause this part of the conversation really is, at least unless and until the more core ones are addressed]
downtownlad,
Hello again. You were very kind to me recently on a previous post and I was hoping that I might enter the dialogue, this time respectfully, without my usual sarcasm.
The subject is obviously gay marriage and "rational basis". I agree with several of the earliest posters above in their reasoning. Since so many have since taken to calling each other names and seem to seek to divide everyone into some sort of extreme camp - bigots or perverts only - please allow me to state a little of my views as I rarely see them delineated in these discussions.
Note: this is not a theological tract below, just my own personal view explained to get to my point.
First, I do consider myself a "believer" in Jesus, usually choosing the shorthand of label of evangelical, though I do not feel that I am a good representative for all evangelicals, as certainly many evangelicals do not speak for me.
Secondly, I am most often labeled politically conservative, but consider myself first a believer, THEN a politcal participant. For example, while I am a strong Bush supporter, I also support limited gun control and am not a fan of WalMart's business practices, just two areas of personal difference with the "conservative agenda".
I believe that the God in the Bible is a personal God, and that His design for mankind is basically for a "personal relationship". I do believe that mankind is "Free Willing" it, also by Divine Design. In otherwords, it is the priority of God to allow each person to freely choose whether or not he/she wants that "personal relationship". That is why I do not believe that arm-twisting evangelism or "theocracies" are correct. I believe in treating each person as a person worthy of dignity and respect.
I recognise that a person that is "gay" doesn't "choose to be gay".
I do not believe that there is a "gay stereotype", that someone gay is still a unique individual, and that many people, if not the majority of mankind, cannot be judged accurately by the rest of humanity on their innermost persons.
I do not believe that I am smarter, better, or "less in need of redemption" than someone gay.
I have willingly hired numerous people (dozens)that I knew to be gay, many openly so, not for sympathy or because of their sexuality, but because of their
qualifications for the job.
Over the last 26 years my wife and family have taken men and women into our home for extended stays while they get on their feet financially, and 6 of those people (that we know of)have been gay. We state up front our feelings on the subject, but then do not "preach". We never made their sexuality a condition of staying or charity. We believe that God does the judging and that we are to simply serve.
My wife assisted for 3 years in an AIDS hospice that was created and managed by a local evangelical congregation.
There are obviously, however, many church mambers who, while serving in a similar way, are more deeply troubled by "gayness"
Which is one of the reasons that I oppose "gay marriage". It is hard to imagine it not causing miriad problems with churches and like-minded organizrtions that would be forced to recognize marriages that they do not believe are Biblically sanctioned.
Would evangelical churches be forced to accept gay married couples in marriage classes or, interestingly, married couple "retreats", Would churches be forced to not discriminate in hiring and then provide employment benefits to same sex partners? How do you write laws with "religious exceptions? Bill Clinton struggled with that one.
Edward said:
"I actually think that many heterosexuals believe that homosexuality in itself and as a state of being is somehow painful and inferior. I can tell you from my own experience that it’s not."
Unless you've been both gay and straight that can't possibly be true. Acting straight doesn't count, neither does being "bi".
Someone, please tell explain all the anti-gay marriage arguments to these kids and then come tell us how that conversation went.
Re Edward's challenge: I venture to say that one who experienced both psychological states (hetrosexual and homosexual),and then returned to a neutral state for judging, would, without a doubt, pronounce the hetrosexual state more fulfilling. And for this reason: the deep passion involved in the potential creation of a new human life is infinitely greater.
"I'm waiting for the pro-homosexual lobby to end rational debate by throwing down their homophobe card, it's already happened at least once on this site."
I love people who call homosexuality a "deathstyle" and then several paragraphs later pretend that they've been engaged in a rational debate. I don't like the word "homophobe" because it's inaccurate, overused and aesthetically displeasing, so I'll throw down my moron card on the floor of my beautifully decorated homosexual lobby.
"And for this reason: the deep passion involved in the potential creation of a new human life is infinitely greater."
Ah, so this is what straight people think about when they fuck. Creepy.
Contrary to your assertion, it was directly responsive to a previous comment (
Contrary to YOUR assertion, its direct responsiveness is open to debate. But reasonable people can disagree.
