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[Dale Carpenter (guest-blogging), November 3, 2005 at 6:47pm] Trackbacks
The Traditionalist Case -- The Procreation Argument (Gallagher Version):

Maggie said a lot two weeks ago and I will not begin to respond to it all here. A big problem I have with her argument is that she never gets around to acknowledging how gay marriage might help gay families. I don't think she hates gay families, I just don't think she's thought about them much. I'd be very curious to see what she has to say about my Monday and Tuesday postings. For her, gay marriage is, on one side of the ledger, all potential cost (to marriage, to society, to traditional families) and, on the other side of the ledger . . . nothing.

Another big problem I have with her argument is that she conceives gay marriage as simply an effort to satisfy adult needs, or as just another trophy gays want to carry around in the culture wars to show how inclusive and tolerant we've all become. I can understand why she has that impression; many gay-marriage advocates have talked about gay marriage in these rather loose and abstract terms. But I don't think these views even begin to explain the deep yearning of gay families to be united in marriage. Their struggles are not abstract.

Maggie's argument against gay marriage comes down to her answers to two important questions: What is marriage for? How will gay marriage undermine it?

1. What is marriage for?

Maggie's answer to this question, as I understand it from her posts here two weeks ago, comes in this key quote (obviously her argument is much longer than this), followed by my response:

"Procreation . . . is the reason for marriage's existence as a public (and yes legal) institution."

I can imagine three different possible views of the role of procreation as the public purpose of marriage: (1) Procreation, and procreation alone, explains why we have marriage (Maggie's view); (2) Procreation is an important reason why we have marriage, but not the only one (my view); and (3) Procreation is not a reason why we have marriage.

I can't see how the third view could be correct. As Maggie says, sex makes babies, society needs babies, and when those babies are born out of marriage the children themselves and society suffer in all kinds of ways. Marriage, through many of its legal features and the social expectations that attach to it, is the institution that encourages people to have children and to have children within marriage.

But I also can't see how Maggie is correct that procreation-within-marriage is the only public purpose of marriage.

Legally, procreation has never been a requirement of marriage, as Maggie well knows. (Legal consummation requirements are not the same thing.) Two states, Wisconsin and Arizona, even require that first-cousins not be able to procreate before they can marry.

Maggie could respond, I suppose, that the one man-one woman legal definition is in fact the procreative purpose written implicitly into law. But that is a rather indirect way of getting at what is supposedly an exclusively procreative purpose since many one man-one woman couples neither have nor want children. If, legally, procreation were the only purpose of marriage, the requirement could be made explicit. Yet the law allows and supports childless marriages.

Culturally, Maggie's procreation-only view of marriage is even more questionable. Even couples who have children do not view their marriage as being only or even primarily about procreation. Their marriages are about children, yes, but also love, religious faith, commitment, and caretaking. For those couples who can't or won't have children, their marriages are obviously also not justified by procreation.

When confronted with this powerful cultural and familial reality that so sharply contests her vision of marriage, Maggie responds that people "don't view these marriages as mere instruments for making babies. Nor do I." Here Maggie recognizes, as she must, that marriage functions culturally and socially in ways that contrast sharply with her view of its sole public purpose. It's worth asking why we should adopt a view of marriage that reduces its public essence to one single purpose if neither the legal nor the cultural/social understanding of marriage supports the view that it's only about that one purpose.

That leaves my view, and I think the law's and our culture's, that procreation is an important public reason for marriage but not the only reason. We know that it's an important purpose because, legally, many attributes of marriage relate directly to the rights and responsibilities of married couples who have children. Culturally and socially, the expectation of having children is a common reason we celebrate a new marriage. The new couple is going to raise a family, and in that fact they are happy and we are happy.

But both legally and culturally/socially we have public interests in marriage besides procreation. Notice that the legal rights and responsibilities associated with children apply to all legal parents of children, no matter whether they got those children through procreation, adoption, surrogacy, or reproductive technology. These distinctive child-raising-related legal features of marriage can apply, and do apply, even to parents who can't or won't procreate. And they apply with a force that's just as great no matter the provenance of the children.

(So yes, as one commentator notes, child-rearing explains many of the distinctive features of marriage law. But as I have pointed out, many gay couples are raising children, so they will be able to make use of these features. The rest, who are not raising children, will make use of the many other distinctive features of marriage, just as childless straight couples do.)

The law imposes some duties of care and mutual responsibility on spouses, apart from any children they're raising. Culturally, the expectations that spouses will love one another, care for another, be committed to each other, live together, are even greater.

There is a public interest in recognizing marriages that can be expected to produce, on balance, both individualistic and communitarian benefits. Procreation is an important individualistic and communitarian purpose of marriage — but it is not, and need not be, the only purpose.

2. How will gay marriage undermine marriage?

Maggie's answer to this question is a bit harder to pin down. But I think it comes down to these two quotes, each followed by my responses:

"[S]omething big has changed when marriage becomes a union of any two persons. Procreation and family structure are out."

For purposes of procreation, marriage already is the union of any two persons. Non-procreative straight couples already marry. Non-procreative gay couples, in this sense, change nothing in the existing practice of marriage: most married couples can procreate, but a few can't. That practice will remain the same.

Why does gay marriage mean procreation and family structure are out? It would seem to mean the opposite, at least with respect to family structure. Maggie's answer comes in the next quote.

"If two men are married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad."

I take this to be a kind of social-meaning argument. Gay marriage, on this view, would change the meaning of marriage for everybody by sending a message that procreation is dispensable and that mom-and-dad-raising-kids is not the best environment for children.

Social meaning arguments of this sort are very hard to dispute, no matter what the issue is. You can just make a frightening assertion about some future instability brought about by mysterious forces and, really, what can anybody say in response? We don't believe you? I have frankly struggled with her point, not because I think it's true but because I'm at once horrified by the result she foresees and very unclear how gay marriage would get us there.

Here's one way to get at the problem with her prediction. Suppose I said this: "If a sterile couple can get married, then marriage as a public act is clearly no longer related at all to generativity, and the government declares as well it has no further interest in whether children are connected to their own mom and dad."

We'd know I was wrong about this social-meaning prediction because we already live in this world and we can see that it has not come true. So if these existing marriages don't send the harmful message why would gay marriages?

Maggie comes closest to answering this question when she says: "[B]oth older couples and childless couples are part of the natural life-cycle of marriage. Their presence in the mix doesn't signal anything in particular at all."

What does she mean that sterile straight couples are part of "the natural life-cycle of marriage" but sterile gay couples are not? I don't know for sure, but I can guess. She might be drawing on modern natural-law theorists who argue that sterile straight couples can engage in sexual "acts of a reproductive-kind," while gay couples cannot. Which comes down to saying, gay couples can't have straight sex. In other words, gay couples -- alone among all sterile couples -- must be denied marriage because they are not straight couples. That's a conclusion, not an argument.

Moreover, given how abstract this idea of "the natural life cycle of marriage" seems it's hard to see how anybody would take any particular message away from it. Millions of childless married couples are already part of our lives. The presence of gay couples in the mix, to use Maggie's formulation, "doesn't signal anything in particular at all."

One commentator has suggested that perhaps Maggie means that gay marriage would have a "norm-related magnification" effect, adding to an already potent set of harmful cultural signals against procreation and mom-dad-raising-child. But for gay marriage to have a magnification effect we must know what it is magnifying and how. If it sends no signal that the rest of the 97% of marriages will notice, it has no magnification effect. If it sends a positive signal about marriage, it has a (small) subtraction effect from the existing harmful messages.

Similarly, another thoughtful commentator suggests that maybe gays, who he hypothesizes have an unusually large cultural voice, will send signals disproportionate to their small numbers. I doubt gays' alleged cultural power is really that strong, but even if it were we'd have to ask this question: is it better to have these powerful cultural and intellectual speakers outside the marriage tent throwing rocks at it or simply ignoring it? Or is it better to have them inside the tent absorbing its values?

Let me suggest an alternative message gay marriage might send to the culture: "Marriage is good for you. You should get married. If you're raising kids, you better get married. Family structure matters."

Let me suggest a message that's being sent through the denial of gay marriage: "Marriage is just one alternative among many. Look at us, we're happy. You don't need it. You can raise kids successfully without it. Marriage is invidious discrimination."

Don't get me wrong, I think gay marriage will send almost no message that heterosexuals will pay much attention to, after the initial furor subsides. They will be 3% of marriages so the numbers will just be too small for people to much notice in their daily lives. The people who don't like it will dismiss gay marriages with scare quotes, the way they do now: gay "marriages." They will see these gay "marriages" as counterfeits, their own marriages as the real thing, and go on about their lives.

Others will rejoice that we've finally let in a group of people who believe in marriage so much, who need it in their lives so much, whose children will benefit from it so much, that they fought for it as if fighting for their lives.

Tomorrow: Burke, process, and last thoughts.

Manuel Lopez (mail):
Carpenter's arguments evade the main issue: the question is much greater than one of extending rights or of social purpose or utility but of how we're changing the meaning of marriage by taking such a radical step--how it will live in the imagination of those who grow up only with the new understanding. I'm not a believer, so I'm not saying this from a religious perspective, and I'm certainly not anti-gay because I am gay. But nonetheless gay marriage seems like a very bad idea to me from the point of the view of the effect on future generations. Once you disconnect marriage, not just from procreation (as has been argued), but from the natural sexual difference that's connected to procreation, you're disconnecting marriage, it seems to me, from some larger world than the people involved. Marriage starts to seem less like something beyond the will of the people involved (regardless of what anyone wants or argues, only a man and a woman can have a child) and starts to seem simply like a commitment or act of the will. It starts to lose that extra dimension, the dimension of awe, the dimension of submitting to something higher, the dimension of something transhuman. It becomes a mere convention, and we see the explosion of arguments about the merits of polygamy and all sorts of alternative arrangements; it can be anything we want it to be, an instrument for our convenience. It seems to me once that higher dimension is ripped out of marriage, people will start to take marriage even less seriously than now, and will not be willing to make the same level of sacrifice that they otherwise would. In other words, it would start to have some of the same effects that no-fault divorce had, but it would, I think, be much more damaging. Of course there are also legitimate concerns about the character of gays (openness in attachments, lewdness, lack of masculinity, etc), though those rarely receive the serious attention they deserve in today's p.c. climate. I have a longer article about this at:
http://www.affbrainwash.com/archives/011455.php
11.3.2005 8:03pm
The Editors, American Federalist Journal (mail) (www):

Let me suggest a message that’s being sent through the denial of gay marriage: “Marriage is just one alternative among many. Look at us, we’re happy. You don’t need it. You can raise kids successfully without it. Marriage is invidious discrimination.”


