Althouse: "There’s no way of knowing what combination of these singular features of marriage confers which of its demonstrated advantages, culturally and psychologically."

March 25, 2013

"There’s no way of knowing what combination of these singular features of marriage confers which of its demonstrated advantages, culturally and psychologically."

"We do know, however, that if the state suddenly creates the institution of gay marriage by fiat, the result will lack most of the features that make marriage unique—and uniquely beneficial. It will not be the same institution that has won the unanimous endorsement of social scientists. It will be a novel and revolutionary institution owing its existence to the devaluation of an old and settled one. Should we assume that the former will confer the same social and personal benefits as the latter, the two being different in such fundamental ways? The only honest answer—the only intellectually respectable answer—is, Who knows?"

Writes Andrew Ferguson, in The Weekly Standard.

But that "only honest answer" is a question, and that question — "Who knows?" — invites another question: Who decides? Is it a matter for majoritarian or individual choice? That's the legal question to be decided by the Supreme Court.

And speaking of honesty and intellectual respectability, restricting myself to the paragraph I've quoted, I question all of the following words/phrases: state suddenly creates... fiat... lack most... unique... uniquely... unanimous... and devaluation...

Tell me: Did the state create marriage? If marriage is not the creation of the state, but a relationship the state built various welfare, pension, tax, and child custody policies around, then it would not be the state creating gay marriage, but the state readjusting its programs to accommodate more people who've made their personal, private decisions to form committed relationships. These relationships have been around for a long, long time. There's nothing sudden about them.

There's been a pretty quick social change from disparaging gay relationships to treating them with tolerance or even honor. That's been so sudden that some of the people who'd felt complacent and comfortable in their disparagement are taken aback to find themselves disparaged.

But that's not state fiat. That's freedom of thought and freedom of speech.

66 comments:

Brian Brown said...: If marriage is not the creation of the state, but a relationship the state built various welfare, pension, tax, and child custody policies around, then it would not be the state creating gay marriage, but the state readjusting its programs to accommodate more people who've made their personal, private decisions to form committed relationships.

Except "the state" is 5 unelected justices doing the "accomodating"

The overwhelming majority of people who have voted on the issue have voted to not accomodate gay marriage.

You left that out.; 3/25/13, 12:47 PM
I Have Misplaced My Pants said...: It takes a lot of balls to bring up freedom of thought and freedom of speech on this issue, Althouse. You know damn well which side houses the bullies and the fascists.; 3/25/13, 12:50 PM
Brian Brown said...: then it would not be the state creating gay marriage

It would be creating a gay marriage right which all states must honor since the SC decision can't be undone.

So if a state "readjusts," to use your term, in a normal scenario, they can unadjust.

In the scenario where you rejoice that DOMA is struck down and gay marriage is a "right" no state can readjust its programs. The programs must stay in place for gay marriages.

Your post is a contradiction.; 3/25/13, 12:52 PM
Shouting Thomas said...: It is precisely your commitment to intellectual legalism that makes you completely incompetent here, Althouse.

It's a mystery that you cannot see that.

You didn't see it with feminism either.; 3/25/13, 1:00 PM
Known Unknown said...: I could post this in every thread.; 3/25/13, 1:02 PM
tim maguire said...: I don't know, professor. Do you really doubt that when all those happily married heterosexual couples abandon their spouses to marry someone of the same sex, all hell won't break loose in their quality of life?

I think Ferguson is probably right. Fortunately, nobody, but nobody, is going to do what Ferguson and the other gay marriage opponents fear they will do. It's not an argument, it's a fantasy.; 3/25/13, 1:07 PM
Jane the Actuary said...: Back to the previous post on the topic: if the institution of marriage, as recognized by the state, isn't about providing a stable home environment for children, but about recognition of a couple's love, and providing recognized next-of-kin (for hospital visits and medical decision-making), then why not just dump all the government benefits currently associated with marriage? Why should you get Social Security survivor's benefits just because you love someone? (Of course, do the math and in must situations the benefits accrue to the un-married -- e.g., welfare benefits and various income subsidies based on one party being low income that vanish if the combined family income is used.); 3/25/13, 1:10 PM
Joe said...: "It would be creating a gay marriage right..."