(if you had bothered to check)
Contrary to YOUR assertion, you're dead-ass wrong. Not I only did I "bother" to check, but I also had already read the previous comments. Sure it's possible that I missed your context. It's also possible you didn't provide it well.
Fine. Neither bears upon "bothering to check."
If I had "bothered to check." Check yourself, O parenthetically dismissive one.
For the record, I found the original quote--"That's objectively false. Homosexuality is clearly a biological defect of the reproductive system, since it prevents reproduction."--to be a) narrow and b) false on obvious technical grounds (homosexualityy does not prevent reproduction).
Those points had already been directly and adequately addressed.
I commented on YOUR throwaway statement on the grounds that it was EQUALLY narrow and, well, dumb.
Again: Check yourself.
That should be: Bother to check yourself.
Are you actually telling me that living one of the most high-risk deathstyles in the world is a real rush to you?
"High-risk deathstyles". I like that. It has just the right Fred Phelps odor to it.
But isn't there something intrinsically wonderful about having a part of yourself living on in the future in the form of a child
Beats me, I'm straight and childless. But if you think being gay means you can't have children, I'd guess you've never heard of artificial insemination and surrogate parenting. Sexual orientation has nothing to do with procreation these days. Isn't technology just peachy?
If every person was a homosexual the world as we know it would end in a generation whether we start out with Adam and Steve or a billion homosexuals/lesbians. No posterity, no nothing.
And if every person in the world was as smug and unimaginative as yourself it wouldn't be much of a loss when that generation came and went. Seriously, were you really unaware of the fact that homosexuals can have children?
Now you tell me which lifestyle gives humanity the biggest rush and is the most truly creative state of being if unhypocritically practiced by its every member?
That's easy: polygamy. :)
Ah, so this is what straight people think about when they fuck. Creepy.
Um, no. Its what loser religious people who've been celebate so long the sperm backlog has flooded their brain and shortcircuited their logic centers think about when they hear about *other* people having sex.
Straight guys mostly think stuff like "ooo" and "mmm".
It depends really on what you believe the basis for rationality itself is. It is not enough just to declare that arguing against order presupposes it (it does).
The problem with many good and insightful thinkers is that they are standing with both feet planted firmly in the air. That is, you presuppose an ordered, moral universe and ignore the metaethical questions that such a worldview demands. In doing so, you slip in a utilitarian assumption with the deftness worthy of a card sharp (I don't think you see it yourselves, frankly).
Rationality itself demands presuppositions which land you in "Moralsville," where you let those damned fundamentalists have a place a the table. Of course, that changes the whole nature of the debate.
downtownlad:"I just have to laugh at straight people who pretend that they know what it's like to be gay. They have no freaking clue and never will. Why even try to explain it to them? It's like trying to teach them to wear fashionable clothes. It's utterly useless."
Well, the same principle works in reverse. If you're correct, why shouldn't straight people laugh at you and proclaim that it's utterly impossible for you to grasp how they feel? You think empathy is hopeless? You're promoting utter cynicism? How do you think that will work out?
"Now there are at least two people telling me that it's something so utterly alien that I can't even begin to understand it without being gay."
If one of those two people is dtl you would be well advised to take what he says with more than one grain of salt.
Dtl's a poor political strategist. It doesn't help anyone's cause to insist that because I'm gay I have a special unique inherent magical quality that sets me apart from the rest of humanity and makes me better than them, and more deserving of getting exactly what I want.
Dtl, wouldn't it be better to remind people that we are human beings with the same wants and needs as other human beings, and not weird entities from a separate plane of existence?
"You guys are willfully distorting my thought experiment."
Well actually I do know what it's like to be gay, since I'm gay, and at the end of the day it's not as different as you claim. Compare notes with your straight friends and family -- you get up in the morning and go to the office, you make sure the mortgage check is in the mail on time, you argue with your partner about whose parents you're going to spend Thanksgiving with this year.
Admittedly, gay life seems exciting and vivid for a year or two after you first come out, but the transgressive edge fades, and there you are. Ultimately it's this non-threatening sameness factor that will win the day on the gay-marriage front.
And pulling out Prof. Althouse's point from a few posts up:
Despite the numerous comments here yesterday, I did not think anyone had articulated an impressive basis for the law.