Actually, this is more nearly the message being sent by the advocates of same-sex marriage - “[Traditional male-female] marriage is just one alternative among many. Look at us [same-sex cuople], we’re happy. [No particluar family structure is better than any other.] You can raise kids just as successfully without both a mother and father.”

The "sterile couple" canard is just tiresome. Society doesn't make laws based on the exceptions to a rule. As a rule, opposite-sex couples have the potential to procreate. Gay couples never have that potential. Thee is a fundamental difference between same-sex and opposite-sex relationships. There's nothing wrong with society's laws recognizing that fact.
11.3.2005 8:11pm
Dave Hardy (mail) (www):
The AZ &WI examples cut both ways. Fertile cousins a not permitted to marry -- precisely because the State does not want them procreating. On the other hand, it does allow them to marry if not capable.

I still think gays wanting to get married because others do is a bit like someone demanding to be chained into a slave galley, because if those other guys get to be chained down and beaten and starved and row day and night, he wants to have equal treatment.

Of course, views like that may explain why I'll never get elected to office. "My views on the sanctity of marriage? Well, imagine you had this slave galley...."
11.3.2005 8:22pm
Remus Talborn (mail):
But I also can’t see how Maggie is correct that procreation-within-marriage is the only public purpose of marriage.

I think she is speaking historically, in other words, the word "reason" could be read as "historical cause".
11.3.2005 8:28pm
Dave Hardy (mail) (www):
More seriously, let's look at the flip side of the question.

Marriage is by no means necessary to love. Nor to living together, sharing experiences, committment.

Its only effect is to add legal compulsion to those. A couple must stay together (under modern laws, at least for a time... 1 yr in VA, 60 days in Arizona) under its bonds even if they hate each other. Breaking off the alliance requires great expense and many legal hoops to leap through.

Thus marriage adds nothing to love, etc. save the force of legal compulsion and coercion. It is not that marriage has no other rationale than procreation, it is that it has no other justification. If there are children (and I'd admit this would apply to gays with children, which seems a small minority), then the social needs may justify such an imposition. But otherwise? The question of whether there is anything wrong with gay marriage might be otherwise phrased as whether there is anything right with it, justifying such imposition?
11.3.2005 8:31pm
Bob Van Burkleo (mail):
Read your article and I think the following phrase captures what is unsettling with your assertion:
Instituting homosexual marriage would indeed provide guidance to some young homosexuals, and would thereby improve some people’s lives. This is a serious argument. however, I don’t think marriage could be as crucial to us as it is to other people.
"Us" isn't licensing the marriage contract, two individual citizens each with the fundamental right to marry are. So many of the anti-gay perspectives talk as if homogendered marriages are going to be licensed as some sort of group, they won't. Homogenizing the importance of an individual right throughout an entire group is misleading - citzens are individuals and this discussion is about an individual right, not a group one.

The plantiffs in the current case before the Washington State Supreme Court have familes, are raising children, and need access to the civil contract just as much and for the same reasons as any heterogendered parented family. That some other homogendered couples may not is immaterial - these needs are individual needs and it doesn't matter how many don't want to exercise these rights as long as one citizen does.

And again, the idea that 'marriage' can be reserved for just opposite gender couples missed the boat a long time ago. Too many churches and demoninations are religiously marrying homogendered couples - barring a change in the first amendment that's not going to stop. We are now in a situation where the state is sanctioning some citizen's marriages and ignoring others and it will eventually have to clearly say why this is so consistently with the ideals of equal rights and equal access to government for all citizens.
11.3.2005 8:32pm
jnet (mail):
I think Maggie's procreation argument is misleading - she would never agree to allow procreation w/out a joint commitment to child-rearing. She's really saying that the purpose of marriage is procreation plus 2-parent child-rearing, not that the purpose of marriage is procreation alone.
11.3.2005 8:56pm
Kendall:
Editors - "The "sterile couple" canard is just tiresome. Society doesn't make laws based on the exceptions to a rule. As a rule, opposite-sex couples have the potential to procreate. Gay couples never have that potential. Thee is a fundamental difference between same-sex and opposite-sex relationships. There's nothing wrong with society's laws recognizing that fact."

True, but if that's the case why bother allowing same sex couples to have children in the first place? It seems to me the moment the state conceeds (as 49 of 50 have no specific ban on at least in some form) gay couples were being sent a mixed message. You can adopt children, you can raise children as if they were your own (that IS the basic purpose of adoption afterall, to provide the best possible environment for the child that the state can find) but at the same time you're immoral, we don't want to "promote" homosexuality even if you CAN adopt, so we won't give you marriage rights even if we de facto recognize that you're capable of handling the fundamental aspect of marriage.
11.3.2005 9:01pm
Manuel Lopez (mail):
Well, I think van Burkeo is over-reacting: we're discussing changing in a radical way the character of the oldest and most fundamental public and private institution we know. I don't see why it should be forbidden to consider the benefits and harms to gays, in addition to all the other considerations, including the question of individual rights and of justice more broadly. At any rate, marriage is not and has never been merely a private matter, mainly because of the public consequences (especially the public's concern with child-rearing and education). What I'm emphasizing is how marriage law shapes how new generations think about marriage (consider no-fault divorce) and so affects the happiness of generations. I agree with you that gay marriage is inevitable, given the political currents and the increasing dogmatism about equality (the belief that equality is always the only or sole consideration, no matter what gets sacrificed on its altar), but gay marriage will still be a bad idea. I may have missed the boat, but the boat may be sinking.
Finally, marriage laws were never devised to discriminate against gays--no legislator passed a law saying that only a man and a woman can have a child. The only way to "correct" that would be to rip marriage from its foundation in something natural and unchosen and make it an entirely different thing, and I've explained why that would be unwise.
11.3.2005 9:07pm
Designbot:
Thus marriage adds nothing to love, etc. save the force of legal compulsion and coercion.

This is a gross oversimplification. There are many legal &social consequences of marriage beyond compulsion to stay married, and with no-fault divorce, compulsion isn't even one of the biggest consequences.
11.3.2005 9:08pm
jgshapiro (mail):
The "sterile couple" canard is just tiresome. Society doesn't make laws based on the exceptions to a rule. As a rule, opposite-sex couples have the potential to procreate. Gay couples never have that potential. Thee is a fundamental difference between same-sex and opposite-sex relationships. There's nothing wrong with society's laws recognizing that fact.

Actually, I think it is the response to this "canard" that is getting tiresome.

First, this argument is really just a restatement of the definitional argument discussed by Dale yesterday. Gays cannot get married because marriage is between a man and a woman, by definition. Or put another way, "As a rule, opposite-sex couples have the potential to procreate. Gay couples never have that potential." This is a circular argument that begins by stating the conclusion as the argument.

Second, the opponents of this "canard" ignore the fact that SSM proponents are arguing for another exception to the rule. So the argument isn't that sterile couples are part of the rule, but that there is no logical reason to allow one exception without the other. Neither group (sterile couples or gay couples) is large enough to affect the institution of marriage as a whole.

Third, SSM couples, even though they cannot procreate beteen themselves, have the potential to raise children or to procreate with a third person or using reproductive technology. So to the extent that marriage is designed to facilitate child-rearing and stable family structure, there is no reason to want this stablity for only families with children born to the two parents in a straight marriage. Why is it the potential to procreate, rather than the potential to raise children in a family structure, that is important?

SSM opponents never answer this question because the procreation argument is really just a pretext. The unstated argument is one disapproval of gays, and of not wanting to do anything to endorse the gay "lifestyle" by creating a public benefit that would seem to normalize gay relationships more than they already are.

That is why this discussion, while interesting, is ultimately irrelevant. Most opponents of gay marriage seem to oppose it because of a priori judgments about gays or about the sacrament of marriage being reserved for male-female relationships that are immune to persuasion. SSM will be allowed when a majority of citizens decide that being gay is normal, or at least not so abnormal as to justify a refusal to create a small exception to a general rule.
11.3.2005 9:09pm
Duncan Frissell (mail):
But I don’t think these views even begin to explain the deep yearning of gay families to be united in marriage. Their struggles are not abstract.

Since you've been able to wander in to any MCC for more than 20 years and have a full religious SSM, I doubt that this statemeent is true.

If SSM is real, then an MCC rite would confer everything that can be conferred without state participation. Non-believers have an even easier time since they can just jump over a broom or something.
11.3.2005 9:26pm
Antonin:
The Editors:
Society doesn't make laws based on the exceptions to a rule.
Since when? As a rule, people have the ability to walk. But some people don't have that ability, and that's why we have the Americans with Disabilities Act. As a rule, people have a moral right to be allowed to move about as they please. But some people are felons, and we restrict their freedom of movement.

The stuff you learn as a 1L is all about making exceptions to rules. To win an action in tort you have to prove that the tortfeasor was the but for cause of your injury - except in certain cases involving multiple defendants. You have to prove negligence - except in products liability, when you have strict liability. You have to specify a price to have a valid contract for sale - except when the Uniform Commercial Code lets the court decide what reasonable price would be. And so forth and so on.

