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[Dale Carpenter (guest-blogging), November 2, 2005 at 7:56am] Trackbacks
The Traditionalist Case -- The Definitional Argument Against Gay Marriage:

Having made the affirmative traditionalist case the past two days, today and tomorrow I'll respond to some of the most common arguments against gay marriage.

One of the most common arguments against gay marriage is definitional. This definitional argument against gay marriage generally takes the following form: "Marriage just is the union of one man and one woman. What same-sex couples are asking for is not marriage. So same-sex couples cannot be married." It offers no normative defense of the definition; it stops there.

A variation of the definitional argument involves some analogy to species-confusion. For example, this is a common variation: "Gay marriage is like trying to call a cat a dog. A cat will never be a dog no matter how much you try to call it a dog or treat it like a dog or pretend it's a dog." You can substitute an infinite variety of species combinations for "cat" and "dog" here and you have the same variation of the definitional argument. The species-confusion variation of the definitional argument is another way of saying that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples cannot be married just as dogs cannot be cats.

Another variant of the definitional argument involves some analogy to a government-benefits program. For example: "Allowing gay marriage is like allowing non-veterans to get veterans benefits; non-veterans are not part of the veterans program, just like gay couples are not part of marriage. The marriage program is not for gay couples, just like the veterans program is not for non-veterans." Or, as one commentator put it: "Two people of the same-sex cannot 'marry' any more than a man can claim a right to 'maternity' leave." Stephen C. Whiting, "Gay Marriage" Is an Oxymoron, 19 Me. B. J. 79, 83 (2004). You can just as easily substitute young adults seeking retirement benefits from Social Security, or renters seeking a home-buyer's mortgage-interest deduction from their taxes, or what have you. The variations are as numerous as the government-benefits programs that inspire them. This variation of the definitional argument, too, is another way of arguing that marriage is definitionally male-female. It is saying, without further argument, that same-sex couples simply cannot qualify for marriage just as non-veterans cannot qualify for veterans' benefits.

There are other variations on this same definitional point (e.g., there's one that objects to gay marriage on the grounds that two people of the same sex cannot "consummate" their relationship in the way that two people of the opposite sex can), but I hope this is enough to set the table for a response.

What's distinctive about the definitional argument is that it makes no attempt to defend the male-female definition of marriage as a normative matter. The definition itself is asserted unadorned as an argument against gay marriage. As soon as a normative defense of the male-female definition is attached to the argument (for example, "the male-female definition of marriage is right because children need mothers and fathers"), the argument is no longer the pure definitional argument as I use that term here.

The obvious problem with the definitional argument is that it suffers a very serious logical flaw. It is circular and conclusory. In the gay-marriage debate, it's the definition of marriage that's being challenged. Gay-marriage advocates are saying, in effect, "The definition of marriage as the union of one man and one woman is an unjustifiable limitation. The definition of marriage should be expanded to include couples of the same sex. And we have good reasons for this expansion of the definition of marriage. Let's talk about them."

Given this challenge to the definition of marriage, the definition alone cannot be offered in its own defense. It must be accompanied by reasons that show why the male-female definition is the right or best one. Unless the definition is defended with reasons that go beyond simply asserting the definition itself, the defense suffers a fatal circularity. It asserts the conclusion (the proper definition of marriage) as the argument. It's the equivalent of saying, "I'm right because I say so." That may work in the parent-child relationship, but it cannot suffice in public-policy debate.

Let's apply this lesson to the species-confusion analogies so popular among gay-marriage opponents. Consider the dog-cat analogy introduced above. Gay-marriage opponents argue that gay marriage is like calling a "cat" a "dog," and that simply can't be, no matter how hard we try.

But this misses the point of the case for gay marriage, which is to argue that gay couples (for multiple reasons) sufficiently meet the purposes of marriage (properly understood) such that they should be permitted to marry. To use the analogy, gay-marriage advocates argue that gay marriage is indeed a dog that we have unfairly been calling a "cat," refusing to recognize it as a species of dog. On this view, gay-marriage advocates are not trying to get the world to accept cats as dogs, but to accept dogs as dogs. It's those who refuse to call this dog a dog who are in error.

A similar response applies to the various government-benefits analogies offered against gay marriage. Consider the analogy to veterans benefits, where gay-marriage opponents claim that gay couples are like non-veterans trying to get veterans benefits. Gay-marriage advocates are arguing that (for multiple reasons) gay couples are "veterans," and that denying them veterans benefits is therefore wrong.

Maybe gay-marriage advocates are wrong on the substance: perhaps gay couples can't meet the purposes of marriage (properly understood). But that conclusion has to be debated, with reasons offered for why gay couples can or can't meet the properly understood purposes for marriage. The conclusion cannot simply be asserted once the existing definition is challenged.

In debates, one often hears the complaint from gay-marriage opponents that gays are "trying to change the definition of marriage." Exactly so, but this is hardly a decisive objection, just as it would not be a decisive objection to any proposed change in existing practices or laws.

None of this is to argue that there should be no definition of marriage. There should be a definition of marriage. But given the powerful affirmative case for gay marriage, it must be debated. Perhaps the man-woman definition is the best one, but to reach that conclusion we need substantive arguments supporting the definition, not simply the definition itself.

Given how logically weak the bare definitional argument is, why does it persist?

The answer, I think, is that behind it is a powerful, unstated intuition that important social institutions ought to have stable attributes (meanings) over time. This is a deeply conservative instinct and I share it to a very large degree. I will address this Burkean argument, which I ultimately think is the best argument against gay marriage, later in the week.

Daniel Chapman (mail):
Your post doesn't explain why someone who buys into the "definitional argument" but can't explain why should change their mind. If I'm opposed to gay marriage because I just have some nagging sense that it's wrong "because that's not what marriage is," I think you'd have to agree that nothing you've written here would convince me to change my mind.

A person's sense of what a longstanding social institution "means" is important, and can't be discounted as merely "conclusory."
11.2.2005 9:16am
NaG (mail):
Problem is, gay marriage is not a "species of dog" any more than a cat is. As a word, "marriage" has always meant the union of a man and a woman as husband and wife. We can get into quibbles when we start dealing with hermaphrodites or sex changes, but simply put the definition as it has been established over the centuries just does not include male-male or female-female unions. This is no less logical than to insist that a carbon atom is distinct from a hydrogen atom.

The key is to recognize that the word "marriage" is not important -- what matters are the social and legal results. Gay marriage advocates hurt themselves by trying to fit a square peg into a round hole with use of the word "marriage," when in fact they'd get exactly what they wanted a lot easier simply by calling it "civil unions" or whatever instead.
11.2.2005 9:25am
Ciarand Denlane (mail) (www):
Daniel, it sounds to me like Mr. Carpenter intends to address your point (what he calls the Burkean argument) later in the week.
11.2.2005 9:26am
ericvfsu (mail):
Daniel,

Dale concedes that the conservative instinct to preserve the marriage instinct is a legitimate and powerful argument. Please see his other posts on this subject for some of the benefits he expects if the marriage institution were expanded to include same-sex couples. Note that he expects benefits for society, the (newly married) individuals involved, and related children.
11.2.2005 9:30am
Public_Defender:
A person's sense of what a longstanding social institution "means" is important, and can't be discounted as merely "conclusory."

Yes it can. A "sense" without any reason to back it up is conclusory.

But you are right. If you have a "sense" that is impervious to argument, then, by definition, argument will not change the "sense."

On a related point, I think the Chapman misses another response to the definitional argument (perhaps he plans to bring it up in a future post). At what time (other than the past few years) was marriage defined solely as a union between a man and a woman?

Traditionally, there were far more restrictions placed on marriage (and in some ways it was more permissive). Until fairly recently, marriage was the arranged union of a man and a woman (often just a girl) in which the woman (girl) was legally and socially inferior to the man (if she legally existed at all after marriage). Marriage was also limited to people of the same race, religion, social class and economic class.

There are good policy reasons for doing away with many of these traditional aspects of marriage. But it was a break from tradition to view marriage as a voluntary, loving union between a man and an adult woman regardless of race, religion, social or economic class.
11.2.2005 9:30am
IB Bill (mail) (www):
There should be a definition of marriage.

But Dale, there is a definition of marriage. It is the union of a man and a woman. There are reasons for this, most of which have to do with the woman and child-rearing.

Sodomy is not sex, it's perversion, like frotteurism. The state has no interest whatsoever in enforcing the monogamy of sodomites ... any more than it would have an interest in enforcing a frotteurist's sexual faithfulness to his favorite piece of furniture. And the state certainly has no interest in pretending that sexual intercourse has no essential part of marriage.

The problem with the definitional argument is it's checkmate for you on the first move, and you don't like it, so you just pretend it doesn't exist. All definitions start out with assumed premises. All philosophical discussions start somewhere, and can be challenged at that starting point. Geometry has axioms, for example.

And now you want to change the definition of marriage -- something for which the essence is the social stabilization of sexual intercourse -- and replace it with an absurdity. All you've done in your argument is abstracted out gender, sex, child-rearing, and the actual social underlying need for marriage. Well, why stop there? Once you've abstracted out that much, you're not left with much.

Sorry, Dale. You've lost the argument. Some things are so ridiculous that only an intellectual could believe them. We'll see you at the polls. And if you manipulate the courts, we'll see you at the barricades.

But you will not destroy the concept of marriage in this culture. We won't allow you tell the next generation of young girls that they're no more special than a couple of sodomites, that their potential of motherhood is no different than the excrement tube of a male, and thus deserving of no special privileges. You are introducing deep confusion into the culture -- and make no mistake: You will be held accountable for it.
11.2.2005 9:31am
Daniel Chapman (mail):
Possible. I assumed the "burkean" argument is that any arbitrary definition that we have adopted should remain stable over time. I think the definition we're using now exists for a reason, even if we can't articulate that reason. Perhaps they're the same argument, and he'll address it later... but then why use all that space for what is basically a promo for the real argument that will come later?
11.2.2005 9:32am
Marcus1:
It seems like it has to be a question of what's the fundamental character of marriage. Allowing miscegenation changed the "definition" of legal marriage in America. Conservatives today accept it though, because they don't feel it changed the fundamental character of marriage -- race was just a technicality.

Thus, I agree, "definition" can't answer the question. It has to be a broader question of what marriage is really about, which gets us back to all of the practical and normative arguments.

Considering lots of different things at once is kind of an affront to the conservative mindset, though, that wants everything to be simple and black/white.
11.2.2005 9:33am
Taimyoboi:
"Perhaps the man-woman definition is the best one, but to reach that conclusion we need substantive arguments supporting the definition, not simply the definition itself."

That no longer sounds like a traditionalist argument but a progressive one.

Ie.: If you can't prove to me why this tradition exists in the first place, then there's no reason to believe its the correct one.
11.2.2005 9:33am
CraftD:
I prefer the prefer the "Reece's Peanut Butter Cup Analogy." It's the perfect marriage of peanut butter and chocolate. If you "married" chocolate to chocolate or peanut butter to peanut butter, it wouldn't be the same.
11.2.2005 9:41am
Marcus1:
D. Chapman,

I think anti-miscegenation laws are the best answer to your friend with the nagging sense. He should ask himself if he would have thought the same thing forty years ago about letting blacks and whites marry. I'm no expert, but I bet a lot of people were saying "What? You can't let blacks and whites marry!"

Tradition may be important, but I think the important point from Carpenter is that it can't simply answer the question. This isn't a normative argument for gay marriage; simply a refutation of a popular argument against it.
11.2.2005 9:44am
Daniel Chapman (mail):
I disagree, but I'm not going to start another "Loving is controlling/irrelevant" discussion on this thread.
11.2.2005 9:45am
Jesurgislac (mail) (www):
NaG: As a word, "marriage" has always meant the union of a man and a woman as husband and wife. We can get into quibbles when we start dealing with hermaphrodites or sex changes, but simply put the definition as it has been established over the centuries just does not include male-male or female-female unions.

Well, except where it has. There have existed in past times and other cultures examples of marriages which included male-male and female-female unions: they can only be dismissed by the circular argument that if they were male-male and female-female then they couldn't have been marriage, even if the surrounding culture clearly regarded the same-sex couples as married.

But still, that's not an argument: the meaning of words changes with usage. It is now a simple fact that, in at least one English-speaking country, the word "marriage" means a union of two adults, who may be of the same gender, or of different genders. Trying to argue that this meaning does not exist puts you, I am afraid, in the same category as those who got annoyed with television because the word was half-Greek and half-Latin.
11.2.2005 9:52am
Taimyoboi:
"Until fairly recently, marriage was the arranged union of a man and a woman (often just a girl)..."

Public Defender,

No offense but you are beginning to sound like a broken record.

While I don't think your characterization of marriage is correct, it is nevertheless a disingenuous point for two reasons.

One, the changes you are talking about are in degree not kind. Incorporating same-sex couples within the institution of marraige requires a change in definition as even Mr. Carpenter suggests.

And two, those changes improving women's status have occurred over a fairly long period of time; not the decade or so that Same-sex marriage advocates are demanding.
11.2.2005 9:54am
Cold Warrior:
Note that we (those of us who live under Anglo-American jurisprudence) have already extended marriage beyond the traditional definition.

By "traditional," I mean the ideal of marriage, taken from the (primarily) Christian tradition:

1. A formal rite, witnessed by the community, in which a man and woman (and the woman's family) re-order familial obligations (the "giving away" of the daughter-wife);

2. Followed by a holding of oneself out to the community as a "husband" or a "wife,"

3. With concomitant recognition of that union in the law. (I refer to the Christian sacramental basis of marriage --and yes, I understand that Church history pre-12th century is a bit ambiguous on this point, but we're talking about settled cultural practices over about a millenium here -- but note that the same basic factors are essential to a Jewish marriage.)

The "recognition" (by judge-made law) of common law marriage already dispensed with essential factor (1) [i.e., when there is no wedding ritual], and/or with essential factor (3) [i.e., when the state doesn't "recognize" the union as existing until many years after the "fact" of creation. And several U.S. states still recognize "common law marriages." Really, it is an odd notion that flies in the face of the traditional idea of marriage; like proposals to create/recognize gay marriage, it is based on equitable considerations (people living together as husband and wife, with all but the official ceremony or state recognition). It begs the definitional question in precisely the same manner as same sex marriage.

So "marriage" is already a quite pliable concept in Anglo-American jurisprudence. And we have to remember that when we talk about doing damage to the traditional definition.

By the way, for political reasons I think we shouldn't call same sex unions "marriage," simply because I believe much of the opposition to the concept -- according full "marital" benefits to same sex partners registered under state statutes -- is based on the cultural-conservative opposition to the use of the term, "marriage." If same sex unions are recognized as imposing the same benefits/obligations as marriage, no doubt in common parlance the term "marriage" will be extended to encompass them. And I would prefer that course be taken. In all this discussion we have to remember that marriage is something of an oddity in our law: it is state recognition of a sacramental union.
11.2.2005 9:54am
Daniel San:
Laws prohibiting miscegenation were a historical anomoly. They existed for a fairly short time in historical terms. They did not change the definition of marriage. A cross-race marriage was a marriage; it fit the definition. Similarly, if in the 15th century, I rejected my family's direction and married my opposite sex lover and entered into an egalitarian relationship, it was a marriage. In the early days of the reformation, there was a dispute whether priests who left the priesthood and were married in a protestant church were actually married. In part, this was a claim that only the Catholic Church had the power to marry, but it also carried a claim that a priest (who had taken his vows) could not marry.

Our understanding of marriage has greatly changed. But the definition of marriage is not so different. Of course, this does not answer the question whether changed circumstances and understandings should lead to a changed definition.
11.2.2005 9:55am
deMaistre (mail):
Same-sex marriage might just be a different thing, not by ipsedixit, but because the facts about gays are not comparable to the facts about straights.

Gay men, for example, are likely to get married for different reasons than straight couples. They are likely to get married later in life, when they are less attractive to younger men, and most often in order to avoid a lonely old age. Straight couples, by contrast, most often get married at an earlier age and in order to raise a family.

This is certainly not to say that public policy should not address the concerns of gay men. But it is to say that their concerns are not, on average, the same concerns as those of straight couples.
11.2.2005 9:55am
Medis:
Taimyoboi,

Given Dale's reference to Burkean arguments, I think he has a relatively broad definition of "substantive arguments" that would include at least some "traditionalist" arguments.

That said, there is an underlying pragmatism to Burkean arguments in favor of tradition (basically, the underlying notion is that traditions often represent accumulated practical wisdom that is superior to the theories of the day). In that "meta" sense, these traditionalist arguments are still consequentialist/pragmatic arguments.

So it does seem that Dale is still bracketing off other possible "traditionalist" arguments, such as ones that are based in a deontological or theological moral system.
11.2.2005 9:56am
fred (mail):
Dale said:


In debates, one often hears the complaint from gay-marriage opponents that gays are "trying to change the definition of marriage." Exactly so, but this is hardly a decisive objection, just as it would not be a decisive objection to any proposed change in existing practices or laws.


The objection is that once you change the definition of marriage from the one-man one woman basis, you have to ask, how then is marriage to be defined? Gays, as I understand it, would change it to "Where people love one another, and want to make a permanent commitment to each other, they may be married"

The problem with this is that it changes marriage from its physical and biological mandates (one man, one woman) and its prime, but not only, purpose (procreation) into a free form "voluntary associational" model.

There is no logical reason that three men, or four men may not decide to make similar commitments. There is no logical reason why two sisters, or three brothers, may not marry. There is no logical reason why straight young 20 somethings may not marry in order to get medical benefits, with full expectation that they will be divorced whenever they decide to REALLY get married.

The whole idea of marriage is cheapened, and will eventually crumble. It is already on its way there as a result of previous liberal changes. Now is the time to reverse those liberal changes. They were a conceit, adopted because we fell for arguments that seemed logical at the time, but we acted far too swiftly and did not fully appreciate the innumerable and subtle ramifications of what we were doing. It's not the time to dig the hole deeper.

Once you make the basis of marriage simply love and oommitment, what happens when love fades? The logical thing to do is D-I-V-O-R-C-E.

Traditional marriage is based on love and commitment, but it is also based on the idea -still extent - that marriage is forever. It must be considered to be forever, because most heterosexual marriages can become blessed with children at any time. (And by far, most are so blessed) The "threat" of pregnancy is there at any time. This is true even in an age of contraception.

In the heterosexual marriage, the possibility of becoming pregnant is always there, and so marriage must be forever. And isn't it interesting,that since contraception has become widespread, the divorce rate has risen. Just as predicted in Humanae Vitae.

But gay marriage, being completely "unthreatened" by the idea of children suddenly popping up - gays must adopt - there is no reason to stay together, except as long as the two are in love. So it is a weaker institution.

I suppose you could say that gays, once they have children, might then acquire the necessary impulse to have a permanent marriage,(rather than a simple voluntary association that has no distinguishing characteristics from other simple voluntary associations) and then might become eligible to enter into a full fledged marriage, with the attendant "foreverness" that marriage should have.

But absent that, gay marriage in the simple models that have been proposed weaken the idea of marriage and contribute to its cheapening. Rather than being based on the idea that marriage is forever, it becomes impermanent and unstable.
11.2.2005 9:57am
APL (mail):
We are rational beings. We are entitled to examine existing social institutions and their purpose in the light of logic. It is not enough to say that marriage=man+woman. One must say why this is and provide a rational basis for excluding gay couples from the institution. Some opponents have done or attempted to do this. But asserting the definitional defense doesn't measure up. It is not persuasive. It is circular.

So, if you think marriage must be defined as man+woman, explain why. Explain the benefits to that arrangement.

If the man+woman definition of marriage is not sustainable by compelling and current social policy which outweighs the benefits of including gay couples as participants, then the maxim of obsolete reason, obsolete rule should be applied.
11.2.2005 10:00am
Anonymous Cowherd:
deMaistre--

Gay men, for example, are likely to get married for different reasons than straight couples. They are likely to get married later in life, when they are less attractive to younger men, and most often in order to avoid a lonely old age. Straight couples, by contrast, most often get married at an earlier age and in order to raise a family.

Do you have any data to back this up, or is it merely speculation? Keep in mind, the current cohort of gay marriages is not a representative sample, because many of those getting married may have wanted to get married for many years before they were permitted to do so.

IB Bill--

Thanks for the "excrement tube" reference. Really raising the tone of the debate.

Oh, and it isn't really checkmate on the first move if you're playing by rules that were mistaken all along. And perhaps, if it IS checkmate on the first move, the game should be redesigned to make it more playable.
11.2.2005 10:02am
Erik H:
I am pro gay marriage. Yet the issue I have with this "argument" is that it falls into many of the fallacies of the anti-gay-marriage crowd.

WHich one in particular? Well, the author likes to state the 'basics' and argue from there. In yesterday's posts, some of the 'basics' included, if my memory serves me well, that gay couples can raise children well, that private sodomy is acceptable, etc. Here, we're asked to assume that it's perfectly normal to redfine marriage, and hey, y'all, let's start defining it!

But what the author misses is that the 'basics' are what anti marriage folks are arguing ABOUT. Sure, if you assume X and Y and Z your point makes sense. But the opponents have a very distinct point which you don't seem to address: for them, gay marriage challenges--simultaneously--many VERY important constructs including religious treatment of sodomy, definition of marriage, raising of children, etc. If you sweep those under the rug you're not going to convince anyone.

I live in Mass. and have a happily married gay sister (incidentally, this was a glaring error in the first post; gays can and do get married in various U.S. states). I'm all for gay marriage. But I don't think my feelings go much beyond "because I think it's right" and to tell the truth I don't think the author's arguments are much better. I don't pretend I"m logical, though.
11.2.2005 10:02am
Sebastian Holsclaw (mail):


Given this challenge to the definition of marriage, the definition alone cannot be offered in its own defense. It must be accompanied by reasons that show why the male-female definition is the right or best one. Unless the definition is defended with reasons that go beyond simply asserting the definition itself, the defense suffers a fatal circularity. It asserts the conclusion (the proper definition of marriage) as the argument. It's the equivalent of saying, "I'm right because I say so." That may work in the parent-child relationship, but it cannot suffice in public-policy debate.




I am gay, and support the idea of gay marriage. Nevertheless, the way the 'definition' argument plays out for this issue is troubling to my idea of law. The definition of marriage can surely be expanded to include gay marriage if the society chooses to do so. If a legislature wants to change the definition it can. But in political practice, there is a move to pretend that marriage has always meant "two people of whatever gender" with courts trying to direct the change. (See Canada or Massachusetts or attempts in Hawaii).

Deep societal concepts can change their definition. Judges acting by pretending that they aren't really making a change is not the way to do it. The definition can be offered in its own defense in court, just not in the legislature.
11.2.2005 10:08am
fred (mail):
Public Defender said:


Traditionally, there were far more restrictions placed on marriage (and in some ways it was more permissive). Until fairly recently, marriage was the arranged union of a man and a woman (often just a girl) in which the woman (girl) was legally and socially inferior to the man (if she legally existed at all after marriage). Marriage was also limited to people of the same race, religion, social class and economic class.

There are good policy reasons for doing away with many of these traditional aspects of marriage. But it was a break from tradition to view marriage as a voluntary, loving union between a man and an adult woman regardless of race, religion, social or economic class.


You are confusing the fact that there were laws against certain types of marriages from taking place with the very definition of marriage. No one ever said that should those prohibited marriages take place (say, between a black man and a white woman) that it would not in fact, be a marriage. It most certainly would have been, and all would grant that such a union between two such people was in fact, a marriage, even if it was in violation of some law.
11.2.2005 10:08am
Marcus1:
Taimy,

>One, the changes you are talking about are in degree not kind.<

If you say so. I think that's purely semantics.

How about second marriages? Is the traditional definition of marriage not "for life"? But we let people divorce and remarry. Even though the Catholic Church, as I understand, still doesn't. Is a second marriage really a marriage, by traditional definition? Was that a change in degree or kind?
11.2.2005 10:09am
Medis:
fred,

I'm not sure I understand your argument. Obviously, we could independently take measures to make marriage more about being "forever", and that would not be inconsistent with gay marriages, because those could be more "forever" as well (eg, you could eliminate no-fault divorce for both straight and gay couples).

What I think you might be arguing is that without the possibility of the couple raising children, you lose an argument in favor of marriages being forever. But as you point out, that is possible for both straight and gay couples (that they may end up raising a child), and it is also possible for both straight and gay couples to avoid that possibility.

So are you just arguing that there is a greater chance of a straight couple ending up raising children? Why should that matter? In other words, why is there some sort of tipping point between the odds of a straight couple raising children and the odds of a gay couple raising children such that marriage being forever applies only to the former and not the latter?

In fact, why does it make sense to use such broad categories at all? There are easily identifiable subcategories among both straight and gay couples in which the odds of them raising a child are notably different from the average odds (up to a probability of 1 for some gay couples--those already raising children). So if the key variable is indeed the odds of the couple raising a child, why are we obscuring a more precise measurement of those odds by using only the aggregate odds in such broad categories?
11.2.2005 10:11am
Randy R. (mail):
Gee, I love the tone of this debate. Gay men getting married are not two people in love. No, we are merely "sex partner." And sodomy isn't sex, it's perversion.

(sigh). It's always very easy to dehumanize the people that you hate, and some of you have done a terrific job. Do we gays want to get married because we might actually fall in love and want to share a life with a partner? Oh no! Not possible! Every single one of us is instead intent on destroying marriage as in institution because, well, are calendars are free this week and we have nothing else better to do. Also, we have no ability to feel love for another person, that's why we need to gratify ourselves with pure anonymous sex.

Fortunately, you neanderthals are a shrinking part of the population. Just last week, a high school elected a gay cheerleader and lesbian jock as their homecoming king and queen.

I will not stoop to your level by calling you names; instead I will treat you with the respect that you fail to give us or this debate.
11.2.2005 10:13am
Justin (mail):
Sebastian,

While I agree with:

I am gay, and support the idea of gay marriage. Nevertheless, the way the 'definition' argument plays out for this issue is troubling to my idea of law. The definition of marriage can surely be expanded to include gay marriage if the society chooses to do so. If a legislature wants to change the definition it can. But in political practice, there is a move to pretend that marriage has always meant "two people of whatever gender" with courts trying to direct the change. (See Canada or Massachusetts or attempts in Hawaii).

I am not a textualist. You are. When there is no mention of gender in several of the state constitutions (the move by a township in NY to recognize SSM was based on this statutory construct...in Cali and Mass, it was based on the state constitution's EP clause), one cannot add it there because of the intent of the drafters and continue to pretend to be a textualist.

I, btw, think that civil unions (at minimum) are required by the (federal) EP clause. Granted, this isn't the time or place for that discussion. But where in, say, McKinney's Annotated New York Statutes do you find, in the text, a reference to marriage being one man - one woman. If it isn't there, then how can you say the legislature has decided the issue? If they haven't decided the issue, then why is there a baseline presumption (as opposed to a constitutional amendment) that gays do not receive the full enjoyment of the laws not denied to them?
11.2.2005 10:18am
Cold Warrior:
Marcus1 said:

How about second marriages? Is the traditional definition of marriage not "for life"? But we let people divorce and remarry.

Exactly.

And that is the best response to the "definitional objection."

First, try to distill the definition of "marriage," traditionally speaking. I suggested 3 core factors (see above): a (generally religious) ritual, holding oneself out to the community as a husband or wife, and legal recognition of the union. Marcus suggests a previously-accepted fourth factor that has seemingly fallen into disuse: an unbreakable (except by death) status.

So: the defintion of "marriage" has already changed many times in many ways. The definitional objection really just says this: we accept the changes to the defintion of "marriage" that have occurred over the centuries, but we wish to forever cement the definition of "marriage" circa 2005. As Carpenter said, not a strong argument.

Wittgenstein may help ... stop trying to distill "essences" of "marriage," and start looking at how the term is used within its cultural context. Same sex unions are unblinkingly accepted as "marriage" in some communties (San Franciso) today; Britney Spears' Las Vegas marriage would never have been accorded any legal status in many countries; my remarriage without annulment would not be accorded full faith and credit by the Roman Catholic Church.
11.2.2005 10:21am
IB Bill (mail) (www):
A. Cowherd: Fine, it's checkmate on the third move. As far as the "excrement tube" reference, it may not elevate the debate, but part of what I'm trying to do is get the debate out of the airy skies and excessive abstractions -- which is the only place gay "marriage" can be taken seriously -- and back down on earth. We live in an incarnate universe, after all.
11.2.2005 10:21am
Cold Warrior:
And I might add, drawing from my sphere of practice:

A 28 year old Roman Catholic Filipino practical nurse marries his 71 year old patient-employer in a civil ceremony. It is:

1. a valid marriage under state law
2. not a valid marriage under Roman Catholic canon law
3. perhaps a valid marriage under federal immigration law, provided there is a true bond of affection and the marriage was not entered into for the purpose of obtaining a green card

In other words, the attempt to distill an "essence" of the term "marriage" is bound to fail.
11.2.2005 10:27am
Taimyoboi:
"If you say so. I think that's purely semantics."