But rights aren't created by government, simply recognized by them. Or are you cherry picking rights?

Althouse's observation is dead on.; 3/25/13, 1:10 PM
Ann Althouse said...: "It takes a lot of balls to bring up freedom of thought and freedom of speech on this issue, Althouse. You know damn well which side houses the bullies and the fascists."

I'm for freedom of thought and belief even by bullies and fascists. Let the best ideas win.; 3/25/13, 1:12 PM
rhhardin said...: Look at Stanley Cavell on what "chair" means, before deciding to redefine marriage.

At least get an idea what you're imposing on the culture.

Cavell (pp 70-73); 3/25/13, 1:12 PM
Jane the Actuary said...: And ever-increasing numbers of women (and men) are hearing the ssm-advocates loud and clear: marriage has nothing to do with children. It's about professing your undying love, once you've got the other pieces of your life all sorted out and are well-established in your career, if that ever happens and you find your soulmate. How far will the children-born-to-unmarried-women rate climb before it levels off? We're at 48% now. Any guesses?; 3/25/13, 1:13 PM
Bob Ellison said...: There would be something very sudden about the SCOTUS creating a right to SSM. That didn't exist before. It would be a fiat, a new rule created by decree of an institution entrusted to preserve the rule of law, not create new ones.

This is basic.; 3/25/13, 1:13 PM
Shouting Thomas said...: I'm for freedom of thought and belief even by bullies and fascists. Let the best ideas win.

They did over a period of several thousand years, Althouse.

You're intellect is betraying you.; 3/25/13, 1:13 PM
Tom said...: In a perfect libertarian world, the definition of marriage would not be left up to the state but instead would be defined by private contracts between individuals. We don't (and I don't think we ever will) live in that perfect libertarian world and, like a dog catching a car, I'm not sure that we'd really like that world anyway -- even if we keep chasing it. So what's the next best thing? Well, we have many social institutions of marriage in a diverse and multicultural nation. I remember growing up and going to school with a Greek girl named Athena. Athena's mom always walked her to school and she wasn't allow to participate in any after school activities. Her family spoke Greek at home. When Athena graduated, she was shipped back to Greece to be married. It was very strange to me. And so is gay marriage. But both are social institutions in their communities. Some are thousands of years old and some are much less than that. But in all cases, they are social institutions.

Since our government is erroneously involved in marriage (!), there is no doubt that the government's definition of marriage will not keep pace with society's. Especially when the USA now has so many diverse communities. (BTW, I'm sure many people around the world think the idea that American's marry for love is strange – so what?!).

Whatever the SCOTUS decides, it won't change the long march for marital equality. However, I hope whatever the SCOTUS decides, it does so based on limiting the power of the government(s) and expanding Liberty based on our Constitution.; 3/25/13, 1:17 PM
Henry said...: Conservatives are accurate to point out that you don't create middle class values by giving people money. The values come first. Ferguson surely knows this argument but he abandons it here.

The benefits of the marriage do not derive from the institution. The benefits reflect the character of the individuals that believe in it.; 3/25/13, 1:17 PM
Lyssa said...: Jane said: Why should you get Social Security survivor's benefits just because you love someone?

It's not just about love; it's about creating (or having created)the life partnership with the other person, where your interests are their interests and vice versa. That is an aspect of marriage, but it can happen without children. It's definitely the way my husband and I lived for the 11 years we were married and child-free.; 3/25/13, 1:18 PM
Lyssa said...: ETA: Love is a very important aspect of that partnership, but it's not the entirety of it.; 3/25/13, 1:21 PM
Brian Brown said...: Joe said...

But rights aren't created by government, simply recognized by them. Or are you cherry picking rights?

In liberal land, rights are indeed created by government.