I suspect all this is going to hinge on your arbitrary determination that some rules are "real" rules and some aren't.
11.3.2005 9:30pm
JBL:
I have two questions.

1. For the lawyers: Is it illegal to use the terms "husband", "wife", and "married" in the absence of the legal status? Example: My sister and her boyfriend are not legally married. They have been living together for several years. As a practical matter, they often refer to each other as husband or wife; the small town they live in is not particular about the formalities (in fact it is often their neighbors, who are aware that the couple is not legally married, who use the terms). When I went to visit, the boyfriend would introduce me to people as his brother-in-law. Legalities aside, it was just the easiest way to describe the relationship. There was no intent to trick anybody, and nobody took any offense. There may be a lot of comment about the propriety of using the terms so haphazardly, but whether or not it is proper, is it legal?

2. What about prenuptial agreements? I would guess that of the straight people who enter a marriage with enough assets to bother about, a significant number of them go out of their way to undo the arrangement that legal marriage assumes people want. Much has been made of no-fault divorce; much has been made of the ability of gay couples to write wills, own property jointly, and such; so the omission of prenuptials from the discussion seems unusual.
11.3.2005 9:34pm
Manuel Lopez (mail):
Regarding Kendall's post: The harm in changing the meaning of marriage, in altering how future generations think of marriage, would be in addition to any harm or benefit from allowing gay couples to adopt. After all, it seems like it's usually better for children to be raised by some human being (esp. their natural parents) than by an orphanage. That's not to say there aren't reasonable objections to how children might be raised by gay couples--studies on both sides, none of them very good so far (not even the most recent ones), seem to show a greater openness to sexual experimentation, a problem that deserves more attention than it has received here. At any rate, I would not have liked to grow up without my mother and certainly not without some woman to nurse and nurture me, but an orphanage seems worse.
11.3.2005 9:35pm
The Editors, American Federalist Journal (mail) (www):
Kendall, I think that mother-father couples should be preferred in adoptions.

jgshapiro:

So the argument isn't that sterile couples are part of the rule, but that there is no logical reason to allow one exception without the other.

When an opposite-sex couple walks in to a government office to request a marriage license, the clerk has no way of knowing whether they're fertile or not. The reasonable presumption would be that they are. When a same-sex couple walks into the government office, it is 100% certain they are infertile.

But it must also be noted that I've never claimed procreation is the only difference between same-sex and opposite-sex couples. The bottom line is, these are two different types of relationship. There are all sorts of different human relationships that are not licensed by the government. Thee is no obligation to treat two differnt things as if they were the same thing.
11.3.2005 9:50pm
Antonin:
JBL: I'm a law student, not a lawyer, but first, there's a good argument that 'husband' and 'wife' don't always refer in to a legal status. Second, as a general rule lying isn't illegal, so falsely representing yourself as legally married wouldn't be illegal. You could, however, be guilty of fraud if you represented yourself as legally married in order to induce someone to enter into a contract. Even if it weren't criminal fraud, the victim would at least have a civil cause of action against you.
11.3.2005 9:51pm
Manuel Lopez (mail):
In response to J.G. Shapiro, it's certainly not the case that the procreation argument is used out of hatred of gays--I'm gay and I think, properly understand, it is decisive. (Nor is the use of it based on faith, since I'm not a believer. Readers might also be interested in the pagan Plato's arguments on that score in the Laws.) The point is that we have to think of procreation broadly, including the natural sexual differences connected with procreation. It is this unchosen element to marriage, this dimension above human will or social convenience, that is a crucial compenent for the feeling of reverence or awe attached to marriage (which of course has been weakened by another reckless experiment, no-fault divorce). The loss of that element will, among other things, make it less likely for people to make the sacrifices needed for marriage to work. There's little to reinforce the "vows" people made when those vows restrict inclination.
I would have said "needless to say" but apparently one does need to say that, taken literally, there is no possibility of procreating "with a third person." Once you destroy the unchosen, natural foundation for marriage and make it a matter of mere social convenience or policy, marriage starts to become no higher than group arrangements, polygamy, or other arbitrary human social experiments.
11.3.2005 9:53pm
TJ (mail):
Editors,

Thee is no obligation to treat two differnt things as if they were the same thing.

Indeed. And it is not the case that all marriages are the same. Or are the? Is it really the same relationship if the sole commonality is an "innie-outie" pair?
11.3.2005 9:55pm
Antonin:
The Editors:
The bottom line is, these are two different types of relationship. There are all sorts of different human relationships that are not licensed by the government. Thee is no obligation to treat two differnt things as if they were the same thing.
That's right; they're two different types of relationships: homosexual and heterosexual. The question is whether the difference is relevant, and, if so, why. Saying "they're different things, q.e.d." is either hopelessly irrational, circular, or both.
11.3.2005 9:58pm
The Editors, American Federalist Journal (mail) (www):
You're grasping at straws TJ.
11.3.2005 9:59pm
The Editors, American Federalist Journal (mail) (www):
Antonin, Why is it "irrational"? Because you say so? You acknowledge they're different, but insist we say (through our laws ) they're the same anyway. That is irrational.

The fact that almost every human on Earth considers the gender of his/her mate to be a critical issue in the relationship demonstrates beyond all doubt that the difference is relevant.
11.3.2005 10:02pm
Chimaxx (mail):
The Editors:
You're being obtuse. A Honda Civic is different from a Lexus, and a Lexus owner would never trade his car with a Honda owner in an even swap, but when it comes to obtaining an auto license, the difference is not considered legally relevant.
11.3.2005 10:37pm
DaveP:
Manuel Lopez:

It is this unchosen element to marriage, this dimension above human will or social convenience, that is a crucial compenent for the feeling of reverence or awe attached to marriage (which of course has been weakened by another reckless experiment, no-fault divorce).

It is not the case that reproduction is unchosen. Sex is chosen -- it does not happen by accident. All pregnancies are properly intentional. Unintentional pregnancies imply that the parents have not properly planned for the care of their future child. This is irrational. Proper child rearing is not a lottery and should not be left to chance.

I agree no-fault divorce diminishes the value of the marriage contract.

The loss of that element will, among other things, make it less likely for people to make the sacrifices needed for marriage to work.

How so?

From a previous thread, a thought experiment: The straight couples opposed to gay marriage certainly would not allow it to affect their relationships, that would be illogical, right? The straight couples in favor of gay marriage would not allow their relationships to be harmed by gay marriage -- that would refute their point. So, the only couples of concern are those indifferent to gay marriage -- those not susceptible to suggestion from either camp, yet who are somehow susceptible to the influence of gay marriage itself. That would be truly bizarre.

In a rational ethics (liberty), all is permissible unless shown to cause harm. So, the burden of proof of harm lies with the person that desires the prohibition. I am properly free to enjoy a SSM, unless you show why I must not. An argument from ignorance is not sufficient.
11.3.2005 11:17pm
juris imprudent (mail):
van Burkeo: "...two individual citizens each with the fundamental right to marry are."

If there is a fundamental right involved here, how is that the state can license (and thus restrict) the act? You have a fundamental right to attend the church of your choice, or to not attend one at all. You do not need the sanction of the state to exercise that prerogative.

So when did marriage, licensed by the state, become a fundamental right?
11.3.2005 11:22pm
Antonin:
The Editors: Apparently I wasn't clear enough. There are lots of types of relationships. A relationship in which the parties marry based on "true love" is a very different thing from Here are some types of relationships (neither exclusive nor exhaustive):

companionate vs. sexual
procreative vs. non-procreative
BDSM vs. "vanilla"
child-rearing vs. non-child-rearing
heterosexual vs. homosexual
employer-employee vs. husband-wife

The question is: what is the justification for treating some of those distinctions as important and others as not important? The answer can't be that a "master/slave" relationship between people who are really into BDSM is the same type of relationship as one where the parties treat each other as equals at all times. We have to look at the objective merits of making policy depend on a given distinction rather than others.

The law doesn't distinguish between marital and non-relationships based on which particular sex acts the parties engage in. I don't think we should be distinguishing based on which sex organs the parties have, either.
11.3.2005 11:27pm
DaveP:
The Editors:

When an opposite-sex couple walks in to a government office to request a marriage license, the clerk has no way of knowing whether they're fertile or not. The reasonable presumption would be that they are. When a same-sex couple walks into the government office, it is 100% certain they are infertile.

But it must also be noted that I've never claimed procreation is the only difference between same-sex and opposite-sex couples. The bottom line is, these are two different types of relationship. There are all sorts of different human relationships that are not licensed by the government.

All a tiresome appeal to the staus quo.

There is no obligation to treat two different things as if they were the same thing.

False. Government has an obligation to act ethically, not arbitrarily. In order to act ethically, government must employ retaliatory force only in the case of force or fraud. In a free society, government may not act if there is no proof of harm. There is no proof of harm in the case of SSM. Therefore, government may not act to prohibit it.

Further, if two persons enter into a SSM, and the terms of the contract are violated, the injured party has the right to petition the government for redress from the other party to the contract though the courts. For the government to fail to enforce the otherwise enforcable contract, through the fiction of marriage licenses, is unethical.
11.3.2005 11:28pm
Antonin:
Correction: that was supposed to be "between marital and non-marital relationships"
11.3.2005 11:29pm
TJ (mail):
Actually, Editors, it may have been a little too subtle a point; I was trying to get at the fact that you seem to view the institution of marriage as some kind of homogeneous thing, and that is plainly incorrect.
11.3.2005 11:51pm
jgshapiro (mail):
Editors:

When an opposite-sex couple walks in to a government office to request a marriage license, the clerk has no way of knowing whether they're fertile or not. The reasonable presumption would be that they are. When a same-sex couple walks into the government office, it is 100% certain they are infertile.