Marcus1,

Moving from marriages between a young woman and an older man to men and women of roughly the same age is certainly a measure of degree. The degree being the change in age.

Allowing a man to marry a man is certainly a difference in kind, the kind being gender. I don't think there are degrees of gender.

"How about second marriages? Is the traditional definition of marriage not 'for life'? "

This is a rather poor argument. Simply because there have already been harmful changes to the traditional concept of marriage does not mean that we should go racing to embrace more potentially harmful changes to that institution.

Only if there are positive, or no negative effects to the broader insitution of marriage should same-sex marriages be allowed. I think that is a caveat that Mr. Carpenter would agree with, and has yet to address.
11.2.2005 10:27am
deMaistre (mail):
Anonymous Cowherd--

No, I don't have data; I offer only my own impressions. These may be wrong and subject to all kinds of biases, but I personally don't see the harm in generalizing about groups. The "wisdom of crowds" may offer a theoretical explanation for why stereotypes about groups are so often correct.

At the very least, it strikes me that as unlikely that gay men, lesbians, and straights are in all respects similar, and will all marry for the same reasons and with the same attitudes.

Perhaps Prof. Carpenter could address the question: Are there differences between gay men, lesbians, and straights (I think that the answer is obvioulsy yes), and do these differences matter?

Another point worth mentioning is that it's likely that a smaller proportion of gay men will choose to marry at all. Same sex marriage will be a more eccentric option among gay men--this too may make same-sex marriage a different institution, worthy perhaps of a different name and different policies. Nobody seriously expects gays to develop a norm of "saving themselves" for marriage; straights, by contrast, at least have to confront this traditional norm, even if most of them end up rejecting it.

I haven't thought much about the nature of lesbian relationships, but they strike me as having a greater political element. Being lesbian strikes me as less a sexual compulsion than a political/moral choice. If this is true, then "marriage" will serve a different function for lesbians than it does for gay men and straights.

In sum, "marriage" will mean differents things and accomplish different goals for straights, gay men, and lesbians. Why then impose the same institution on all three groups?

Finally, I don't get your point about gay marriage only recently becoming available--how would this cause only older men to marry? Younger couples are just as eligible as older couples.
11.2.2005 10:27am
NaG (mail):
Jesurgislac: There have existed in past times and other cultures examples of marriages which included male-male and female-female unions...

When and where?

"the meaning of words changes with usage..."

True, but what is so compelling about changing it in this instance? The main argument for changing the meaning of marriage is that to not call the union of homosexuals "marriage," but instead, say, "civil unions," would somehow denigrate homosexuals as a group, even if civil unions had all the same legal rights and benefits as marriage. This I find to be unpersuasive.
11.2.2005 10:30am
fred (mail):
Jerugislac:

I doubt that there were cultures in the past that sanctioned gay marriage. I suspect there is a large body of gay studies stuff that says such things; just as there is a large black studies cohort that says that blacks in ancient Egypt invented the airplane, or a woman's studies cohort that says that every significant thing in history was because of a woman. But I also suspect that the evidence for these things is extraordinarily unreliable.

The evidence that is cited at Wikipedia is peculiar, to say the least. They found two graves, side by side with the same crest in the England of Edward II, so therefore gay marriage existed in England in 1391? The evidence for the "two spirit" people in North America is also suspect. You can find much evidence that they were ridiculed - not revered, as this says.

No, this is an idea supported by very little evidence, fragmentary and overinterpreted.
11.2.2005 10:31am
Taimyoboi:
"Fortunately, you neanderthals are a shrinking part of the population...I will not stoop to your level by calling you names..."

Randy R.,

I'll refrain from addressing the rather quick change of tact in your post but leave you with the following:

A 2004 UCLA freshmen poll found that out of a sample of 290,000 freshmen, between 2003 and 2004 support for same-sex marriage dropped from 59 to 56. And several other polls have found, if any change at all, a slight increase in overall opposition to same-sex marriage between 2003 and 2004.

Hardly a shrinking minority...
11.2.2005 10:33am
PeterH:
Sebastian Holsclaw writes:

Deep societal concepts can change their definition. Judges acting by pretending that they aren't really making a change is not the way to do it. The definition can be offered in its own defense in court, just not in the legislature.


But that isn't what happened in the courts; it is what the opponents of the rulings want people to believe. If you go back and read the decisions, in all cases the courts have decided that under the existing rules for that state, same sex couples could not be excluded.

In Massachucetts, for example, the state Constitution clearly states that the government cannot give benefits to one chunk of the population without giving access to all of it. What they determined is that the way marriage was being conducted violated the state's own rules. It would have been equally an option (but a horribly bad one) for the state to conclude that it wouldn't give anyone civil marriage benefits.

If a club is formed with an explicit governing rule that says that all members will be allowed use of club rooms by signing up in advance, but since the club has started there was an "understanding" -- or worse, a posted sign -- saying that the billiard room is for men only, then it is NOT "judicial activism" or a "change in the rules" or any other such silliness for a review board to say that based on the governing rules, women members cannot be excluded from the billiard room. And if the rules don't specify that they have to actually play billiards, they can sign up for the room and do whatever they choose in it, within club rules.

If you look, most court decisions have been very specific (Hawaii, Vermont, etc) in saying that the way marriage is licensed conflicts with a mandate of the state Constitution (whether equal protection, or gender non-discrimination, or whatever) and then mandate that the Legislature fix it.

It is not "activism" for the court to do its job of striking down unconstitutional laws. The fact that the violation has been allowed to stand for a period of time or has wide popular support doesn't make it any less of a violation.
11.2.2005 10:36am
Medis:
deMaistre,

Why doesn't it make more sense to talk about individual human beings as having wide ranges of attributes? Accordingly, even if it is true that in some average, or other aggregate/statistical sense, there are difference between the groups "gay men", "lesbians", "straight men", "straight women", and so forth, the individuals within those groups will still fall over a wide range of attributes.

And therefore, why does it matter whether marriage will be appropriate and beneficial for relatively more or relatively fewer members of each group? As long as it is appropriate and beneficial for some individuals within each group, and as long as those are the individuals who will in fact be more likely to get married, then the averages and other statistical aggregates don't really matter.
11.2.2005 10:36am
Randy R. (mail):
I wasn't going to post this post. I thought when I entered this discussion about gay marriage, it would be a civil discussion about whether we are entitled to the same rights and benefits as straight people. For the most part, it has. But lately, the some people have been using the worst stereotypes imaginable to put us down, and using strong language to indicate that we are perverted and not even capable of love. Pretty strong and demoralizing stuff.

But, hey, being gay, I'm used to being called names and getting beaten up. (That's just part of the Homosexual Lifestyle, afterall). Most gay men have put up with that in school. But the interesting thing, is that not ALL men pick on gays. As usual, it only comes down to a few guys, who seem to have other problems as well. Problems with anger. Problems with girlfriends. Soon, we start to notice a pattern, and we wonder -- those guys that need to put us down and like to describe our sex lives in graphic language, could they in fact be....?

Well, in the early 90s, a researcher for a university in Atlanta (Rice?) gave out a questionnaire to several hundred college men. It asked their opinions on various topics. Buried in this Q were a few questions regarding gay men. They reviewed the Qs, and selected men who had the most extreme opinions against gay men.

They called these men in for further study. The reseachers interviewed them, and most of the men had very violent attitudes about gay men. These men agreed ot have electrodes placed on their penises, and then they were left in a room alone. The researchers then showed them film clips of hetero sex, gay sex, and lesbian sex.

The results? About 80% of these men, men who declared their hatred of gay men, got erections ONLY during the gay sex clips.

The conclusion? These men were deep in denial about their own same sex attractions, and their self loathing is transferred to gay men. IN a Frontline interview on PBS, the researchers initially thought that they should inform these men that they got erections during the gay sex, but then thought better of it, fearing their own safety, as these guys had so much anger bottled up. The researcher said he was sure that these guys didn't even KNOW that they had these erections, so in denial were they.

Then a few years later, another reseacher in England did a study. They passed out "exams" which they told the male students would assess whether they were predominantly masuculine or feminine. The exams were bogus, of course, and could not determine anything of the sort. The point was to fool thee students into thinking these things could be found out. They took the test, and the researchers randomly divided the results so that half were told they were masculine, half feminine.

Then they were interviewed about their views towards gay men. The results? The ones who were told they were masculine had no problems with gay men, thought they should have the same rights, etc. The ones told they were femimine engaging in all the usual gay bashing language.

So the results of all this research? Our instincts are confirmed -- men who have violently angry attitudes towards gay men are likely to have same sex feeling themselves, and they hate themselves for it. The English report establishes that gay bashing isn't so much how men feel towards gays, but how they feel about themselves. if they are secure in their masculinity, they tend to have no problems with gays. If they have insecurities, then they do.

One researcher carried this further. He goes to schools in England and tells students about these reports. After the class, the amount of anti-gay talk and bullying among the male students plummets. Why? Because now everyone know that if you bully a gay boy, it's because you are either gay yourself, or you are insecure about your masculinity! Works like a charm!

(Of course, none of these studies covered lesbians, But then not too many people are upset at them, at least not to the degree it is with gay men).

So -- I have no problems with people who are against gays because of their religion or other deeply held beliefs. Nor am i saying that everyone who oppposes gay marriage is a repressed homosexual or insecure about his masculinity. What I have a problem with is people who refuse to engage in the dabate, refuse logical or reasonable arguments to even consider gay rights, and engage in name calling or graphic depictions of sex, or try to dehumanize us. And in my experience, it's either because these people are repressed homos, insecure of their masculinity, or they aren't getting enough.

So no need to call any of you bigots. The issue is much, much more complex and interesting. And telling.
11.2.2005 10:42am
Michael Lopez (mail):
There is an important aspect of the definitional argument which is being overlooked. Dale's response to the definitional argument can be summed up best in this sentence:

But given the powerful affirmative case for gay marriage, it must be debated.

That's a powerful assumption. It overlooks the fact that moral fiat is an important part of the law, albeit one that is quickly diminishing in importance in modern American jurisprudence. Still...

If a community outlawed adultery -- sex outside of marriage -- because the community generally thought that adultery was a bad thing, their collective feelings would provide a perfectly valid moral basis for the law. I know, I know... I'm preaching heresy of a kind.

In order to say that communities are not allowed to impose definitional fiat on themselves, in order to say that the definition of marriage must be questioned just because there are some practical arguments against it, one must assume that the moral fiat of the community is not a sufficient basis for law.

The only other alternative is to make a legal argument against the definition of marriage, bringing in equal protection and all that to say that the community's moral sense has already addressed the issue. I'm sure you could find something in the "penumbra" somewhere if you looked hard enough.

But that's not the argument Dale's making. He's saying that individual proponents of traditional marriage definitions should not be allowed to say "because I say so." That may be rhetorical convenient on an individual level, but when raised to the level of social policy, a whole bunch of people saying "we are going to order our community like this because we say so" is an entirely different type of phenomenon, and it's indiscreet for Dale to treat this as if it were a small cabal of people having an entertaining cocktail discussion... it's a national policy debate. And while "because I say so" may not be appropriate for cocktail discussions, it is, barring some legal hurdle, a perfectly appropriate way to address community legislation.

Please do not assume my position on the gay marriage debate based on my criticisms of Dale's argument. I do not necessarily like some of the laws that some communities create. I am, however, free to move. What is important is that I recognize communities' sovereign ability to organize themselves as they wish. And if the town of Tuscaloosa wants to make everyone wear purple hats on Wednesday afternoons... well, unless there is some sort of Constitutional prohibition against that, I'm not going to get my panties in a twist.

But as I said, the argument that something is already in discord with the community's adopted and agreed upon values (i.e. the Constitution) is another argument entirely.

-Michael E. Lopez, Esq.
11.2.2005 10:45am
Marcus1:
Taimy,

You oppose divorce of any kind? I disagree that allowing divorce was harmful to marriage. That's pretty harsh. If my argument forced you to come out against divorce, then actually I think I did pretty well.

It seems to me that SSM opponents fall back on the definitional argument because they lack any substantive objections. Well, at least any that wouldn't broadly be attacked as bigoted. When you look at polygamy, divorce, miscegenation, and the rest, I don't think you can say that marriage has ever been defined by some narrow definition.
11.2.2005 10:46am
Taimyoboi:
Medis,

Forgive me if I've misread your post, but I believe you are saying that while Mr. Carpenter is taking a broader approach than simply a traditional one, while side-stepping arguments arising from moral obligation.

That's fine. I take issue with his demand for reasoning why the "man and woman" definition should be the accepted one. That it is a long-standing tradition that cuts across cultures for so long should be the reasoning.

The Burkean, and Mr. Carpenter himself, would place the burden of reasoning on those who wish to change that defintion.

If Mr. Carpenter can make a solid case that changing that definition to include same-sex couples will not further detoriate the institution, then the opposition has little basis to stand on.

But I do think that is a tough uphill battle.
11.2.2005 10:46am
Anonymous Cowherd:
I don't get your point about gay marriage only recently becoming available--how would this cause only older men to marry? Younger couples are just as eligible as older couples.


Younger couples are indeed just as eligible as older couples, but for at least the first few years of legal SSM, we may expect a larger queue of older gay people waiting getting married; these are the ones who would have gotten married years ago if it had been available, but who had to wait because the law wasn't there yet.

Over time, it's plausible to expect that the distribution will normalize, as all those who had been waiting for years (or decades) will have had time to plan their ceremonies and get married. After that, we will have a better idea of the typical age of partners entering same-sex marriages.

On the differences between gays, lesbians, and straights, I'm sure they exist. To borrow Dale Carpenter's analogy, I suspect that they are akin to the differences between beagles, terriers, and poodles (Though not necessarily in that order): All are similar in the most important sense, because all aim at a lifelong pair-bond where two individuals care for one another on a permanent basis. Do they live up to that promise? Well, if we judged straight marriages by that standard, how many of THOSE would pass muster?
11.2.2005 10:46am
Randy R. (mail):
Yep, I do apologize for saying neaderthals. It was a moment of frustration. I shouldn't have stooped so low.

As for the shrinking population, what I should have done is been more specific. I was referring to people who are anti-gay in general. Over the last 20 years, there has been a dramatic drop in the number of people who claim to "refuse to accept homosexuality." The number of people who know an openly gay person is up to 80%, much higher than ever before. So acceptance is coming, and that's what I was referring to.
11.2.2005 10:46am
Cold Warrior:
A commenter mentioned the "Gay Marriage will lead to Brother-Sister (or Brother-Brother or Sister-Sister) Marriage" argument.

I support gay marriage. Or, to be more accurate, same sex civil unions with all the badges and incidents of marriage.

But I have to admit, the "sibling marriage" argument is probably correct. If traditional consanguinity restrictions on marriage are based on procreative concerns, and if we recognize same sex marriage, is there a rational basis to exclude siblings/first cousins from marrying? I don't think so ...

... so unlike a lot of the cultural conservative bluster, I think this argument needs to be dealt with. One could say, "Well, I guess we should let any two consenting adults marry." And maybe we should. But it's not fair to shrug off the sibling marriage scenario as silly or far-fetched.

Tell me: what rational basis argument could you construct to preserve prohibitions on sibling marriage under a legal system that recognizes same sex marriage??
11.2.2005 10:47am
Anonymous Coward:
I have a question for those of you who are well versed in (family) law: Is there any contractual way for a person to designate a non-family member as their direct next of kin without marrying them?
11.2.2005 10:52am
Paul S:
But IB Bill, you are not getting the debate "down to earth" but down to the gutter.

I'm glad my boyfriend is willing to allow me access to what you so enticingly call his "excrement tube" without us marrying, but think I should be free to marry him if I want to. Nevertheless, I also know there are good people (whom I respect) who feel differently, and respectable arguments the other way. Their worst enemies are silly bigots, whose homophobic rantings demean the thoughtful opponents.

Is it possible, Bill, that you are really a covert supporter of LGBT marriage, engaged in a subtle smear campaign? If so, please, come out of the closet! It would be nice to have a proper debate. Today's topic, in case you missed it in your excitement about sodomy, is not sex or perversion, but semantics. Specifically: is it a good argument to say "No LGBT marriage because marriage by definition must be between man and woman." "Why?" "Oh, just because that's what it means!"
11.2.2005 10:53am
Houston Lawyer:
When the anti-miscegnation laws were repealed, no one had to re-write their wedding vows. A bride without a groom at the alter is a very upset woman in a prom dress. A wife without a husband is a widow.

The redefinition of marriage will require the redefinition of a few other terms as well. No longer will children legally have a mother and a father, they will have thing one and thing two. All of our laws regarding family relationships will have to be re-written since all the relationships will have been redefined.

And the power of the state will need to be vastly increased to enforce these new laws on an unwilling populace.
11.2.2005 10:53am
deMaistre (mail):
Medis,

Group attributes matter because groups with different attributes generate different norms. If straight people did not have on average a tendency to make babies, for example, the various norms of traditional marriage (e.g., monogamy) would evaporate, or at least change. We already see this with the effect of reproductive technologies. Birth contol changed the nature of straight relationships, which caused dramatic changes in marital norms.

Similarly, adding a populaton that differs in significant ways from straights will change marital norms, in ways that might not be good either for either straights or gays. Therefore, wouldn't it best to have different institutions for different groups?

There is reductio ad absurdum in your argument that I think illustrates my point. If only the attributes of individuals matter, then why not extend the definition of marriage to include adults and their pets? After all, allowing adults and pets to "marry" will allow some adults and pets to benefit, in that some adults who marry to their pets will do more to take care of them. We don't do this, however, because allowing adults and pets to marry would change the marital norms.
11.2.2005 10:54am
Taimyoboi:
"You oppose divorce of any kind? I disagree that allowing divorce was harmful to marriage...If my argument forced you to come out against divorce, then actually I think I did pretty well."

Marcus1,

Well, you should give yourself a pat on the back then...

At least for reading a statement where there was none. I do no oppose divorce of any kind, nor does the Roman Catholic church.

I do oppose divorce policy as it currently stands.
11.2.2005 10:55am
PeterH:
deMaistre,

You actually have some valid points, but I disagree with your conclusions.

If I understand your argument, you believe that gay men seek to marry each other for different reasons than lesbian women seek to marry each other, which are both different than the reasons that straight couples seek to marry each other.

There is some validity to this, but only some. In order to really discuss this, you can't speak in the aggregate like that. In your original post on the idea, you point out that straight couples tend to marry young and for children. But that is a description of median behavior, or what you would get if you averaged all straight couples together, or did a statistical analysis. Such as statistical breakdown would doubtless show differences of some sort.

But the question cannot be "does the average gay or lesbian couple seek to marry for different reasons than the average straight couple." The question has to be, "Do the reasons that this specific gay or lesbian couple seek to marry fall within the allowable reasons that straight couples may currently marry?"

Whether people approve or not, the fact is that many straight couples validly marry for reasons and under circumstances that fall outside the "average profile" of straight marriage. Many straight couples marry late, or don't intend to raise children, or do so for companionship or for financial gain, for insurance benefits, or to show off a "trophy wife" or "boy toy," or to legitimize a longstanding unmarried relationship, or whatever. Similarly, straight couples conduct their marriages along a very, very wide spectrum, regardless of what moralists think they "should" be doing.

Regardless of public sentiment, the marriages of Brittney Spears, Liza Minelli, and Liz Taylor (apparently male celebrities with serial marriages don't cause quite the scandals) are/were perfectly legal, even if they fell outside the median.

No doubt some extreme example might be found of a gay or lesbian couple who fall way outside what is legal for straight people, but so do some straight unmarried couples, I guess. The point is that the vast, vast majority of gay and lesbian couples are seeking to marry for reasons that straight people currently marry.

People marry each other. They are eligible or ineligible as a couple, not as a demographic.

Straight people are allowed to marry based on the actual rules and the actual practices. Same-sex couples should be allowed to do so under exactly the same situation, not against some constructed ideal or average.
11.2.2005 10:56am
Taimyoboi:
"As for the shrinking population, what I should have done is been more specific. I was referring to people who are anti-gay in general."

Randy R.,

And I hope that we can all agree that this is most certainly a good developemnt.
11.2.2005 11:00am
PeterH:
Cold Warrior writes:

Tell me: what rational basis argument could you construct to preserve prohibitions on sibling marriage under a legal system that recognizes same sex marriage??


Presumably the same rational basis that currently allows infertile couples to marry but does not allow sibling marriage.

If "a man and a woman who are not close blood relations" holds against sibling marriage, then "two persons who are not close blood relations" would hold exactly as well.

Either the prohibition against sibling marriage stands on its own or it doesn't. Disadvantaging otherwise eligible same-sex couples (who are not blood relations) for the sole purpose of stemming the tide of sibling marriages is indefensible. Why not prevent all straight couples from marrying to prevent sibling marriage? Why do gay couples who have nothing to do with incest have to bear the burden?

People are not eligible to civilly marry because of a longstanding tradition, regardless of what people say. They are eligible to marry because the laws are written that way.
11.2.2005 11:06am
Taimyoboi:
"...we accept the changes to the defintion of "marriage" that have occurred over the centuries, but we wish to forever cement the definition of "marriage" circa 2005. As Carpenter said, not a strong argument."

Cold Warrior,

I think you mischaracterize the opposition, and Mr. Carpenter's, beliefs and arguments.

Generally, most opponents of same-sex marriage are concerned about the current state of marriage and would like to turn the tide back in the opposite direction; far from cementing it as it is now.

The point being that marriage is already in such a state of disarray that another broadside to it traditional understanding--what used to be a union between man and woman for life and is now just a union between a man and a woman--that even another marginal change in definition would send it swirling down the tube.

Mr. Carpenter himself cited the potential effects that gay marriage would have on reversing that detoriarting tide as arguments for approving gay marriage. I think it is safe to say that Mr. Carpenter himself treats the trends in the institution of marriage as serious considerations.
11.2.2005 11:08am
Battletank (mail):
I find two myopic oversights on the part of those in favor of 'expanding' the American civil law definition of what constitutes marriage from 1 man and 1 woman to include any variations human imagination can cook up.

The first is that if an absolute minority of citizens can successfully force the state (and therefore the majority) to change or expand the definition of a word such as "marriage" without passing a Constitutional Amendment or even a law, what could OTHER absolute minorities do with the words "marriage", "public", or "citizen" via sympathetic courts?

Two or more can play this 'you must change or expand a word's definition because we feel you must' game. And the threat to our way of life is...if rules of the game can be changed apart from the political process, majoritarian agreement, then the stage is set for judicial tyranny and civil strife as minority groups attempt to force their views on others via sheer force of another sympathetic albeit all powerful minority of people called "the state".

A group of polygamists could use the same logic of the homosexual lobby to insist that 'for them' marriage must include 3 or more people. NAMBLA could insist 'for them' marriage must be defined to include boys under the age of 12. Muslims and Mormons could insist that marriage must be expanded to include harems of underaged girls. And what about prostitutes? Could they not re-define marriage to include their 'services'? Could not companies re-define marriage to include associates? Why not college room-mates with no intent on having sex whatsoever? Siblings? Why not?

We could redefine the word "Church" to include all the people otherwise organized into political entities such as towns or cities. After all, both are groups of people. Separation of Church and State would require whole swaths of American territory be ceded tax-free to such groups. Absurd? Not if 5 judges think it's OK. Corporations could be redefined as "churches" - with the resulting tax windfall. Again - it's not absurd if words meanings can be redefined by absolute minorities.

The moment words of civil significance are open to redefinition by minorities and imposed on the rest of us by sympathetic courts, there is no theoretical limit to where this could lead.

Secondly, while the argument goes that in some cultures (where? when?) homosexual couples (and not groups?) have been considered "married", it's absolutely true that in America - both the colonies and later states - "marriage" has only always been considered a heterosexual union of two adults, one being male, the other being female. All other couplings had other names: fornication, adultery, prostitution, incest, molestation, rape....

Since the argument seeks CIVIL law changes, invoking the tribal customs of Papua New Guinea or some interpretation of Plato circa 300 BC is besides the point. The definition in question is culturally specific: those who wrote the laws and ratified the Constitutition understood marriage to mean X and only X, not Y, Z, and W. If they didn't specifically define it in the commonwealth of Massachussetts it's because there never was a need to do so. All other forms of human coupling had other names: sodomy, fornication, adultery, etc. The Constitution itself does not define the meaning of the words "States", "Rights" or "people" either. Not that they don't have intelligible content but because the meaning was so well known culturally as to not need explanation.

If homosexuals want to give themselves new, hitherto unrecognized "rights" then there is a Constitutitional venue for them to proceed: a constitutional amendment. I don't see why the rest of us - for whatever motive or reasoning - must pass Amendments merely to maintain the status quo while absolute minorities can get their will enforced via courts.

This is the same sort of reasoning when looking at Griswold vs. Connecticut: if "the People" always thought there was a right to privacy for married couples to use contraceptives then guess what? THEY WOULD HAVE PASSED LAWS TO THAT EFFECT USING THE DEMOCRATIC PROCESS. DITTO WITH ABORTION. If Americans always believed abortion to be one of those unnamed rights of privacy then they wouldn't have passed laws criminalizing it over the course of 250 years of legislation.... Silence in the Constitution doesn't mean we can read whatever we want into the text.

But hey, if the Pro-Contraceptive crowd wants such a right and they're the majority...pass a Constitutional Amendment specifically recognising that right. Ditto with abortion: if you think the majority of Americans agree with Roe vs. Wade it ought to be simple to get an Amendment recognizing it.

The fact that none of these 'rights' were vindicated via amendments tells me that those who sought them knew they couldn't win with a majority either in elections or in amendments so pulled a fast one.

Well it certainly worked for the last 40 years! If that's the goal - to just get the results desired without shame, then even outright war wouldn't be off the table. But if the goal is to vindicate rights rationally and representationally (such as woman's right to vote)...only amendments will permanently seal this right.

But I will predict this: the more absolute minorities try to do end runs around the republic via imperial courts, the more the majority will rise up to vindicate OUR rights by all means at our disposal. Homosexuals - like communists before them - will no doubt continue to engage in agitprop -redefining words to glorify themselves; calling whims "rights" and people to beg to differ "haters". But again, absolute minorities' re-definition of words don't magically change the ontology of things.
11.2.2005 11:09am
PeterH:
I have a question for those of you who are well versed in (family) law: Is there any contractual way for a person to designate a non-family member as their direct next of kin without marrying them?


Other than adoption, no. Even adoption doesn't pass on a lot of spousal benefits.

You can construct SOME things, like power of attorney, or a will to dispose of property, but even then, there are many things that go to a surviving spouse (like Social Security and other pension benefits) that cannot be passed to a non-spouse. Similarly, things like spouses not being forced to testify against each other or immigration support cannot be legally constructed.

Additionally, in practice, it is all too common for people who HAVE done everything that they can to have those overturned or ignored. There are too many cases of medical powers of attorney being ignored or sidestepped (you can make the decisions but you still cannot visit them in Intensive Care because you are not immediate family, for example.)
11.2.2005 11:18am
P J Evans (mail):
The redefinition of marriage will require the redefinition of a few other terms as well. No longer will children legally have a mother and a father, they will have thing one and thing two. All of our laws regarding family relationships will have to be re-written since all the relationships will have been redefined.

Seems to me that the only changes needed would be from "mother" and "father" to "parent". It doesn't appear to require redefining all the relationships.
11.2.2005 11:21am
IB Bill (mail) (www):
Let me address a few side issues because no one here knows me. I am not questioning homosexuals' ability to love each other or their humanity. I am saying the sex is perverted, but I'm not saying this perversion is greater or lesser than that which exists in any number of heterosexuals, including myself. And I'm not saying homosexuals are bad people, or deserve to be beaten, mocked or mistreated in any way.

I am opposing -- vehemently -- a definitional change in the fundamental building block of human society because the proposed change is utterly absurd. Plus when mixed with PC, as Houston Lawyer points out, this definitional change will see the death of wonderful, warm, loving words such as father, mother, husband and wife as "heteronormative" and thus bigoted, and replaced with sterile, bureaucratic words such as "spouse" and "partner" and "parent." The world will be a colder place as a result. And most people will feel extremely alienated from a government that imposes such changes and dismisses them as bigots.
11.2.2005 11:22am
Taimyoboi:
"Presumably the same rational basis that currently allows infertile couples to marry but does not allow sibling marriage."

PeterH,

A minor quibble:

I don't think there has ever been a rational basis articulated for why infertile couple are allowed to marry over and above siblings, or same-sex couples for that matter.