You have no "right" to marriage.

End of discussion.; 3/25/13, 1:22 PM
Nonapod said...: Personally I'd rather not have a bunch of old weirdos in robes decide what the word "marriage" means for us all. But I'm probably in the minority on that. People apparently like things officially decided.; 3/25/13, 1:23 PM
I Have Misplaced My Pants said...: I'm for freedom of thought and belief even by bullies and fascists. Let the best ideas win.

Holy crap, you entirely missed the very important point. Bullies and fascists TAKE AWAY freedom of thought and belief from others because that's what fascists do. There's no "let the best ideas win" when their entire game rests on pouring concrete into others' mouths.; 3/25/13, 1:24 PM
The Godfather said...: I support gay marriage. I voted that way in NC and lost. The majority disagreed with me, the fools. The same thing happened in CA, the fools.

That's how democracy works. The majority gets to decide, except where a state or federal constitution resolves the question.

The assertion that a federal constitutional amendment enacted a century and a half ago secretly required states to recognize gay marriage is absurd. And everyone knows it. But if you can't get the majority of the voters to agree with you, the fools, then some will try to bypass the people and get a majority of the Supreme Court to agree with them.

That's a bad idea, not only because it's anti-democratic, but because it results in forcing something down the throats of your opponents, the fools, instead of persuading enough of them to make up a majority. The supporters of abortion on demand followed the force-it-down-the throat approach, and for 40 years that issue has poisoned our political discourse.

Have faith in democracy and in the people. The tide is running in favor of gay marriage. Be patient.; 3/25/13, 1:24 PM
Seeing Red said...: I hope the Professor doesn't think that dead document she teaches protects her from bullies and fascists?

The 60s boomers strike again!; 3/25/13, 1:28 PM
el polacko said...: "who knows?"...well, we DO know. we now have years of experience with marriage equality in a number of u.s. states and in other countries around the world. what dire predictions from those opposed to marriage equality (and isn't it mostly the same folks who have been against gay-anything for decades?) have come to pass ?
any sharp upturn in bestiality ?
sons marrying their mothers ? seen any fire and brimstone falling from the sky ? any straight couples refusing to marry because gay couples have 'ruined' it for them ? looks to me like the only result of treating citizens equally under the law has been happy gay couples and happy straight couples...not to mention happy florists, musicians, etc.
we can stop all of this hand-wringing now and carry on with our lives.; 3/25/13, 1:32 PM
Moose said...: The state didn't create marriage, but it did codify the legal aspects of marriage, which is what - in many respects - is what pro SSM activists state as driving factors in legalizing it.
You can have social factors drive lawmaking, but when you have - as Ferguson stated - legal fiat creating a condition that has never existed before. Then you're venturing into the realm of unintended consequences.
Not unlike Roe v. Wade, you see profound change in social conditions with no recourse except to hope that the congress can patch up what's now broken. Which in this case *won't* happen as this has turned into that electrified 3 rail of politics.; 3/25/13, 1:33 PM
I Have Misplaced My Pants said...: we can stop all of this hand-wringing now and carry on with our lives.

I would happily do that if I had the slightest faith that my right to remain opposed to gay marriage and to not be forced to mouth support of it, and to teach my children that homosexual acts are morally wrong and that the proper setting to raise children is in the home of a married mother and father, would be protected.; 3/25/13, 1:38 PM
edutcher said...: Since the idea here is free insurance and polyamory and pederasty and incest are on the conveyor belt, marriage among the homosexuals will be the same kind of joke as Augustus' morality laws.

Ann Althouse said...

It takes a lot of balls to bring up freedom of thought and freedom of speech on this issue, Althouse. You know damn well which side houses the bullies and the fascists.

I'm for freedom of thought and belief even by bullies and fascists. Let the best ideas win.