Simply saying that straight couples can be more easily recognized by the county clerk who dispenses marriage licenses, is specious. After all, the octegenarian straight couple can also be recognized by the clerk and will still get a license despite having no opportunity for procreation, and little chance of future child-rearing. So if the issue is being able to recognize a marrigeable couple without intruding into their privacy, why can seniors get married? This is another one of those 'canards' (to use your word) that keeps popping up when people are looking for a pretext to arrive at the conclusion they have already chosen.
11.4.2005 12:27am
Chairm (www):

The AZ &WI examples cut both ways. Fertile cousins a not permitted to marry -- precisely because the State does not want them procreating. On the other hand, it does allow them to marry if not capable.


A couple of jurisdictions made a legislative compromise based on the very real expectation that marriages are procreative. There is some grey area in applying the ban on cousins (but not more closely-related persons); about half the country has the ban and half does not. So a couple of states made a policy that would create a disincentive for cousins of childbearing age: allow older cousins to marry, or allow couples who can show they do not intend to procreate together (via tubal ligation or vasectomy). These states do not enforce the ban on procreation where tubal ligation and vasectomy can be reversed (with high rates of success). Also they do not ban married couples from uses assisted reproductive technologies -- these men continue to produce sperm and the women still have eggs.

This goes to show that the laws are not absolutist and the laws are meant to send signals as well as align with social expectations. Marriage is expected to be procreative so cousins are barred unless additional restrictions are met. It is a compromise, not universal, and is based on the intersection of incest laws and marriage laws. It is hazardous to read much more into it than that.

The danger in the absolutist approach to the law is that, in this instance, a father and daughter, or two siblings, would be barred from marriage but, if they met the same additional requirement as cousins, they could claim that there is nothing that stands in their way except unjust discrimination on the choice of partner.

That goes back to the problem with Dale Carpenters dismissal of the intrusiveness of any scheme that would enforce procreation in marriage. A couple cannot demonstrate their fertility unless they engage in sexual intercourse (lots of it) and bear children. So Carpenter's imagined scheme would undermine marriage by requiring premarital sex and chilbearing as well as requiring trial marriages (with the crazy deadline). How does that support marriage as a procreative social institution? It would not.

Likewise with weeding out the disabled. Surveys show that perhaps 10% of married couples experience subfertility. Most already have at least one child. Generally, couples with fertility problems do not need to partake of fancy new technologies. They just adjust their behavior (diet, timing, exercise, and so forth) or get medical treatment of the problem area. If you think about it, all couples of childbearing age who eventually bear children will have been infertile during part of every month. So clean there is no way to group them with the sterile unisexed combination.

We are left with the 2% or so who use ART/IVF and marry knowing they have this problem as a couple. And narrowed further -- only 10% or so use third-party procreation ("donor" sperm, eggs, embryos, surrogate gestators). Narrow it further to those who are disabled in this way due to illness, medically necessary surgery, or some deformity of reproductive system. The disabled have medical impairments that might be overcome with hormones, drugs, and microsurgery. So only those disabled without the hope of such success are the couples that might be compared to the functional sterility of all unisexed couples.

Then the elderly. Well, there is no cure for old age, right? Human beings begin life with physical capabilities that are pre-fertile and eventually become post-fertile. Whether we procreate or not will depend on integrating with the other sex. Both sexes are needed for a person to be part of procreation. That is also "incurable". [John Howard has some significant things to say about technology that is on the horizon that would enable attempts of human one-sex procreation.] By the time a woman is near or beyond her childbearing years, she is very likely to have been married and have had at least one child. So practice, and biological facts, combine to integrate the sexes; marriage is the best home for that conjugal relationship.

The state does not hire brides and grooms; and the state does not fire husbands and wives. Age is a very poor proxy for determining or marking the capability of a couple to procreate together. Some women experience menopause in their early twenties, others not till their fifties. Meanwhile men can remain potent beyond their eighties. Who will test the law in court? The exceptional person whose biological clock does not match the law's arbitary chronological age limit. And if the state must go to intrusive lengths to determine the capabilities of each and every couple, then, the whole thing would undermine far more liberties than those of marriage. Also, women would be disadvantaged. Upshot: no age limit will do because it, too, would be overinclusive and overexclusive -- if we go by Dale Carpenter's concept of weeding out the disabled.

Also please note that the social institution of marriage has always had a tiny portion of couples who are disabled and childless; adoption gives them the opportunity makeup the shortfall experienced by orphans. Adoption is a related social institution but it does not bestow marital status; rather, marital status is a reasonable criterion for prioritizing who may adopt orphans. Married couples woiuld provide both mothers and fathers to children who have neither. This is the marriage idea in sickness and in health.

Also note that married people grow old together; two elderly newlyweds confirm, rather than overturn, the marriage idea.

Granted, for the purpose of state recognition of the social institution of marriage, the state's interest is diminished for both the disabled and the elderly. That is balanced against the heavy-handed intrusion that would be required to weed them out from among all other couples who come for a license to marry.

I am very dissappointed that Mr Carpenter has twice based the advancement of his pro-SSM argument on the Sterility Strawman.

Still unanswered: what is the state purpose in establishing preferential status for the unixed relationship?
11.4.2005 12:31am
Chimaxx (mail):
unixed?
11.4.2005 1:07am
Manuel Lopez (mail):
First, on the sterility question, I'd emphasize that the procreation argument needs to be taken broadly, not in a narrow, sterile, legalistic spirit. Even with childless couples, there is this noticeable and unchosen fact: the complementarity of male and female bodies. These bodily differences have one obvious explanation, reason, cause, function: reproduction. This fitting together, most plainly for reproduction, supports the feeling of naturalness and rightness, the feeling that something more awesome is at work than the mere will or inclination of the parties; no human being, no court, no legislator, no right-wing conspiracy designed the notorious difference between the sexes or came up with the reproductive design.

To sunder this link between marriage and natural sexual differentiation (whose most massive and undeniable feature is the potential for reproduction) will radically weaken the feeling that marriage is part of the natural order, an order bigger than ourselves and our desires. I admit that widespread divorce has weakened this feeling over the past thirty years; but it remains a powerful force in people’s lives, one that we perhaps take for granted precisely because of its ubiquity. Permitting marriage between people of the same sex would therefore make marriage a radically different thing¬—and not a better one. By weakening the feeling of awe and of a connection to a higher, unchosen, or natural order, it would encourage people to take their marriages less seriously, to consider alternatives more readily when the going gets rough, and to seek guidance more readily in desire, whim, and fashion. This is not, I think, a formula for better or happier lives.

In response to DaveP, who gave a clever thought experiment proving that no couples are affected by gay marriage, the answer is simple: The effect is on those still growing up. Gay marriage is probably not going to have a large effect on adults, whose imagination and view of marriage has already been shaped and hardened, but it will have a profound effect on future generations, who will be growing up in a world with a radically different understanding of marriage.

As far as "rational ethics," true conservatives are wary of fundamental changes in laws and institutions, even when those changes are in themselves improvements. Humans are not so rational that we can dispense with awe or the sense that some things are greater than human enactment. Even James Madison, in pointing out that frequent revisions to the Constitution would undermine reverence for it, spoke of "that share of prejudice which is a salutary aid to the most rational Government." We should not lightly shock or wound those prejudices that support reverence for marriage.
11.4.2005 1:59am
Kendall:
Editors - "Kendall, I think that mother-father couples should be preferred in adoptions."

You also think gay marriage should remain illegal in the 49 states that do not allow for full marriage rights, well, really all 50 or 47 because Vermont and Connecticut have civil unions and Mass has marriage but non of those access federal benefits. Point being, legal reality does not fit in with heterosexual couples being favored under the law. No law says "straight couples can adopt and gay couples can have whatever is left over." because such laws on its face violate equal protection.

So, again, deal with reality here. The states conceed gay couples can and should adopt. Gays do adopt. If marriage is about children, and the state is encouraging gay adoption then why give gay couples the right to have children placed with them but deny gay couples marriage rights? Its sort of a weak response to say "but I don't think it should be this way" when it IS this way. Its like saying in a debate on gay marriage "well, current law says its not recognized in most of the country so I don't think it should be recognized" its a circular argument with no rational discourse.
11.4.2005 2:09am
Chimaxx (mail):
[I'll assume that "unixed" was a typo for "unisexed"; I wasn't being snarky with my previous one-word comment: I sincerely thought you were coining a new term or using one I hadn't seen used before]

Granted, for the purpose of state recognition of the social institution of marriage, the state's interest is diminished for both the disabled and the elderly. That is balanced against the heavy-handed intrusion that would be required to weed them out from among all other couples who come for a license to marry.


So discrimination against unisexed couples by denying them equal marital status is acceptable because it is easy and doesn't require heavy-handed intrusion?

Still unanswered: what is the state purpose in establishing preferential status for the unixed relationship?


Of course it has been answered: His entire series of essays have BEEN the answer.

You want to say that you disagree with his premise that exclusive physical procreation by the couple is only one of several coequal factors that produce social interest in stable marriages, and that unisex marriages can and do qualify under all those other factors? Fine. Make your case.

Explain why marriage, onlike other human institutions that have value and duration, can and must have only one overriding primary purpose while all the rest of the benefits of social stability and improved outcome to its participants, their children, their relations and their communities are only superfluous.

Or explain why denying the benefits and security of having married parents benefits the very real children being raised in households with same-sex parents.

Or explain why two married people of the same sex would grow old together in a substantially different way that wouldn't ease the burden on government-provided resources.

Or explain why having an expectation of marriage and stability and raising children is good for adolescents who are attracted to members of the opposite sex but dentrimental to adolescents attracted to members of the same sex.