Up until very recently, I don't think medical technology gave couples the foresight to know that their marriage would not result in procreation. More than likely they went into marriage with the intention to procreate but only later found out that they were unable.
11.2.2005 11:22am
Crane (mail):

This is the same sort of reasoning when looking at Griswold vs. Connecticut: if "the People" always thought there was a right to privacy for married couples to use contraceptives then guess what? THEY WOULD HAVE PASSED LAWS TO THAT EFFECT USING THE DEMOCRATIC PROCESS. DITTO WITH ABORTION.


So, Battletank, I take it you're unaware of the principle that majority preferences cannot overrule minority rights?
11.2.2005 11:22am
Medis:
Taimyoboi,

As you note, I think Dale basically agrees that the Burkean argument is the strongest one, and I look forward to hearing how he addresses it. My point was just that his sense of "substantive arguments" for preserving the definition was broad enough to include such Burkean arguments.

deMaistre,

When it comes to norms, why would these statistical claims about groups matter more than the attributes of the actual individuals getting married? At least if society is in a position to observe the more specific facts (meaning, we can observe the sorts of people getting married and how they end up living their lives), then wouldn't those specific facts dominate over any more general, abstract, and less precise observations about the groups?

Incidentally, I think the obvious answer to your animal marriage argument is that in certain relevant ways animals do not fall within the human range of attributes at all. For example, all animals are incapable of the sort of intentional commitments humans can make, and therefore there is no subset of animals capable of making such commitments. More on point would be to imagine some sort of alien species that might be more human than any animals, but I trust you will agree that such a hypothetical is a little too fictional to be useful.

Cold Warrior,

I am a little puzzled about why you think gay marriage in particular raises the issue of sibling marriage, since it would seem to me that straight marriage raises the same issue. Regardless, one of the many arguments against sibling marriage is that the future possibility of sibling marriage will often have adverse affects on those siblings while they are still children. As always, there may or may not be a way around this problem, but this is an obvious distinction between sibling marriage and gay non-sibling marriage (or straight non-sibling marriage, for that matter) which means that just because marriage is good policy for non-siblings (gay or straight) does not mean it is good policy for siblings (gay or straight).
11.2.2005 11:24am
Anonymous Coward:
PeterH,

Thanks for the reply. So in all honesty, there is no contractual way in which to designate a non-family member as next of kin (not neccessarily as a spouse) within our framework of laws?

Given what great emphasis we place on contractual agreements within our society, this seems like a rather large omission.
11.2.2005 11:25am
PeterH:
Taimyoboi:
Generally, most opponents of same-sex marriage are concerned about the current state of marriage and would like to turn the tide back in the opposite direction; far from cementing it as it is now.


That argument would be a lot more persuasive it state and federal legislatures were routinely addressing Constitutional amendments to outlaw divorce (or even second marriage for those who have proven unable to maintain a marriage), to mandate fertility or childrearing as a prerequisite for marriage, or in any way apply a single one of their stated reasons against gay marriage to straight people.

Somewhere between 95% - 97% of the population is straight, and currently outside of Massachusetts, 100% of the married population is straight. And yet ALL of the focus on "shoring up" marriage is aimed at preventing same-sex couples from marrying.

Show me anything resembling a broad social movement to change legislation to match your theory.

Doesn't hold up. It isn't a real thing. It is an excuse given to make anti-gay focused legislation more palatable to people who don't want to think of themselves as bigots.
11.2.2005 11:25am
Stephen1000 (mail):
I haven't got a clue why this discussion is taking place. And, yes, I've read the justifications for this discussion in this venue.

Really, I don't believe any of them.

I think that something entirely different is going on here. For some reason, the advocates of this absurdity called "gay marriage" want more people to be homosexuals. The inevitable result of this advocacy will, of course, be to lift the social proscriptions against homosexuality, thus encouraging more people to become homosexual or to act out their homosexuality. I've lived among gays long enough to know why they want to encourage the expansion of homosexuality, but that is another issue that I won't address here.

I live in New York City and I just attended the gay dominated Halloween parade. Any correspondents who want to try to convince me that the gay community is not evangelistic... well, tell me another one. I believe what I see and hear.

One thing this discussion has convinced me of: We have too many lawyers, and too many people who want to ape the legalistic rhetoric of lawyers. Lawyers as a class are extremely arrogant people. I know. I've worked for them for decades. The assumption of lawyers that they have the right to impose their will on others, just because they are so damned intellectual, pervades this discussion.
11.2.2005 11:28am
ericvfsu (mail):
Cold Warrior,

If the definition of marriage is changed (legislatively) so that the gender of the COUPLE is irrelevant, how does that alter the current rational basis argument against sibling marriage?

Changing the definition of marraige legislatively avoids some of the very valid slippery-slope arguments of SSM opponents (e.g. sibling marriage, polyamory). If the definition of marriage were changed through the courts, I think we'd be slipping right down those slopes.
11.2.2005 11:30am
deMaistre (mail):
Medis:

To put my point more precisely, the benefits that accrue to some of the individuals in a class that becomes newly eligible to marry must be weighed against the harm to all those eligible to marry that is caused by the changes in marital norms that come by adding the newly eligible class.

So, I am concerned about the welfare of all individuals. My only point is that, in assessing the consequences of gsame sex marriage for all individuals, we must take group attributes into account, insofar as it is group attributes help create the norms that we associate with marriage.
11.2.2005 11:35am
Dave Ruddell (mail):
I think one actually can make a linkage between gay marriage and sibling marriage. After all if gay marriage is legalized, what possible reason can one have for outlawing same sex sibling marriage (SSSM?). After all, there's no chance of a brother-brother or sister-sister marriage producing offspring.

No, I don't consider this to be a serious argument on either side of the issue. I just consider it to be mildly interesting.
11.2.2005 11:36am
Anonymous Coward:


I live in New York City and I just attended the gay dominated Halloween parade. Any correspondents who want to try to convince me that the gay community is not evangelistic... well, tell me another one. I believe what I see and hear.
-Stephen1000


I'm curious as to what it was that stopped you from catching "the gay" even though you attended one of their social functions?
11.2.2005 11:37am
Medis:
deMaistre,

I think I understand your argument, but my reply dealt with your key premise that "group attributes help create the norms that we associate with marriage." My suggested counterargument is based on the premise that is the attributes of the individuals actually getting married, not these group attributes, that will affect marital norms.
11.2.2005 11:39am
Duncan Frissell (mail):
The traditional definition of marriage was most publicly stated in the 1662 Book of Common Prayer marriage ceremony. The prayerbook (which is still in official use in the UK) gives us the iconic wedding ceremony:

"DEARLY beloved, we are gathered together here in the sight of God, and in the face of this congregation, to join together this Man and this Woman in holy Matrimony; which is an honourable estate, instituted of God in the time of man's innocency, signifying unto us the mystical union that is betwixt Christ and his Church; which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended of Saint Paul to be honourable among all men: and therefore is not by any to be enterprised, nor taken in hand, unadvisedly, lightly, or wantonly, to satisfy men's carnal lusts and appetites, like brute beasts that have no understanding; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the causes for which Matrimony was ordained.

First, It was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.

Secondly, It was ordained for a remedy against sin, and to avoid fornication; that such persons as have not the gift of continency might marry, and keep themselves undefiled members of Christ's body.

Thirdly, It was ordained for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity.

This certainly shaped the Anglo-Saxon understanding of marriage and remains the reason that SSM has not become broadly accepted.
11.2.2005 11:39am
Marcus1:
Taimy,

>I do no oppose divorce of any kind, nor does the Roman Catholic church.

I do oppose divorce policy as it currently stands.<

Well, when I brought up divorce, you characterized it as a harmful development to marriage. Beyond that, I asked you if you really meant that in all circumstances. Forgive me for not assuming that you make certain unstated exceptions.

So are you saying divorce law should currently be what it was in 1500? I still say that's pretty harsh. My point, though, was simply that the legal definition of marriage has changed significantly. You may resist these changes, but the changes nevertheless do damage to your notion of marriage as a constant narrowly defined institution for all time.

On another front, I find it offensive that you (presumably) would have the government bind people to marriages that they don't want to be in. You apparently have a very bold view for the role of government in people's personal lives. I think that kind of love of government is a little bit scary.
11.2.2005 11:41am
Paul S (mail):
Stephen1000, of all the reasons to support gay marriage, the notion that it would convert straight people to gayness is surely one of the most preposterous. Even if gay men did want to convert straight men, this would be a bizarre way of going about it. I would have thought the number of straight men who refused to have gay sex because they wanted to get married first is ... uh ... vanishingly small. Would you be gay (assuming you're not already) if you were able to marry? Would any of your straight friends?
11.2.2005 11:42am
PeterH:
Houston Lawyer:
When the anti-miscegnation laws were repealed, no one had to re-write their wedding vows. A bride without a groom at the alter is a very upset woman in a prom dress. A wife without a husband is a widow.
The redefinition of marriage will require the redefinition of a few other terms as well. No longer will children legally have a mother and a father, they will have thing one and thing two. All of our laws regarding family relationships will have to be re-written since all the relationships will have been redefined


Oh please. Nobody will have to rewrite anything about their own marriages, and allowing same-sex couples to have legal recognition does not turn parents into Things.

A married man is a husband. A married woman is a wife. The gender of the spouse wouldn't change that, and most definitely, the gender of the neighbors wouldn't change that.

People in opposite sex marriages will still be husband and wife. Women with children will be mothers. Men with children will be fathers. Again, what the neighbors are doing won't change that for anyone who is currently in a marriage, or for opposite sex couples who marry in the future.

There is not a single thing being redefined. Currently, legally, other than the word used, men and women have no different legal standing within the marriage. Nothing gets rewritten, other than procedurally making "spouse" the legal term. And absolutely nothing whatever changes for couples in opposite sex marriages.

Similarly, mothers and fathers do not have legally separate standing. True, in some individual cases, a divorce settlement or other custody ruling may give the two individuals different standing, but it is not based inherently on their gender.

A child will have parents, and won't be particulary confused as to their gender.

This argument is as absurd as stating that letting black people vote confused white people about the color of their own skin or that letting women be doctors confused men as to their gender.
11.2.2005 11:43am
Medis:
Duncan,

Although interestingly, there is a lot in that definition to support Dale's argument (eg, all of the third cause, the second cause insofar as monogamy might be morally superior for gay people, and the first cause insofar as it applies not just to creating but also to raising children).
11.2.2005 11:45am
PeterH:
Taimyoboi:
Up until very recently, I don't think medical technology gave couples the foresight to know that their marriage would not result in procreation. More than likely they went into marriage with the intention to procreate but only later found out that they were unable.


Not so. My brother married my sister-in-law after her hysterectomy. She will never have another child, and they both knew it entering the marriage. Why can they marry and my partner and I can't?
11.2.2005 11:45am
Tom Wood (mail) (www):
Here's more information on the study that suggested homophobia was correllated with hard-ons while watching gay porn. Very interesting.
11.2.2005 11:46am
ericvfsu (mail):
Further to the issue of sibling marriage.

The beauty of legislating SSM is that you don't have to outlaw sibling marriage or polyamory. Sibling marriage and poly-marriage remain unlawful, as they currently are.

If the issue is decided judicially, all bets are off.
11.2.2005 11:46am
PeterH:
Stephen1000
I think that something entirely different is going on here. For some reason, the advocates of this absurdity called "gay marriage" want more people to be homosexuals. The inevitable result of this advocacy will, of course, be to lift the social proscriptions against homosexuality, thus encouraging more people to become homosexual or to act out their homosexuality.


Just as the only reason for the Civil Rights movement of the 60's was to encourage more white people to decide to be black. Yeesh.
11.2.2005 11:48am
Medis:
ericvfsu,

I mostly agree that the judicial approach is more subject to slippery slope arguments. But I would note that is not necessarily true if one specifically based the judicial rationale on findings of anti-gay, animous-based discrimination. But I think it is clear that Dale is talking about policy with an intended audience of political actors, so that is just an aside.
11.2.2005 11:51am
Taimyoboi:
"Show me anything resembling a broad social movement to change legislation to match your theory."

PeterH,

There is the rather large social conservative movement to see conservative justices placed on the bench so that these issues can be decided by their state legislatures.

But, considering that same-sex marriage is one of the few issues that has not already been ruled on by the Supreme Court (read: emanated from penumbras), it makes it difficult to to have a groundswell for enacting legislation that is already considered unconstitutional.
11.2.2005 11:51am
David (not the registered one):
Battletank:

Doesn't your entire argument apply only to the question whether same-sex marriage should be recognized by judicial decision, and not the question whether it should be recognized by legislative action? Dale is making a public-policy argument of the sort one might present to a legislature, not a legal argument designed to be presented to courts.

And if you're assuming (without quite explicitly stating) that same-sex marriage will never be enacted by state legislatures, the evidence doesn't support your view. The California state legislature recently passed a bill allowing same-sex marriage, although Governor Schwarzenegger vetoed the bill. The Connecticut legislature voted for "civil unions" giving essentially the same rights as marriage, though they didn't bestow the name-- yet. The Massachusetts legislature rejected a constitutional amendment that would have overturned the court decision allowing same-sex marriage in that state. The Canadian parliament voted to allow same-sex marriage, and I'm fairly certain it was enacted legislatively in Belgium and the Netherlands as well.

At this time it still remains strictly true that no legislature of a state in the United States has enacted same-sex marriage that was not previously imposed by a court, under the name of marriage, without facing a successful gubernatorial veto. But all four qualifiers are necessary to make that statement true even now. Given how close several legislatures have come, it strikes me as foolish to base one's arguments on the premise that same-sex marriage under the name of marriage will never be passed by a state legislature that happens to serve under a governor who shares their sentiments. (If you think that there's something special about governors that makes them less likely than legislatures to allow same-sex marriage, note that both likely post-2006 NY governor Eliot Spitzer and Phil Angelides, one of the main candidates for post-2006 California governor, support same-sex marriage.)
11.2.2005 11:53am
PeterH:
deMaistre
To put my point more precisely, the benefits that accrue to some of the individuals in a class that becomes newly eligible to marry must be weighed against the harm to all those eligible to marry that is caused by the changes in marital norms that come by adding the newly eligible class.


And since there isn't the slightest change to the rules, obligations, or benefits for the people who are currently allowed to marry, and because each couple determines the conduct and (if appropriate) resolution of their particular marriage with no legal coercion from their neighbors, please explain the EFFECT, much less harm, to straight couples by letting same-sex couples marry.

Your original point was that straight couples are doing something very different than gay couples when they marry. I don't agree, but if you are right, my point is even more valid. How do gay couples' marriages cause harm to "eligible" straight people?

If they choose to marry someone of the opposite sex, nothing about their marriage changes from the way it is today. Where's the harm?
11.2.2005 11:55am
Paul S (mail):

The Canadian parliament voted to allow same-sex marriage, and I'm fairly certain it was enacted legislatively in Belgium and the Netherlands as well.


And in the U.K. Of course that doesn't prove that it will be enacted in the U.S. But if one is looking a public opinion, it does show that public opinion in states with a similar social and cultural tradition to the U.S. can shift in support of SSM.
11.2.2005 11:57am
Medis:
PeterH,

Although I do not agree with deMaistre's ultimate conclusion, I think the proposed mechanism leading to harm is something like a broad change in marital norms.
11.2.2005 11:59am
Stephen1000 (mail):
To Paul S and Anonymous Coward:

Yes, in the past many men and women have married and refrained from homosexuality activity because of the social proscriptions placed on them by society. And, yes, lifting those proscriptions encourages more men and women to act on their homosexual impulses. And, no, I'm not gay.

Since I've lived among gay men in San Francisco and New York for 35 years, I'll state some obvious things that are unpleasant, and contrary to PC BS. Gay men get bored with the ease of accessibility to partners among the already publicly gay. Finding and having sex with non-gay men is a dominant fetish among gay men.

I do know how this discussion got started. In about 1969, feminists began to complain that suburban white women were discriminated against in the same manner as blacks in the Jim Crow south. They should be ashamed of themselves. Gays aped this strategy. They should be doubly ashamed of themselves.

We now have a sort of legacy debate based on these fraudulent and morally disgusting assumptions. Regardless of the merits of gay marriage, the manner in which this discussion came to the public forum is one of the most damnable and revolting things I've ever witnessed. In my lifetime, it has become common for a fat spoiled white brat who grew up with a doctor for a father to assert that he is an "oppressed" victim because he is gay. Colleges caved in to this nonsense, and so did businesses.

How can a debate which grew out of such a condemnable series of lunatics assertions be anything but corrupt?
11.2.2005 11:59am
Joshua (mail):
Crane wrote:
So, Battletank, I take it you're unaware of the principle that majority preferences cannot overrule minority rights?


My thoughts exactly! It is one of the founding principles of this country. It also goes hand-in-hand with another principle, that the rights of the indidivual trump the interests of society/the state.

In other words, even if it could be established beyond a doubt that state-sanctioned same-sex marriage would indeed have a harmful impact on society, the rights of gay people (as a minority and as individuals) to be free from discrimination in marriage laws still trumps that concern. The opposite position - unspoken but definitely implicit in most arguments against SSM - smacks strongly of totalitarianism. It also implies that our societal well-being is predicated upon the continuance of a custom that, on its face, runs directly contrary to these founding principles. Do SSM opponents really have that little faith in the idea of America as a free society?
11.2.2005 12:00pm
Mr Diablo:
Taimy, I think Peter was asking if you could reference to us some current legislative efforts to eliminate divorce, second marriages and other changes to marriage over the years. Outside of such governmental intrusions into life as required counseling, the only efforts to stop the so-called decline of marriage seem to be those aimed at preventing gay and lesbian couples from entering into their own marriages.

It is hard to tell the effort to save marriage from an effort that is mindlessly and hopelessly just a front for anti-gay bigotry, not crafted in protection of a definition of marriage but forged from religious opposition or personal animosity--two grounds that do not pass strict scrutiny that should be in place on wholesale discrimination.
11.2.2005 12:00pm
deMaistre (mail):
Medis,

I think the attributes of those *eligible* to get married are just as important (perhaps even more!) in creating or undermining a norm as the attributes of those who actually do get married. The causal mechanisms are complex (as must be the case with a norm), but two might be that (i) people who decide not to get married set an example for others that getting married isn't important or desirable, and (ii) people who decide not to get married explain to others their reasons for not getting married in such a way as to persuade others to alter their attitude towards marital norms.

For example, a plausible consequence of same sex marriage is that most gay men don't consider marriage at all, and then only when they're old and undesirable. The norm may then develop that marriage is for the desperate, and that the young and healthy enjoy more fluid sexual relationships while they can. This norm might be gine for gay men, but also might be bad for straights.

Isn't the whole debate over same sex marriage is over norms? Legal consequences of marriage are incidental, in that they can be changed piecemeal. No legal consequences must necessarily flow from a peice of government-issued paper declaring a couple "married."

When it comes to norms, hoewver, ther are important questions: (i) what are the norms of marriage? (ii) are these norms good? (iii) will these norms improve the lives of gays (and the children of gays) if we have same-sex marriage, (iv) will same-sex marriage cause marital norms to change, and (v) will the changing marital norms cause harm?

Prof. Carpenter is making a persuasive case that marital norms are good and will improve the lives of gays (and the children of gays). BUT perhaps same sex marriage will change marital norms, which may not be very welcome.
11.2.2005 12:02pm
APL (mail):
I was jokingly accused by a friend of becoming gay so that I would know what it's like to be a member of a despised minority. I had to laugh. I don't know what its like to be a member of a despised minority? Come on. I am a lawyer.

Levity aside, I would like to add that if, in the sense of Burkean conservatism, which believes in gradual and not radical changes, and a degree of respect to tradition or precedents, some value or deference must be given to the definition of marriage as an opposite sex couple because of its longevity, such deference would appropriately be in the nature of giving full, even exhaustive study as to why marriage participation was so defined, rather than in blind adherence to the fact of the definition. One could certainly argue that Burke would have approved of gay marriage, the intent of which is to change the eligibility of participants to marriage, not the quality thereof, i.e. that imposing an approved and traditional social construct on a relatively new social situation (openly gay committed long-term relationships free from legal constraints to their existence or acts) is the essence of the Burkean belief that social constraints have to be implemented through traditional means.

The difficulty in accepting this argument for those who oppose same-sex marriage because they believe gay sex is wrong stems from their desire to utlize exclusion from marriage as a social control to limit homosexuality.
11.2.2005 12:02pm
Tam:
I agree with Stephen1000: I don't even know why Dale Carpenter raised this argument. If I remember correctly, Dale said at the beginning of the week that the burden of proof was on the proponents of gay marriage. What did today's debate prove except that proponents reject the normative definition of marriage? We knew that already.
11.2.2005 12:02pm
Mr Diablo:
Stephen, we cannot marry, we cannot express ourselves and a lot of us are forced to endure a constant verbal assault (sometimes intentional, and sometimes in offhand comments like the use of "fag" or "gay" as a catch-all derogatory remark). It is not Selma, Ala., but it does not matter how an issue of discrimination moves to the forefront, it is what we do with the issue after.

If America had corrected its great racial injustice with the Civil Rights Act after 70 years of peaceful discrimination, would it have made the correction less just?

As for your analysis and discussion of what makes us gay men tick, it is wholly irrelevant and completely irrelevant to what rights gay people deserve. Straight people are allowed to get married no matter what their fetish is; they have not forced Lara Flynn Boyle to sleep with Jack Nicholson.
11.2.2005 12:07pm
Paul S (mail):
Stephen S:

Your argument is simply muddled. It muddles three things. First, are gay people right to claim that they have been in the past and to some extent still are discriminated against unfairly because of their sexuality? I'd say yes, you'd say no. I'd completely agree that there are much worse things than being gay. But there are bad things about being gay, and unnecessarily bad things. And since it's not a choice between eliminating poverty or eliminating homophobia, one can try to do both.

Second, do gay people want to "convert" straight people? We have to agree to disagree. Sure, some gay men get a kick out of the idea of sleeping with someone straight, but I'd say that it's a fairly small minority. I think most gay men steer clear of relationships with people who are not comfortably gay, because they tend to be trouble. Maybe your experience is different; maybe I'm wrong. Doesn't matter.

Third, is support for gay marriage part of that strategy? That's where I'm totally sure you are wrong. It simply is not the case that timid gay guys or the sexually confused are being kept in the closet by the inability to marry, much less that straight men would have gay relationships if they could get a rock to go with it. Getting married is a strong public affirmation of your sexuality: it is going to be those who are comfortably and confidently gay who go in for it, not fence-sitters much less those happily ensconced in the next-door yard.
11.2.2005 12:12pm
PeterH:
deMaistre,

Interesting that you only postulate negative changes in the norm. Most proponents of marriage for straight people seem pretty firm in the idea that it is a good thing, and tends toward positive social things.

Odd that you seem to feel that it is more likely that marriage will be a negative influence on gay people. Please at least recognize that the idea that gay men will only want to marry when they are "old and undesirable" is at the very least insulting, and also completely overlooks the current reality, that lots and lots of gay couples are forming stable, committed relationships young, right now.

Add in the inevitable social pressure to marry (and don't tell me that parents aren't going to push for it) and chances are that the gay married demographic will fairly quickly mirror the straight one. Perhaps, and only perhaps, the gay population will not match any tendency among the straight population to marry young only in order to legitimize having sex (it happens), but rather to solidify an emotional committment. Would that be a bad thing? Those straight marriages tend to break up anyway.

And once again, the question: Why should the burden of upholding the standards for the 97% of the population who are straight fall upon the 3% who are gay? Seems very inefficient. Why don't straight people police their own norms? Even if every single gay marriage skewed the norms, first, statistically, it won't matter a lot, and socially, do you really think that most straight people are going to judge their marriages by how gay people conduct theirs?
11.2.2005 12:16pm
Taimyoboi:
"My brother married my sister-in-law after her hysterectomy. She will never have another child, and they both knew it entering the marriage."

How does this, in anyway address the point that for most of history couples did not enter into marriage knowing ahead of time that they would be unable to have children?

The point being that, until the advent of recent medical technology, there has never been a need to rationalize why infertile couples were allowed to marry because no one knew that they were infertile until after marriage to begin with.

Saying that because couples can now marry knowing ahead of time that their marriage will be childless does not detract from the contention that, by and large, marriage has been traditionally understood as an institution primarily designed around the procreation and rearing of children.
11.2.2005 12:16pm
Bob Van Burkleo (mail):
Sebastian Holsclaw

"Judges acting by pretending that they aren't really making a change is not the way to do it. The definition can be offered in its own defense in court, just not in the legislature."

But judges aren't changing a definition, they are disallowing a licensing restriction on a civil contract that touches on a fundamental right held by all citizens.

Same gender couples can already marry - marriage comes from beyond government and law which are themselves merely a complex 'definition' having no objective reality.

The judges are just asking if citizens are being excluded from access to a civil contract according to legal precedence and ethics. Its name is irrelevant since the contract of marriage is not 'marriage'. Be like saying that only those that are happy can license the civil contract of 'happy' and some being under the illusion they or 'the government' can decide if someone else is happy or not.

All being a reason to just end the confusion and call the two different things by two different terms and then re-engage the discussion if they are truly right and not just playing word games they should be able to defend the exclusionary licensing requirements of the civil contract even if it discussing who can license the civil contract of 'george'.
11.2.2005 12:19pm
Perseus:
Since Mr. Carpenter has a nominalist view of marriage (i.e. there's no natural essence to the idea of marriage--somehow I don't think that Plato, for example, would agree), could he also redefine my American dollars to be equal (1:1) to the British pound while he's at it? I'd most appreciate it.
11.2.2005 12:21pm
Taimyoboi:
"...is hard to tell the effort to save marriage from an effort that is mindlessly and hopelessly just a front for anti-gay bigotry..."

Mr. Diablo,

If you think that opposition to same-sex marriage is merely a front for anti-gay bigorty, then so be it.

No fact or argument that I make will likely dissuade you otherwise, so there is no point in debating someone who comes to the table already assuming I'm a bigot.

Like, for example, making the point that since outlawing divorce or contraception is already unconstitutional according to the Supreme Court, then its hard to push for legislation trying to outlaw those things.

Which, as I pointed out once already, is why the large social movement you were looking for is that currently lobbied against Miers and for conservative justices like Alito, who will allow states to then go ahead and revisit the legislative initiatives that you find missing.
11.2.2005 12:25pm
Taimyoboi:
"...is hard to tell the effort to save marriage from an effort that is mindlessly and hopelessly just a front for anti-gay bigotry..."

Mr. Diablo,

If you think that opposition to same-sex marriage is merely a front for anti-gay bigorty, then so be it.

No fact or argument that I make will likely dissuade you otherwise, so there is no point in debating someone who comes to the table already assuming I'm a bigot.

Like, for example, making the point that since outlawing divorce or contraception is already unconstitutional according to the Supreme Court, then its hard to push for legislation trying to outlaw those things.

Which, as I pointed out once already, is why the large social movement you were looking for is that currently lobbied against Miers and for conservative justices like Alito, who will allow states to then go ahead and revisit the legislative initiatives that you find missing.
11.2.2005 12:25pm
Mr Diablo:
Taimy,

If you are not just euphemising a particular brand of bigotry, can you explain to me three things:

(1) Your steadfast reservation of marriage for opposite-gender couples: Where does it come from?

(2) What rights are owed to gay and lesbian people?

(3) What is their proper place in society if they are not to be treated as equals?

I would love to think of you and all those who oppose equality as not bigoted, but rather versed in a particular form of equal protection, but I have trouble figuring out what that is. Help me help you.
11.2.2005 12:32pm
PeterH:

Taimyoboi: How does this, in anyway address the point that for most of history couples did not enter into marriage knowing ahead of time that they would be unable to have children?

The point being that, until the advent of recent medical technology, there has never been a need to rationalize why infertile couples were allowed to marry because no one knew that they were infertile until after marriage to begin with.


Why should it have to? I am not trying to get married in 1505, I am trying to get married in 2005.

Your observation is valid historical fact. But so would be things like slavery, the subjugation of women, the feudal system, and the Divine Right of Kings. Their historical reality does not mean that they count as reasons in a current debate.

Regardless of what medical technology may or may not have been, and whether or not couples might have been prevented then using what we know now, the fact is that today, straight couples who know that they are infertile (and the removal of a uterus is hard not to notice, by the way) are not barred from marriage.

Tradition is a wonderful straw man, but please at least stick with the traditions that actually apply today.
11.2.2005 12:32pm
Joel B.:
One fundamental problem, is that at some point, definitions cannot just be reinterpreted at will. This is best represented in a mathematical type rationalization, 2=1+1 as much as 3=2+1 and the like, as much as one might disagree with the defination, you can't change the definition with out destroying the original meaning if we say now that 2=1+0, then what does 2 mean anymore, it means nothing, we can't use that definition anymore, 2 by it's new definition is no longer 2.

The Reese's peanut butter cup analogy someone referenced was especially good. This is why opponents are so convinced on this issue, you can change the definition of marriage, but you can't change marriage.