Fair enough -- when I read pro-gay marriage arguments I've never found any of them remotely compelling either, even though the proponents obviously think they are. But this segue's back into the question I asked before --
If we have gay marriage, what's the "rational basis" for discrimination between married and unmarried pairs of people? I mean, if we dismiss "procreative interest" as a foundation of marriage, then what's left? No other rationale (that I can think of) can find stronger support in the laws as they exist, or the social institution as it exists across all the populations of the US.
Furthermore, I recall that some states (and cities?) have employment discrimination regulations prohibiting discrimination on the basis of "marital status," so this isn't an entirely novel issue. Is there caselaw applying that more broadly under equal protection clauses in state constitutions?
You guys are willfully distorting my thought experiment just to avoid its deeper philosophical and political implications.
You're assuming that it has "deeper philosophical and political implications." I don't think everyone is particularly interested in earning your be-gay-for-a-week-and-prove-you're-not-a-homophobe seal of approval.
Wow, this thread must set some kind of length record.
I'll just address some biological misconceptions brought out by my previous comment that homosexuality is a biological defect.
Yes, gays can reproduce...in the same sense that asthmatics can breathe. That doesn't mean there's nothing wrong with their reproductive/respiratory systems.
From the perspective of evolutionary biology, the important thing is not the survival of the species...that is the discredited theory of group selection. See e.g. The Selfish Gene. The important thing is the propagation of individual genes, and when gays adopt unrelated children, they are wasting their time from an evolutionary perspective.
Yes, homosexuality is rooted in the brain, but the brain is an important part of the reproductive system.
Are women with small breasts genetically defective? Well, is a peacock with a small tail genetically defective? There's a continuum, but at some point you would have to say yes.
Re: Smilin' Jack:
Wow, this thread must set some kind of length record.
It is trounced, I think, by two back-to-back gay marriage threads from a few months ago.
Once again, a perfectly serious and substantive thread concerning constitutional arguments for same-sex “marriage” was hijacked and turned into a flame war. Its interesting to note that the onslaught of pro-gay (& gay) commentary lead the discussion away from what benefits society as a whole , into what validates the feelings of a small interest group.
Fenrisulven
Indeed:Terms like “Mother” & “Father” (as we are already seeing removed from birth certificates), “husband” & “wife”, “Grandmother”, “Grandfather” etcetera…will need to be replace by more “inclusive” gender neutral variations like “spouse” “partner” and “parent”
The “new reality” of our ongoing “civil rights movement “ must be reflected in education and public accommodations, - introducing young people to the “realities” of “modern marriage” through books like King & King , and Heather Has Two Mommies (as is already happening in Massachusetts & Bills in California) will/have become normative public policy backed by the power of the State.
It’s a culture war… a war for who gets to control the culture…
I view it simply as the continued gradual unfolding of the American principles of justice, freedom, and equality.
I view it as simply the continued gradual effort of every special interest group in the world to get government handouts. Straight married people manage to pull down benefit after benefit because, after all, they're the majority -- most of the adult Americans are married. Gays want space at the feeding trough too, which is understandable but hardly something for me to get enthusiastic about.
I, on the other hand, am single and resigned to underwriting all of the above crap with my tax dollars, just as I'm resigned to paying for public education for children I don't have, tax-exempt status for religions I don't belong to, et al.
Rational reason for banning gay marriage: Sure... banning gay marriage ensures that homophobes can continue discriminating pseudo-legally.
The bottom line on this one is fairly simple: The prevailing reason given as to why people are opposed to equal rights for all citizens is that it will threaten the institution of marriage. Of course, allowing divorces and not punishing infidelity already make the institution of marriage one of the biggest jokes in this nation but we can't insist that idiots use logic, now, can we?
It's pathetic that we even have to have this conversation. America is losing the culture war to bigots and people filled with hate (read Republicans) and we have to act fast to ensure that we will still have some civil liberties left come 2008.
VOTE DEMOCRATIC!
Well, the same principle works in reverse. If you're correct, why shouldn't straight people laugh at you and proclaim that it's utterly impossible for you to grasp how they feel? You think empathy is hopeless? You're promoting utter cynicism? How do you think that will work out?
I think will end up with gays in the gas chamber - which is exactly what the hateful right-wingers want. Again - I might add - since this has happened before. But empathy is useless, because these people belong to the cult of Jesus Christ that teaches them that gays must be killed (it's in the Bible).