You can either explain WHY the premise is wrong--that procreation is only one of several coequal factors that give marriage its social value--or you can disagree with the analysis that suggests that legally married same-sex couples may provide enough value to the same-sex couple themselves, to children they raise, to their relations, communities and the society as a whole that their inability to procreate without external assistance (not unline some mixed-sex couples) is insufficient cause to continue prohibiting them from marriage. (I think of the old saw "Becoming a parent is easy; being a parent is hard work." If the "becoming a parent" part is the easy part, why would that be the centerpiece of such an enduring institution?)

But it's not fair to say "No argument has been made" or to start with "marriage can and must have only one overriding social purpose to which all others are subsidiary" without explaining why this is true of marriage, while other human institutions that we value and that have survived have multiple coequal purposes.
11.4.2005 2:25am
Chairm (www):
The burden of proof has been accepted by Mr. Carpenter.

So discrimination against unisexed couples by denying them equal marital status is acceptable because it is easy and doesn't require heavy-handed intrusion?

Not all discrimination is unjust.

The unisexed relationships is not being denied a status that same-sex couples might seek: the purpose has yet to be presented for spociety, through the state, to establish that preferential status.

Thusfar Mr Carpenter has piggybacked on the social institution of marriage. The "me-too" argument makes for very poor social policy and would eventually render marriage a useless social policy vehicle. To answer the burden of proof, Mr Carpenter needs to make the independant claim for SSM.
11.4.2005 2:51am
Chimaxx (mail):
To sunder this link between marriage and natural sexual differentiation (whose most massive and undeniable feature is the potential for reproduction) will radically weaken the feeling that marriage is part of the natural order, an order bigger than ourselves and our desires.


But marriage isn't part of the natural order. Never has been. It's part of the social order. Marriage as we know it doesn't exists in nature. Attempts to anthropomorphize animal behavior as mimicking marriage end in disappointment. That doesn't diminish marriage in any way. The fact that something is created by humankind does not reduce its capacity to awe. Are the pyramids less able to inspire awe because they are human-made rather than natural rock formations? Does the Sistine chapel ceiling inspire less awe than a beautiful sunset? The most awe-inspiring thing I ever watched was the first moon-landing--not because of the rocky landscape but because humans had overcome so many obstacles to get somewhere so foreign and distant that just a few years earlier it had seemed unreachable.

It would encourage people to take their marriages less seriously, to consider alternatives more readily when the going gets rough, and to seek guidance more readily in desire, whim, and fashion.


Why does forcing same-sex couples to continue to shack up without benefit of marriage not even more forcefully encourage people to consider alternatives to marriage? "Hey, they're able to continue to live together without accepting the mantle of adult responsibility that is marriage. Why shouldn't we?" rather than enforcing a social expectation that, gay or straight, you grow up, you settle down, you raise children, you grow old together.

You make your case as if it was self-evident--and quite eloquently. But it is self-evident only to those to who already agree.

You note with some trepidation that permitting same-sex marriage will have a "profound effect on future generations, who will be growing up in a world with a radically different understanding of marriage," while I smile when I think of the adolescent right now starting to realize that he or she is gay, who can think: "Well, at least some day I can move to Massachusetts...or Holland...or Canada." To me, the overwhlmingly positive value of this is self-evident, but I fear that no argument or explanation I could make would help the opponents of same-sex marriage understand just how wondrous and valuable this is.
11.4.2005 3:08am
Chimaxx (mail):
You quote me saying:
So discrimination against unisexed couples by denying them equal marital status is acceptable because it is easy and doesn't require heavy-handed intrusion?


And then reply:

Not all discrimination is unjust.


So since I was responding to this...:

Granted, for the purpose of state recognition of the social institution of marriage, the state's interest is diminished for both the disabled and the elderly. That is balanced against the heavy-handed intrusion that would be required to weed them out from among all other couples who come for a license to marry.


...are you thus implying that weeding these couples out would be just but is unworkable because of the heavy-handed intrusion that would be required?

Or is weeding out some couples who cannot procreate just while weeding out others is unjust, irrespective of the level of intrusiveness that might be required?
11.4.2005 3:23am
Manuel Lopez (mail):
In reply to Chimaxx, the first point is that marriage has always been felt to be and is still felt by many Americans to be part of some larger, transhuman order, something religious or natural that is not chosen by human beings. This is to some extent (but not simply) a prejudice, but it is a salutary prejudice. (It's not simply a prejudice because of the obvious and unchosen natural connection between one man and one woman, that culminates most powerfully in reproduction--as well as other considerations.)

Of course, you're right that the marriage institution is not itself a natural thing, any more than private property is, but it is dependent on natural and unchosen things for its strength, just as private property depends on the deeply-rooted human affection for one's own above what is common (--or just as the invention of separation of powers depends for its success on the uninvented and natural fact of "ambition counteracting ambition"). Of course, it also depends on opinion, teaching, and prejudice.

You asked why wouldn't cohabitating gays have a negative effect on the attachment of straight people to marriage. Heterosexuals as they grow up still look primarily to marriage for a model or guide, more than other things. Again, think of the profound effect that no-fault divorce has had--and that was only an indirect alteration of marriage.

I don't deny that gay marriage could have some positive effects for gays, and of course I'm sympathetic to that as a gay man, but these seem far outweighed by the harmful effects it will have on marriage (see the article I cite).

"The fact that something is created by humankind does not reduce its capacity to awe." The pyramids and the moon-landing excite awe because the aspect of nature that man appears to be half-conquering is so terrible--trying to touch the heavens, and the human achievement seems to reach or imitate (in however ridiculously petty or small or vain a way) that grand scale. If you think about why the pyramids were built, it's not all that different from the reason why men want to conquer the stars, the sense of one's own insignificance and the need to do something great, something immortal (even though it's in fact of no avail against death). But that's done precisely by submission to a project that seems bigger than any one person ("a giant step for mankind"), to something that seems bigger than even humanity itself--the attempt to touch or know this universe that is so much more powerful than we are, that is deathless. So yes there is sometimes a kind of defiance of nature, but the defiance is exciting and awesome exactly because the thing to be defied is so much more powerful and greater than we are.

(As far as the Sistine Chapel: why do you suppose it conceals the fact that it is something made, that it is a human production? Why that fundamental artistic illusion? Why conceal all the editing that goes into books? all the drafts that go into painting? Why don't actors say, I'm an actor reading these lines that someone named X made up and here he is, etc.?)

So in sum, I would say that James Madison was correct on this point: what seems to us beyond our will, because it stretches out to the infinite past and has always been, or because it is deathless and will always be, or because it is connected to a transhuman or natural order of things, will be what commands our reverence and awe, and not the creatures of our individual will. No one worships a god they think is merely their own invention.
11.4.2005 4:52am
Chimaxx (mail):
As far as the Sistine Chapel: why do you suppose it conceals the fact that it is something made, that it is a human production?


This takes us far off topic, but there are few works of art that make more effort to make clear that they are a human production. Even trying to see it as you describe it seems impossible--the formal regularity, the integration of faux architectural elements, the exaggeration of the human form.

And nearly every play I've seen ends with a curtain call, a formal wordless declaration that "This has been only a play; and we've been saying the lines written by the playwright" and if the playwright or director is in the audience, he or she is called up on stage. This is an intentional device to remind us of its artifice, that it is indeed a purely human creation. And no one seems any less impressed once this occurs.
11.4.2005 5:31am
Manuel Lopez (mail):
There are many signs that a work of art is not a naturally occurring thing, but that doesn't mean it shows itself as a merely *human* creation. Some works of art create a dream effect akin to a sensation of divine creation or inspiration (the Muses)--i.e. it's not nature, it's bigger than nature, it's received from above (as you said, "exaggeration of the human form"--i.e. humans that are godlike, though I can't say I enjoy Michelangelo's exaggerations of form--how about someone more subtle, like Titian or Raphael?).

Of course you can analyze it and see the techniques used to create it, but the power of the art depends on hiding the human labor and art that went into it--the work appears to be perfect as if inspired. Now, the motivation of the artist, his hope of deathless fame etc.--that often involves reminding you that I am the great artist who did this (--and the underpaid performers get their curtain call). But constant interruptions in the play that draw attention to the fact that it is merely art, merely a human making--that would spoil the effect, e.g. bad dialogue that jolts you from the belief in the play and reminds you that someone made this up and is trying to create an effect on you (except in special cases, esp. comedies, but these are exceptions that, on closer inspection, actually confirm the rule).

Plays and other works of art generally depend on a "suspension of disbelief," a willingness to fall into the momentary illusion that what you are seeing is not the toil and fabrication of a human artist. (The suspension is partial, since for example the pleasure of watching a tragedy requires knowing that nobody has really gotten killed!)

I agree that the play has an effect because it is art, because it is unnatural (nothing by chance, everything intelligently designed to create an intentional effect), but to have this effect the artistry is largely concealed. I'll add that the artist looks to something he did not create to inspire him or guide him--and that the artist also did not make himself--so that in this final respect, nature again proves herself stronger and more awesome than art.
11.4.2005 6:34am
Public_Defender:
Qutoe from the Editors:

Actually, this is more nearly the message being sent by the advocates of same-sex marriage - “[Traditional male-female] marriage is just one alternative among many. Look at us [same-sex cuople], we’re happy. [No particluar family structure is better than any other.] You can raise kids just as successfully without both a mother and father.”
You fell in the same trap that Maggie fell into. You ignore the fact that there are millions of monogamous gay and lesbian couples out there, many of them raising children. The question is what structure is best for the couples, their children and society.

If you say monogamous gay couples can raise their children just as well without the benefits and restrictions of marriage, the same argument applies to heterosexual couples.
11.4.2005 7:20am
Medis:
I'm actually quite sympathetic to the basic concerns of the people worried about norms, social meaning, and the related "natural law" issues. Like Dale, I don't quite find it plausible that gay marriage will have much of an effect on marital norms, given the overwhelming forces already at play. Nonetheless, I also agree with Dale that it is difficult to prove the likely magnitude of these effects . . . and I think there is a better argument anyway: namely, that on balance gay marriages will have positive effects on marital norms and the social meaning of marriage, and that they are in fact natural and good.