In some ways this whole discussion, I think, feels like 1984 and Newspeak

As we have already seen in the case of the word free, words which had once borne a heretical meaning were sometimes retained for the sake of convenience, but only with the undesirable meanings purged out of them. Countless other words such as honour, justice, morality, internationalism, democracy, science, and religion had simply ceased to exist. A few blanket words covered them, and, in covering them, abolished them. All words grouping themselves round the concepts of liberty and equality, for instance, were contained in the single word crimethink, while all words grouping themselves round the concepts of objectivity and rationalism were contained in the single word oldthink.

You can redefine free or marriage or whatever, but genuine freedom will still exist as will genuine marriage, you just obliterate the usefulness of the word marriage, so maybe 10 years from now marriage will be referred to simply as "crimethink." Marriage as word of course would also cease to exist, but we could probably just call it doubleplusgood friends.
11.2.2005 12:35pm
Appellate Junkie (mail):
Taimyoboi:

Hardly a shrinking minority...

I think we've already had the statistical-import discussion, so I'll be brief.

Taken as a whole, I find the shrinking minority interpretation to be far more plausible. That doesn't mean it will necessarily come to pass.

As for the 2003-04 study you cite (with which I'm not familiar), a three point swing is almost certainly within the margin error. I wouldn't hang my hat on that being the end of the discussion, but we should note it in passing.

Far more importantly, national coverage of the SSM debate changed dramatically in the latter part of 2003 (Mass. ruling) and the early part of 2004 (San Francisco Mayor Newsom's love stunt). People's responses to otherwise abstract questions typically incorporate their reactions these reports ("activist" judges shouldn't be doing this; Newsom must not [and ultimately did not] get away with that).

Longer-range and broader polling conducted by lots of organizations have shown periodic back sliding in support for SSM, but a generally positive trend. The age-related demographics also support (but do not guarantee) the notion that those trends will continue over the long haul.

As Randy noted later, anti-gay sentiment more broadly (or perhaps more stridently) is clearly on the decline. Like you, I think that's a good development indeed. The degree to which that may lead to more support for marriage, per se, is uncertain. But, it seems likely to have some effect.

In either event, there's no shame in being the minority. At the moment you clearly aren't at a national level. If you're my age or older, you'll probably meet your maker in the comfort of still being in the majority.
11.2.2005 12:37pm
Bob Van Burkleo (mail):
"My brother married my sister-in-law after her hysterectomy. She will never have another child, and they both knew it entering the marriage."

How does this, in anyway address the point that for most of history couples did not enter into marriage knowing ahead of time that they would be unable to have children?
Shows that how it used to be is now irrelevant to the discussion.
The point being that, until the advent of recent medical technology, there has never been a need to rationalize why infertile couples were allowed to marry because no one knew that they were infertile until after marriage to begin with.
But now they do, just as now we can determine parentage without the aid of the assumed parternity aspect of the civil contract. The light of the changes in what we know and what we can do it puts the appeals to tradition derived from ignorance in a very dark and weak place.
11.2.2005 12:37pm
Duncan Frissell (mail):
I would love to think of you and all those who oppose equality as not bigoted, but rather versed in a particular form of equal protection, but I have trouble figuring out what that is. Help me help you.

We actually have an easy method of proof. After this week is over I will compare all the comments to Dale's posts with all of the comments to Maggie's posts. Divide them into pro or con and count the "negative" adjectives and nouns in each category. Least abusive side wins. Most abusive side is the most bigoted.
11.2.2005 12:41pm
Mr Diablo:
Duncan, I think that goes up there with 2+1 = 0 Guy and UCLA Survey Dude as the Mathematics Abuse of the Day.

Besides, it does little for those of us who cannot hide behind adjectives like "traditional" or "conservative" to effectively mask our beliefs. We progressives are still reading our George Lakoff and will not have a spin machine up and running until Oct. 2006 (actually, that is spin; it probably won't be ready until 2007).
11.2.2005 12:47pm
Cold Warrior:

Cold Warrior,

I am a little puzzled about why you think gay marriage in particular raises the issue of sibling marriage, since it would seem to me that straight marriage raises the same issue. Regardless, one of the many arguments against sibling marriage is that the future possibility of sibling marriage will often have adverse affects on those siblings while they are still children. As always, there may or may not be a way around this problem, but this is an obvious distinction between sibling marriage and gay non-sibling marriage (or straight non-sibling marriage, for that matter) which means that just because marriage is good policy for non-siblings (gay or straight) does not mean it is good policy for siblings (gay or straight).


I understand this is a bit tangential to the "definition of marriage" argument we're supposed to be talking about, but I'll carry on anyway.

Here's the problem (and remember, I'm no Chicken Little here with respect to gay marriage; I just can't seem to find a good reason to exclude sibiling marriages if we allow same sex marriages).

I can easily construct an argument that passes the rational basis/equal protection test for marriage as it exists today in 49 states:

1. Any man may marry any woman

2. By definition, a man and a woman are capable of producing children

3. Children of siblings (or of cousins) have the potential of producing children with a higher percentage of certain hereditary defects

4. Therefore, there is a rational basis -- limiting the number of children with hereditary defects -- for excluding siblings from marrying each other.

Assume an equal protection challenge brought by a brother and sister when the sister is well past menopause. Since factor (2) doesn't apply -- they are not able to conceive a child (assume there's no reproductive technology that would allow it to happen), why can't they marry? After all, without (2), (3) and (4) aren't real concerns.

My rational basis defense of sibling marriage prohibitions is easy: the State is free to create a somewhat overinclusive category of people who aren't allowed to marry in the interest of preventing genetic defects. The alternative: either the State would have to accept a higher percentage of children with genetic defects, or the State would have to undertake an intrusive medical examination to assure that the siblings were, in fact, incapable of conceiving a child. This is a rational basis test -- we don't need to show that this is narrowly tailored, etc., to meet the State's objective. And it passes the rational basis test.

Now assume we're in Massachusetts. Same sex marriage is lawful. Two sisters try to marry each other. Maybe they want to make sure that they can hold property as joint tenants with right of survivorship or some other sensible reason. Again, factor (2) isn't present: they can't co-conceive a child, so factors (3) and (4) aren't real concerns. We don't need any kind of intrusive fertility testing here --by definition (again, assume no high-tech gene splicing here) they can't produce a child together.

Exactly what rational basis is there for refusing them a marriage license??

Once again, I support some version of same sex marriage.

But really, we ought to be ready to answer this question. Unlike the silly "Well, why can't I marry my dog" argument, this one strikes me as serious and real.

And again, that's why I think something not called marriage -- but rather a civil union or some such thing, with all the rights and obligations of marriage, and accorded full faith and credit under federal law -- is a better solution. Not many people would recoil in horror to think that 70 year old sisters sharing a home would form a civil union to clarify their inheritance rights; many people would recoil in horror to think that they got married.
11.2.2005 12:48pm
Joel B.:
Apparently saying 2=1+0 is a mathematical abuse (which it is), but saying marriage = Not marriage isn't linguistic abuse, but it is.
11.2.2005 12:53pm
Stephen1000 (mail):
From Peter H:

"Just as the only reason for the Civil Rights movement of the 60's was to encourage more white people to decide to be black. Yeesh."

This analogy is a moral atrocity. Same on you. These tactics are just plain insane and evil.
11.2.2005 12:53pm
Stephen1000 (mail):
An irrelevant question:

This is a discussion that has been forced, unwanted I believe, on the all but a few Americans. I don't regard gay marriage as a civil rights issue. In fact, I question the sanity, decency and basic goodwill of those who consider gay marriage a civil rights issue. Those who call me a bigot as a result... well, I'll meet you out in back of the barn.

Has it occurred to you, lawyers and intellectuals, that in arrogating to yourself the right to impose this discussion on Americans (most of whom I guarantee you regard this discussion as close to insane), you may be killing the golden goose?

I mean, you may be igniting the dynamite that starts a rebellion against your dominion over our institutional life. The specifics of that rebellion against you I cannot list. Have you ever considered this?
11.2.2005 12:59pm
Tom Wood (mail) (www):
Cold Warrior:

So, you're saying that if a brother and sister can prove they're unable to bare children, they should currently be allowed to get married because there's no risk of genetic defects?
11.2.2005 1:01pm
Anonymous Coward:

Cold Warrior:
Now assume we're in Massachusetts. Same sex marriage is lawful. Two sisters try to marry each other. Maybe they want to make sure that they can hold property as joint tenants with right of survivorship or some other sensible reason. Again, factor (2) isn't present: they can't co-conceive a child, so factors (3) and (4) aren't real concerns. We don't need any kind of intrusive fertility testing here --by definition (again, assume no high-tech gene splicing here) they can't produce a child together.

Exactly what rational basis is there for refusing them a marriage license??


I am not a law expert, but I was under the impression that marriage was a way to include someone from outside your family into your family - kind of like adoption, but a lot cheaper. Considering that sisters are already in your family (survivorship may be assigned as such, and familial proximity isn't neccessary for holding property as joint tenants), there is no rational basis to grant them marriage to each other. This completely sidesteps the issue of reproduction and hereditory handicaps that you raised.
11.2.2005 1:09pm
Mr Diablo:
Joel, you are missing the point: This is about how weak and purely circular the definition of marriage defense is to changing the definition of marriage.

(Aside: That sentence alone should make it clear that the conservatives who oppose changing this definition because it would change the definition are on shaky ground.)

(That one, too.)

It does make a difference if we call gay marriages "Potato" or "Civil Union" or other rubbish (or, even "Rubbish"... although my favorite is "Sodomy Permit"). History has told us that "separate but equal" means "separate and not equal" -- and that was at a time when the same words were used to describe things that were the same (everyone in Mississippi had a right to "public education", and your "public education" meant two very different things depending on your racial classification).

It appears getting hung up on language and the traditional definition of language is a red herring that those who oppose equal rights for gays... unless of course I am wrong about that. I'm still waiting on the proof that shows that this isn't just bigotry masquerading as legal lingo.
11.2.2005 1:10pm
LS:
Prof. Carpenter:

The definitional argument isn't as circular as you suggest.

There is a normative basis for the argument--natural language. The definitional argument is based on how people actually use the word "marriage." Normal people--i.e., non lawyers--define words based on how they're used.

What does a dictionary writer do? The naive view is that dictionary writers tell people what words mean. What dictionary writers actually do--or should do--is determine what words mean based on how they're actually used.

You only need to offer a further normative argument when you go beyond the natural language definition.

On this view, definitional arguments are not circular. If there is a problem with definitional arguments, it's evidentiary rather than logical. The real problem is that there just isn't enough evidence that the word "marriage" actually has the meaning that gay marriage opponents claim.
11.2.2005 1:11pm
Anonymous Coward:

Tom Wood (mail) (www):
Cold Warrior:

So, you're saying that if a brother and sister can prove they're unable to bare children, they should currently be allowed to get married because there's no risk of genetic defects?


You need to bear in mind that marriages of cousins are possible in some states if it may be demondstrated that either of them are infertile. However, the line is drawn at immediate family because immediate family is already directly related and there is thus no need for granting kinship rights to them, and thus no need for marriage.
11.2.2005 1:12pm
Joel B.:
Whoa, so now marriage is about incorporating people outside your family to inside? And here I thought it was all about the love. Incidentally, near blood marriages are much more "common" than perhaps we tend to think about today. That's not to say it shouldn't be taboo (it's good that it is), just that definitionally, it doesn't pose as much harm to marriage as some other redefinitions.
11.2.2005 1:14pm
PeterH:
Stephen1000:This analogy is a moral atrocity. Same on you. These tactics are just plain insane and evil.


Excuse me, why? You are the one who said quite firmly that the only reason gay couples are trying to get married is to trick heterosexuals into becoming gay. By extension, you are claiming that gay people have no interest in forming loving, stable, relationships, in providing for our children, in caring for each other into old age, in providing financial stability, or any of the myriad reasons why straight people get married.

You parse us into sexual predators trying to destroy society by perverting a fundamental social institution.

And MY analogy is an atrocity? No, sir, it is an absurdity. Intentionally so. I have yet to meet a single gay person who is trying to marry in order to have sex with straight people. Maybe there are a couple out there, but if I ran into them I would tell them they are idiots. You are left to imagine my opinion of your "theory."

If indeed you are meeting people who are saying what you claim all of us to be thinking, my guess is that they are saying it in order to make people they consider bigoted uncomfortable rather than out of any conviction that it is true. That is, however merely an opinion on my part. I know for a fact that your sweeping statement regarding the motivations of all gay people on this issue is flat-out false.
11.2.2005 1:16pm
Cold Warrior:

I am not a law expert, but I was under the impression that marriage was a way to include someone from outside your family into your family - kind of like adoption, but a lot cheaper. Considering that sisters are already in your family (survivorship may be assigned as such, and familial proximity isn't neccessary for holding property as joint tenants), there is no rational basis to grant them marriage to each other. This completely sidesteps the issue of reproduction and hereditory handicaps that you raised.

No, that won't do it.

Not unless all the benefits of marriage are accorded to siblings who seek to have them.

Again, I invite someone to come up with a good policy objective that would withstand the rational basis test in Massachusetts upon a challenge brought by my elderly sisters.
11.2.2005 1:16pm
Mr Diablo:
Stephen, that is beyond irrelevant. And honestly man, you lived in San Fran an New York, you went to a gay Halloween parade the other night, and you don't have enough sense to not make a "back of the barn" joke on a message board discussing gay marriage?

You seem to think about gays more than me; and I have to see my boyfriend every night!

Why is this discussion crazy talk? Why is it insane to question what rights gays and lesbians deserve under equal protection? On what grounds do you question our sanity and goodwill and decency? You made a mouthful of a comment there, and I would think for someone so versed in gay culture, you'd be able to explain yourself.

And what is this rebellion of which you speak? Who is going to fight in it? Is it going to be like that wild and crazy rebellion that is taking place in Massachusetts, where since gay marriages became legal, nothing happened?

I think it is fascinating that a traditionalist like yourself needs not one, but two references to physical violence in a message debating the issue of gay marriage.

For someone who does not want to compare gay equality to the Civil Rights Movement, you continually fall back on the phrases of segregationists who made similar predictions of violence and summarily dismissed those who wanted to enact equality as loons.
11.2.2005 1:19pm
Cold Warrior:

Cold Warrior:

So, you're saying that if a brother and sister can prove they're unable to bare children, they should currently be allowed to get married because there's no risk of genetic defects?


Actually, no.

When you think about it, a brother-brother or sister-sister pair would now have the better equal protection argument for marriage in Massachusetts. Biology renders the State's concern with genetic defects inoperative.

The brother-sister would need to prove joint infertility, and the State would be free to say that it is perfectly free to exclude all brother-sister marriages rather than create a lengthy and expensive fertility testing process.
11.2.2005 1:19pm
Anonymous Coward:

Joel B.:
Whoa, so now marriage is about incorporating people outside your family to inside?


Well, leaving aside property accumulation and powerplay, hasn't marriage historically been about building kinship bonds? Cementing familial ties between families by trading (more often than not, female)children in exchange for other goods, establishing hostage situations and diffusing feuds, etc. So what is so strange about recognizing that marriage is about bringing someone from outside your family into it?
11.2.2005 1:19pm
PeterH:
Again, I invite someone to come up with a good policy objective that would withstand the rational basis test in Massachusetts upon a challenge brought by my elderly sisters.


Why can't it stand alone on its own merits rather than being part of the case against same-sex marriage?

I repeat my (so far unanswered) question: What is it that keeps sibling marriage illegal now that would be changed by making marriage between two persons not closely related by blood?
11.2.2005 1:21pm
Joel B.:
Mr. Diablo-

No, we're speaking past each other. I'm saying that marriage is a fundamental definition, it is something it exists outside of whatever name we give it. In the same way 2 exists it is a number it is whatever number that is exactly 1+1. If we run around and change the definition of 2 to be something else like 4, we've done nothing to the genuine number two it's still there, just now instead of counting 1, 2, 3, we will count 1, 1+1, 1+1+1.

At some level, everyone has axioms, definitional beliefs that people make logical conclusions from, but these axioms are definitional. I say marriage is axiomatic, proponents say that marriage is defined by something else, it is "two people coming together in love." Well good for them that they say that, but I say, 'it's not.'
11.2.2005 1:24pm
Anonymous Coward:

Cold Warrior:
No, that won't do it.

Not unless all the benefits of marriage are accorded to siblings who seek to have them.

Again, I invite someone to come up with a good policy objective that would withstand the rational basis test in Massachusetts upon a challenge brought by my elderly sisters.


Why do you think that is the case when you consider that cousin marriage is ok if one or the other is infertile, but not sibling heterosexual marriage if one or the other is infertile? As such, using already established precedent for cousin marriage, why couldn't sibling marriage be pursued along those lines instead of using SSM lines?
I would venture that this tangential treatment has quite deviated into differences between direct and indirect familial relationships and are independent of SSM.
11.2.2005 1:25pm
Mr Diablo:
Cold Warrior, You still have not explained to me how the burden of preventing same-sex sibling marriage falls on those who favor allowing gays to marry.

We favor the same-sex part, but we don't want anything to do with the sibling part, neither do you. What are the current justifications for not allowing siblings of opposite sex to marry? How can you, right now, in any state, justify denying that right to infertile old opposite-sex siblings?
11.2.2005 1:26pm
On Lawn (mail) (www):
Dale,

Having made the affirmative traditionalist case the past two days, today and tomorrow I'll respond to some of the most common arguments against gay marriage.

I find that self-serving commentary to be in poor taste. You presented what you claimed to be a traditionalist case for ss"m" which you admit has no evidence, so to wrap it up with this self serving commentary "Having made the ... case".

What same-sex couples are asking for is not marriage.

No, it is like a kid sitting in their room saying "I want to be a rock star". Having no idea what the life of a rock star is really like, or the drive to develop musical talents. They see glitz and glamour and attention. They want what the rock star has, not to be a rock star.

It [the appeal to definition] offers no normative defense of the definition; it stops there.

You are arguing that an appeal to definition is not a normative defense? I'm not sure you know what the word "normative" means.

It is saying, without further argument, that same-sex couples cannot be married just as dogs cannot be cats.

I noted before that I'm suspicious of how you recast arguments, and this would validate that. The word change was subtle but allow me to make a distinction here. Replace 'cannot be' with 'are not' and you have the argument. That something is not another, thus should not be classified as another is a basic tennant of biological research. The ability to make distinctions is at the foundation of scientific, philisophical, and even creative reasoning.

I appeal to good faith here, please try better to understand the arguments you are rebutting. To make subtle self-serving changes is not argument it is dime-store sohpistry.

It is saying, without further argument, that same-sex couples simply cannot qualify for marriage just as non-veterans cannot qualify for veterans' benefits.

Again you are confusing an argument with a conclusion. Perhaps you think it a false-analogy, or has some other logical flaw. But I don't see your complaint as being anything like that. You seem to be dismissing it as not enough for you, without further argument as to why.

As soon as a normative defense of the male-female definition is attached to the argument (for example, "the male-female definition of marriage is right because children need mothers and fathers"), the argument is no longer the pure definitional argument as I use that term here.

That statement contradicts the second sentance of that paragraph, "The definition itself is asserted unadorned as an argument against gay marriage." Am I to wade through such self-contradictory argument this whole article?

These arguments aren't passing even the slightest scrutiny.

The obvious problem with the definitional argument is that it suffers a very serious logical flaw. It is circular and conclusory.

Again, this makes me question your basic understanding of logic and the schools of thought that subscribe to it. A definition such as `let a be every number divisible by two` can be both the beginning and conclusion of an argument, and that constitutes a requirement of a proof. Reductio-ad-absurdum is a way to check that requirement holds as it monitors whether premises remain intact to the conclusion without contradiction. So what you are claiming is a flaw is anything but.

Here is an example.

An appeal to definition is not a normative argument. When one appeals to a the existance of documented, referenced and generally known concepts or things, that is normative. A definition is a documents, references generally known concepts or things. A appeal to definition is a normative appeal, which is a contradiction.

Is a definition a circular logic? No, as mentioned in the paragraph above it can be verified externally. There is a subjective sense of "it is what it is" which is a normative appeal and you are no doubt suggesting makes it circular.

Lets look at this another way though, shall we? Earlier you used the words "cannot be" in a description of an definition argument, and I suggested that "are not" was a better term. Your choice of words indicates to me that you are pressing the argument that we should consider if the definition has to be "a man and a woman", as in cannot be changed, are you not?

That this admits a change in definition is afoot is positive progress for many ss"m" advocates who don't see a definition change happening at all, but I digress.

From the beginning I've been asking you to present an argument as to why ss-couple has to be called a marriage. Why? Because you want them to be more like heterosexuals? Perhaps, but that is just "rock star" reasoning.

Or is it because you want them to have access to particular benefits? That argument is specific to access to benefits which can happen by some other name. Thus it falls short of supporting your argument that ss-couples have to be called a marriage at all.

And why, if you are convinced of these benefits come from the word "marriage" to couples who depend on each other, and have children depending on them; why do you restrict your argument specifically to just gay and lesbian couples?

It seems that the reasons you call the "definitive" argument for marriage un-persuasive is a two edged sword. Apparently it makes your argument unpersuasive also.

I've been looking forward to you writing a case for ss"m" because I've been trying to find what the hype is. How sad it is then to see that you are reverting to the same cannards I've seen and debunked plenty of times.

You faulting a definitive argument for being circular yet relying on the very same as "theory" for why you calling a same-sex couple "married". You wield incredulity at the vast anthropological and cultural distinction and definition of marriage, while expecting acceptance of your argument which you just spent an article explaining you have no evidence for. Your reasoning depends much on your own acceptance as an authority, apparently as you argue with the same arbitrary determination as the King in Alice's Wonderland.
11.2.2005 1:26pm
Daniel Chapman (mail):
The change is that in attempting to write "moral judgement" out of the law, such a law is "merely animus."

If it is unconstitutionally arbitrary to limit marriage to two people of different sex, how is it not arbitrary to restrict two sisters from marrying? The only rational reason would be to prevent the (disputed) birth defects, and that problem is irrelevant.

The REAL reason incest is illegal is because it's taboo. We morally disapprove of "shopping at home" for sex partners. Once moral disapproval is declared insufficient, the only thing separating incest from gay marriage is the political will of its proponents.
11.2.2005 1:27pm
Chimaxx (mail):
You are confusing the fact that there were laws against certain types of marriages from taking place with the very definition of marriage. No one ever said that should those prohibited marriages take place (say, between a black man and a white woman) that it would not in fact, be a marriage. It most certainly would have been, and all would grant that such a union between two such people was in fact, a marriage, even if it was in violation of some law.


In this I suspect you are deeply mistaken. Looking backward, from now, it is easy to want to say "Of course they were really married" and to proceed from the assumption that because WE don't see those laws as definitional of marriage now that in their heart of hearts people back then must not have either.

So let's look at another change in marriage that has gone the other way. When most marriages were arranged by the families, girls as young as nine could be married. It was seen then to be a true marriage. If a 20-year-old man now were to marry a nine-year-old girl, would you consider it "in fact, a marriage, even if it was in violation of some law"?

Those laws, limits and regulations surrounding marriage were considered to be just as definitional of marriage in their time as the one-male/one-female model is claimed to be now.
11.2.2005 1:29pm
Mr Diablo:
Joel, so you say it is axiomatic, good for you! So are the words "Equal Protection" to some people. However, the integer 7 is axiomatic to all people.

Your efforts to mix mathematical absolutes with language are funny, but ridiculous. Mathematics were never written down by someone and their tradition does not go back to a particular point. Language has been chosen. Someone said "marriage means man and woman," but that does not mean that it is absolute or right.
11.2.2005 1:32pm
On Lawn (mail) (www):
Looking backward, from now, it is easy to want to say "Of course they were really married" and to proceed from the assumption that because WE don't see those laws as definitional of marriage now that in their heart of hearts people back then must not have either.

Such a fanciful theory.

You are making the same argument as Dale that marriage's definition can change. That requires acknowledging that there is a change afoot, and the ability to look dispassionately at this change.

As Margeret said two weeks ago...

But if sex between men and women did not make babies, then marriage would not be a universal human institution, or a legal status in America. Yes, many people like intimacy—is that a good reason for the government to stamp the good housekeeping seal of approval on certain intimate relationships, but not others?


With intimacy we can conflate the relationships, but we wind up removing something that is very valuable. Something that everyone sees in the room, but some seem to want to deny. Its the 800lb gorilla.

Ignorance and wistful imagionation of what the world in the future will be like is a poor platform for social engineering.
11.2.2005 1:39pm
Stephen1000 (mail):
I did not say that the purpose of marriage was to trick straights into becoming gay. What I said is, if society approves of homosexuality in the form of gay marriage, within 50 years a much larger proportion of the populace will be homosexual. This will happen. And, this is what one of the things that the proponents of gay marriage want to happen.

Opponents of welfare argued that the expansion of welfare would also be without these side effects. Yet, 70% illegitimacy rates and fatherless homes are now the fate of the black community.

And, if you want to call people bigots, then you should be ready for a poke in the nose. I'm fed up with spoiled brat kids arrogating to themselves the status of victim of bigotry. Sometimes a poke in the nose is the right answer. Everything becomes ridiculous at its extreme. The obsessive fear of a poke in the nose, a by-product of "the world will be saved if only all men are sissies" sect of feminism, has become ridiculous. It's about time for male authority to re-assert itself by poking a few noses. It would be a welcome change from the past four decades of spoiled kids running the show.

Gay people are not the subjects of an orchestrated or non-orchestrated campaign of bigotry. I say this as the result of 35 years of friendship with gay men. Oddly, not one of them has recounted to me this purported history of violence and discrimination. You got called names in the schoolyard? Boo-hoo. Who didn't?

And gays are perfectly capable of bigotry themselves. The arts professions are not dominated by gays just by chance. Cronyism and active discrimination against straights plays a role. One of my friends tells me that getting modelling roles is just about impossible for those who will not network via the gay sex party route.
11.2.2005 1:39pm
Joel B.:
Your efforts to mix mathematical absolutes with language are funny, but ridiculous. Mathematics were never written down by someone and their tradition does not go back to a particular point. Language has been chosen. Someone said "marriage means man and woman," but that does not mean that it is absolute or right.

But, did someone say marriage means man and woman? Or did it just happen that way. If, Noah's flood were to happen again, (although it can't) but even more extreme and leave a single man and woman (as opposed to 8 people total) left on the earth? Do you think marriage would come to exist again, in almost the exact same way we conceptulized it for generations? I think it would, marriage is innate to humanity, as 0 or 7 is innate to mathematics, it will occur naturally, and will happen on its own without having to define, eventually some one will say, look at this institution it is "marriage," but the institution predated the word, much as for generation people did not have knowledge of 0, but it was still there it still existed, and then it obtained a name, but after it had already existed.

After all, what is this particular point marriage goes back to? Two choices, either Adam and Eve, or it just happened to evolve that way, you choose, but does it really make a difference in any event, "marriage" in form predated the existence of the verbalization of marriage as a word.
11.2.2005 1:44pm
Taimyoboi:
"I think we've already had the statistical-import discussion, so I'll be brief."

Junkie,

There is a distinction here in that the roles are reversed. We did discuss earlier about extrapolating trends from polls and snapshot surveys.

I took issue with what I thought was Randy's belief that opposition to same-sex marriage was a minority (turns out he was talking about anti-gay sentiment).

As you'll note in my prior post that I stated the weak argument that if anything the polls don't show a shrinking of opposition.

You cite two points to the contrary. One, being that reactions to development generally overstate the true underlying sample. Could be, but it could also very much be the case that whereas people originally though this issue was nonmaterial/distant, now having seen it up close on tv, have now formulated an opinion.

The second was that younger demographics are more supportive. Again, could be, but there is an issue of colinearity with the fact that young people tend liberal and grow more conservative as they get older.

All in all, it certainly is hard to pin down which direction the sentiment is moving in, but to find the "shrinking minority" notion plausible, you first do need the opposition to be in the minority.
11.2.2005 1:45pm
Taimyoboi:
"Their historical reality does not mean that they count as reasons in a current debate."

PeterH,

Does this mean that in a current debate about the merits of communism, the historical reality that it has repeatedly failed as a governing system not count?

"Tradition is a wonderful straw man, but please at least stick with the traditions that actually apply today."

If tradition is a straw man, then why should we even stick with the traditions that apply today? The tradition that applies today is, at the least, marriage being defined between a man and a woman.

Or perhaps are you defining the debate to only allow those traditions that grant the outcome you seek?
11.2.2005 1:52pm
Chimaxx (mail):
Taimyoboi: And two, those changes improving women's status have occurred over a fairly long period of time; not the decade or so that Same-sex marriage advocates are demanding.


