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[Dale Carpenter (guest-blogging), November 4, 2005 at 8:30am] Trackbacks
The Traditionalist Case -- What Would Burke Do?:

For many liberals, gay marriage is nowadays an easy case. It eliminates discrimination against a class of people. It signals tolerance for diverse families. It eliminates an archaic distinction. If the benefits seem to outweigh the harms, as they do, let's go for it. And the sooner the better.

For a principled conservative, embracing gay marriage is not nearly so easy. A venerable principle of conservatism, rooted in the work of Edmund Burke, is that we should respect tradition and history. This strain of conservatism prefers stability to change, continuity to experiment, and the tried to the untried. Burke was the father of modern traditionalist conservatism. Others were more analytically rigorous (Hayek and Oakeshott) or more directly influential on American political conservatism (Kirk and Buckley). But Burke was the first among the modern writers to lay out the basic principles and to do so in an almost poetic way.

Understanding Burke's philosophy is key to understanding a traditionalist conservative's take on gay marriage. Two aspects of Burke's thought -- his faith in the possibility of slow progress and his willingness to depart from an original design, even one based on ancient values -- are especially relevant.

1. Traditionalist conservatism and reform

Burke has often been identified as a defender of existing practices and traditions against innovation. There is much in Burke's writings and speeches to support this view. He wrote in Reflections on the Revolution in France:

[I]nstead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.

However, the common reading of Burke as simply a defender of tradition often misses the richness and subtlety of his philosophy. He did not oppose all evolution of a society's practices, traditions, and values. Rather, he counseled deliberation and patience in reform.

For Burke, the operation of change should be "slow and in some cases almost imperceptible." He urged forbearance and consensus-building. He defined a statesman as having "a disposition to preserve and an ability to improve." He believed deeply in the possibility of "a slow but well-sustained progress." In other words, Burke supported incremental change rather than the convulsive social upheavals he saw in events like the French Revolution.

Burke's leading modern American disciple, Russell Kirk, took a similar approach to social change. "Society must alter," Kirk wrote in The Conservative Mind, "for slow change is the means of its preservation, like the human body's perpetual renewal." In his analysis of Burke, Kirk noted:

Does the observance of prejudice and prescription, then, condemn mankind to a perpetual treading in the footsteps of their ancestors? Burke has no expectation that men can be kept from social change, or that a rigid formalism is desirable . . . . Even ancient prejudices and prescriptions must sometimes shrink before the advance of positive knowledge . . . .

Kirk added: "Conservatism never is more admirable than when it accepts change that it disapproves, with good grace, for the sake of a general conciliation."

Burke also saw that the original design of an institution would inevitably undergo change: "[N]othing in progression can rest on its original plan," he wrote. "We may as well think of rocking a grown man in the cradle of an infant." Edmund Burke, "Letter to the Sheriffs of the City of Bristol on the Affairs of America (1777)," in Edmund Burke: Selected Writings and Speeches 245-46 (Peter J. Stanlis, ed., 1963). From Britain's mistreatment of the colonies, Burke drew a valuable lesson about the fallibility of human reliance on supposed venerable beliefs and the need to re-examine those beliefs in the light of experience. On March 22, 1775, he articulated this lesson in a famous speech to Parliament:

Our late experience has taught us that many of those fundamental principles formerly believed infallible are either not of the importance we imagined them to be, or that we have not at all adverted to some other far more important and far more powerful principles which entirely overrule those we had considered omnipotent.

Edmund Burke, "Speech on Moving Resolutions for Conciliation with the Colonies, March 22, 1775," Selected Writings, at 196.

This passage reveals two important components of Burke's traditionalist conservatism. First, what we presently regard as "fundamental principles" are not immune to critique and revision based on the lessons derived from experience. Second, experience may reveal that our operating principles are subordinate to even more fundamental principles that should overrule them. This is hardly a static philosophy of governance. It is one that does not shy from drawing lessons from experience that cause us to revise even our deepest notions of right and wrong.

Thus, the popular image of the conservative as the person who stands "athwart history yelling 'Stop!'" needs to be amended. Rather, the dominant strain of principled conservatism has stood athwart history yelling, "Slow down!"

2. Traditionalist conservatism and gay marriage

For a traditionalist, the direction of a reform certainly matters. On Monday and Tuesday, I tried to show how a traditionalist might view gay marriage as a good direction for reform. It will likely stabilize and traditionalize gay couples and their families, with positive effects not only for individuals and their children but also for their communities, for the cause of limited government, for marriage, and for traditionalist values even in gay culture. It will also make available the most traditionally moral life possible for the gay person. On Wednesday and Thursday, I responded to traditionalist concerns about the definition of marriage, the dangers of loosening the ethic of monogamy within marriage, polygamy, and procreation.