For example, one commentator notes: "two elderly newlyweds confirm, rather than overturn, the marriage idea." I think contemplating these eldery newlyweds is particularly useful because it gets us out of the "why not us" sterility arguments and into a "here is why us" arguments in favor of gay marriages. Just like with elderly newlyweds, gay marriages serve to confirm the idea of marriage for romantic couples, and this is a message that, when applied to straight couples, will end up being pro-marriage.

Moreover, even more than elderly marriages, gay marriages will end up being pro-procreation because they will often involve child-rearing, and thus will be pro-child-rearing. When these pro-child-rearing norms are applied to straight people, straight people will likely end up procreating (in order to have children to raise).

And I think that should be the main point about gay marriages in these norm-related procreation discussions: gay marriages are not just one more allowable exception--indeed, they are not really an exception at all. Rather, they would be part of our society's general encouragement of marriage for sexual partners, and part of our more specific encouragement of marriage for the purpose of child-rearing. When these norms are then applied to straight couples (to whatever degree), the effect will be pro-marriage and pro-procreation.

I would make a similar argument with respect to the natural law issues. One commentator writes, "To sunder this link between marriage and natural sexual differentiation (whose most massive and undeniable feature is the potential for reproduction) will radically weaken the feeling that marriage is part of the natural order, an order bigger than ourselves and our desires." I actually think gay marriages will have exactly the opposite effect.

To begin, I would note that I think gay sex, and gay marriages, are natural and good for gay people. In another thread, it was suggested that I am saying this insincerely, just to mock natural law theorists. It was also suggested that I am saying this arbitarily or unreflectively. Neither is the case: I honestly beleive that with some reflection, natural law theorists can and should come to the conclusion that gay sex and gay marriages are natural and good for gay people.

It will be hard to put an entire argument to that effect here, so I will just outline my view. With respect to heterosexual men and women, the natural law argument starts with observations about the apparent abilities and fit of male and female bodies, and derives from those observations a sense of their function and purpose. I think this general pattern of reasoning is appropriate, but it is artificially limited by looking just at the penis and vagina.

If I may suggest an analogy, I think that looking at just the penis and vagina is a little like looking at just a golfer's hands, on the theory that it is the hands which actually hold the club. But a good golf swing actually involves the entire body, not just the hands. Moreover, the most important part of the body is actually the brain: it is there where the crucial habits reside, and also where conscious thought resides, all of which are involved in a good golf swing.

So, when thinking about sex, I think it is a mistake to narrow our focus to just the penis and vagina. The whole body is involved, and indeed the most important part of the body is the brain, because that is where not only crucial nonconscious processes are involved (processes that amount to sexual attraction), but also where love and thought reside.

And so, what is natural and good for straight men is not dictated just by their penis, and what is natural and good for straight women is not dictated just by their vagina. Rather, their whole bodies are involved, most crucially their brains ... and indeed, to think anything less would be to reduce humans to mere life support systems for their sexual organs, and what in fact makes humans special is precisely the wonderful capabilites of our brains.

Once we properly widen our focus, I think we should realize that in many relevant ways, gay people are different from straight people. In particular, while a gay man may have the same sort of penis as a straight man, when their entire bodies, including their brains, are contemplated, they are not in fact the same. The same is true of lesbians and straight women (both have vaginas, but the whole bodies are different).

So, what is natural and good for gay men is not necessarily the same as what is natural and good for straight men, because they have different bodies. Similarly, what is natural and good for lesbians is not necessarily the same as what is natural and good for straight women, because they also have different bodies. And indeed, once we contemplate gay men and lesbians, then I think the proper conclusion is that having sex with other gay men is natural and good for gay men, and having sex with other lesbians is natural and good for lesbians.

But none of this undermines the natural law arguments in favor of straight sex being natural and good for straight people. Indeed, those arguments are only bolstered: once we apply the same whole body reasoning to straight people, we get the conclusion that straight sex is natural and good for straight people. In other words, these natural law views as applied to straight people will again be pro-procreative.

I anticipate a lot of resistance to these ideas, because some people are accustomed to natural law arguments being used solely against gay sex and against gay marriage. But I sincerely urge people to reflect on where they think sex is really focused (on just the connecting parts, or on the whole body, most importantly the brain?), and to at least consider taking a fresh look at the question of what is natural and good for gay people.
11.4.2005 8:24am
Random Thought:
I haven't read the entirety of this debate, so might be repeating someone else's point. That said, the procreative purpose argument does not agree with the "one man, one woman" definition in another important way - polyamory. If the purpose of marriage is exclusively procreation, why have multipartner arrangements been written out of it? They can be just as procreative as "one man, one woman" arrangements.
11.4.2005 9:22am
Chairm:

Or is weeding out some couples who cannot procreate just while weeding out others is unjust, irrespective of the level of intrusiveness that might be required?


Weeding out the disabled and elderly would be unjust even before considering any comparison with the unisexed combination. Mr Carpenter's imagined Fertility Squad doesn't even get past the lowest of hurdles. It is implausible both in its conception and in his rather weak suggestions of how to implement it.

The weeding out requires at least premarital sexual intercourse and trial marriages. From the historical and anthropological perspectives, if not the legal context in which the social institution has been recognized, this weeding out proposal is itself both intrusive on many fundamental liberties and a it presents a fundamental contradiction of the marriage idea itself.

For example, what part of "in sickness and in health" does not apply to the disabled and the elderly? Losing the capacity to procreate is quite different from never having it in the first place.

The state does not hire brides and grooms. It does not fire husbands and wives. The state is not an all seeing eyeball in the sky searching for the disabled and the elderly. The weeding out regime imagined by Mr. Carpenter belies a fear that there is an actual evil eyeball searching into the private relations of the unmarried.

At worst, the flimsy proposal of a Fertility Squad roaming the countryside is a call for tigher regulation of the man-woman criterion. Its costs to liberty would be enormous.

But even that would not extend the boundaries of marriage to those already uneligible.

At best, the argument is for Reciprocal Beneficiaries (RB) option. This is a trust relationship established by affidavit, as per Mr. Carpenter's imagined scheme to police procreation. RB makes no presumption about the sex relations of those in a trust relationship; there is no requirement that the relationship demonstrate sexual relations. RB is explicitly for those unmarried or unmarriageable. It would be far more inclusive than SSM, since many unisexed couples are related (such as mother and grandmother raising children) and many who'd be eligible would not be same sex combos. It would also include those same-sex couples who are homosexual but who do not want to SSM each other. However, RB would not be available to man-woman couples who are marriageable. Thus the purpose of marital status would not be contradicted.
11.4.2005 9:42am
Jon Rowe (mail) (www):
Chairm:

I think you miss the overall point: Bob and Liddy Dole's marriage (and countless other examples) has absolutely nothing in principle to do with procreation; it's all about companionship and most people in the world recognize this.

Given what marriage has become, where it is as much about nurturing your partner as it is about procreation, there is no logical or consistent rationale for keeping gays out.
11.4.2005 9:59am
Medis:
Chairm,

You might not want to let gay couples off that easily (meaning you might not make RBs available to them once marriage is possible).
11.4.2005 10:03am
Chairm:
Their marriage does not overturn the man-woman criterion which is itself an affirmation of the principle.

SSMers make the circular argument: we do not need to reinvent the wheel, but let's reinvent it anyway.
11.4.2005 10:05am
Chairm:
What is the state purpose in establishing the preferential status for the unisexed combination?

If this cannot be answered without piggybacking on the social institutioin of marriage, then, Mr Carpenter has not met the challenge he set out for himself in this series of posts.
11.4.2005 10:06am
PeterH:
Folks, I won't be joining in this debate today or over the weekend, though I have valued participating in it up until now.

My partner and I are going downtown to register as domestic partners and then taking the weekend for a brief "partnermoon" to visit friends and relax and watch the leaves change colors.

In the event that civilization collapses over the weekend as a result, or the birthrate suddenly plummets, you have our sincere apologies, and when we get back Monday we'll try to help pick up the pieces.
11.4.2005 10:29am
Medis:
Chairm,

I think Dale has basically argued that gay marriages would benefit society by creating various benefits for gay couples, children being raised by gay couples, and the communities of gay couples and families, which in turn would lower the demands those gay couples, their children, and their communities would otherwise place on society at large. I also think he has argued that gay marriages would positively reinforce marital norms, which in turn would benefit society at large. Because society would benefit from gay marriages in these ways, the state has a legitimate interest in encouraging gay marriages by providing such marriages with a special legal status.
11.4.2005 10:37am
Joshua (mail):
This fitting together, most plainly for reproduction, supports the feeling of naturalness and rightness, the feeling that something more awesome is at work than the mere will or inclination of the parties; no human being, no court, no legislator, no right-wing conspiracy designed the notorious difference between the sexes or came up with the reproductive design.


Ah, there, I do believe, is the rub. All the talk about marriage being some transcendental phenomenon veers straight into the realm of spirituality and religion (even if that was not your intent in bringing it up). Simply put, this ain't Saudi Arabia or Iran. The state is not, nor should it be, in the business of maintaining the spiritual integrity of public institutions (to the extent that the state sanction of marriage, or any other state function for that matter, has any spiritual quality to maintain).
11.4.2005 10:41am
Medis:
Joshua,

I think you are right that insofar as such notions are actually dependent on religious doctrines or texts, they should not be part of this discussion. But I think there are more neutral ways of understanding such notions, which can have appeal across religions and indeed to the non-religious. And as I expressed above, I think these basic notions of "naturalness" and "rightness", as applied to a comprehensive view of human sexuality, support the view that gay sex and gay marriages are natural and right for gay people.
11.4.2005 10:55am
Joshua (mail):
I understand your point, Medis; and I don't doubt that legal SSM could change the way people view marriage in a metaphysical sense. My point was, so what if it does? It's not secular government's job to maintain the metaphysical aspects, or the public's perception thereof, of marriage or anything else.
11.4.2005 11:14am
DaveP:
Chairm:

SSMers make the circular argument: we do not need to reinvent the wheel


Expanded: the rights and obligations of marriage are suitable and correct for gay people.