It wasn't one long, slow gentle ride, but a series of hard-fought battles, each taking place within a decade or so, and during each battle, opponents argued that the change was contrary to the very Nature of men and women, that it would have unintended and unforeseeable consequences that would inevitably be disastrous to men, women, marriage, the family, the community, the society and Western Civilization.

When you read such arguments (like the one linked above), it's clear that they were not cynical, but true and sincere reflections of the writer's worldview. Many of the things they saw as definitional and immutable and Natural about humanity, about men and women, seem to us to be slightly quaint, faintly absurd, and certainly not worthy arguments on which to base public policy.

Let me be clear: I do not mean to say that the sincere, heartfelt arguments against broadening the definition of marriage are *necessarily* just as wrong and likely to grow just as quaint and absurd with time. However, both those making such arguments and those wishing to depend upon such arguments in the formulation of public policy must be open to the possibility that contemporary arguments against same sex marriage rights based on an assertion that our current definition of marriage is somehow Natural could be deeply flawed in their premises, no matter how well or fervently the argument is made.
11.2.2005 1:53pm
Mr Diablo:
Stephen, you are making this so easy. If society said it was "Okay" to be gay, of course people who otherwise hid their feelings and went on for years in loveless, forced relationships with their opposite-sex beards would instead come out and be themselves. How many there are is a great question, surveys do not do a very good job measuring it. But to get these people to come out is not what this is about: It is about having equal rights for those who are out and do deserve them.

Surely though, in your years of living amongst the gays and attending their parades by choice you've met one or two who were married to someone of the opposite sex and were hiding their true feelings. You're too observant to have not noticed them.

(And so hip to hang out with people you think are less than equal citizens! Why you spend your time with us subhumans hell-bent on fomenting our own and rational society's destruction by promoting our own civil rights is beyond me.)

I'm going to let your overreaching, ridiculous comment about the black community and Welfare stand on its own two legs. There isn't a need to keep comparing gay discrimination to race! Wasn't someone on our case about doing that a while ago? Oh, right, it was you, Stephen.

I'd also let your comment about nose poking go, but it is too ripe for parody: I don't know what you are arguing, and most of the guys at the gym in my gay neighborhood in Chicago would happily engage you in a nose (or any other part of the body) poke-fest. Lots of gay men are not wimpy, and some of us relish the opportunity to grab a bigoted straight man and poke him, in the nose of course.

Do you have any information about these sex parties? Because I'm gay and I can't find the ones full of models, and it is not for a lack of trying!

You've got all kinds of personal stories and idle threats, and I don't know that any of them are true, but I do know that none of them are relevant to the issue of why gay people should continue to be denied equal rights.

Since you are not a bigot and isntead just like to name-call and make wild accusiations about people based on their membership in a group that you think deserves less than equality, almost to the point where you would be a person obstinately or intolerantly devoted to his or her own opinions and prejudices... can you explain to me why gays do not deserve this?
11.2.2005 1:55pm
Appellate Junkie (mail):
Taimyoboi:

All in all, it certainly is hard to pin down which direction the sentiment is moving in, but to find the "shrinking minority" notion plausible, you first do need the opposition to be in the minority.

I certainly cannot argue with that.

On edit: I think opposition is (over the long term) shrinking and will not (at a national level) stablize before it become a minority position.
11.2.2005 1:58pm
Medis:
deMaistre,

It seems implausible to me that the people not deciding to get married could have a greater influence on marital norms (or even anything close to a similar influence) than the people actually getting married. That is for a simple reason: getting married is usually a public and observable act, whereas it is much harder for the public to observe the decision not to get married. In fact, there need not even be an affirmative decision not to get married, let alone an affirmative and observable act to that effect.

You do hypothesize a mechanism by which we could observe this hypothetical decision: gay people could talk about their decisions not to get married. But again, it is not always going to be the case that such a decision has been reached. Moreover, most conversations like this are going to be far less public then something like a wedding ceremony.

In short, I really find it hard to believe that gays deciding to not getting married could possibly have as much effect on marital norms as gays deciding to get married, because only the latter will typically involve public, affirmative acts.

Cold Warrior,

As others have pointed out, your particular rational basis for prohibiting sibling marriages has been undermined by medical technology far more than it could be by gay marriage. And at most, gay marriages would just be one example of the general problem: that some sibling marriages would not create offspring at risk of genetic defects.

Regardless, I supplied a completely different basis for not allowing sibling marriages--the risk that the possibility of future sibling marriages would have negative effects on the siblings while they were still children. This basis has nothing to do with genetic health concerns, and is not tied in any way to reproduction. And as I noted, this basis applies equally well to gay or straight sibling marriages.
11.2.2005 2:03pm
Op Ed. (mail) (www):
Dale: ...gays are "trying to change the definition of marriage." Exactly so, but this is hardly a decisive objection...

So Dale decides to regroup by cutting his teeth on what he sees as the milk-toast argument out there against neutered marriage and ends up gutting what most proponents of neutering marriage see as its basis, even the "sacred" Goodridge ruling itself.

Since neutered marriage is a new definition, arguments like "Loving establishes a fundamental right to marry" (which it doesn't, but carrying on...) obviously doesn't say anything whatsoever about a fundamental right to this new definition Dale is arguing for. That would be a truly circular argument: "We need to change the definition of marriage because by assuming the definition already changed we have a 'fundamental right' to it." There is no way any existing law, constitution, or supreme court ruling could be referring to this newly minted definition in its use of the term "marriage." It also guts Dale's own promise making based on presuming the new definition of marriage will impart the same individual and societal benefits as existing marriage.
11.2.2005 2:05pm
Mr Diablo:
Joel, put down the Bible, you're as wet as the side of Noah's boat. Last I checked, we were not supposed to use foreign sources of law -- what happened in the Garden of Eden has as much controlling precedent on American law as what happened in Middle Earth.

You keep talking about marriage as a form -- but we've already proven, ad nauseum, that marriage as a form has changed considerably over the years and that marriage presently around the world means many different things to people--and that's not even counting the few places that have legalized same-sex marraiges.

You think marriage would have evolved a certain way no matter what -- I'm not so sure, and since that is a purely hypothetical argument it is a pretty specious rationale to deny equal rights. There is a reason that historians do not sit around and debate what might have been -- because it has nothing to do with what is now.

I still think your effort to say "1 + 2 = 3, ergo gays cannot be married" is woefully short in its logic, despite weighty words cloaked around your central thesis. We made marriage, we made this country, we can do whatever we want with its definition, no matter what theocratic roots it had. We used to define equal protection a different way, and that was a phrase we invented.
11.2.2005 2:06pm
Taimyoboi:
Appellate Junkie,

If trends in other social/cultural attitudes are any indication, I certainly think you are right that over the long run opposition will erode.
11.2.2005 2:15pm
Jack John (mail):
That may work in the parent-child relationship, but it cannot suffice in public-policy debate.

Why not? If it's rational-basis scrutiny, a majority of the legislature can say, This is our definition and we're sticking with it. Carpenter is dead wrong.
11.2.2005 2:19pm
Jack John (mail):
I'm no expert, but I bet a lot of people were saying "What? You can't let blacks and whites marry!"

Blacks and whites can procreate with each other. I don't understand your point.
11.2.2005 2:21pm
deMaistre (mail):
Medis,

You make some good counterarguments about the effect on marital norms of people who decide not to get married. I can only say that our intuitions differ.

In my view, the decision of many straights today not to get married until later in life (usually because they want to work their marriages around their careers rather than vice versa), to have sex before marriage, to live together before marriage, and (especially in Europe) to have children before marriage have changed marital norms significantly. I can only expect that the large number of gay men who will choose not to marry will also have profound effects.

From what I've read, in those jurisdictions that allow gay marriage or some similar equivalent, it turns out that only a small minority of gay men are interested in marriage. What norm does this create? No doubt something like, "marriage isn't for everybody, or even for most people, or even very typical; rather, it is just one option for those who are interested in it." Such a bloodless, libertarian marital norm can hardly be expected to confer benefits on anyone.

Maybe we want bloodless, libertarian marital norms. If so, however, we should be honest about it. Prof. Carpenter is arguing for a strong marital norm. I hope he addresses whether the large number of gays who may not marry at all will undermine the marital norms that he celebrates.
11.2.2005 2:23pm
Justin (mail):
Those who are willing to stick on their guns on "morality", try and read all your arguments but instead of the word "morality" use "bigotry". The problem, you'll notice, is that if "morality" is enough, then a declaration that slavery or race-mixing is required, morally, is also enough. After all, that the morality argument isn't just bigoted people trying to put their bigotry on the moral high ground has to be accepted a priori. One cannot test that, without references to the slippery slope that fail to meanfully distinguish (since it's clear that earlier decisions such as brown v board and loving v virginia can also be put on that slope).

Speaking of, I have a question. Everyone here says that if you allow gay marriage, you have to allow incest and polygamy and beastiality.

Forget the fact that this is a nonsensical argument. Let's oddly presuppose this is true. How many of you wanted to sleep with your sister, share your husband, or literally screw the pooch, but didn't because it was illegal? How many of you would do any of these things once they're legal?

The reason incest, polygamy, and beastiality are rare is not because they are illegal. These things are rare for the same reason pink harleys are rare.
11.2.2005 2:23pm
IB Bill (mail) (www):
This is like arguing with Yankee fans. They'll never admit that their team buys championships.
11.2.2005 2:23pm
Joel B.:
Joel, put down the Bible, you're as wet as the side of Noah's boat. Last I checked, we were not supposed to use foreign sources of law -- what happened in the Garden of Eden has as much controlling precedent on American law as what happened in Middle Earth.

And I'm not saying that we ought to either, nor that what happened in the Garden of Eden is a controlling precedent. My point was as much either Garden of Eden or Evolution it didn't matter, marriage is apparently either biologically innate or spiritually innate.

I still think your effort to say "1 + 2 = 3, ergo gays cannot be married" is woefully short in its logic, despite weighty words cloaked around your central thesis. We made marriage, we made this country, we can do whatever we want with its definition, no matter what theocratic roots it had. We used to define equal protection a different way, and that was a phrase we invented.

And this is the crux of the disagreement. We can do whatever we want with the definition. And you can, but you can do it all you like, and I will still thing you are destroying the language by doing it. We could pass a law saying that dogs are cats, and that's what we would do, we could pass a law declaring Newspeak to be the US language, and I would say that you're proposal is undermining our language. (of course you may just want to summarize this post by writing off "crimethink."
11.2.2005 2:23pm
Taimyoboi:
"...that our current definition of marriage is somehow Natural could be deeply flawed in their premises, no matter how well or fervently the argument is made."

Irrespective of whether your agree or disagree with expanding marriage to same-sex couples, I think you would be hard pressed to make the case that marriage didn't arise from the gender distinct approach to, but shared drive for, procreation.
11.2.2005 2:25pm
Mr Diablo:
Taimy, it certainly was not about the desire of two people to amass their fortunes by forcing their daughter of wealth to marry a wealthy man. Nor was it ever about being the only choice for people to enter into to support themselves.

Joel, you're grasping at analogies that are ridiculous, right up there with "I want to Marry my Dog" types. Protection of language for the mere protection of language is not a very good reason to deny equality, I'm a little sad that you think it is.
11.2.2005 2:34pm
Joshua (mail):
I'm no expert, but I bet a lot of people were saying "What? You can't let blacks and whites marry!"

Blacks and whites can procreate with each other. I don't understand your point.


Actually, weren't miscegenation laws intended precisely to keep blacks and whites from procreating with each other (so that mixed-race offspring wouldn't complicate the racially segregated social order of the day)? Miscegenation laws strike me as a poor historical analogy to present-day sex restrictions on marriage.
11.2.2005 2:36pm
Joel B.:
Mr. Diablo-

They are appropriately ridiculous to you, because you've already redefined marriage for yourself, that I should hold to the old definition will create a conflict, but don't think it is for the mere protection of "language." But failure to protect our language can lead to a failure to protect our ability to communicate concepts easily and truly, and also, it can very easily negatively affect the thing defined. Making dog mean cat in language not only confuses the languages but it leads to confusion what is a dog, and a cat. Is that newcat or oldcat?
11.2.2005 2:38pm
Mr Diablo:
Miscegenation laws were also about protecting white women from black men, as many of them allowed black women to marry white men (think of it as the Strom Thurmond exception).

They managed to be both racist and sexist at the same time, a Discrimination Double Double! And the freaking out about the mixing of those two races and its implications for unrest and the end of civil society were as bogus then as they are now when it comes to those who oppose for gay marriage.

They are not a great analogy, except that those who advocate gay marriage are running into the same ridiculous arguments that were used then -- "tradition" and "morality". Popular costumes for people who don't like to call themselves bigots.

People who get huffy about gays and lesbians referencing important civil rights cases are the ones responsible for such comparisons by using the tired tactics of masking hatred as traditional values and offering absurdist slippery-slope defenses.
11.2.2005 2:45pm
Mr Diablo:
Joel, who the hell would be confused by dog and cat or "new marriage" and "old marriage"? What kind of idiots are we talking about dealing with here?

That, over the last 140 years, we've taken to letting black people be citizens... has that meant that we've lost the noble definition of what it meant to be a citizen before? Does it matter?

William Safire's "On Language" column, and revisions to dictionaries are really bad reasons to deny equal protection. If this is the real definitional argument, then gay-marriage supporters should be embarassed for having not succeeded 50 years ago.
11.2.2005 2:49pm
Medis:
deMaistre,

First, I just want to note that I am finding our discussion very interesting and rewarding.

Anyway, suppose it is true that the decision of some straight people not to get married is having an effect on marital norms. Does that mean that effect is more profound than the ongoing effect of all the straight people who are actually getting married?

I think it is easy to overlook the ongoing norm-reinforcing effects of straight marriages because we tend to take those effects for granted, and immediately move on to more contentious issues (like decisions not to get married, or failed marriages and divorces, or so on). But that is one of the notable distinctions between gay marriage and many other marital policy issues: this issue actually focuses our attention on the act of getting married itself, rather than on decisions not to get married, or failed marriages, and so on.

And in that sense, unlike with straight marriage, we cannot take the positive norm-reinforcing effects of gay marriage for granted, because until we have gay marriage, those norm-reinforcing effects will not exist at all. And I think that if we reflect on the whole of straight marriage, and not just the more problematic aspects of straight marriage, we would conclude that the act of getting married remains the most dominant single factor when it comes to marital norms.

Indeed, if that were not true, and if the norm-reinforcing aspects of marriage were not dominant, then marital norms would not just be changing ... they would already be long gone.
11.2.2005 2:53pm
John H (mail) (www):
But Dale, there is a definition of marriage. It is the union of a man and a woman. There are reasons for this, most of which have to do with the woman and child-rearing.

It is the union of any two people who have the official public right to procreate together. Not just any man and woman qualify for that, and currently, there is no law along the lines of incest law or statutory rape law that rules out same-sex couples from procreating together. So I don't see a change in marriage law if we allow people who are allowed to procreate together to get married, even if they are the same-sex. It will still mean the union of two people who have the right to procreate together.
11.2.2005 3:00pm
Op Ed. (mail) (www):
Diablo: People who get huffy about gays and lesbians referencing important civil rights cases...

Poor Diablo. So busy thumping his chest about how impressed his is by his ability to poke people, he doesn't even realize Dale's already cut him off at the knees. Dale's already admitted neutering marriage is a new definition and a proposed one at that, therefore no case, law, or "right" can refer to this proposed redefinition. You really either need to refute Dale or just go back to strutting about threatening to poke people.
11.2.2005 3:03pm
Deo Vindice:
There is a very simple and inescapeable fact that the homosexual activists cannot overcome. It is a fact that cannot be ignored. The very existence of the institution of marriage does indeed "privilege procreative heterosexual intercourse." In fact, Marriage is a privileged state and that is precisely why homosexual activists are waging this battle. No matter how hard anyone tries to escape reality, Procreative heterosexual intercourse is and has been historically through all times and cultures an important feature of that privileged status, and that distinct characteristic is a fundamental, originating reason why the State privileges marriage. (For more detail on this please refer to Dean v. District of Columbia, 653 A.2d 307, 337 (DC 1995).

Homosexual activists do argue, correctly by the way, that the State imposes no obligation on married couples to procreate. However, in making this argument, the activist has badly missed the point. The Vital purpose of Marriage is not to mandate procreation but instead it's to control its consequences, this is called the "private welfare" purpose. The insistance on maintaining otherwise is absurd, and purposely ignores that Central to the Institution of Marriage is indeed the act of procreation.

There can be no denying what is the underlying purpose of you and other homosexuals in regards to this situation. You might deny it publically, but the fact is, What you are seeking is public recognition and affirmation of a private relationship. It is the very essence of the battle that is being waged. Any talk of governmental benefits is necessarily a red herring. The real goal is changing the essence of marriage to seek societal and governmental approval of a particular type of relationship.

What is interesting however, is that when making their case, activists necessarily acknowledge that marriage is much more than a merely private declaration, instead it is an act of public significance and consequence for which the State exerts an important regulatory role. Indeed the very fact that activsts are seeking official assent, recognition and approval of their relationship (BEHAVIOR), by the state, is to concede the authority of those whose regard is sought. Throughout the history of our law, it is clear that marriage has secular implications (IE: The governmental benefits to which you refer) therefore State does have a legitimate interest in determining eligibility criteria for entrance into that institution. As a result there are numerous reasons for limiting unfettered access to marriage. Otherwise, the institution would become non-recognizable and unable to perform its vital function. This is the reason that the States can Constitutionally ban bigamous marriages, common law marriages, incestuous marriages, marriages to persons adjudged to be mentally incompetent, or even marriages that have a partner infected with a venereal disease in a communicable stage. The governmental interest in these restrictions has been repeatedly and widely recognized by numerous courts.

What is also amazing to anyone that pays attention. In fact, it occurs throughout this thread, even by those who support same-sex "marriage", is that the activists concede the fact that a core feature of marriage is its binary nature. Go back up this thread. No once do I see anyone calling for same-sex "marriage" also stating that marriage should be opened to more than one people, no matter how loving or caring these relationships are.

In fact, Homosexual activists usually decry those who bring up polygamy as "insane" or using a slipperly slope fallacy.

The fact is however, that the activists are ignoring the fact that the binary idea of marriage arose precisely because there are two distinct and different sexes. The fact is the Petitioner's position is illogical. There is no way that the Court could logically open the institution of marriage to homosexual couples, but still limit the marriage institution to two people. (For a good commentary on this please read: Lawrence V Texas 539 U.S. 558 (2003) (Scalia, J. Dissenting)) If the essence of marriage and the right to marital status is sufficiently defined without reference to gender, then no principled objection could remain to removing its binary barrier as well. The fact that the Activist does not wish to enter into such a non-binary relationship is irrelevant. The Activist, and those in his situation continually define marriage as only in reference to emotional or financial interdependence, and in terms of autonomy, privacy, and intimacy. If this is the case, then no reasonable that is not of an arbitrary nature, can exist for denying marriage to polygamous unions, whose members also can claim the arrangement is necessary for their self-fulfillment, privacy, autonomy, and intimacy. The legal nature of marriage cannot be totally Changing for each situation without the durability and viability of this fundamental social institution being seriously compromised, and destroyed.

The Minnesota Supreme Court when deciding Baker V Nelson, stated: In commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. (This position was affirmed by the United States Supreme Court 409 U.S. 810)

The United States Supreme Court in Murphy V Ramsey, 114 U.S. 15 (1885) said: "For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment."

What does this mean? What is the clear distinction noted by the Minnesota Supreme Court, affirmed by the United States Supreme Court, between laws prohibiting interracial marriage, and laws prohibiting homosexual marriage? That distinction in the eyes of the court is one of common sense. Marriage is based on the Fundamental difference of sex and the unique relationship that occurs between a man and a woman, and the validity of the governmental sanction of that relationship. What makes a governmental sanction of the union of man and a woman valid? The answer to this question was provided by the United States Supreme Court "Marriage and procreation are fundamental to the very existence and survival of the race. Skinner V State of Oklahoma Ex Rel Williamson, 316 U.S. 535 (1942)

You see, Despite any feelings that a homosexual man may have for another man, or that a lesbian woman may have for another woman, their union can never result in the continuation of the human race. Their feelings for each other, no matter how sincere, are irrelevant to the Existence and Survival of the human race. Government has the right and power to reward and sanction particular behavior that is a benefit to society. Rewarding One Man and One Woman, who together form the family unit, continue the human race, and provide stable homes for their offspring, is a goal that is time-honored and legitimate.

Marriage is a natural institution, as It's union of a man and a woman is rooted in the order of nature itself. It is an institution that the state protects because it's members form the bedrock of society. The members of that institution must necessarily be of the opposite sex. No matter how seared one's conscience may be, reality dictates that Men and Women's bodies are different and that those differences compliment each other. Only a Man and a Woman can properly join together as one flesh.

While activists may argue, correctly, that various individuals may choose to marry for all sorts of reason, some of which may even not be sincere. The fundamental fact remains that marriage is a natural institution that brings together men and women for the purpose of continuing the human race and keeping a mother and father together to work together in raising the children they produce as a result of their coming together as one flesh. The public interest in such an institution is without equal, because thousands of years of human experience and a vast body of scientific research demonstrate that married husbands and wives, and the children they conceive and raise, are Healthier (both physically and mentally), Happier, and more prosperous than people in any other living situation.

The argument in favor of redefining the institution of marriage to include members of the same-sex, can only be logically sustained if there is no real difference between men and women. In real difference, this means the actual physical differences between a man and a woman. One would have to make the absurd contention that Men and women are physically identical and are able to serve as completely interchangeable parts in the structure of the marriage relationship. The contention is an exercise in lunancy. And as I stated above, Necessarily the term "same-sex marriage" is oxymoronic.
11.2.2005 3:04pm
Daniel Chapman (mail):
Good post, Deo. Very well thought-out. You've done your part to raise the level of this discussion, and I hope your critics respond in kind.
11.2.2005 3:16pm
Medis:
DeoVindice,

I'm pretty sure that this has been covered somewhere in the commentary already, but could you explain how you think we get a binary constraint on marriage out of a gender-diversity constraint? It seems obvious to me that various societies have had a gender-diversity constraint without having a binary constraint. So, for example, in some societies it might be true that there must be at least one man and one wife, but it may also be possible for a man to have many wives.

Given this observation, it seems to me that gender-diversity and a binary constraint are independent. In other words, if we already have a good reason for the rule that a man cannot have several wives, why exactly wouldn't that reason apply to saying that a man cannot have many husbands, or a woman have many wives?
11.2.2005 3:16pm
PeterH:

Taimyoboi:Does this mean that in a current debate about the merits of communism, the historical reality that it has repeatedly failed as a governing system not count?

"Tradition is a wonderful straw man, but please at least stick with the traditions that actually apply today."

If tradition is a straw man, then why should we even stick with the traditions that apply today? The tradition that applies today is, at the least, marriage being defined between a man and a woman.

Or perhaps are you defining the debate to only allow those traditions that grant the outcome you seek?


Most importantly, my comments were specifically about the narrow point you yourself raised. Rather than even try to attempt to address my question about why my brother and sister-in-law can marry when she has no uterus, you specifically claimed that the historical inability to foretell fertility somehow applied. I pointed out that no matter what may have been true in the past, today, they do know that without a uterus, she isn't going to have a child, and yet could marry.

Just that. Specifically. You haven't bothered to answer it. Specifically. Get it?

Dodging the question and burrowing into semantic non-sequturs doesn't change that, and goes no further in reinforcing the point that, remember, YOU made and now completely refuse to support. Implies to me that you acknowledge you are wrong and don't choose to admit it.

Why communism has anything to do with hysterectomies eludes me, but I will answer your question: Historical discussions of communism apply to today TO THE EXACT DEGREE THAT THEY STILL APPLY. Why is that a hard concept. If you tried to claim that communism wouldn't work today because in 1907 they didn't have television, I would be just as skeptical as I am about your "they didn't used to understand fertility" foolishness.

If you were to bring up points that did still apply today, then they certainly would belong in the discussion. I hope that is clear.

As far as your second "point" -- thank you for so clearly pointing out the entire thrust of today's main point -- that people are trying to use the current definition of marriage as its own justification. It is utterly, utterly, circular. This whole discussion is about broadening that definition. Pointing to the definition as a reason not to change the definiton is simply a very, very clear indication that you have no arguments of substance to forward.

However, given that it is absurd for you to claim that it ends the discussion, I will grant that it does belong in the discussion. The fact that it is being help up as a tradition and as the justification for overriding another traditions (individual liberty, equal protection and application of laws, freedom of religion, and the tradition that straight people take for granted, that of being able to choose their spouse without government or social intrusion), it is only fair for the people who say that this particular tradition trumps the others to justify that. I have heard nothing that does.

"It has always been that way" is far from complelling in the face of the actual denial of rights and obligations that holding onto it applies to gay couples.
11.2.2005 3:17pm
On Lawn (mail) (www):
Deo,

I hope you don't mind but I've submitted your post as an article over at Opine. The link is here.
11.2.2005 3:18pm
Battletank (mail):
"even if it could be established beyond a doubt that state-sanctioned same-sex marriage would indeed have a harmful impact on society, the rights of gay people (as a minority and as individuals) to be free from discrimination in marriage laws still trumps that concern."

There you have it folks... even if X is bad, the man thinks since he wants it, he has a 'civil right' to have 'it'! Thus in his view a majority has no right at all. We exist merely to make him feel good about himself.

Now why do minorities have rights the majority must respect? Because they're minorities? Do they owe the majority anything in return? What would give gays the right to demand the state redefine terms such as marriage? The mere fact that they want 'marriage' to include their coupling means ipso facto that marriage truly includes that coupling and hence is illegally denied them by mean-spirited majorities?

The American experiment is not premised on the individuals' absolute right to get whatever he wants given him on a platter by the state (everyone else).

Otherwise what's the point of having laws and a constitution that sets down limits to peoples' and the state's exercise of freedom and power? If all it takes for a right to be created ex nihilio is someone wishing something then we do indeed live in a regime of brute force where might=right and laws are based not on what is reasoned as good for all, but what is felt to be convenient to whomever can game the system.

Equality under law means minorities ought not have rights not granted the majority; inasmuch as we, the majority can't create rights by re-defining words (such as "state" or "public" or "citizen") at whim, neither can minorities. Only by passing a Constitutional Amendment can novel rights be grafted into the frame work of laws.

Hence, prior to the Amendment granting women the right to vote, women did not have the constitutional right to vote.

But gays suppose that if they want something they have not merely a civil but a human right to have it - even if 'it' harms themselves or society. Well, please tell us where civil rights come from. If not from the STATE, according to the State's own charter, then where?

Can an American citizen acquire new civil rights by dictat of the Queen of England? Or the Pope? or the UN? Not according to our Constitution. You may be knighted by Queen or Pope but neither foreign honor grants American CIVIL rights.

And how does this State determine what is or is not law? That's right: by democratic representation; the court is not given legislative powers - and neither are absolute minorities. You have the right to vote, not the absolute right to have that vote win.

Finally a word again about Griswold... what minority right was being challenged by Connecticut? How does one vindicate a right that has no prior legislative genesis?

If the people of Connecticut believed that married couples had the right to privacy which meant the right to acquire contraceptives, then they could very well have passed a law to that effect. Ditto with abortion. Both would have been constitutional as the Constitution is silent about either.

In MA and CA today you have the situation where many people believe the courts will void whatever the majority wishes to do legally anyway so why bother.

Still, since we live in a republic and not an empire, I have faith - given history - that once the courts are de-imperialized the majority will prevail in keeping marriage intact as it has always been understood in the Western World.

Our rational basis for doing so involves both evidence that same sex activity is harmful to those involved and that allowing minorities to rule majorities by whim and fiat overthrows our country's concept of rule by law (an ordinance passed by authority for the sake of the common good) and has become an oligarchy where the few with power exert it on behalf of a minority demanding the majority to bow down and worship their every whim.

America is neither a kingdom nor an empire.
11.2.2005 3:21pm
On Lawn (mail) (www):
Medis

It seems obvious to me that various societies have had a gender-diversity constraint without having a binary constraint.

It is an anachronistic view to say that polygyny is the same as polyamoury. It is not. The former denotes a case where someone has many binary marriages. It is found plentifully looking at cultures. The latter does not preserve the binary distinction, and is extremely rare. In fact I don't currently have not found a case of polyamorous marriage to refer to historically.
11.2.2005 3:23pm
PeterH:

Deo Vindice: Any talk of governmental benefits is necessarily a red herring.


Why? Specifically, why? I assure you, the extra hundreds of dollars a month that my partner and I spend on health insurance alone, which a straight married couple would get automatically, are not a red herring.

Please explain, in all of your high talk about "privileged heterosexual intercourse" why certifiably infertile straight couples may marry. I refer you to the question that Taimyoboi keeps dodging: My sister-in-law had a hysterectomy before she met my brother, and yet they are married. Why is their intercourse privileged?