So in the meantime - I'll at least have fun laughing at how fat and poorly dressed straight men are.
There are certainly rational reasons for banning same-sex conception. There's so many reasons, in fact, that I challenge someone to come up with a rational reason for allowing same-sex conception. You have to be irrational to let people create a person in such a way.
(For the uninitiated, same-sex conception means combining the genes from two people of the same sex, rather than an egg and a sperm. It requires genetic engineering and has major inherent risks, as proved by research in mice and pigs. See my blog eggandsperm.org for more info)
OK, so that's a rational reason for banning same-sex conception. What about same-sex marriage? Well, first of all, 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?" And the right in question is the single most universal and essential right of marriage, so much so that the term "conception rights" has never needed to be uttered until now, since we used the term "married" to describe people with conception rights. 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 concetion 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) MUST be done, and preserving marriage's concetion rights MUST be done. Ergo - same sex marriages must be changed to civil unions that do not grant conception rights.
Brent,
That is great that you treat gays in a civil manner. Very comendable. But I'll be honest - if you are an evangelical Christian, I could never be friends with you, nor would I choose to associate with you unless I had to for work reasons, etc. But I would treat you with the same respect that you are treating gay people. In other words - I would tolerate you and your viewpoints.
I had friends that are evangelical Christians, but since I've come out of the closet - I am dropping them. They probably have no clue why, and I feel zero reason to tell them the reasons. I just want to live my life as I see fit, and if it disagrees with their viewpoints - then I will leave their life. As simple as that. They have a right to their views - but they don't have a right to be my friend. I have done the same with most of my family.
But I actually have little problem with bigots, as long as they admit they are bigots. People don't have to like gays. 60% of the country hates us (according to polls). Fine. What I have a problem with are people who cannot treat gays as equal citizens in this society (by favoring laws that imprison us, for example) and then turning around and trying to deny that they are stomping on the liberty of gay people. Of course they are. I don't like liars. Why can't they just say that they favor these laws, because the Bible tells them that gay people are sinners, etc. I'd have a hell of a lot more respect for people who are forthright like that.
Would evangelical churches be forced to accept gay married couples in marriage classes or, interestingly, married couple "retreats", Would churches be forced to not discriminate in hiring and then provide employment benefits to same sex partners? How do you write laws with "religious exceptions? Bill Clinton struggled with that one.
Of course evangelical churches would not have to accept gays in marriage classes. There is such a thing as freedom of assembly in this country. And if gays want to exclude straights, or the Catholic Church wants to exclude Jews, etc. - they are free to do so.
Hiring is a separate matter and I assume it has to do with the discrimination laws in your state. You seem so concerned about churches being forced to hire gay people, although I can't see that happening since the Boy Scouts is free to discriminate against Scout Masters. But there are anti-discrimination laws for religion. Why the hell should I be forced to hire an evangelical Christian. What if I don't like them. Is that fair?
I say get rid of ALL the anti-discrimination laws. For race, sex, religion, etc. Then it'll be fair.
But to say that religions should be free to discriminate against gays, but that gays shouldn't be able to discriminate against religions - that's pure bullshit in my book.
Do your cynicism and pessimism have something to do with rejection that you’ve experienced from family and friends? I happen to have a family that’s been very supportive.
Half right. My friends are great. Couldn't be better. My family - completely unsupportive if not downright hostile. They are better now - but it's too late in my book. I'll be civil to them, but there's no there there if you know what I mean.
But I've always been somewhat cynical. I would not say I'm pessimistic. I am realistic. As a Jew, history teaches that they will come for us again and again and again. Same with the gays. It goes in cycles. That's not pessimistic. If anything - it teaches me to be wary of people who say things like "it's just about marriage" while they turn around and pass laws that outlaw contracts, etc. They pass laws that prevent gays from serving their country by translating Arabic text. So obviously it's NOT just about marriage.
You need to know who your enemies are. Otherwise you will be caught off guard. And my enemies are the 60% of this country that continues to treat me like a second class citizen.
And I really don't care if people like me personally. I don't need acceptance from anyone. But I don't think it's asking too much for the laws of this country to be neutral. Unfortunately, that ain't happening in my lifetime.
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