, but let's reinvent it anyway.


Expanded: the only change required is to ignore the sex of the parties to the marriage.

Since the two premises are consistent, asserting that one is reinvention, and the other is not is disingenuous.

No other form of civil contract restricts the sex of the parties eligible to it. I do not expect you or your church to recognize my marriage -- I don't care. That is commonplace -- Cathlolics, for example, tend to look down upon Unitarian Universalist weddings. Oh well.

What you and Manuel Lopez (in particular, even though he's gay) do not get is the fact that gay people are legitimate human beings and we properly have the same rights as anyone else.

Further, this is not a country of state projects and social engineering like Soviet Russia was. This is a country founded upon and governed by the principle of individual rights -- the assumption that people are smart enought to take care of their own business. They do not need us to press their buttons to get them to do the "right thing."

Yes, sometimes in a free society someone will do something you do not like -- such as eat brussels sprouts or marry the 'wrong' gender. If that does not break your leg or pick your pocket, however, it is of no material concern to you.

You are of course, free to comment upon it. Free to make predictions about heartburn or indegestion or societal ruin. But until you have proof of harm, or a reasonable suspicion of immenent harm, you may ethically take no action.

Manuel Lopez, at least, believes that marriage is a magical realist institution, beyond comprehension and reason, and thus beyond our capacity to understand and improve. This is false. We do not live in the irrational world of Marquez, and it is unethical to impose his world upon me, or anyone else.

There is no proof that gay marriage will harm society. There is some early indication from the few places that have gay marriage, that gay marriage has no detrimental effect (i.e. no new riots in Boston).

The changes brought about by gay marriage will be quite slow. If the experiment turns out to be a failure, you can always jam us faggots back into our cells later. But for now, you have no cause to deny us our dignity, and our right to lead our lives the way we see fit.

All your arguments against have been made before.

Of course, I sit shocked and amazed at all these schemes and ploys, each no more provable or believable or enforcable than the next. I am not living in Jefferson's United States.
11.4.2005 11:41am
Appellate Junkie (mail):
DaveP:

While I wouldn’t subscribe to everything you’ve posted in this thread any more than I subscribe to everything in Carpenter’s argument, I want to register my strong agreement with one specific and one general observation in your last post:

Manuel Lopez, at least, believes that marriage is a magical realist institution, beyond comprehension and reason, and thus beyond our capacity to understand and improve. This is false. We do not live in the irrational world of Marquez. . .

Lopez takes this notion to an absurd degree. I comment on it because it also pollutes to a lesser degree an awful lot of this debate.

I am not living in Jefferson's United States.

Amen.
11.4.2005 12:10pm
Chimaxx (mail):
Weeding out the disabled and elderly would be unjust even before considering any comparison with the unisexed combination. Mr Carpenter's imagined Fertility Squad doesn't even get past the lowest of hurdles.


Apparently I didn't ask my question clearly enough. I meant one thing when I said "Or is weeding out some couples who cannot procreate just while weeding out others is unjust, irrespective of the level of intrusiveness that might be required" and you seemed to take it a different way, since you immediately started talking about intrusiveness, fertility squads and government as some all-seeing eye, and used it as a launching pad for your usual talking points leading to Reciprocal Beneficiaries.

So let me post a hypothetical--one that medically is not all that far-fetched within a decade or two. Let's say there was a simple blood test--no more intrusive than the STD tests that were once routinely a part of the marriage application process--that could conclusively and infallibly (by which I mean zero false positives) indicate irreversible infertility. Would it be unjust to bar such people from marriage?

There is no question here of trial marriages or required reproduction or removing people from marriage who subsequently become infertile.

It would simply be: Since procreation is the one and only overriding social value of marriage, those individuals who, at the time of application are infertile and have no chance of ever regaining natural fertility would not be able to obtain a marriage license.

Your comments about disability in the previous message certainly would not apply: Yes, we make accommodations for diabilities in public life where appropriate, but not where their disability makes them unfit for the intended license: Public accommodations must accommodate blind people, but we do not give them driver's licenses.

And of course, these people would be able to avail themselves of reciprocal beneficiary relationships to the same extent that others barred from marriage could.

Why would this be more or less unjust than barring same-sex couples from marrying?
11.4.2005 12:45pm
Public_Defender:
Joshua,

You avoid the question asked by asking another. You avoid answering whether gays should be allowed to marry by saying no one should be allowed to legally marry (religiously marry, yes, but legally marry, no).

But if the government is going to recognize marriage (and it will for the foreseeable future), should the government recognize only heterosexual marriages? Or should the government also recognize same sex marriage?

I think the idea of eliminating government from the marriage business is interesting (Yale Law Professor Stephen Carter wrote an article on it a few years ago), but it's not the idea we are debating today.
11.4.2005 12:52pm
Chimaxx (mail):
Medis: And as I expressed above, I think these basic notions of "naturalness" and "rightness", as applied to a comprehensive view of human sexuality, support the view that gay sex and gay marriages are natural and right for gay people.


Indeed, and I would defy anyone to say that the "the feeling of naturalness and rightness, the feeling that something more awesome is at work than the mere will or inclination of the parties" does not occur for same-sex couples. I know many who could testify that it does, who could describe it in eloquent detail.

Are those opposed to same-sex marriage equipped with some special vision that allows them to look into the heart of these people and tell them "No, you did not feel this. You may think that you did, but you didn't. Perhaps it was a bit of undigested beef, a blob of mustard, a crumb of cheese."
11.4.2005 12:55pm
On Lawn (mail) (www):
Chimaxx,

So let me post a hypothetical--one that medically is not all that far-fetched within a decade or two. Let's say there was a simple blood test--no more intrusive than the STD tests that were once routinely a part of the marriage application process--that could conclusively and infallibly (by which I mean zero false positives) indicate irreversible infertility. Would it be unjust to bar such people from marriage?

Why do you continue this vindictive campaign against the handicapped? Its getting to be an obsession of yours.
11.4.2005 2:25pm
BobNelson (mail):

Of course there are also legitimate concerns about the character of gays (openness in attachments, lewdness, lack of masculinity, etc), though those rarely receive the serious attention they deserve in today's p.c. climate. I have a longer article about this at:
http://www.affbrainwash.com/archives/011455.php


You sure do. From what I can tell, you seem to be more "ex-gay" than "gay". Am I wrong?
11.4.2005 2:43pm
Chimaxx (mail):

Chimaxx: So let me post a hypothetical--one that medically is not all that far-fetched within a decade or two. Let's say there was a simple blood test--no more intrusive than the STD tests that were once routinely a part of the marriage application process--that could conclusively and infallibly (by which I mean zero false positives) indicate irreversible infertility. Would it be unjust to bar such people from marriage?


Why do you continue this vindictive campaign against the handicapped? Its getting to be an obsession of yours.


Pursuing a hypothetical question is considerably less vindictive than voting in reality for constitutional amendments to forever bar same-sex couples from marrying.

Why do you refuse to answer a hypothetical question whose answer would reveal that the repeated arguments about the centrality to marriage of the ability to procreate is a mere pretext for animus toward homosexuals?
11.4.2005 3:25pm
Manuel Lopez (mail):
In response to BobNelson,
Yes, you're wrong on that. In any case, these characteristics are to some extent admitted by other gays, but they almost always get a positive spin.
11.4.2005 3:52pm
On Lawn (mail) (www):
whose answer would reveal that the repeated arguments about the centrality to marriage of the ability to procreate is a mere pretext for animus toward homosexuals?

How would it do that?

Here is the central point, Chimaxx, you have skirted it, you've played with it, but its time you really took it head on.

Your hypothetical question is not the problem, it is where you take its conclusion. Tell me if this is not what you have planned...

Would it be unjust to bar such [sterile] people from marriage?

No it wouldn't be, one might reply.

You'd then no doubt lecture on how there is a lack of sterility squads out jack-booting the public because you see it as fair if homosexuals can't get married. That is vindictive.

If someone answers "yes", then you reply, "Then you should be able to allow gays because they are the same as an infertile couple". The fact that one does not allow homosexuals, you conclude, is animus towards gays.

Yet that relies on the premise that homosexuality is a handicap, and that shows animus towards homosexuality does it not? Because the reason they cannot have children is their choice in companion which is brought about by their sexual orientation. For a heterosexual couple, the reason is because of a disability (or lack of desire for children but that is another post). You are directly equating homosexuality with a handicap, or even more directly saying homosexuality is a handicap that warrants the participants the same priveledges as the handicapped.

Or did you have something else in mind?
11.4.2005 3:57pm
BobNelson (mail):

In response to BobNelson,
Yes, you're wrong on that. In any case, these characteristics are to some extent admitted by other gays, but they almost always get a positive spin.


I can only assume that you see some of those issues [(openness in attachments, lewdness, lack of masculinity, etc)] in yourself. Or that, perhaps, despite not exhibiting them personally, you feel that OTHER gay people are so flawed as to not allow EVEN you to marry.

Personally, I don't get it.

In any case, whether you or others are promiscuous, lewd, or effeminate really has no bearing on my 26-year relationship. Can you explain why it should? Am I also expected to sacrifice my personal life, liberty and pursuit of happiness to assuage concerns that relate not at all to me?
11.4.2005 4:06pm
The Editors, American Federalist Journal (mail) (www):
Chimaxx: The difference between same-sex and opposite-sex relationships is not the difference between a Honda and a Lexus, it's the difference between a Honda and a turnip.