But all that is still not enough. A traditionalist case for gay marriage must also grapple with four strong aspects of Burkean conservatism: (1) a preference for stability over change; (2) a sense that existing practices embody a wisdom of the ages that a reformer's "private stock of reason" may not fully appreciate; (3) when reform is needed, a loathing for basing it on abstract ideas divorced from actual lived experience; and (4) a preference for incremental and small reform over dramatic and radical reform.

It is easy to construct from this a powerful Burkean case against gay marriage. (1) Gay marriage is of course a change, so we should be suspicious and resistant on that account alone. (2) Marriage is a long-standing, cherished, and important institution that has never before included the union of a man and a man or a woman and a woman; its historic practice of uniting men and women, and not same-sex partners, may have a reason that our logic cannot fully perceive. (3) Gay marriage is being brought to us in the service of non-marital and abstract causes, like "equality" and "inclusion" and "tolerance." (4) And worse yet, it is a radical change being thrust upon us suddenly by impatient activists and courts.

All of this has great force, and it may be decisive for a Burkean conservative. It is in my view the best argument against gay marriage.

Let me suggest, very tentatively here, that gay marriage, approached as a reform of marriage in the right way, might be consistent with Burke's approach. It is certainly not commanded by traditionalist conservatism, but is perhaps consistent with it. Let's consider each of the Burkean concerns.

First, it's obvious that all change should not be implacably resisted. Change is a means of society's preservation. The fact that gay marriage is a change is not enough by itself to overcome any argument in favor of it. Burkean conservatism, applied to this controversy, puts the onus on the reformers. That's why gay-marriage advocates have the burden of proof. But it is not an impossible burden.

Second, it's also true that the man-woman definition may embody a logic of its own that we cannot fully appreciate. This urges special caution, since the man-woman feature of marriage has lasted long and prevailed generally. But this, too, cannot be a complete barrier to changing marriage, just as it could not have been a barrier to past dramatic reforms of human practices, values, and institutions. When the first reformers proposed that women should be given the right to vote, for example, it would have been easy to say in response that men-only voting embodied a wisdom we could not fully appreciate, even though we could not come up with very good reasons for women's disfranchisement. Burke's insight here about the fallibility of reason is not a justification for stopping all change, even to cherished institutions; it is a warning to base change on actual lived experience and not simply reason.

Third, gay families are a part of our lived experience as a nation; they are not abstractions. There are 250,000 children being raised by 600,000 gay couples, at a minimum. There are 1-2 million children overall being raised among the estimated 9 million gay Americans. Gay families, including those raising children, have grown from the bottom-up, not from the top-down. They have sprung up organically from the experience of millions of people who have the same yearnings for connection, for love, for fidelity, for security, for family, and even for faith, that straight Americans have. Our positive knowledge about gay individuals and families has advanced tremendously over the past few decades, from a time when they seemed nothing more than a diaspora of perverted criminals, to today, when Americans increasingly recognize them as our perfectly responsible and normal friends, co-workers, brothers, sisters, mothers, and fathers. They have shown themselves capable of the kind of commitment associated with marriage.

In the face of the advance of this positive knowledge, it is possible that, from a Burkean perspective, it is some of the opponents of gay marriage who operate on abstract theories that have little to do with real human lives. Some, but not all, opponents of gay marriage appear to cling to an anachronistic view of gay people that is increasingly divorced from all learning, law, life, and experience.

Up to now, gay marriage has indeed been pitched mostly by ambitious reformers with no reverence for traditional institutions, and even with a deep hostility to those institutions, operating on abstract political theories. But as I have tried to show this week it is possible, just possible, to see gay marriage as a reaffirmation of our best traditions of marital commitment, devotion to others for whom one is responsible, and even as accepting the communal obligation to help raise the next generation. Or instead of a simple reaffirmation of long-standing values, gay marriage might be a translation of them into modern times and experience. Radical reformers advocating gay marriage are likely to be bitterly disappointed by what their reform produces.

Fourth, is gay marriage really a radical change, as many opponents (and commentators this week) have insisted? Is it especially unwise in this time of 50% divorce rates and 33% illegitimacy rates to experiment with marriage?

Throughout the extensive history of fundamental changes in the institution of marriage cries of radicalism have greeted every proposed reform. In 1911, the Supreme Court rejected the right of women to sue their husbands for abuse, calling such an idea "revolutionary, radical and far-reaching." Thompson v. Thompson, 218 U.S. 611, 31 S. Ct. 111, 112 (1912).

The type of reform matters for whether we should consider it radical and destabilizing, and therefore un-Burkean. No-fault divorce led to unexpected and unintended consequences that have weakened marriage in some respects; the divorce rate skyrocketed. But that was a change in an exit rule for marriage, allowing people to get out easily. And it potentially directly affected every single marriage in America, since everyone was eligible to exit.