If you concede the only way to win is either by dictate of the appellate courts or propagandizing the masses through the media, you've already lost.; 3/25/13, 1:38 PM
I Have Misplaced My Pants said...: Also, if it wasn't abundantly clear that the next step is to force me to participate in the normalization of polyamorous marriages, and to pretend that raising a child in such a setting is A-OK.; 3/25/13, 1:40 PM
Anonymous said...: @Shouting Thomas:

"It is precisely your commitment to intellectual legalism that makes you completely incompetent here, Althouse."

Precisely. For intelligent people, myself included, it's very tempting to believe that we can order our world in some attempt at reaching a platonic ideal of 'rationality' or 'logic' -- But it isn't true. Human beings are animals and our minds are not evolved to be perfect pristine logic machines, we are messy emotional creatures even when we don't realize it, and even if we personally perceive ourselves as pursuing logic we are working from untold numbers of assumptions and premises.; 3/25/13, 1:41 PM
Jane the Actuary said...: What "harm" has SSM done? Well, it's part and parcel of the new attitude that marriage is about love/partnership and completely unrelated to children.

Have you seen the statistics on the ever-growing % of kids born to unmarried parents? In other countries (e.g., Scandanavia), the parents stay together, but here, that doesn't happen. What % of kids being born to Julias do we need for people to worry about it? -- the moms collect welfare of various kinds and the kids, on average, do worse than kids of married parents.

Oh, and why should I dole out government benefits because someone's "life partner" died? Get some life insurance if you depended on his/her income.; 3/25/13, 1:50 PM
Anonymous said...: Should we assume that the former will confer the same social and personal benefits as the latter, the two being different in such fundamental ways?

But the answer to this question is not a matter of either majoritarian or individual choice! It's a matter of fact-- no matter which answer you believe is the correct one. And the only way for it to become a legal question is if the answer to the actual legal question before the Court-- namely, whether or not the Constitution requires governments to recognize gay marriages-- depends on whether or not these "confer the same social and personal benefits" as traditional marriages. Those of us for whom the Supreme Court is still a group of lawyers, and not a group of utilitarian philosopher-kings, will be strongly inclined to conclude that Ferguson's question is one they have no business trying to answer.; 3/25/13, 2:00 PM
carrie said...: I don't think that the democratic party will be catapulted by a loss in the Supreme Court. I think that most conservatives who are softening on this issue are doing so solely with the hope that the assault on the family will stop if same sex marriage is approved. However, it seems to me that the legalization of same sex marriage is just the first step in the battle for gay marriage. If same sex marriage becomes legal, then the fight will be on to change the institution of marriage to suit the gays—no monogamy as was discussed in a post yesterday. In America, marriage has meant monogamy and monogamy keeps the heterosexual family together. There are plenty of reasons why heterosexual marriage is good for society as the research overwhelmingly shows that kids from intact families do better than kids from broken homes or single parent homes, etc. Society has an interest in promoting heterosexual marriage because it is good for kids. What is the societal good that will be obtained if same sex marriages legalized? I am sure that gay marriage is a personal good or benefit for the people involved, but I don't see any benefit to society as a whole from same sex marriage. On the other hand, I see a lot of detriments to society if gay marriage is legalized and it ends up weakening the bonds of heterosexual marriage. I would support Governor Walker's view that maybe the government shouldn't be involved in defining marriage except that, if that happened, then the government would not be able to promote a social institution that greatly benefits children and society--which would be a huge loss to society.; 3/25/13, 2:01 PM
Joe said...: Well, it's part and parcel of the new attitude that marriage is about love/partnership and completely unrelated to children.

That is such a load of shit. The notion that modern man invented love/partnership is stupid.

It also complete avoids Althouse's point; the right to marriage existed outside of government.

I find it completely hypocritical for conservatives to demand government not meddle in our lives, especially with our guns, but then insist it meddle in the most personal aspects of our lives. Surely, who you marry is every bit an inalienable right as free speech and bearing arms.; 3/25/13, 2:06 PM
edutcher said...: Right to marriage?

Where is there a right to marry?

Ann Althouse said...