Why don't lesbians who bear their own biological children get the same privilege that the wives of infertile men who use donors get? Why don't gay couples who raise otherwise parentless children get credit for continuinf the human race, when straight couples in the same circumstance do?

And why do you make exception for straight people who use contraception but not for gay couples?

If you were proposing that only couples with children get any benefits, and everyone else gets none, then I would accept that you are privileging heterosexual intercourse for a reason.

As long as you don't, please explain why we should interpret this any other way than privileging heterosexual intercourse for the express purpose of opposing homosexual intercourse? (within a similar comitted relationship, of course.)
11.2.2005 3:31pm
Medis:
Battletank,

Although I actually think this discussion is really about policy, not rights, I might note there is a long-standing answer to some of your questions (one which is at least arguably provided in both the Declaration of Independence and the US Constitution, and certainly has appeared in many political and moral theories).

The basic claim would be that we have certain rights prior to any grant of rights by the state (the source is variously described: by nature, by God, by our humanity, or so on). Accordingly, while we might voluntarily give up some of these rights to the state while retaining others, and while we might memorialize this compact in a written document (or not), it would be improper to say that unless the document grants us the right, we do not have it. Rather, this kind of theory would say, the logic works the other way around: unless the document says the right has been taken away, the presumption is that we still have it.
11.2.2005 3:31pm
Medis:
On Lawn,

OK, so what keeps the reason against having "many binary marriages" from applying to gay marriages as well?
11.2.2005 3:34pm
eddie (mail):
I do not think the argument is about marriage at all. It is about the state's sanction, support and recognition of relationships; and the desire for the homosexual relationship to be recognized as acceptable and normal. Although, the gay side of the argument claims to care about the normative effect on them of recognizing their relationships as marriage, the fact of the matter is that loving, stable, exclusive and permanent relationships do not need the recognition or approval of anyone to exist. In addition, loving, stable, exclusive and permanent relationships will provide all of the intangiblebenefits of marriage with or without the state's involvement. The bottom line in all of this is that it is about obtaining affirmation (first) and whatever monetary benefits that state sanctioned homosexual relationships can gain from the official recognition. If we stay focused on the reality and quit digressing to what is or isn't marriage, we may accomplish something. This is a practical debate with practical outcomes. I have stated previously, and I am still at that point since I have not heard anything to change my mind, that I can accept the benefits (even though they come out of my bank account) the state provides to heterosexual sexual relationships because of those relationships connection to propagating the species. I see no reason for the state to reach into my wallet to promote, sanction, support, or encourage other types of private and personal relationships
11.2.2005 3:39pm
Op Ed. (mail) (www):
PeterH: Please explain, in all of your high talk about "privileged heterosexual intercourse" why certifiably infertile straight couples may marry. I refer you to the question that Taimyoboi keeps dodging: My sister-in-law had a hysterectomy before she met my brother, and yet they are married. Why is their intercourse privileged?

You're free to propose a change to marital law that would require citizens to present their uteruses for government inspection before marriage. Not the kind of world I want to live in, but apparently it's right in line with your view of government. That won't further your argument for neutered marriage, however. This sterility strawman was dealt with long ago.
11.2.2005 3:42pm
Chimaxx (mail):
"...that our current definition of marriage is somehow Natural could be deeply flawed in their premises, no matter how well or fervently the argument is made."

Irrespective of whether your agree or disagree with expanding marriage to same-sex couples, I think you would be hard pressed to make the case that marriage didn't arise from the gender distinct approach to, but shared drive for, procreation.


Of course, procreation is natural, but as your careful phrasing admits, marriage itself is not; rather it is an artifical social contract that "arose from" our need to give order and stability to procreation, our tendency toward serial pair-bonding, and the unusually long period needed for the raising of human children (whether those children are acquired through birth or adoption).

The flow of rivers is natural, but dams are not. Did dams arrive from a desire to prevent flooding below the dame when the water level is high, to retain water behind the dam when the average water level is low, or to harness the power of the running water? If a dam is built for only two or even one of these purposes, is it still a dam? Is one of these purposes so essential that if something is built only to address the other two, it is no longer a dam, even if it looks like a dam and is built in the same way? No, it's still a dam, even if you're only trying to harness the water's power, or even if you're only trying to control flooding, and regardless of whether it is built of wood, concrete, steel or mud.

Procreation is natural, humans tend toward serial pair-bonding, and human children need a particularly long period of attention from parents (whether the relationship is established through birth or adoption). Marriage is an artificial social construct meant to give order to all three.

And, until some human actually gives birth to an 800-lb gorilla, procreation really is no more central or definitional than the others, no matter how many times people say it is.

And marriage is an artificial social human construct meant to give order to some of our natural human abilities and proclivities, no matter how many times peole try to claim that it is itself natural.
11.2.2005 3:43pm
eddie (mail):
This argument is about two things: 1) getting money from other people, i.e. the financial benefits that come with marriage; and, 2) the more intangible benefit of gaining acceptance for human behaviors that repulse many people.
11.2.2005 3:48pm
John H (mail) (www):
Despite any feelings that a homosexual man may have for another man, or that a lesbian woman may have for another woman, their union can never result in the continuation of the human race.

Deo, this is no longer true, a same-sex couple has a very reasonable hope to be able to have children together using new reproductive technologies. See my blog. One doctor estimates we will see children (all girls) born to two women in only three to five years (now, it's two and a half to four and a half years, assuming he made that estimate about six months ago).

But you are certainly correct in the rest of your post. And we can ban forms of procreation that are not the union of a man and a woman, so that your assertion above remains true. It is very important that children grow up understanding that if they want to have chldren with the person they choose (a basic civil right) so as to share the special bond that comes from having children together, they will have to be heterosexual.
11.2.2005 3:53pm
John H (mail) (www):
My sister-in-law had a hysterectomy before she met my brother, and yet they are married. Why is their intercourse privileged?

They continue to have a right to conceive chidren together. They could perhaps get healthy somehow (modern medicine is amazing), but even if they don't, they still have a right to have children together.
11.2.2005 3:56pm
Mr Diablo:
Op Ed, you need to learn how to read, as I'm certain from your posts we disagree, but you've been too busy chest thumping to notice anyone else's arguments.

This has nothing to do with pretending that we are not wanting to change the definition of marriage. What I'm looking for is a non-bigoted reason of why we should not. Your nitpicking and erroenous filtering of everyone else's arguments and proclaimations that "we already beat that straw man" are good for a laugh, but not holding much water here. Just because you don't want to recognize people's rights (or read their posts) does not mean that the argument is moot. No one knows what to do with Peter's uterus-lacking sister, he brought her up this morning and so far every conservative who tries to respond starts yelling "incest!", which is like yelling "slippery slope!" and then pretending the discussion is over. It does not work in Con Law class, and it shouldn't fly in Con Law discussions.

Eddie, I think sex between a woman who is 16 and a man who is 95 is disgusting. We do not deny them any equal protection to get married. Moral repulsion is not adequate by anyone's standard, less this is a theocracy of sovereign edicts and not a republic of soveriegn prople. The benefits do matter, the recognition does matter.
11.2.2005 4:01pm
eddie (mail):
One important point to remember in all of these discussions is that heterosexual sexual intercourse and homosexual sexual intercourse (and I use the term intercouse very loosely as it relates to homosexual sexual acts) are qualitatively different acts. To equate them is to begin with an erroneous premise. Qualitatively different acts cannot be logically equal.
11.2.2005 4:02pm
Medis:
eddie,

I don't know if you will find this convincing, but personally, I would be willing to pay gay people to get married if necessary on the theory that I would recoup my investment through reducing other social burdens.
11.2.2005 4:04pm
eddie (mail):
Mr. Diablo,
My point was not whether or not the acts are objectively disgusting and I see I was weak in making the point I wanted to make which is that a vital aspect of the whole discussion is the desire for the homosexual side to legitimize and find acceptance and approval by redefining marriage to include their sexual activities. Sorry I did not make that clearer. I agree with you that subjective feelings should be the basis for determining laws.
11.2.2005 4:07pm
eddie (mail):
Medis,
Interesting theory, please expound.
11.2.2005 4:08pm
Mr Diablo:
Sex acts have nothing to do with this debate, Eddie, so why even bring them up except to hope that you can repulse people? You lost that one in 2003. Keep current.

Someone can LOVE someone or WANT to receive government benefits and respect with someone within the same gender just as well as outside it.
11.2.2005 4:09pm
eddie (mail):
Mr. Diablo,

Sorry again, I meant to say subjective feeling should not be the basis for determining laws.
11.2.2005 4:10pm
Op Ed. (mail) (www):
Chimaxx: No, it's still a dam,

Isn't a dam built away from a river actually just a wall?

Let's assume you're just so infatuated with redefining words that you do go ahead and say that all walls have a fundamental right to be a dam. What are your custruction codes going to look like now? Are you going to have really, really heavy and expensive houses or are you going to have catastrophic floods?

...until some human actually gives birth to an 800-lb gorilla...

Looks like you're weak on more than just one detail about human procreation. Just the same, for all your trying to ignore the 800lb Gorilla in the Room, you just ran smack into it!
11.2.2005 4:11pm
eddie (mail):
Mr. Diablo,
Is it your position that affirmation or acceptance by others is not an aspect or motivation of the homosexual movement for state sanctioned homosexual marriage?
11.2.2005 4:12pm
Taimyoboi:
"Most importantly, my comments were specifically about the narrow point you yourself raised..."

PeterH,

Let's recap then. You said:
"Presumably the same rational basis that currently allows infertile couples to marry but does not allow sibling marriage."

I then made one slight objection that no rational basis has ever existed for allowing infertile couples to marry while banning siblings. Whatever arguments had existed against siblings was entirely independent of infertile couples.

You then raised the following anecdote:
"My brother married my sister-in-law after her hysterectomy. She will never have another child, and they both knew it entering the marriage..."

And in all sincerity, congratulations to your brother. But that did no detract from the point that until recently, marriages were entered into without prior knowledge of infertility (a point you conceded). And as such, there has never been a rational basis for distinguishing between infertile marriages and incestous ones.

You then replied:
"Their historical reality does not mean that they count as reasons in a current debate...Tradition is a wonderful straw man, but please at least stick with the traditions that actually apply today."

At this point you seemed to leave the discussion of rational basis and moved on to the greater debate. To which I (perhaps too hastily) followed and pointed out that picking and choosing traditions and historical trends which meet your needs is crafty rhetoric but not substantial debate.

Simply because you can point to an anecdotal situation does not detract from the value that a historical reality has existed (which you acknowledged), and still exists today to a substantial degree. To make the traditionalist argument, as Mr. Carpenter is doing, the case must be made that these trends away from a historical concept of a primarily procreative union between a man and a woman are not a detriment to society.

So far all you have managed to do is highlight that the trend has taken place with an anecdote.
11.2.2005 4:19pm
BobNelson (mail):

The traditional definition of marriage was most publicly stated in the 1662 Book of Common Prayer marriage ceremony. The prayerbook (which is still in official use in the UK) gives us the iconic wedding ceremony:


An iconic wedding ceremony that draws heavily on the joining as family of TWO WOMEN (not in a sexual relationship).

But, since we've already got out the hankies, here's another interesting illumination of the views in the past:


i.

The priest shall place the holy Gospel on the Gospel stand and they that are to be joined together place their right hands on it, holding lighted candles in their left hands.

Then shall the priest cense them and say the following:

ii.

In peace we beseech Thee, O Lord.

For heavenly peace, we beseech Thee, O Lord.

For the peace of the entire world, we beseech Thee, O Lord.

For this holy place, we beseech Thee, O Lord.

That these thy servants, N. and N., be

sanctified with thy spiritual benediction, we beseech Thee, O Lord.

That their love abide without offense or scandal

all the days of their lives, we beseech Thee, O Lord.

That they be granted all things needed for salvation and

godly enjoyment of life everlasting, we beseech Thee, O Lord.

That the Lord God grant unto them unashamed faithfulness

and sincere love, we beseech Thee, O Lord....

Have mercy on us, O God.

"Lord, have mercy" shall be said three times.



iii

The priest shall say:

Forasmuch as Thou, O Lord and Ruler, art merciful and

loving, who didst establish humankind after thine image and

likeness, who didst deem it meet that thy holy apostles

Philip and Bartholomew be united, bound one unto the other

not by nature but by faith and the spirit. As Thou didst

find thy holy martyrs Serge and Bacchus worthy to be united

together, bless also these thy

servants, N. and N., joined together not by the bond of

nature but by faith and in the mode of the spirit, granting unto them peace and love

and oneness of mind. Cleanse from their hearts every stain

and impurity and vouchsafe unto them to love one other without hatred and without scandal all the

days of their lives, with the aid of the Mother of God and

all thy saints, forasmuch as all glory is thine.





Is it terribly relevent? No, I suppose not, though it certainly points to a time in Christian tradition when gay people were afforded more respect and rights than today's discussion of "excrement tubes" and veiled threats to the republic would lead one to expect...

And for those who will no doubt claim that this ceremony was for men seeking to be joined as "brothers", what's up with the "unashamed faithfulness"?
11.2.2005 4:23pm
Medis:
eddie,

I'd start with the premise that all of us place burdens on society. Not necessarily a net burden, of course, because as individuals we may provide even more benefits to society than burdens. Nonetheless, as a society we still have to meet those burdens, and the lower the total burden, the less each individual has to contribute to meeting those burdens.

My personal conclusion is that gay marriages will likely result in a lower total social burden (in that sense, I think gay marriages likely will have positive net social efficiencies). Accordingly, it is to my advantage to encourage gay people to get married, because that will lower the net social burden that all us, including me, have to meet.

To over-simplify, you might think of my taxes as my contribution to meeting the social burden, and state expenditures as our mechanism for meeting the total social burden (again, this is over-simplifying for illustration). My basic argument would be that gay marriages would lower the total social burden, and thus the state would need to spend less to meet the new total social burden, and thus the state would need to collect less in taxes, and thus I would have to pay less in taxes. Accordingly, I'd be willing to pay gay people to get married up to some amount less than what I would subsequently get back in the form of reduced taxes.
11.2.2005 4:24pm
Mr Diablo:
Eddie, there is no question that seeking equal protection for marriage is a key part of the pro-gay rights people's agenda to have themselves integrated into American society and afforded the respect and decency that all Americans deserve.

It's not just part of the agenda, it's the agenda in and of itself. What is the gay rights agenda? Equality based on sexual orientation. If you cannot see that equal access to governmental instutitions meant to protect relationships by giving particular rights and privileges is the heart of the matter, then you are blind.
11.2.2005 4:27pm
Op Ed. (mail) (www):
Diablo:

That was a response? Maybe churlish laughter and hooting "bigot" at anyone who disagrees with you counts as a valid response in your "con law" class, but some of us don't have Beavis and Butthead for an instructor. Why don't you take a few deep breaths and make another attempt at a reply.
11.2.2005 4:28pm
Taimyoboi:
"...rather it is an artifical social contract that "arose from" our need to give order and stability to procreation, our tendency toward serial pair-bonding, and the unusually long period needed for the raising of human children (whether those children are acquired through birth or adoption)..."

Chimaxx,

So far I'm with you.

My question is whether that "artifical construct," as you call it, is still a necessity in contemporary society or whether it can be done away with now.

A definition of marriage encompassing same-sex couples cannot include procreation as one of its clauses.

The question then is whether this new definition of marriage based primarily on intimacy, perhaps secondarily on child rearing, will not lead to a deemphasis on the importance of procreation.

Such a deemphasis cannot be good for society. I think Europe is a point in case (note: I'm not saying that this is a result of the same-sex marriage over there. There is no conclusive proof one way or another).
11.2.2005 4:29pm
BobNelson (mail):
IB BILL:

As far as the "excrement tube" reference, it may not elevate the debate, but part of what I'm trying to do is get the debate out of the airy skies and excessive abstractions -- which is the only place gay "marriage" can be taken seriously -- and back down on earth. We live in an incarnate universe, after all.


By all means, let's have an elevated debate about where one may appropriately place one's "urine stick".

You go first, and remember, keep it tasteful.
11.2.2005 4:29pm
eddie (mail):
Medis,
I understand where your headed but I, at this point in the discussion, disagree with the net effect. To get more specific and I do not have citations so I am acting from memory, homosexuals as a group are economically better off than non-homosexuals. Consequently, I do not see the new benefit of adding to the costs of divorce courts, surviviors' benefits, family health care (although provided by private enterprises the costs are passed on to the public) etc. If you have statistics or studies that support your reasoning, I would definitely be interested in reviewing them.
11.2.2005 4:30pm
eddie (mail):
Mr. Diablo,
I disagree that the discussion is about sexual orientation. I think it is about homosexual sexual behaviors. So we will probably have trouble discussing it altogether until we agree upon what it is we are discussing. I will add here that I do not think sexual behaviors are a required or involuntary activity for any human being.
11.2.2005 4:35pm
eddie (mail):
Mr. Diablo,
I disagree that the discussion is about sexual orientation. I think it is about homosexual sexual behaviors. So we will probably have trouble discussing it altogether until we agree upon what it is we are discussing. I will add here that I do not think sexual behaviors are a required or involuntary activity for any human being.
11.2.2005 4:35pm
eddie (mail):
Sorry for the double post, completely unintentional.
11.2.2005 4:36pm
Taimyoboi:
"My basic argument would be that gay marriages would lower the total social burden, and thus the state would need to spend less to meet the new total social burden..."

Medis,

Very interesting; I assume that the mechanisms in which you believe gay marriage would reduce social burden would be primarily in the communitarian benefits?

The two counterarguments I see to this are one: that if, in accepting gay marriage, the net result is less procreativeness for all marriages, then there would be greater social burdens on the younger generation to support the older ones, as is the case in Europe.

Two: If gays do not take an active interest in either rearing adopted children or having their own via fertility methods, then you would have the same result as in the first case.

Granted both are entirely speculative, but part of the argument is whether the communitarian benefits Mr. Carpenter cites are more likely then the negative effects above.
11.2.2005 4:39pm
Dave Ruddell (mail):
BobNelson:
By all means, let's have an elevated debate about where one may appropriately place one's "urine stick".

Now Bob, for the sake of accuracy, I think it should be referred to as the 'urine and semen stick'.
11.2.2005 4:39pm
Medis:
eddie,

It actually doesn't matter how wealthy the people getting married might be. That is why I began with the observation that I benefit even when people who are net contributors to society reduce their individual social burdens. To give a very simple (and admittedly simplistic) example, it takes fewer police resources to protect one mansion rather than two, so I benefit even when rich people shack up (eg, in the form of lower taxes for police purposes).

As for proving the key factual premise (that gay marriages would result in a lower total social burden): well, that is pretty much the effect of a lot of Dale's arguments. I won't claim this is definitive, but I think things like improving child care, promoting monogamy, encouraging caretaking, and so forth, would all result in lower total social burdens. Of course, marriage has costs too (such as the necessary legal machinery, or any entitlements we would have to pay for), but again without claiming I can prove this definitely, my sense is that marriages as a whole create a net positive social efficiency ... and that gay marriages would too.

But once again, I'm not claiming to be able to prove here all my factual premises. I'm more just sketching out why as a society we might want to spend public resources on something like gay marriages (or, for that matter, straight marriages). And my basic sense is that these projects are worth the expenditure of public resources because they end up creating a net reduction in the total social burden.
11.2.2005 4:44pm
Battletank (mail):
Good try but the idea that some penumbra of the constitution holds a vast reservoir of rights continually being spontaneously generated by the whim of a citizen doesn't wash.

While it's true that the Constitution is based on the premise that "the People" have rights prior to the establishment (by them) of their government, these rights are considered the natural ones. In order for the state to recognize these pre-existent rights, you must be able to show a historical time line of people using such rights in a public fashion and not some foreign playwrites or poets' hidden proclivities as "proof" that early Americans were homosexual and American couples always used contraception as a right.

The fact that no colony and no state prior to 1965 had legislation granting couples the right to use contraception and none granted homosexuals the right to engage in sodomy much less marry, points to the fact that those 'rights' were not among the aboriginal, unspoken rights "reserved to the people". I don't doubt that there were individuals even then who were homosexual or used contraceptives. But actions don't create rights.

Now there is a distiction between what is constitutional and what is moral too - Slavery was deemed a civil right while being always immoral.

The Declaration recognized that men have rights because they are men; but the rights to Life, liberty and the "pursuit of happiness" does not guarantee ANY particular individual has an absolute right for his subjective version of happiness and of course you know "liberty" is not exactly "freedom".

Happiness from a natural rights point of view has a definate boundary. Happiness is not coterminous with "having one's lusts satisfied" or "being satiated". Reason - available to all men though not equally employed by all men - leads to the conclusion that since a single human nature exists (upon which we base the concept of universal human rights as all are equally human), certain acts, thoughts or conditions are always objectively good while others are always objectively bad.

Subjectively a person might consider lying or robbing to be essential acts in his 'happiness' but surely you don't think this means a man has a natural RIGHT to lie and steal do you?

People with mental illnesses - such as depression - desire many things which are objectively harmful to them. Surely the mere subjective desire for an object that is objectively harmful doesn't automatically create a human right for them to acquire it?

If so, then smokers have an ABSOLUTE right to smoke, as drinkers have an ABSOLUTE right to drink, or do drugs, or jump off bridges....regardless of the social impact or indeed harm done to the person so desiring such acts.

So I conclude merely because homosexuals desire X doesn't mean they have a natural or civil right to X. Foisting it on the rest of us via courts is not going to vindicate that right and keep America a constitutional republic.
11.2.2005 4:45pm
Dan Larsen:
Axioms are only axioms because everyone agrees with them. Axioms are by nature things which cannot be proven. For example, the axiom that "for every pair of points, it is possible to construct a line segment joining them" cannot be proven. Everyone agrees that it is so because it seems self-evident, because no one has ever found a counter-example. If someone, however, could make a showing that there existed pairs of points that for which it was impossible to construct a line segment joining them, then the axiom would be thrown into doubt. At which point the entire debate would be up for grabs. Defenders would have to show that the axiom indeed held.

(Of course, in math today only very solid axioms exist because of centuries and centuries of careful review. But it is not difficult to conceive of pre-Euclidian geometricians coming up with "axioms" that were later called into doubt and eventually dismissed.)

In short, axioms cease to be axioms the moment people begin to seriously call them into question, which is why any mathematical analogy involving axioms here makes absolutely no sense. If an assumption has been called into doubt, responding by saying "But it's an axiom!" proves nothing.
11.2.2005 4:46pm
Mr Diablo:
Op Ed, We actually had a pretty great professor who never let students off the hook for just saying "that's a straw man" or would let it pass when they completely misquoted someone or took something completely out of context. It was a little more rigorous than a program where you received extra points for using a big word like "churlish", but nonetheless had nothing to say.

And, I understand that you probably do not like being called a bigot. No one does, even bigots! But after an entire day of this board I've been told that the best arguments against gay marriage were (1) slippery-slopes that a four year old could detect were red herrings, (2) arcane adherence to "tradition" and "traditional definitions" that ignored the fact that we are a nation of laws based on a constitution of limited government and citizen sovereigns, or (3) moral disgust, a principle more non-justicible than the republican form of government clause... I'm not going to buckle and let you cloak yourself in euphemisms. Those three popular arguments above that are cited to ad nauseum by the opposition to equality types like yourself were used in other places and in other times in this country. They were wrong then, they failed over time before, and they will fail over time again. It is a shame that for so many Americans removing bigotry requires act of law or court instead of conscience.

Why don't you take a deep breath and offer a comment that makes sense. And take some time to read things over before you type, all the cool kids are doing it.

Eddie, I do not know how this is about sexual behaviors. I'm trying to understand why and how, but to me your comment makes as much sense as to say "the gay marriage debate is about pancakes, therefore we cannot debate."
11.2.2005 4:52pm
Jon Rowe (mail) (www):
-- I did not say that the purpose of marriage was to trick straights into becoming gay. What I said is, if society approves of homosexuality in the form of gay marriage, within 50 years a much larger proportion of the populace will be homosexual. --

This has no basis whatsover for this in human nature. In human nature, 95+% of the human race has an immutable predominant or full heterosexual orientation, and that doesn't change.

What *may* happen, if we become more tolerant, is that more heterosexually oriented individuals will experiment with homosexual acts in the short run, but in the long run their orientations won't change.

The experiences of Ancient Greece are instructive. A huge % of their male citizen class experimented with homosexual behavior; but virtually all of them went on to get married and sire families. There is no more evidence of any more "real" homosexuals -- that is those who pursue lifelong exclusive homosexual relations -- in that society than there is in ours. Certainly less that 5% there, if that.
11.2.2005 4:53pm
Medis:
Taimyoboi,

As my other reply suggests, I actually think there are a lot of possible mechanisms. For example, suppose gay marriages often led to better health for the participants, as appears to be the case for straight marriages. Improving an individual's health reduces that individual's social burden (and, this is true even for people who are net social contributors, or who pay out of pocket for health services, or so on). Accordingly, we should be willing to pay a little something to encourage people to do something which improves their health.

Of course, you are correct that I would have to look at all possible effects, including the possible effect of economic problems caused by insufficient reproduction. But personally, and again without claiming to have definitive proof of this, I don't think gay marriage is likely to result in any significant reduction in reproductive rates.
11.2.2005 4:54pm
Dan Larsen:
In fact, saying that marriage=man+woman is an axiom would actually harm the case of opposition to same-sex marriage. To say that it is an "axiom" is to say "I cannot show that this must be true, so I appeal to everyone's sense of what is self-evident that this is true." That marriage=man+woman is not self-evident to some people. And then poof your entire case collapses.

There may be good arguments to prevent same-sex marriage, just don't use this one.
11.2.2005 5:06pm
Medis:
Battletank,

You are, of course, right that few people have argued that someone has a natural right to do X MERELY because that person has a desire to do X. Conversely, however, the MERE fact that a right to do X has not been frequently recognized or provided with legal protection does not mean there is no such natural right. In other words, to apply this theory, you need a substantive theory of what makes something a "natural" right, as opposed to something society must grant, and what also makes it a "right", and not just an interest, desire, or so forth.

So I think you have correctly suggested something about what needs to be shown about gay relationships, but have not established that cannot in fact be shown.
11.2.2005 5:06pm
Mr Diablo:
Battle, people used to say the same thing about Brown v. Board of Ed.-- that edicts from the Court would destroy the Republic. Well, it was not for lack of trying by those who did not like black people and spent the next 11 years trying to undermine the constitution mandate that treating someone differently because of their race a violation of their rights (or those states that 100 years earlier committed treason and tried to secede from the Republic).

Actions do not create rights. Laws do. But sometimes laws are passed by people who ignore the cries for equality from a minority or are done with abject animus toward that minority's demand for equality, and those laws, in most cases, should be struck down.
11.2.2005 5:07pm
eddie (mail):
Mr. Diablo,
I think you will agree that sexual orientation is an irrelevant aspect of human relationships. Marriage is a human relationship, regardless of whether or not the state sanctions it. All of the arguments homosexuals make for being allowed to have state sanctioned marriages are valid for all other loving human relationships, except for receiving financial benefits (which as Medis has pointed out may or may not be a net positive for society) and advancing the homosexual agenda of making their sexual activities less repulsive to non-homosexuals (or as you put it making homosexual sexual activites more acceptable to the American public). Consequently, whatever argument is made justifying state sanctioned homosexual marriage is valid for all other loving human relationships and should reasonably lead us to conclude that a state sanctioned marriage should be available to any human relationship or combination of human relationships we humans can come up. I am not passing a judgment on any relationship, but I still an inclined to provide benefits to heterosexual sexual relationships because of their relationship to continuation of the species. I personally (although a single male) am happy to help the species continue by providing any advantages state sanctioned marriage may provide to heterosexual couples.
11.2.2005 5:17pm
Battletank (mail):
As far as discrimination goes and equal protection of the law.... American law DOES accept that some discrimination is appropriate; we discriminate against naturalized citizens (they can't be president). We discriminate against felons (they can't do lots of things).

So we have to distinguish legal from illegal discrimination and the basis of discerning the difference.

Why is it considered legal to discriminate against the blind when discussing the legal permission to pilot aircraft? Clearly the blind are just as human as those who can see.... but the blind are - for whatever reason - not capable of safely providing a public service.

Thus we discriminate, based on a reason which involves the common good. A blind person wishing to pilot aircraft
"because it'll make him feel happy" doesn't suddenly become endowed with the absolute right to pilot aircraft.

Or take person A who is psychologically sound and Person B who is clinically depressed. Both are human beings. Both are citizens. But both are applying for the job of sitting in nuclear missile silos. Obviously discrimination is called for. Person B's psychological health is a rational factor in denying him a job.

It's not bigotted or irrational to deny a blind person or a clinically depressed person a job involving planes or ICBMs.

Now look at homosexuals and everyone else. Clinically it has been, is currently, and will continue to be proven that people with same sex attractions are not entirely healthy even apart from acting out.