Kendall:

No law says "straight couples can adopt and gay couples can have whatever is left over." because such laws on its face violate equal protection.

It does not violate equal protection, because having two mothers or two fathers is not equal to having a mother and a father.
11.4.2005 4:33pm
The Editors, American Federalist Journal (mail) (www):
jgshapiro: Re: octogenarians - At what precise age do people stop being able to provide a child with a mother and a father? Same-sex couples can never provide a child with a mother and a father.
11.4.2005 4:36pm
On Lawn (mail) (www):
Editors,

The difference between same-sex and opposite-sex relationships is not the difference between a Honda and a Lexus, it's the difference between a Honda and a turnip.

If you ask me its the difference between a car (ss"m") and the an airplane. They both can take you places after all. Then the ss"m" argument looks like this in analog: They serve the same purpose then, don't they? My driver's license is enough to pilot an aircraft.

Thats my analogy at least.
11.4.2005 4:49pm
Manuel Lopez (mail):
DaveP engages in a preposterous distortion of what I said. I no more believe that marriage is beyond "comprehension and reason" than James Madison believes the Consitution is beyond comprehension and reason. I simply point out that both of them depend for their strength on a degree of reverence, awe, and prejudice, and explain how that would be weakened by gay marriage.

In response to Medis, of course what is good for gay men is not the same as for straight men. The point is that, nonetheless, radically changing the meaning of marriage so as to admit same-sex pairings would undermine the very deep feeling that there is a natural or transhuman foundation to marriage. I would also say that the penis or vagina are not minor or incidental features of human anatomy, and they have quite a few effects for psychology (and I don't mean just the Freudians). I disagree that sexual relations between gay men can be as natural for gays as relations between a man and a woman are for straights--obviously a number of people would like to believe this, given the strength of the belief in equality, but it's not the case, as many gays privately admit. At any rate, it's difficult for gays to claim and feel that it's fully supported by nature, given the mechanics of it and above all the obvious pointing to procreation in bodily differences. People want there to be something powerful backing their lives, a natural or cosmic sanction, but there are various difficulties they have in getting it--changing marriage so radically as to unlink it from sexual difference and procreation will only weaken the feeling of a natural or transhuman support to it.

In response to Random Thought: Polygamy does not have the same feeling of natural sanction because only one man and one woman can procreate. That's not just an abstract thing--the physical differences between the sexes support one man and one woman joining. Apart from the notorious problems of jealousies between wives, a mother will not easily submit to another woman claiming to be the mother of her children.

In response to Jon Rowe, the point about childless couples has been gone over a few times, starting with my first post. Even childless couples, if male and female, still have something to do with procreation--the sexual difference between the bodies. (Of course I don't deny that a marriage that carries all the hopes and richness people mean by the word requires the birth of children.)

In response to PeterH and to DaveP, I don't know about riots or civilization collapsing, at least not this weekend, but it's a bad change that will over time greatly weaken marriage and increase unhappiness, and it's another killing of a good and beautiful thing. It will take more time because the primary effect will be on future generations, not on adults whose views already formed.

I suppose it's not ridiculous to say something about the greater effect on civilization. Once polygamy gets going in a few decades, then we'll have more to talk about--perhaps an atmosphere of restless hedonism akin to that of the late Roman Empire? Who knows? But there are many reasons to be extremely cautious and slow to make even small changes to core institutions, let alone the radical one of redefining the meaning of marriage.

In response to Joshua, as I said in citing Madison, no government can dispense with prejudice in its favor. The government certainly DOES and SHOULD make it its business to "to maintain the metaphysical aspects, or the public's perception thereof, of marriage or anything else"--the Pledge of Allegiance, teaching civics in public school, etc. The government can't avoid teaching--the fact that the most powerful thing in America is liberal democracy teaches a lot to everyone, since the imagination of people is formed by what they think is ruling and most powerful in their world. The abolition of slavery is a teaching that slavery is wrong--that's not "metaphysically neutral"! The institution of no-fault divorce necessarily teaches and shapes attitudes. The silence about religion in public schools (as well as the instruction in evolution) necessarily teaches and shapes attitudes. The only question is whether we want to think about what should be taught or not, and whether the teaching is more subtle or more direct.

Finally, DaveP slips in a nasty cite that seems to suggest we're somehow arguing in favor of anti-miscegenation laws. There have at times been attempts to restrict marrying to certain classes of people (for example, patricians and plebs in Rome). To justify that policy, people want to believe there is a natural basis for their socially-created restriction. But no lawmaker invented the "male" and "female" class, and it's not a social construction or prejudice that only one man and one woman can have a child, or that there is a sexual difference between the bodies of a man and a woman or that they fit together well and their joining makes procreation possible. On the contrary, my argument undermines those anti-miscegenation laws, since a black man and a white woman are not any different from the point of view of reproduction than people of the same race. Disconnecting marriage from a natural or unchosen foundation would mean having no way to correct any arbitrary decision as to what it should mean (as we've seen on the polygamy front).
11.4.2005 5:30pm
Chimaxx (mail):
Your hypothetical question is not the problem, it is where you take its conclusion. Tell me if this is not what you have planned...

You'd then no doubt lecture on how there is a lack of sterility squads out jack-booting the public because you see it as fair if homosexuals can't get married. That is vindictive.


Every time you respond to questions along this line, your fertile imagination inserts jackbooted fertility squads. You see them even where they don't exist, where they've specifically been excluded. Why is that?
11.4.2005 5:44pm
Chimaxx (mail):
The Editors: The difference between same-sex and opposite-sex relationships is not the difference between a Honda and a Lexus, it's the difference between a Honda and a turnip.


Well, at least you gave the same sex couple the car and kept the turnip for the heterosexuals.
11.4.2005 5:48pm
Chimaxx (mail):
Manuel Lopez: I disagree that sexual relations between gay men can be as natural for gays as relations between a man and a woman are for straights--obviously a number of people would like to believe this, given the strength of the belief in equality, but it's not the case, as many gays privately admit.


I like that you are so comfortable in your omniscience that you can say "Since *I* don't feel it, and some of my gay friends say that they don't feel it, then obviously other gay man and lesbians can't feel it either, even if you say you do."
11.4.2005 5:57pm
Manuel Lopez (mail):
In response to BobNelson:
No, I don't have those qualities myself (although I'm not particularly inclined to sports), but I look around me, and anyone with his eyes open who is not too p.c., whether liberal or conservative, can confirm they exist simply by meeting gays--the best way to combat prejudice is, first of all, to look.

I mention those qualities partly because some of them have an impact on the child-rearing discussion, in particular the openness and lewdness issues, and the finding of the studies that children raised by gay couples are more open to sexual experimentation, including the ones Carpenter cites. Unfortunately none of the studies are very good, and as you might expect they're as tendentious and biased as can be--in some ways it's a replay of the Kinsey study fiasco.

As for individual right in this matter, I think I addressed that question before. You're asking for a change in the meaning of marriage, not simply the extension of that right, since marriage has always been founded on something natural and bigger than any society or social class, the male-female difference, the sexual differentiation and procreative possibility. No one has barred you from marriage in that sense, but you're asking that the institution of marriage be radically revised to fit what you think it should be, that marriage should become a DIFFERENT thing. There are some benefits for you, of course, but I think great harm for marriage and for heterosexuals. Despite your claim, no one is asking you to give up your life, or is throwing you in jail, or prohibiting you from loving whomever you want (well within limits), or even in most states, adopting children. Now if your happiness really requires that marriage be changed so as to include same-sex couples, then you're in the same boat as the polygamists: society cannot guarantee that everyone will be happy and cannot do everything that everyone thinks will make them happy. There are other people to think of, future generations, and they will also want happiness, and handing down to them the institution of marriage intact and whole may possibly have something to do with their happiness. Whether you agree, that's the concern from the other side, and your happiness is not the only public concern here.
11.4.2005 5:59pm
Kendall:
Editors - "It does not violate equal protection, because having two mothers or two fathers is not equal to having a mother and a father."

Nice of you to take one sentence out and dismiss my substantive argument, which was of course not equal protection but what the rational basis is under current law for A) Allowing gay adoption and B) Not allowing gays the full rights of marriage. The issue is not your opinion of what adoption laws should be, they are what they are and they do NOT currently forbid or actively discourage gay adoption in most states (florida being the only one with a blanket ban) Its been continuously argued here that children are the purpose of marriage. Fine, if that is so, and gay couples are not allowed to marry, then what rational basis exists for the current state of affairs?
11.4.2005 6:41pm
The Editors, American Federalist Journal (mail) (www):
Kendall:
You said the absence of "gay marriage" violates some principle of equal protection. I explained why it does not.

That is a separate question from why adoption by same-sex couples is allowed. I am not obligated to respond to any and all points anyone might post here.
11.4.2005 7:19pm
The Editors, American Federalist Journal (mail) (www):
Chimaxx:

I like that you are so comfortable in your omniscience that you can say "Since *I* don't feel it, and some of my gay friends say that they don't feel it, then obviously other gay man and lesbians can't feel it either, even if you say you do."

There exist certain objective realities that are unaffected by anyone's personal feelings.
11.4.2005 7:20pm
Manuel Lopez (mail):
I thought that had been addressed?
http://volokh.com/posts/1131065231.shtml#35059
11.4.2005 7:29pm
Manuel Lopez (mail):
I meant, re Kendall: I thought that had been addressed?
http://volokh.com/posts/1131065231.shtml#35059
11.4.2005 7:30pm
On Lawn (mail) (www):
Chimaxx,

Every time you respond to questions along this line, your fertile imagination inserts jackbooted fertility squads.

Oh my, now you seek escape because of some rhetorical license.

I'll wait for your *real* reply.
11.4.2005 7:36pm