There's been a pretty quick social change from disparaging gay relationships to treating them with tolerance or even honor. That's been so sudden that some of the people who'd felt complacent and comfortable in their disparagement are taken aback to find themselves disparaged.

It's no different than men walking on eggs because they don't want to be accused of "harrassment" or "lookism" around some feminist with a crab up her ass.

Silence does not mean acceptance.

You need to spend a long summer away from Madison.; 3/25/13, 2:14 PM
I Have Misplaced My Pants said...: Joe, how is the government meddling by declining to ratify and then confer benefits on your choices?

Have a marriage in your church or your backyard with another man or fifty of them. No one's stopping you.

Is the government meddling by not conferring benefits on cohabitating heterosexual couples?; 3/25/13, 2:14 PM
chickelit said...: Joe: I find it completely hypocritical for conservatives to demand government not meddle in our lives, especially with our guns, but then insist it meddle in the most personal aspects of our lives. Surely, who you marry is every bit an inalienable right as free speech and bearing arms.

If you believe that then go find it or push your own amendment.; 3/25/13, 2:15 PM
rhhardin said...: Why should you get Social Security survivor's benefits just because you love someone?

It's actuarily neutral. The benefits you take while alive are lower if they're for two people rather than one.

The longest living of two people lives longer than one person. They account for that.; 3/25/13, 2:17 PM
Anonymous said...: @Jane:

"What "harm" has SSM done? Well, it's part and parcel of the new attitude that marriage is about love/partnership and completely unrelated to children."

Exactly. Not to mention that it is incredibly silly to expect simplistic cause-effect relationships in human society. There isn't even a cause-effect relationship between drunk driving and automobile accidents, but our society damn well recognizes that there is in fact a strong association between those two and that it's a bad idea to allow people to drink and drive.

As humans we're pretty prone to ignoring things that aren't immediately at-hand. When liberals envisioned a 'safety net' of universal social welfare they didn't foresee that extending social welfare programs would lead to increased single motherhood and widespread social ills resulting from the destruction of the family, particularly for blacks. Hell, it's taken the better part of 50 years to even begin to correctly recognize and articulate how damaging these policies have been -- In areas of life where no one really expected them to make any difference.; 3/25/13, 2:32 PM
Jane the Actuary said...: actually, private pensions are actuarially adjusted; Social Security spouse's and survivor's benefits aren't. They're just extra -- intended to benefit dependent spouses, e.g., homemakers. If you weren't a homemaker, why should you get the homemaker's benefit?; 3/25/13, 2:38 PM
n.n said...: The normalization of dysfunctional behaviors occurs through indoctrination, extortion, lawsuits, and fiat. That's why people suddenly accepted elective abortion (i.e. premeditated murder). That's why people suddenly accepted homosexual behavior. That's why people suddenly accepted redistributive change (i.e. involuntary exploitation).

Homosexual behavior can be tolerated below a critical mass. However, there is no credible argument for its normalization. The homosexual behavior does not confer any value to society or humanity. However, if its normalization is our fate, then there is no credible argument to distinguish between unions based on sexual and platonic behavior. All unions are corporate.; 3/25/13, 2:48 PM
Smilin' Jack said...: ...invites another question: Who decides? Is it a matter for majoritarian or individual choice?

Actually, the question is whether the matter will be decided by federal bozos or state bozos. An "individual" can't even decide what size soda to buy anymore.; 3/25/13, 3:00 PM
politicaltragic said...: If marriage is not the creation of the state, but a relationship the state built various welfare, pension, tax, and child custody policies around, then it would not be the state creating gay marriage, but the state readjusting its programs to accommodate more people who've made their personal, private decisions to form committed relationships