Before you through the APA at me, see for yourself what "proof" they provided in 1972 to remove the condition from the DSM. Not finding many studies (they accepted) isn't the same thing as "conclusively proving" homosexual attraction to be "OK". Subsequent studies done in the last 30 years have shown people with SSA to have much higher incidences of emotional and mental problems.

That in and of itself warrants a review as to what the state ought to consider proper and improper 'discrimination'. Pyromaniacs don't have an absolute right to be firemen. They don't lose all rights but neither do they automatically gain all rights either.

Merely having a sexual attraction does not of itself bar someone from civil rights, just as merely having a religious belief doesn't bar someone from civil rights.

But civil rights aren't the same thing as "social acceptance" nor do they include "everything I could possibly desire".

If I wear a huge "The Pope is infallible and Protestants are going to hell" button and then walk into a Baptist Convention expecting everyone to be nonchalant (or "pro-life and proud" button and attending a Planned Parenthood convention) I should REASONABLY expect negative reactions. To consider my provocation a RIGHT and other peoples' negative reactions to be prima facie evidence of bigotry is insane.

Yes I have the right to free speech...but not the right to expect everyone is going to agree with my speech! Yet Gays expect people either totally agree with their every whim...or are irrational haters, breaking the law by discriminating against their right to be agreed with.

My being Catholic (or Jewish) doesn't mean that I have the absolute right to be accepted by all neighbors as OK in this belief. Gays conversely want total social acceptance on the grounds that any begging to differ warrants "discrimination" as though no other group in society has to deal with misunderstanding or disagreement.

If I walk into a job interview at the DNC wearing an RNC lapel pin and they choose not to hire me.... they exercise prudent discrimination as is their right as a private association. But Gays demand to be accepted, hired, and promoted AS GAYS not merely as Fred or Sue.

I have a civil (and human) right to be Catholic. I don't have a civil (or human) right to use the State to enforce my Catholic views on co-workers or strangers by affirmative action laws; Gays do use the law as a club to beat those who don't attend "sensitivity training", Gay Pride days, weeks, and months, parades, wear the pin, etc etc. In the name of "diversity" many people have lost their jobs because they dared offer a diverse view of morality or science.

My religion doesn't give me the right to have Public schools and Public universities hold courses specifically teaching the glories of my religious rituals - but Gays do insist that their status requires public school sex ed and Universities to promote the gay life style on pain of being accused of 'discrimination'.

I'm a straight citizen of the United States. But just because I'm part of the majority doesn't mean I have the absolute right to get the state and everyone else to agree that my habit of sleeping in is fantastic - or to accept without qualm my religious or political beliefs as absolutely true.

I have merely the right to express these views, not to get people to agree. Gays seem to believe we must all agree with them or we're automatically illegally discriminating against their human and civil rights. That they think this is another reason to conclude they're insane.
11.2.2005 5:19pm
Medis:
eddie,

I actually think the range of relationships over which there is likely to be a net social benefit of marriage may be somewhat limited. For example, as I have commented before, I think there are deep structural problems with trying to have group marriages. Similarly, I have suggested that the possibility of sibling marriages might have significant adverse effects on siblings while they are children. I also think that romantic love between the couple is at least a significant aid to the success of marriages, although it may not be necessary.

Of course, we need not resolve all these issues at once, but the basic point is that even if we conclude that gay marriages are good public policy for the reasons that I suggest, lots of other possible marriages may end up being bad public policy.
11.2.2005 5:27pm
Appellate Junkie (mail):
Taimyoboi responds to Chimaxx:

My question is whether that "artifical construct," as you call it, is still a necessity in contemporary society or whether it can be done away with now.

A definition of marriage encompassing same-sex couples cannot include procreation as one of its clauses.


Is "marriage" necessary? No, of course, not. Both humankind and the societies we form as social creations will continue.

People seem to place a disproportioned weight on penile-vaginal intercourse here. I'm not suggesting that it isn't a lovely thing. Frankly, I'm delighted that it's worked out so well for the species. But it seems implausible to me that we've constructed such an elaborate legal edifice to deal solely or even principally with a particular sex act.

If the production of babies per se is the principal interest (and I'm not really convinced that requires such massive government involvement any more than sexual intercourse does), then lesbians obviously satisfy the bill, unless of course the method of production is the underlying social concern.

Obviously, we've seen this whole "how do we make babies" debate rehashed in glorious detail enough times that there seems little need to go over the whole thing again. It boils down to gay couples do not accidentally have babies.

In looking to why marriage exists relative to the next generation, we ought to give at least as much weight to the reality of raising children rather than the accidental nature of how they are conceived.

Is child rearing really all there is to marriage? I certainly don't think so. I would argue, however, child rearing has got to be at least as (and realistically more) important that the means of production.

It strikes me as intellectually dishonest to insist that a particular method of baby production is the sine qua non of marriage. It reduces what I've regarded as a good and glorious institution into a trifle.

Obviously, plenty of people disagree with me. Regardless, I'm left wondering just who is trying to destroy marriage.
11.2.2005 5:38pm
PeterH:
Taimyoboi:To make the traditionalist argument, as Mr. Carpenter is doing, the case must be made that these trends away from a historical concept of a primarily procreative union between a man and a woman are not a detriment to society.



No, actually, he doesn't. He can choose to, but he doesn't have to. Because right now, "a primarily procreative union" is NOT a requirement for legal heterosexual marriage. Yet you seem to feel that it remains a requirement for legal homosexual marriage -- one that conveniently can never be met to your satisfaction, thus ending the argument in your mind.

I acknowledge, without reservation, that historically, it may have been difficult if not impossible to guarantee fertility. I have no idea whether a war wound effectively removing a man's testicles or penis would have been an impediment to marriage (the old-fashioned equivalent of a hysterectomy or vasectomy today, a clear indication of infertility.)

I grant you the history. For the sake of argument, let's concede for the moment that it carries the weight of tradition. But can you give me a single reason other than tradition why, given medically proven infertility, you support heterosexual marriage but not homosexual marriage? Or is tradition your only reason? Because that seems a very flimsy reason to hang the argument on, making it hard to understand how it can't be simple opposition to homosexuals.
11.2.2005 5:39pm
eddie (mail):
Medis,
I enjoy your thoughtfulness. My position is that I do not want to be taking away people's money without conclusive evidence that it will provide a benefit to them, until then I vote no.

Now I am not trying to be inflammatory when I make the following argument but I do believe it has validity. In my experience, everything has an intended purpose. However, many things if not everything can be used in a way that was not intended. A brief example, a hammer's intended purpose is (among other things) to pound nails but it can be used to damage the Piata. I believe right reason would support the intended use of the human penis is for eliminating urine and procreation; and, the intended use of the anus is for eliminating solid waste from the human body. Other uses, while possible, are not intended uses. Cosnequently, to legitimize the other uses by state sanction is to provide irrational guidance to the citizenry, and, probably we would all agree that we already have enough irrational guidance being provided to want to avoid adding to the confusion. Simply saying something is being used for its intended purpose does not make it true and everytime the state supports the misuse of anything it is more difficult for people to come to sound and rational conclusions in that particular area and I would contend in other areas too.
11.2.2005 5:40pm
PeterH:

Taimyoboi,
By the way, the example of my brother's marriage is hardly just an anecdote. It is an example, but one of a real, and widespread principle that you seem to choose not to address. I remain unclear why.
11.2.2005 5:41pm
gmoney:
Dale,
Thank you for being honest about the real issue at hand. I have been studying this issue for the better part of two years, yet you are one of the only same-sex marriage advocates I have heard that actually admits to wanting to change the definition of marriage. Most on your side ignore the real issue and simply repeat the factually wrong talking points that gays are being denied their rights and are suffering from discrimination. Here's an example from our good friends at the ACLU. aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=15071&c=23

Should we change marriage? Well, first we should understand that any changes would have significant impacts on our society and we should at least attempt to give some thought about what those long-term effects would be before rushing into anything. Let's not forget that marriage is the foundational institution for any healthy society, so giving deferrence to tradition is not a bad idea at least until we can be sure that the changes we seek to make will have positive effects.

Second, we need to acknowledge that changing marriage to allow men to marry other men is a radical change. Marriage is rooted in the biological reality that sex between men and women result in children, and that society should have an institution (i.e. marriage) to tie the kids to the parents and the parents to each other. With the exception of the last few years, never before has marriage in any state, nation, culture, society, or religion been anything other than a male-female union. (Jesurgislac 9:52am, if you have evidence to the contrary then please share with the group. And Cold Warrior, sorry to pick on your little theory but marriage was not invented by Christian [or Jewish] clerics—it pre-existed both the state and the church).

For a visual introduction into why joining moms and dads is so important for both children and adults and society as a whole I invite you all to see the dazzling technicolor charts at www.heritage.org/research/features/marriage/index.cfm. With so much social research supporting the importance of traditional marriage, it is unclear why making a radical redefinition of this basic institution that affects all of society would be a good idea. I still am waiting to hear a same-sex marriage advocate give one, just one, substantial argument (show at least some minimal evidence, please) on how redefining marriage will improve our society and nation.

The burden of proof is not on those defending traditional marriage, but on those proposing radical changes. I invite any same-sex marriage advocate to respond to the following:
-How should marriage be redefined and what is the rationale for defining it that way?
-Can the definition be reasonably enforced by the government?
-What effects would the redefinition have on the divorce rate and on the marriage rate?
-What effects would the redefinition have on children? (Consider educational outcomes, physical and mental health, and criminality for starters).
-What evidence do you have that this redefinition would be positive for our society and nation?
11.2.2005 5:41pm
PeterH:
eddie: I enjoy your thoughtfulness. My position is that I do not want to be taking away people's money without conclusive evidence that it will provide a benefit to them, until then I vote no.


And yet it doesn't bother you to take away gay people's money. If allowing a small percentage of gay people to marry would so deeply wound you financially, imagine the effect on us of supporting the other 97% of the population. Further, you seem okay to take away our access to the 1000 or more real benefits of marriage, as determined by the US Accounting Office. Why don't your principles apply to everyone?
11.2.2005 5:44pm
Appellate Junkie (mail):
In the unlikely even that anyone feels the need to quote from my last post, feel free to correct the numerous typos.

Apologies.
11.2.2005 5:45pm
eddie (mail):
PeterH,
Good question. I have stated that I am a single male so I am in somewhat the same position financially as are homosexuals, just to give perspective. I am willing to provide the benefits of marriage to heterosexual couples primarily, if not solely, because of the heterosexual union's relationship to continuing the human species. I recognize it is a form of discrimination against those who are not heterosexual couples, such as myself. However, I just love people and feel the more the merrier and know that growing up in a two heterosexual parent family was a joy. That is not to say that other family types may be as successful, but current research (again without citations but based on memory, so if I'm wrong please correct me) indicates that families with a mother and father are most successful in terms of outcomes for their children.
11.2.2005 5:52pm
PeterH:

Battletank):So we have to distinguish legal from illegal discrimination and the basis of discerning the difference.

Why is it considered legal to discriminate against the blind when discussing the legal permission to pilot aircraft? Clearly the blind are just as human as those who can see.... but the blind are - for whatever reason - not capable of safely providing a public service.


But what if, as is currently the case with same sex marriage, you refused to hire some blind people for airline jobs while still hiring others? Say, you hired blind white people, but not blind black people?

Ah, you say, but pilots have to be able to see!

Yes, we respond, but not all the employees of the airline are pilots, and right now, today, you have blind white people who are doing just fine at their jobs.

Yes, but traditionally, only the sighted were hired by the airlines! The airline has NEVER hired blind black people.

Yes, but the blind white people you have on the job today are doing just fine, right?

Please explain to me why this would not be a transparent example of bigotry against blind black people? And please explain to me why straight people get a pass on all the "reasons" why gay people can't get married.
11.2.2005 5:53pm
Jon Rowe (mail) (www):

Now look at homosexuals and everyone else. Clinically it has been, is currently, and will continue to be proven that people with same sex attractions are not entirely healthy even apart from acting out.

Before you through the APA at me, see for yourself what "proof" they provided in 1972 to remove the condition from the DSM.


This isn't true. Homosexuality was never on the DSM "list" for good reason to begin with. The notion of sex as a "mental illness" (as opposed to sexual sin) was and in a sense still is relatively novel in the 20th Century.

Homosexuality was put on "list" with a whole slew of other sexual behaviors, that people may have regarded as "sinful" or frowned upon by tradition, but generally have nothing to do with real mental illness.

Real mental illness by the way, things like depression and anxiety disorders, generally have no normative values anyway. We don't think that there's anything "wrong," in a normative sense, with someone who is depressed or has say social anxiety. Indeed, we consider them "disabled" (they are covered under the ADA and cognate state laws) and we presumptively forbid discrimination against them, unless there is a good, justified reason for it. But the burden is on the discriminators to prove why they shouldn't "reasonably accomodate" someone with a mental disorder.

In short, your argument that homosexuality is a mental disorder is an argument that homosexuality = a disability. Even if it were true, it would prove little for your case, and arguably undercuts the position for which you argue.
11.2.2005 5:56pm
Xander (mail):
eddie,

Your "intended use" doctrine seems a tad bit non sequitur, but regardless. Isn't what separates humans from animals our ability to conquer nature and find uses for things that aren't "natural." In essence aren't you saying that the government should advocate only the "natural" use of let's say a "leg." No one would ever deem this level of government intrusion proper and frankly it should be ridiculed. Man's state of nature is far more complex than that of lesser animals.

To pretend like man is bound by the same natural codes as other creatures would do a number of things including the following: One it would demand that we interact with the environment in the same way, as an equal competitor without realizing our ability to supplant and control. Two we would be forced to accept the same patterns found in other species, including homosexual action in many of our fellow animals. To embrace such a "basic" read on human action you would be promoting humans acting on base instincts and the simple desires of hunger, pleasure, and propagation. Man's ability to supplant basic instinct is what makes us a noble race.

We are taught in the catholic faith to reject the flesh, this would lead me to believe that we are being told in this case to reject seemingly natural tendencies, that are considered incompatible to a higher calling of man. Basically, the idea that we conserve, protect the weak, and disallow polygamous relationships, is one that holds human above such simple "intended use" fallacies. The imagination is perhaps the most wonderful and most dangerous aspect of humanity. While it can give us the means to destroy ourselves it can lift us up even further above our humble beginnings. I won't pretend to know where homosexual unions sit on the betterment - destruction scale.
11.2.2005 6:05pm
Medis:
eddie,

I agree there is some sort of burden on those who propose state expenditures (for any project). Personally, I think gay marriages, in light of our experience with straight marriages, meet that burden.

I don't really buy your natural purpose of body parts issue. I'm using my nose to hold up my glasses. It doesn't get much more unnatural than that ... but I think it is utterly unproblematic.
11.2.2005 6:10pm
Taimyoboi:
"People seem to place a disproportioned weight on penile-vaginal intercourse here..."
"It boils down to gay couples do not accidentally have babies..."
"would argue, however, child rearing has got to be at least as (and realistically more) important that the means of production..."
"It strikes me as intellectually dishonest to insist that a particular method of baby production is the sine qua non of marriage. It reduces what I've regarded as a good and glorious institution into a trifle."


Appellate Junkie,

A lot of interrelated points so bear with me:

First, I'm not sure if the switch from intercourse to procreation was intentional or an oversight; but the key is the result. Up until recently, that was the only way of making babies.

While you use the word accidentally, some would say naturally, which is of course, part of the concern. Does potentially deemphasizing the role of natural procreation have a detrimental effect on society. Given that a vast majority of babies are made this way, that seems to be a rational concern, and one that should be addressed more than just peremptorily.

And rearing children is of course important, but in this case there is no question about whether the egg or chicken came first. You can't rear children properly if you aren't making them.

As for making procreation the sine qua non of marriage, I'm not saying that, nor do I think most people arguing in good faith. The question isn't whether it is the only purpose of marriage, but how seriously its role is taken. Any trend that deemphasizes that role is certainly not a good thing.
11.2.2005 6:13pm
Xander (mail):
Taimyoboi:
"You can't rear children properly if you aren't making them."

I better get this out in a memo to all those adopting parents.

can you collaborate this? I mean simply, why is this the case? It seems a bit disingenuous to claim carte blanche that people who don't physically procreate can't raise children effectively. I don't think anyone can claim this as universally true. I know it for a fact not to be.
11.2.2005 6:26pm
Taimyoboi:
PeterH,

First, I'm one of those people who is one the fence but has a proclivity for deferring to tradition. Burkean as charged...So please keep that in mind.

Here goes:
"Yet you seem to feel that it remains a requirement for legal homosexual marriage..."

I demand that the government take an active interest in re-focusing marriage around procreation, period. If it is the case that same-sex marriage would not deemphasize the importance of procreation in traditional marriage, my objections would wash away, AND consequently, I would demand that the gov't take an active interest in focusing gay marriage around adoption/rearing as well. The same interest I want it to take in heterosexual marriage.

I don't not want the US to go the way of Europe (which I don't believe is in its current state because of gay marriage).

"But can you give me a single reason other than tradition why, given medically proven infertility, you support heterosexual marriage but not homosexual marriage? Or is tradition your only reason? Because that seems a very flimsy reason..."

My reasons are that expanding the definition to include same-sex marraiges, in part, requires a deemphasis on the role of natural procreation in marriage. Since same-sex unions don't naturally produce children, this is a warranted concern. And I know that there are fertility methods that might become available, but that's a Brave New World that I'd rather not see become the norm.

With regards to your Brother:
"...but one of a real, and widespread principle that you seem to choose not to address. I remain unclear why."

I did address it. As I said earlier, the vast majority of couples get married with the intent to have children. Otherwise, the world would be a lot lonelier place.
11.2.2005 6:31pm
Taimyoboi:
"I better get this out in a memo to all those adopting parents...disingenuous to claim carte blanche that people who don't physically procreate can't raise children effectively."

Xander,

I wasn't aware that children up for adoption arrive by a Magical Stork.

As for claiming I said people who don't procreate can't raise children effectively, I think you need to improve your reading skills. Nowhere do I make that claim.

I simply said you can't rear children well if no one is making them since there would be no children to produce.
11.2.2005 6:35pm
Taimyoboi:
That should read: "...since there would be no children to begin with."
11.2.2005 6:36pm
Op Ed. (mail) (www):
Diablo: Heh...heh heh...heh heh heh...you said "churlish"...heh heh heh

OK, so that's more of a paraphrase of Diablo than an actual quote...

We actually had a pretty great professor who never let students off the hook for just saying "that's a straw man"

Actually, I didn't just say "strawman." Not only did I directly answer why his sister shouldn't have to present her uturus for inspection, but I provided the link to the expanded argument about the sterility strawman. Perhaps you missed that. Here's another one, which I'll quote so you don't miss it this time (sorry for all the "big words"):
The degree of plausibility, or implausibility, of such an imagined scheme for invasive measures [to establish fertility, e.g. uturus inspections] is the basic test of the notion that its lack could validate the assertion that marriage has never been based on the potential for procreation.


I understand that you probably do not like being called a bigot. No one does, even bigots!

I wouldn't know what bigots don't like, but there seems to be good reason to take your word on their account.

Look, there is plenty else wrong with your response, but you are clearly very angry and have collapsed into an emotional tirade. I can't help you with that, and there is little to be gained from a point-by-point disection of your rant. Good luck collecting yourself, and I wish you well.
11.2.2005 6:48pm
Xander (mail):
Taimyoboi,
I'm sorry but I assumed no one would actually suggest that gay marriage would lead to the end of the human species because procreation as we know it would cease. In the future I won't make such ridiculous assumptions about another's "argument."

Frankly, I don't think we need to give serious thought about procreation ceasing because of a change such as this. Is there any substantive evidence that heterosexuals will be dissuaded from having children in 1.5% of the "married" couples in the nation can't, or live in a relationship that isn't primarily reproductive? Yet, honestly this line of questioning may be ridiculous and for that I apologize once more. However, I still doubt that declining birth rate due to same-sexed unions is a rational case for concern.
11.2.2005 6:49pm
Appellate Junkie (mail):
Taimyoboi:

Yes, I covered a lot of interrelated ground in short order. Let me take a stab at where we are on the basics:

First, I'm not sure if the switch from intercourse to procreation was intentional or an oversight; but the key is the result. Up until recently, that was the only way of making babies.

My unmarked switch from (a) intercourse to (b) having a baby was quite deliberate.

The traditional way of making babies is quite obvious. I don't think we need to belabor that point.

It's equally obvious that some lesbians, coupled or otherwise, choose to make babies, perhaps in non-traditional ways or maybe the babies are just "leftovers" (now that's a horrific turn of the phrase). Of course, gay men may also have "leftover" children, to say nothing a handful of other possibilities.

The distinctions between (a) the value of a particular sex act (in and of itself), (b) the value of producing new people, (c) and the value of responsibly raising those new people were central to my point.

I think that (b) and (c) have inherent value. From a societal point of view, I'm less certain that (a) is valuable beyond the fact that is the overwhelmingly popular way of arriving at (b).

Being quite non-traditional myself, I happen to think that a healthy sex life is, well... healthy. At more pratical level, I think nature has ensured that the vast majority of people will for at least a portion of their lives pursue a sex life, healthy or not. I think from a traditionalist point of view, we ought to (try to) confine that activity to marriage. Sex does not a marriage make. That's not my point. My point is that marriage and sex intersect in more ways that the production of babies.

I'll leave thought dangling there, because it is necessarily related to another issue below, that I want to treat in a subsequent post.

While you use the word accidentally, some would say naturally, which is of course, part of the concern.

Again, my choice of words was intentional. When confronted with the obvious reality of lesbians becoming pregnant, some traditionalists resort to the distinction that a woman in a lesbian relationship obviously didn't get pregnant accidentally (at least that would be unusual). This distinction then forms the basis for treating heterosexual couples differently than lesbian ones.

I've never see you make that distinction, so I'll move on to your own words:

Does potentially deemphasizing the role of natural procreation have a detrimental effect on society. Given that a vast majority of babies are made this way, that seems to be a rational concern, and one that should be addressed more than just peremptorily.

Fair enough.

It would seem that encouraging heterosexuals to engage in a particular sex act isn't really the problem. We have eons of experience on that topic. So I'll gloss over that one peremptorily, pending any suggestion to the contrary.

That some people use unconventional means to produce a child, even if the technology can be found in most American kitchens, would seem to reinforce the fact that plenty of people want to produce children, not just have sex. It's not clear to me why society ought to devalue children based on the mode of conception. Perhaps my imagination is wanting?

Limiting that sexual activity to the marital bed is significantly more difficult (witness the out-of-wedlock birthrate). Traditionalists are rightly concerned about that. I'm going to address this issue shortly (although I think Carpenter has certainly touched on it to some degree).

And rearing children is of course important, but in this case there is no question about whether the egg or chicken came first. You can't rear children properly if you aren't making them.

Well, someone had to make them. I heartily agree that the people who make them (I would certainly include lesbian moms in that group, but I'd also throw in some other contexts too) are the people who really ought to raise them. Regardless, someone had to make the baby in question, so yes. Someone had to make the child, and someone needs to raise him or her.

As for making procreation the sine qua non of marriage, I'm not saying that, nor do I think most people arguing in good faith. The question isn't whether it is the only purpose of marriage, but how seriously its role is taken. Any trend that deemphasizes that role is certainly not a good thing.

While I'm trying to make time to get into the juicier questions I deferred above, I'm wondering if you can clarify something for me. I think your use of the pronoun "it" above clearly has "procreation" as its antecedent. If true (there's one question), then are suggesting that recognizing that raising a child as a co-equal normative basis for marriage will likely diminish procreation within heterosexual marriage where fertility is possible (the second question)?

And, there's a separate concern here that I think you've at least alluded to. Certainly others have pointed to it explicitly: Is the real concern that married (heterosexual) people aren't having children, or that they aren't having enough children?

I question this because I've noted some hand wringing about fertility rates dropping below the replacement rate (somewhat more than two children per woman, but that's partly a function of infant mortality rates, which are absolutely abysmal in this country).
11.2.2005 7:10pm
eddie (mail):
Let me put out another position, for the point of discussion if nothing else.

Heterosexual unions and homosexual unions are, if nothing else, fundamentally, essentially, and qualitatively different. They are not equal, not in their history, not in their conformance with the human body, not in theory, not in their outcome. There is probably no way to discuss the subject rationally with someone who does not see that.

I do understand that there may be superficial ways in which they are equal. For example, both (I am assuming this for the homosexual unions since I cannot speak from experience) typically involve physical orgasm, both typically involve physical pleasure, both may involve emotional, psychological and intellectual intimacy.

However, similarities, and even samenesses, in the unions do not help in determining whether the two types of unions are equal. It is what is different about them that makes them unequal.

If they are not equal, is one better than the other? A society must answer that question when it comes up. Obviously, it has come up.

A society must answer that question because for a society to be the best it can be it must support that which is better. In something as fundamental and essential as human sexuality, supporting the better is essential to success. Success being the improvement of the human condition. In other words to ensure to our posterity...

However, assertions to the sameness or similarities of the two unions are irrelevant to answering the question of whether one is better than the other. It is only what makes the two unions different that can help us determine whether one type of union is better than the other and thus deserving of society's support.

Consequently, we have to answer a question that has three (I concede there may be more than three, but three is all I have come up with) possible answers. The question being, is there anything in the reality of heterosexual unions and homosexual unions that gives society reason to support one over the other? Isn't that the point of the whole discussion?

The answer is important because if one is superior to the other than the state should support the one that is superior over the other. Logically, it makes no sense for the state to do otherwise. What good reason is there to support an inferior activity when a superior activity is available to support?

Back to the three possible answers. First, and the easiest to dismiss is that society should favor neither because they are of equal value to society. To demonstrate the erroneousnous of this response, I will cite one (it is certainly not the only) way that they are not of equal value to society. Heterosexual unions have forever been the source of the species. Homosexual unions have never provided this benefit (society's very existence) to society.

I anticipate an objection. The other side objects by saying, "We no longer need heterosexual unions to ensure the continuance of the species. Our technology has provided an alternative to heterosexual unions". They are correct about technology, but no one knows the future and certainly heterosexual unions should be honored for their past contributions. I cannot say the same for homosexual unions.

The second possible answer is that homosexual unions are better and thus society should favor them. I do not know of any ways in which homosexual unions are better at all and will leave the other side to provide this argument.

The third possible answer is that heterosexual unions are better. I already provided one reason heterosexual unions are better, they ensured continuation of society in the past and are the only way to ensure continuation of the society in the future. Only heterosexual unions can ensure the continuation of society in the most extreme and adverse conditions.

I offer another reason. Heterosexual unions provide a clear picture of reality and sound (in terms of reason and clarity) thought which will assist rather than confuse the development of the human being. Say what, you might ask?

The heterosexual union in contrast to the homosexual union uses complementary human organs in the act. Clearly, the homosexual unions do not use complementary organs and in fact use organs in ways for which they were not intended.

Unsophisticated, poorly educated and slow thinking human beings (and who among us does not fit somewhere on a continuum of these descriptors) are susceptible to being misled in terms of reason, conceptualization and understanding. Everyone reading this can think of examples of this misleading occurring daily.

Much of the misleading occurs because of the human beings inability (an inability that again exists on a continuum)to analyze and reason effectively. Causes of this inability are many and individual.

However, for society to sanction an act that uses human organs for purposes other than those for which they are intended can only add to the confusion that is part of every individual's human condition and increase society's inability to develop sound laws. A society that can acts against its only improvement can only decline rather than flourish.
11.2.2005 7:14pm
eddie (mail):
In my 7:14 post the last sentence should read, A society that acts against it own improvement can only decline rather than flourish.
11.2.2005 7:17pm
eddie (mail):
Medis,

The complementarity of the human organs is the essence of the discussion. Why do you think homosexuality was (is?)a taboo? Most people recognize that the penis and anus are not complementary organs. You can attribute this recognition to bigotry if you like. I prefer to attribute it to reasoned observation. How can we get pass this disagreement? It seems to me to be pretty fundamental.
11.2.2005 7:27pm
Appellate Junkie (mail):
Taimyoboi:

Well, I'm welcome a response to my recent post to you, what you offered to Xander might well answer the core question:

I don't not want the US to go the way of Europe (which I don't believe is in its current state because of gay marriage).

Which I read to mean that you're concerned that people in American society aren't producing enough babies.

Stitching that together with your other comments, I gather that you've reached a point where you will tolerate no more "tinkering" with marriage unless it causes heterosexuals to get married and produce in excess of two children (on average) in each woman's lifetime. Presumably, those babies ought to issue within the confines of a marriage.
11.2.2005 7:32pm
Chimaxx (mail):
Taimyoboi: First, I'm not sure if the switch from intercourse to procreation was intentional or an oversight; but the key is the result. Up until recently, that was the only way of making babies.