So then are we really talking about "marriage equality" or "federal benefits equality"?; 3/25/13, 3:01 PM
mtrobertsattorney said...: If the proponents of SSM reject the idea that legally recognized civil unions, even if they award a same sex couple the identical benefits awarded to a married couple, are a reasonable solution to their discrimination claim, then what is it about the word "marriage" that fuels their demand that the constitution mandates this word must be used to describe a committed same sex relationship?; 3/25/13, 3:03 PM
mtrobertsattorney said...: If the proponents of SSM reject the idea that legally recognized civil unions, even if they award a same sex couple the identical benefits awarded to a married couple, are a reasonable solution to their discrimination claim, then what is it about the word "marriage" that fuels their demand that the constitution mandates this word must be used to describe a committed same sex relationship?; 3/25/13, 3:04 PM
caplight45 said...: What harm has ssm done? I'm not sure. Neither is anyone else. So let's role the dice and see. It's the same gambit liberals used about fatherless families and children born out of wedlock. That has worked out so well.

Hosea 8:7
They sow the wind and reap the whirlwind.

Galatians 6:7
Do not be deceived: God cannot be mocked. A man reaps what he sows.; 3/25/13, 3:05 PM
Marty Keller said...: This comment has been removed by the author.; 3/25/13, 3:25 PM
Balfegor said...: But that "only honest answer" is a question, and that question — "Who knows?" — invites another question: Who decides? Is it a matter for majoritarian or individual choice? That's the legal question to be decided by the Supreme Court.

There is an aspect of marriage which exists as an artifact of culture and custom prior to and apart from the law -- whether the law recognises the marriage or not, that marriage is formed and is real. Legal recognition is a separate question.

Thus, individuals decide whether they consider themselves married according to their particular customs or predilections. And the majority decides whether or not to recognise those unions as marriages under the law. I don't see how this is hard, unless one is desperate to conflate the private, individual aspect of marriage with legal recognition.; 3/25/13, 3:33 PM
Marty Keller said...: One of my concerns in all this is the endless push by the postmoderns to suck meaning out of words and the concepts they declaim. If they can succeed--and they are close--in implementing their Orwellian fantasies, then we will find ourselves back in a realm of lawlessness and tyranny. This struck me on a fundamental level when I heard two gay friends of mine--legally married--refer to themselves as each other's "husband." Huh? How can there be a "husband" without a "wife"? The concepts only have meaning in relationship to one another, like night and day, or stupid and smart. But over the past four decades we have lost the rigor of words and concurrently of ideas. Orwell was, unfortunately, prescient about this. When we erase distinction, we create a miasma of BS. It's emanations and penumbras, all the way up, all the way down. America is a product of the Enlightenment, but we are creating for ourselves something radically different, and IMHO, brutish and nasty. I know, get with the program so you won't get voted off the island. No thanks.; 3/25/13, 3:37 PM
Lyssa said...: What "harm" has SSM done? Well, it's part and parcel of the new attitude that marriage is about love/partnership and completely unrelated to children.

That happened a long time ago, long before people were even talking about gay marriage. SSM might be a logical extension of this cultural shift, but it is certainly not the cause of it.

Does your church celebrate when an elderly couple gets married? Then you were part of the problem.; 3/25/13, 3:45 PM
Balfegor said...: Althouse: I'm for freedom of thought and belief even by bullies and fascists. Let the best ideas win.

Shouting Thomas: They did over a period of several thousand years, Althouse.

Sure. And they will again, provided human nature doesn't change. Even if gay marriage becomes the law of the land this year or the next, it won't last long, in historical time. A few centuries, and the culture of marriage will continue its slow drift as means and mores change. And as before, the only constant will be procreation.

Haha -- reminds me of Dune actually. The last line ("History will call us wives") drives home the point that history remembers the fertile concubine as the "wife," not the sterile legal wife. Because that's how we recognise a thing called "marriage" across quite different cultures.; 3/25/13, 3:45 PM
Fritz said...: The government subsidizes wind power and rail transit more than it does coal power and trucks. Or really, they subsidize the people who provide wind and power and trucks. It does so because they believe it benefits the nation. No one questions whether the government has the right to do so, although many of us question the wisdom.

Similarly, sometime ago, the government decided to subsidize marriage because marriages produced a product that's essential to the continuation of the state; more people. I don't see how that right can be questioned, and I don't see why it's necessarily a civil rights issue that it needs to be extended to SSM.

You can tell me that SSM can produce and raise children, but that's not a primary reason for SSM, and while I don't know the actual number of SSMs that have and raise children, my sense is that it would be a small fraction.

Heterosexual marriage also has an important function in "taming" male behavior which is worthy of subsidization. I doubt if that function operates to any significant in SSM. Two women don't require it, and two men together do not serve the same function.

If the people question the wisdom of having the subsidies not cover SSM, I may question the wisdom, but not the right of the government, through its legislature, or even by direct vote, to extend it to SSM. It's only a little wasted money. We do plenty of that.

I do find the level of opprobrium by SSM proponents at opponents to be disgusting.; 3/25/13, 3:46 PM
Anonymous said...: One of my concerns in all this is the endless push by the postmoderns to suck meaning out of words and the concepts they declaim.

Marty: Likewise, as in Inga's ignorance yesterday that the word Christian actually means something beyond "I kinda like the Jesus guy" or "I'm a Christian if I say so."

I remember the story of a woman in the National Organization of Women who was having a relations with both men and women. However, this was in the bad old days before the LGBT alphabet soup, when orthodox homosexuals didn't trust bisexuals, so the NOW woman insisted that she was lesbian. It didn't matter what she actually did sexually, she explained, because it was her right to define herself as she chose.; 3/25/13, 4:32 PM
Peter said...: The question isn't so much about whether gays may marry, it's about whether they can marry.

Marriage exists everywhere because of one simple biological fact: heterosexual sex tends to produce children, and human children have a very extended period of dependency.

That's not to say that all heterosexual sex produces children, it's just to recognize that it happens often enough that some provision must be made for them- the state has a vital interest in children, but in any case societies which do not provide for children vanish from the face of the earth.

If "marriage" has its roots in, and is intimately tied to procreation then how could "gay marriage" even be a type of marriage?

It's not about whether gays may marry, it's about whether they can marry.; 3/25/13, 4:42 PM
Peter said...: Or consider the norms of marriage, such as sexual fidelity. It's always been an expectation of marriage (even if the ideal is not always upheld.

But if procreation is not even a remote possibility, why would anyone reasonably expect a gay marriage to include an expectation of exclusivity?

Surely it would be unreasonable for straights to insist on such an expectation. But if "gay marriage" does not include such an expectation, why call it "marriage"?

(In any case, if it turns out that only societies in which social conservatism is dominant have a high enough birth rate to sustain themselves then the question will be moot.); 3/25/13, 4:47 PM
Balfegor said...: This comment has been removed by the author.; 3/25/13, 5:00 PM
Paulio said...: Marty,

Your pretentious tirade was itself a miasma of BS. It was also inadvertently hilarious as "husband" now (your meaning of it, the safe "non-gay" meaning of it) has quite a different meaning than it did originally when it invoked a male who was head of household (meaning many married males were not husbands--instead they were "wers"). Words change, along with society whether small-minded twits want them to or not.; 3/25/13, 5:19 PM
Alex said...: They did over a period of several thousand years, Althouse.

Really SFT? Modern marriage the way we understand it is a very new institution. Before that women were chattel.; 3/25/13, 5:38 PM
Alex said...: Jane said...

And ever-increasing numbers of women (and men) are hearing the ssm-advocates loud and clear: marriage has nothing to do with children. It's about professing your undying love

You gotta a problem with that? Wanna pick a fight?; 3/25/13, 5:39 PM
Alex said...: Conservatives are upset that society has turned the tables on them. That's the real story. Watch the conservatives thrash about like wounded animals.; 3/25/13, 5:41 PM
Alex said...: There's been a pretty quick social change from disparaging gay relationships to treating them with tolerance or even honor. That's been so sudden that some of the people who'd felt complacent and comfortable in their disparagement are taken aback to find themselves disparaged.