And by recently, you mean how many hundreds of years since it was learned that the functional equivalent of a turkey baster would do the job?

Taimyoboi: As for claiming I said people who don't procreate can't raise children effectively, I think you need to improve your reading skills. Nowhere do I make that claim. I simply said you can't rear children well if no one is making them since there would be no children to begin with.


No really, you didn't say that:

Taimyoboi: And rearing children is of course important, but in this case there is no question about whether the egg or chicken came first. You can't rear children properly if you aren't making them."


You said "You can't rear children properly if you aren't making them"--and with the chicken-and-egg analogy and falling within a message whose central message was the importance of procreation within marriage, the implication was strong that you meant that literally.

However, I'm happy to accept your revision of this to "you can't rear children well if no one is making them since there would be no children to begin with," since it removes your entire objection to same-sex marriage, unless you seriously think that allowing same-sex couples to marry will cause heterosexuals to stop making babies. Allowing same-sex couples to marry and adopt does no more damage to the importance of precreation within marriage than allowing infertile mixed-sex couples to adopt.

Taimyoboi: As for making procreation the sine qua non of marriage, I'm not saying that, nor do I think most people arguing in good faith. The question isn't whether it is the only purpose of marriage, but how seriously its role is taken. Any trend that deemphasizes that role is certainly not a good thing.


Why, specifically? Why would a trend that emphasizes staying married and properly raising the children you already have (whther through procreation or adoption) over creating more children be not a good thing?
11.2.2005 7:35pm
Chimaxx (mail):
eddie: In something as fundamental and essential as human sexuality, supporting the better is essential to success. Success being the improvement of the human condition. In other words to ensure to our posterity... [...]The answer is important because if one is superior to the other than the state should support the one that is superior over the other. Logically, it makes no sense for the state to do otherwise. What good reason is there to support an inferior activity when a superior activity is available to support?


This is true only if it is a zero-sum game. What if supporting both creates synergies that benefit all in ways that surpass the results of supporting just one or just the other?

I'm not necessaily saying that this is true (though I think this is part of what Dr. Carpenter has been chipping away it in some of these essays), but your anaysis depends on it being false.

However, for society to sanction an act that uses human organs for purposes other than those for which they are intended can only add to the confusion that is part of every individual's human condition and increase society's inability to develop sound laws. A society that can acts against its only improvement can only decline rather than flourish.


You mean like using fingers to type at a keyboard (and carpal tunnel syndrome makes it clear that this is not what fingers are intended for). This "purposes of organs" argument doesn't make any more sense this time around than it did the first.
11.2.2005 7:54pm
Jon Rowe (mail) (www):

However, for society to sanction an act that uses human organs for purposes other than those for which they are intended can only add to the confusion that is part of every individual's human condition and increase society's inability to develop sound laws. A society that can acts against its only improvement can only decline rather than flourish.

...

The complementarity of the human organs is the essence of the discussion. Why do you think homosexuality was (is?)a taboo? Most people recognize that the penis and anus are not complementary organs. You can attribute this recognition to bigotry if you like. I prefer to attribute it to reasoned observation. How can we get pass this disagreement? It seems to me to be pretty fundamental.


This is, quite frankly, nonsense. First, the mouth no more has a "sexual purpose" than the anus. And virtually all heterosexuals (recent surveys show the number to be in the 90%) have oral sex -- something naturally indistinguishable from anal sex according to this teleology of looking to body parts and trying to glean "purposes."

The most recent survey also showed that a whopping 40% of heterosexuals tried anal sex as well. Also, lesbians, where most of the gay marriages will take place, don't have anal sex. And the most common behavior practiced by gay men is oral sex.

Moreover, the natural purpose of complementary sexual organs seems to be "procreation," which makes contraception just as unnatural as homosexual sex. When you throw in contraception and oral sex into the equation, and keep in mind that most of the time when heterosexuals have sex, conception is not the norm, we might aptly conclude that We Are All Sodomites Now.
11.2.2005 7:56pm
Taimyoboi:
Appellate Junkie,

"It would seem that encouraging heterosexuals to engage in a particular sex act isn't really the problem."

At risk of getting off the main thrust of this discussion, I'd just like to acknowledge that sleight of hand again. The qutoe you were referring to was discussing procreation not sex.

"...would seem to reinforce the fact that plenty of people want to produce children, not just have sex. It's not clear to me why society ought to devalue children based on the mode of conception. Perhaps my imagination is wanting?"

I think this assumption in your post needs revisiting. I think that people need encouragement to procreate, and more than you seem to be giving credit for. Children have shifted from being an economic hedge against old age to a cost that should be delayed as long as possible, if not put off entirely.

I don't think that society should value alternative methods of reproduction, and I don't believe I said so earlier.

Perhaps this might help in clarifying my point of view. Consider the tug and war for the correct definition of marriage as akin to a balance. Currently, the balance is tipping in the direction of a definition of marriage that is decoupled from the idea of procreation and child rearing. The concern is how the balance will tilt if same-sex couples are added into the mix. Will the portion that is sincerely seeking committed relationships within marriage help swing that balance back towards the traditional understanding of marriage, or will the portion, as typified (perhaps unjustly) by the those you see in the parades on the streets in San Francisco, move it in the opposite direction? Surely, if heterosexuals can drive marriage to hell, homosexuals have the same capacity.

In regards to the the proper recipe for marriage, what I can tell you is that currently it would seem that there is not enough procreation being added to the mix.

So yes, my primary concern is that couples are not having enough babies, not that they aren't having them. Yes, I would err on the side of caution when proposing policy changes that might exacerbate the problem. And yes, I think the evidence is fairly conclusive that children do best within a stable marriage.
11.2.2005 8:24pm
Taimyoboi:
That should read "...devalue alternative methods of production."
11.2.2005 8:25pm
Julian Morrison (mail):
Dale Carpenter: are you going to address the libertarian argument that the state ought to be got out of the marriage business entirely? It's not completely theoretical, I recall reading that a rogue Canadian province was threatening to do just that - cease marrying anybody, gay or straight.
11.2.2005 8:34pm
Taimyoboi:
Appellate Junkie,

At risk of not eating this evening, I must retire. Nevertheless, I will check tomorrow for any responses, and I will extend my thanks for the honest engagement.
11.2.2005 8:36pm
Xander (mail):
Declining birth rates is a reality all societies that advance as ours is have to face. In the end I don't think we can use the government to get people to have children, at least not in any plausible way. Look at the French, if I recall correctly, native French people are having fewer children, despite the governments financial incentives. What does this mean? We can't pay people enough to have children. As the incentives to have children decline do we really think we can a) turn the tide with policy or grandiose gestures of social engineering, and b) won't our natural thirst for survival as a species keep us around.

Given this, what difference does it make, for us as a species, how our next generation is conceived, as long as they are? Where is the intrinsic value in producing children the "old fashion" way?
11.2.2005 8:37pm
Medis:
eddie,

There is no need to choose one or the other sort of relationship to support, any more than we have to choose whether to build highways in Michigan or Florida. In other words, since we can do both, and since doing both makes sense, we have no need to answer the question of whether building highways in Michigan or Florida is better.

On the natural purposes of organs: seriously, what do you think about using my nose to hold up my glasses? Noses are for smelling, right? Do you therefore have an objection to my unnatural use of my nose?
11.2.2005 9:07pm
Appellate Junkie (mail):
Taimyoboi:

I'd just like to acknowledge that sleight of hand again. The quote you were referring to was discussing procreation not sex.

I was trying to be explicit, not pull a fast one.

As strange as it seems to me, an awful lot of people get very hung up on particular expressions of sexual intimacy (at least in a debate around this particular policy). I don't really know if you're among them, and I don't need to; you've shown no interest in that topic thus far. That's good enough for me.

To be clear, it's my understanding that your principal concern is making more babies. If I'm not reading what seems to be your well articulated point, just holler.

The vast majority of babies are made in the traditional sexual way. As if there could be any serious doubt about that, I've already agreed with you in no uncertain terms. I'm happy to repeat that as often as necessary.

Insofar as sex is relevant to your concerns about marriage, I think it's important to distinguish the biology of sexual reproduction from the decision to have children (or the accidental occurrence, an observation to which you also raised a quite mild objection). I don't think that we need to encourage married people to have more sex (hence the passing observation that you read as a sleight of hand). The problem is that they're presumably having sex, but not producing enough children.

I think that people need encouragement to procreate, and more than you seem to be giving credit for. Children have shifted from being an economic hedge against old age to a cost that should be delayed as long as possible, if not put off entirely.

Well, raising children is a relatively burdensome endeavor, but in my experience one that is regarded as more rewarding than you seem prepared to accept.

I do accept that there's been an increase in recent decades in childless marriages (I don't have the statistics handy, and would welcome a pointer if you have one). That said, it's not been my experience that the natural desire to have/raise children has grossly diminished, even the motivation is less economic in character that before.

Rather, it's been my experience that most people want to have a child—even gay people, for whom it is a more complicated task. I think that the more important dynamic is that people are having fewer children. Where once three or perhaps four children per couple was common, only one or two seems more the norm now.

I don't know if you agree with that supposition, but understanding the gross dynamic is absolutely central to figuring out what to do about. Feel free to describe what you see is going on in this regard. I'd be interested in it.

I don't think that society should devalue alternative methods of reproduction, and I don't believe I said so earlier.

My intention wasn't to put words in your mouth (or fingers). My intention was to figure out whether the problem, as you see, it is how the child was conceived versus the more general need to sustain the species. Like the whole sexual-expression thing, I am at times shocked by people who seem all too willing to segregate children's worth based on these entirely irrelevant distinctions.

That you seem to have recoiled from the suggestion that the method of conception was a concern is an unfortunately clumsy way for me to have elicited your opinion.

An Unfortunately Neccessary Digression: There's something you couldn't possibly know about me from our brief exchanges here. Were I convinced that you were a bigot (I think I'm allowed to use that word in a subjunctive clause?), I wouldn't engage you. There have been scads of posts here that I would characterize in the most uncharitable terms. Short of sitting down with you for a cup of coffee, I can offer only one thing to persuade you of this: I've never even bothered to respond to those posts.

Flattering or otherwise, I've chosen to engage you and few others because I'm interested in what you have to say, not because I think you're evil incarnate. My terse posts may not convey that, hence this digression.

Currently, the balance is tipping in the direction of a definition of marriage that is decoupled from the idea of procreation and child rearing. The concern is how the balance will tilt if same-sex couples are added into the mix.

That question was the one I deliberately deferred earlier. I'm going to take a whack at it later tonight. (Sadly, I do have to work for a living, so the almighty dollar intrudes.)

as typified (perhaps unjustly) by the those you see in the parades on the streets in San Francisco,

I live in San Francisco. I could write a mountain of posts on the topic you've mentioned in passing. In the interest of staying on topic, I'd like to skip that issue for now. If you really think that peculiar popular image has a significant bearing on the marriage debate, I'm happy to get into it. Your call.

Yes, I would err on the side of caution when proposing policy changes that might exacerbate the problem. And yes, I think the evidence is fairly conclusive that children do best within a stable marriage.

I'm not in the least concerned with a healthy Burkean tendency. I don't think that Carpenter is either. His argument isn't mine in the details, but I'm happy to stay focused on how he's framing the debate. It's a useful enough framework.
11.2.2005 11:00pm
Battletank (mail):
I find it remarkable (which is why I'm remarking;-)) that no one has picked up the obvious point that the re-definition of marriage is considered a RIGHT by the homosexual lobby without them explaining where they get this right to redefine institutions from - other than their whim.

The "slippery slope" argument isn't premised on what is POLITICALLY POSSIBLE given the Left/Right divide, but what is LOGICALLY NECESSARY in a court setting once the classic definition is jettisonned or expanded to suit the homosexual lobby.

Because they want to get married, they believe they have a civil and human right to be considered married. Hence the need for "marriage" to be re-defined to suit their desires.

If the term can indeed be re-defined VIA COURTS because some small constituency demands it, then other constituencies can follow suit. My argument isn't about their political likelihood of doing that, but about the open door to ANYONE re-definition establishes. It's as simple as that. It's not a "If" question but an "When".

Who gives you (or me) the right to re-define societal and civil terms of utmost individual and communal significance? Within a Constitutional framework, such changes are only allowed via Amendment.

If you invoke human rights, then you must account for the origin of rights - which requires you to either accept that might = right; human whimsy conjures up rights out of thin air or 'penumbras' OR rights come from the single human nature we all share and are discovered and judged by reason; they're not whims or desires but deduced goods owed people as people.

That is, discrimination is based on reasonable criteria, not whimsy otherwise it is illegal.

It would be illegal discrimination to refuse to hire a blind man (regardless of skin color or sexual orientation) if his disabilit(ies) didn't affect his work. But not illegal and irrational to refuse to hire him if those disabilities DID affect the good of himself, others and society.

Thus, there is a reasonable argument against hiring homosexual men to take young teen boys (or heterosexual men to take young teen girls)on overnight campouts, given the general bell curve fact that some will be likely to take advantage of their job.

Why risk grave and lasting harm to young people so that someone can feel good about a non-essential job?

It's a fact that "gay" men or women (those who come out, proud of their attraction as opposed to those struggling) have higher incidences of mental and social problems: drug abuse, alcoholism, depression, suicidal ideations, gay-on-gay violence, trauma, etc.

It's also a fact that the gay lifestyle is particularly risky from a strictly biological point of view given the oral,anal and masturbatory nature of their sexual expression...

Given these factors, it's not IRRATIONAL for someone to judge it unwise to hire homosexuals for positions that will place them in close proximity to people whom they would be attracted to any more than it would be irrational to place a heterosexual with the same proclivities in situations that could prompt episodes or health issues.

That's an objective judgement - even though subjectively the person feels bad, sometimes it's better to 'feel' bad that be hurt or hurt others.

Another underlying motive among the homosexual community is the thought that only social and civil redefinition of marriage to include their coupling will make them feel good about themselves. That to be denied this is to deny them the right to friendship and love (at least that's the passionate response "what? I suppose you want me to be lonely and sad forever..."

Last I checked, women and men have been roommates with one another for centuries... the supposed 'lack of access' they claim such as hospital visitation rights could be obtained simply by CHANGING HOSPITAL RULES, not by changing society's!

But they believe - which reason - that marriage is their right, that they have the human right to redefine marriage (and what ELSE PRAY TELL?)

But to accept THIS basis of human rights you have to banish subjective focused relativism of the Planned Parenthood vs. Casey stripe whereby each individual creates their own moral universe by fiat and obtains civil permission to proceed thanks to the High Priesthood of the Court, rather than say, by reasoning with and thus convincing a majority of one's fellows.

Thus we have a paradox of homosexuals acting as though marriage has ALWAYS been their civil right, but is now being kept from them ILLEGALLY (hence the litigation) while simultaneously assuming THEIR DEFINITION to be a human right - without going into natural right theory at all since natural right theory includes natural ethics.

We decend into squabbles about plumbing - essentially heterosexual intercourse is procreative (the sperm exist solely for one reason...the egg exists solely for one reason....); all things being equal, 2 healthy people, intercourse has a good chance at resulting in pregnancy. If they're too old, OK, they're too old. But the natural physics and biology is still respected. Psychologically a man-woman union is superior to a man-man 'union' sui generis.

But homosexual sex is mutual masturbation (oral, anal, manual...) and hence the sperm or egg are not employed by natural design, the complimentarity of the sexes are not met, and fantasy or wishful thinking is employed.

Plumbing and interpersonal relationships aside, that heterosexuals may engage in oral or anal sex (thus sodomy) doesn't change the fact that a man and a women engaging in fornication aren't magically "married" because they say so.

Fornication, adultery, prostitution.... those words signify realities of heterosexual liaisons which are NOT marriage.

Just because 2 people of the opposite gender have sex doesn't ipso facto make them 'married' thus if they engage in sodomy it doesn't automatically make their union 'gay'.
11.3.2005 11:29am
Bob Van Burkleo (mail):
Cold Warrior

I can easily construct an argument that passes the rational basis/equal protection test for marriage as it exists today in 49 states:

1. Any man may marry any woman

2. By definition, a man and a woman are capable of producing children


And with your first 2 assertions you have wandered far from reality - saying someone 'may' do someting they have no inclination or predisposition of doing is just a game. Like saying in a nation where some citizens are fish that they all 'may' ride bicycles - doesn't matter that you said it because its just not true. Your second is even more false.

The truth is that a 'man' 'may' marry only a subset of his felliow human beings and that some 'men' can only realistically marry someone of their same gender.

The truth is that some men and women can not procreate, presumptions that that can regardless..

An argument that derives from fantasy premises shouldn't convince anyone. Problem with laywers - they think the law is something real and that they can reshape reality with it - law that doesn't reflect the world the way it really is just isn't even worth writing down.
11.3.2005 12:05pm
Bob Van Burkleo (mail):
Battletank

"If you invoke human rights, then you must account for the origin of rights - which requires you to either accept that might = right; human whimsy conjures up rights out of thin air or 'penumbras' OR rights come from the single human nature we all share and are discovered and judged by reason; they're not whims or desires but deduced goods owed people as people. "

Yes, and that human nature obviously includes those who can emotionally bond to those of the opposite gender and some to the same gender. The 'human nature' argument supports marriage equality.

"Thus, there is a reasonable argument against hiring homosexual men to take young teen boys (or heterosexual men to take young teen girls)on overnight campouts, given the general bell curve fact that some will be likely to take advantage of their job. "

Except that virtually all such abuse is done by individuals who don't identify as homosexual at all! Further A recent investigation in Washington state showed that the vast majority of adolescent child abuse is heterosexual. Its an established fact that the 2nd highest risk for in home child abuse is religious parents who have a doctrine of strict sexual morals. Shouldn't allow evangelicals to adopt? It is so easy to find ways to demonaize any group by ignoring reality. Out gay scouts participate openly all over the world - the idea that the US is so more inept that it can't is both laughable and sad.

"It's a fact that "gay" men or women (those who come out, proud of their attraction as opposed to those struggling) have higher incidences of mental and social problems: drug abuse, alcoholism, depression, suicidal ideations, gay-on-gay violence, trauma, etc. "

Well since all pesecuted minorities have higher incidences of such things that's hardly shocking. And, of course, higher is relative - the majority don't have such problems. And you have it backwards - out gay people have lesser problems than 'struggling' as the Calgary adolescent suicide study shows among others. Presecution causes problems, acceptance solves thems.

Marriage is an acknowledged fundamental right of the individual that derives from our own human nature - our need to couple up and form families. As much as people try and twist this into some ivory tower intellectual exercise divorced from reality or denigrate those that are just asking for what all the other citizens have that's all this is about: a small fraction of the population asking for equal access to a civil contract.

Whether someone likes gays or not the 'objective facts' are that these citizens are better off married, that alone in a government 'for the people' should be enough. But additionally their families and society benefit too, so once again the question is - why are only some married citizens allowed access to the civil contract in support of marriage and others are not?
11.3.2005 12:35pm
Battletank (mail):
"Yes, and that human nature obviously includes those who can emotionally bond to those of the opposite gender and some to the same gender. The 'human nature' argument supports marriage equality."

Sleight of hand trick, there. That "Marriage equality" means "Marriage is defined as a coupling of either a heterosexual or homosexual couple" is assumed by you, not proven by you.

You beg the term's definition IOW.

Gays claim "for them" the absolute minority, marriage means "any 2 people". But "marriage" has been and is classically defined and enshrined in law as "the union of a man and a woman...".

Definitions of such terms aren't open to unilateral re-definition or expansion by minorities. If you think they are, try re-defining "state" or "church" or "Citizen" or "rights", "duties", "justice", "America".

Plenty of Mexicans want to re-define the various western States as "Atzlan". They sincerely desire their will to become reality. They FEEL REALLY GOOD ABOUT IT. But does their minority desire and re-definition mean they have an absolute right and we have an absolute duty to so re-define California, Arizona, New Mexico, Texas, etc.?

We are talking about Homosexuals in America using the court system to re-define the word "Marriage". Given this context then, it doesn't matter that Plato or certain foreign tribes one time defined marriage in ways that suit you. What matters from a CIVIL perspective is that in the 13 Colonies and later United States, Marriage was NEVER defined as open to every conceivable (no pun intended) heterosexual coupling and ANY homosexual coupling. Other words existed to describe these other forms of coupling.

You have to show where American civil legislation ever suggested the word to be open to re-definition. Not being able to do that, you merely beg the question and conclude that the majority is somehow illegally keeping you from equality in "marriage".... How can you claim "equality" with Marriage when the very definition of marriage precludes MANY HETEROSEXUAL COUPLINGS AND ALL HOMOSEXUAL ONES?

It's like claiming that an analogy IS identical to something it's merely 'like in a certain way'. "Mithras and Christianity both had priests and altars, therefore Mithras IS Christianity!" "Similar to" doesn't mean "equal to". Thus any possible coupling of 2 REALLY NICE, LOVING, WONDERFUL friends isn't "equal to" Marriage.

It's as absurd as a Prostitute and John demanding their liaison be considered "a marriage" and hence, protected merely because "they love one another and feel real good about it". They have no more right to redefine marriage for the rest of us than homosexual friends do. Unless you suscribe to the belief that fundamental human rights are created ex nihilo from the human will power alone and not from human nature.

If you DO, then prepare to be disappointed; if rights are whatever the victor says they are, you're doomed. People (numerical majorities or minorities)would have no rights, and only privileges that a benevolent majority or powerful minority grants them.

Moving on to the ever present Homosexual tendency to make this about mean-spirited majorities arbitrarily being nasty...

FRIENDSHIP (and freedom of peaceful assembly) are human and civil rights that no one disputes. All human beings, as human beings, have a right to friendship and love.

YOU HAVE A RIGHT TO BE LOVED. But that right doesn't mean you have a right to have the whole of humanity or any subgroup therein to cater to your every whim and call you whatever you desire merely because you desire it.

Subjectively people can invent whole new languages.... fine by me. But objectively and civilly, WORDS MEAN THINGS. Minorities can't just re-define words on demand.

Two men who are friends are not ipso facto a married couple. They're (drum roll please) "Friends". Not "spouses". Plenty of heterosexual men (Marines for example) would give their lives for their friends - a dad, a brother, a son, a war buddy. No one can dispute that such men 'love' one another as much as men can love and be loved. But their friendship to the point of self-sacrifice DOESN'T AUTOMATICALLY MAKE THEIR RELATIONSHIP A MARRIAGE.

A Man and woman who are best friends don't automatically become "spouses" either EVEN if they are sexually active. There are names within our Western Civilization and American law tradition for heterosexual couplings of people who are friends: it's called "friendship" or "fornication" or "adultery" or "prostitution" etc.

Again, analogy doesn't mean identity. "like in some way" doesn't mean "equal in every way". A ship is like a plow, a plow is like a ship, but a ship is NOT a plow.

Imagine the farmer claiming "My definition of plow is ship, therefore I own a ship." He can christen it and paint it up, but it won't BE a ship. He can continue the fiction that there is 'ship equality' and the US Navy could even commission his plow as part of the 6th Fleet, but the reality designated by that plow wouldn't be equal to the reality designated by a ship. Unless you re-define the word "Ship".

You jump from the "well we love one another" subjective reason to smuggle in an ORIGIN OF RIGHTS to RE-DEFINE an institution.

NO ONE IS CLAIMING TWO MEN OR TWO WOMEN CAN'T BE FRIENDS! We're merely pointing out that friendship - even Agappe Love friendship is NOT COTERMINOUS WITH MARRIAGE. Never has been, cannot suddenly become coterminious simply because you desperately will it to be so.

Regarding persecution.... yes, it MAY cause otherwise healthy people to exhibit mental problems. But the last time I checked, Conservative Catholics weren't exhibiting higher rates of mental illness than the general public even though they're routinely trashed by Hollywood, the Media, and the reigning pop culture icons. Conservative Catholics get brow beaten in college campi and in major cities too... Churches are vandalized, 'hostile environments' imposed in many areas...but no widespread Conservative Catholic illnesses to report. Hmmmmmm. If social pressure ALONE is to blame for homosexuals' problems, why don't other persecuted groups exhibit the same issues (all things being equal, after all)?

Meanwhile the most recent studies done in states and cities that openly glorify Homosexuality STILL show signs of trauma and stress and problems among the SSA community. Lesbians have incredibly higher rates of domestic abuse numbers than heterosexual female roommates....CDC numbers continue to tell a sad story even though "society" is more and more gentle if not supportive of their 'choices'.

The "society is solely to blame for all my problems" argument was a good hypothesis in 1972, but it's less and less tenable today after 30 years of longitudinal studies in areas more and more socially accepting of the 'gay' lifestyle.

So we need to come up with another hypothesis. Twin studies have ALL shown that there is no 100% genetic cause of homosexuality... so genetics, a natural, 'normal' human cause can't be blamed either.

What else is there? Disabilities - especially mental ones which involve interpersonal relationships points to ENVIRONMENTAL CAUSES.... all the more reason for "society" to not promote Gay Liaisons and "families" or coupling which then legally adopt children and thus expose those children (with all the best of intentions, no doubt) to the same environmental factors that led them to develop same sex attraction.

Ladies and Gentlemen, enviromental issues - should they be pinned down as a primary cause of Same Sex Attraction, would imply that social acceptance and promotion of Sodomic behavior, ideations, etc. would lead to MORE children becoming attracted sexually to the same sex than before. Thus a slippery slope and contagion argument.

Don't pooh pooh it until you have studies to prove that doesn't happen because I have studies that show that it does. Boys abused or "introduced" by uncles or fathers or important male figures in their lives DO develop homo-erotic sexual attraction at a higher rate than those who had no such "interpersonal" introductions.
11.3.2005 3:01pm
Jon Rowe (mail) (www):

Boys abused or "introduced" by uncles or fathers or important male figures in their lives DO develop homo-erotic sexual attraction at a higher rate than those who had no such "interpersonal" introductions.


There is no evidence of this whatsoever. I don't doubt that as society becomes more tolerant of homosexual behavior -- especially male homosexual behavior -- more will openly experiment with it.

However, human sexual nature (regarding one's predominant or full sexual orientation) is pretty much fixed at a very early point -- either at birth or shortly thereafter.

Although there is some uncertainty here, the latest data I think show that about 2.5% have a full homosexual orientation and 1.8% have a strong enough bisexual orientation to categorize identify themselves as bi. In other words, about 5% of the population are from 3-6 on the Kinsey scale with "3" being a perfectly full and even bi and "6" being fully homosexual. Another 5% or more (perhaps much more) have a predominant heterosexual orientation, incidental homosexual orientation (Kinsey 1s and 2s). And the vast majority of the population. Probably between 60 and 90% have an exclusive heterosexual orientation.

In other words, in human nature, 95% of soceity has a full or predominant heterosexual orientation and in the long run can only flourish heterosexually, even when far greater percentages than 2-5% experiment with homosexual behavior.

Case in point: Ancient Greece. A huge % of the population of the citizen class experimented with homosexual behavior, mainly for release. And this involved many young teens being subject to the behavior. But virtually all but a miniscule % of them went on to marry women and sire families.

Similar things occur in prisons and in all boys school. Likewise all boys in Sambia go through ritual homosexuality (which we would regard as child molestation) but virtually all of them go on to live heterosexual lives. They in fact deny that any "real" homosexuals exist there.

In short, there is no evidence that either greater acceptance of homosexual behavior or greater open experimentation with it leads to an increase in "real homosexuals" -- those who will pursue lifelong, more or less exclusive homosexual relations.
11.3.2005 8:07pm
logicblackbelt (mail) (www):

However, human sexual nature (regarding one's predominant or full sexual orientation) is pretty much fixed at a very early point -- either at birth or shortly thereafter.


How on earth do you claim to know that? What possible scientific test could you perform to determine the "sexual orientation" of a newborn baby? Show it dirty pictures and take its pulse? Oh wait -- it can't see yet. Please do tell. Don't just spout some authority -- tell me how they actually ascertained this. Creative hypnosis? Role-playing? I'm always very amused by the processes that some people use to transmogrify their cultural myths into "science."
11.4.2005 5:43am
logicblackbelt (mail) (www):
Dale, you underestimate the definition issue.

Marriage means something quite specific, and means it to cultures across the planet, except for a handful of new fringe experimenters. Why should we bother to neuter an existing word. If you want to promote a new concept, then sell it on its own merits; don't hijack the good will of an older and quite different concept.

If your gender-neutral concept of a union between two persons, is worth anything, then let it stand on its own merits in the marketplace of ideas.

The bare definitional argument trumps you unless you can show some reason why your concept of gender neutral relationships need to acquire the word marriage, and displace the old gendered idea, rather than entering the discussion with a name that is more honest about what it is. You need to show why the idea of gendered marriage is so evil or harmful that it needs to be destroyed. If you can't show that, then marriage should remain marriage, and new relationship theories should find themselves another name.
11.4.2005 6:23am