This is the part which conservatives can't stand. Society has changed and the tables have been turned. Now they are the objects of revulsion! About time!; 3/25/13, 5:41 PM
Bender said...: Who decides? Who created marriage?

Of course, in our current relativistic society, the Court may very well take the Pontius Pilate approach advocated by Althouse "What is truth?"

Of further course, however, it is not a matter for decision. Governments did not create marriage. Individuals did not create marriage.

The nature of the human person, made male and female, complementary of each other, with the inherent potential to perpetuate, creates marriage.; 3/25/13, 6:14 PM
Bender said...: Does a man have a right to be a mother? Does a woman have a right to be a father?

Who decides?

But to try to reason with those who have thrown reason away is folly.

And then, in the tyranny of relativism that our society exalts in, we wonder why people want to multilate their genitalia and then end up killing themselves when they find that they cannot bend reality to their will after all and they end up in nihilistic despair.; 3/25/13, 6:19 PM
Balfegor said...: Re: Alex:

Really SFT? Modern marriage the way we understand it is a very new institution. Before that women were chattel.

Really? Modern marriage as an expression of romantic love is certainly a novelty, though not entirely without precedent. But it's certainly not true that women were chattel. Marriage under the late Republic and the early Roman Empire also does not seem to have reduced women to the status of chattel, as marriage sine manu became prevalent, and women consequently did not relinquish their personal property to their husbands when they married. As daughters certainly, they were chattel but this was little different from the status of the sons, who according to the letter of the law could be executed by their fathers with impunity (though to be fair, the son became free if his father sold him three times). Tacitus' description of the Germans suggests that during the period of the early Empire, German women did not have a status that could be described as "chattel" either.; 3/25/13, 7:10 PM
Elliott A said...: The state can say yes and the state can say no.; 3/25/13, 7:49 PM
Chuck said...: It's so easy to spout off opinions, about whether you think gay marriage is a terrible sin, or the downfall of civilization. Or, alternatively, that gay marriage and gay rights are the new civil rights era or out time.

I am so sick and tired of that level of discourse. I am sick and tired of the personal stories of gay people with which NPR has bludgeoned its audience for two weeks; two or even three stories a day.

Professor Althouse assuredly knows a lot more about constitutional interpretation than she discloses on this blog. I wish that she'd lead a better forum on the Fourteenth Amendment, equal protection, due process, suspect classifications, rational basis, the Tenth Amendment, the Fifth Amendment, standing, Lawrence v Texas, Bowers v Hardwick, Loving v Virginia, Planned Parenthood v Casey, Romer v Evans, Washington v Glucksberg, Griswold v Connecticut, Eisenstadt v Baird, Boy Scouts of America v. Dale, etc.

Professor Althouse could do that; she might not think that blog traffic would be entertained by a steady diet of Con Law II. But the public is at this point so poorly prepared for any decision in Hollingsworth and Windsor. And not for any lack of time spent on the subject. Rather, it's because all of the media time has been spent on getting to know dozens of gay couples and their adopted children.

One could argue that the average low-information news consumer wouldn't begin to understand the competing arguments at a Supreme court level. If so, that is the fault of the reporter and the medium.

But one could also argue that the personal stories are designed to sway public opinion, and the body politic suroounding the Court, before oral arguments take place and the first conference is held.; 3/25/13, 8:36 PM
chickelit said...: Chuck said: Professor Althouse could do that; she might not think that blog traffic would be entertained by a steady diet of Con Law II.

I suspect she'd rather you ponied up the requisite tuition at her school for that thank you very much.

BTW, there are other legal blogs out there.

This is holy gayness week.; 3/25/13, 10:58 PM
Anonymous said...: That's freedom of thought and freedom of speech

Not hardly. That's jumping on the bandwagon.

Show me an objective scientific study that has attempted to show the impact of ssm. Cultural change usually happen over a long period of time and happen because they are of benefit to the society.

This is not a normal cultural change, but a politically forced change. It will be decades before we know if it was for the better or worse of our culture.; 3/26/13, 7:10 AM