Gay marriage is a proposal to change an entrance rule, to let more people in. There have been many changes in marriage entrance rules over our history: interracial marriage, age requirements, consanguinity requirements, to name a few. I am not aware of any evidence that a change in marriage entrance rules has ever harmed marriage as an institution. And gay marriage does not directly affect every marriage, since every other marriage remains heterosexual. To believe gay marriage affects every marriage is to rest on very abstract theorizing about present "social meaning" or wild speculation about distant future social meanings. A traditionalist conservative should distrust such reasoning.

Some will object, as Maggie has, that gay marriage is not merely a change in an "entrance rule" of marriage, but in the "substantive conception" of marriage. If that's so, it's also not unprecedented.

There has been no more profound change in the history of marriage than the evolution of women from being the property of their husbands to being the equals of them. Women's equality in marriage was a fundamental change in the "substantive conception" of marriage that directly affected every marriage in the land. It was fiercely resisted as a harbinger of the end of marriage and the end of civilization. There were costs associated with that change and it certainly altered the social meaning of marriage. But it was worth it, on balance. Next to that, allowing a 3% increase in the number of people who can get married, which will at least not directly affect the 97% of marriages that are heterosexual, is not radical at all.

There remains a final serious issue for the Burkean conservative: the pace and process of reform. More on that in the next post.

M (mail):
Here's what I don't understand about the "Burkean" position: Why _isn't_ this an example of slow change? It's been building for years, and it's happening all over, in slightly different ways, not just in the US but all over the world. When one is in the midst of a change it always seems fast and dagerous. Think of the civil rights movement- from Brown to now is quite a while, but it seemed pretty violent to the people at the time, I'm sure. The right thing _can't_ be that we sit on our asses and wait for things to "just happen", since few, if any, of the changes we thing are both positive and important happend that way.
11.4.2005 10:00am
Medis:
I'll be interested to see if there is a good reply to Dale's claim that there is apparently no evidence that changes in entrance rules in particular have harmed marriage.
11.4.2005 10:15am
Joel B. (mail):
If you want slow change, then...I think even most SSM opponents would say fine, lets move forward on stronger domestic partnership laws and civil unions, as these institutions either fulfill their goal of moving gay relationships closer to marriage, society will be able to see whether or not such changes are positive, negative, irrelevant, how many partners enter in to such relationships how they treat their relationships once in them. Then after this period of testing, we come back to the question with a real idea of how the evidence ties together with Dale's hunches. As opposed to let's jump in now, and whoops, well I guess that did destroy marriage, because that's just kind of a large risk to take.

Is it especially unwise in this time of 50% divorce rates and 33% illegitimacy rates to experiment with marriage?

Of course, failed to mention, is that this is a result of experimenting with marriage through no-fault divorce and the like. That didn't work out so well for marriage now did it? Why should we expect as opposed to just hope, pray, and hunch, that maybe just maybe "Well this time it's different!" Which we know how those claims tend to work themselves out.
11.4.2005 10:19am
Medis:
Joel B.,

I think Dale is obviously right that there is an important distinction between no-fault divorces, and other divorce policies, and gay marriage: the former are exit rule changes that directly effect all marriages, whereas the latter is an entrance rule change which does not have such direct effects.

Do you have an example of an entrance rule change that worked out poorly for marriage?
11.4.2005 10:26am
Joel B. (mail):
I'll be interested to see if there is a good reply to Dale's claim that there is apparently no evidence that changes in entrance rules in particular have harmed marriage.

Of course it depends on what you mean by good reply, but the reason for the existence of Carpenter's point is because there has only ever been one genuine entrance rule to marriage. Sure, there have been STD testing and some interracial prohibitions, but these were made to prevent something that was already conceded as being able to exist. Jews were commanded not to intermarry, but there's no doubt (and often enough they did) that they could marry a non-jew. They weren't supposed to, but they would still be married nonetheless.

The only real entrance rule there has ever been, is man and woman. That's it. So yeah it's just well a little hard to come up with Data points to refute Carpenter's claim.

Of course, we could also look to how Europe is handling its changes to entrance rules, but that would just lead to an argument about the evidence, suffice it to say, that we can...of course wait and see how it turns out.
11.4.2005 10:26am
ANM (mail):
Hayek was not a conservative. He wrote an essay saying as much. He labeled himself an 'Old Whig.'

Conservatives would not apply their basic principles here, as their view in the social realm is predicated not on reason but on morality. To them, enacting gay marriage constitutes an endorsement of homosexuality. The Bible says, homosexual intercourse is an abomination. I am not condemning or advocating homosexuality, but denoting that Christian (or Orthodox Jewish) conservatives, ie. many/most conservatives, cannot support such a policy.
11.4.2005 10:28am
Daniel-San (mail):
Our substantive understanding of marriage has certainly changed in an evolutionary way. Gradually, over hundreds of years, we have developed what is sometimes called a "love marriage", rooted in the choice of two people made for their own reasons. That evolutionary process should satisfy Burke.

However, the changes in society's tolerance, then acceptance, of gay and lesbian relationships has been revolutionary and occurred over a short period of time. At various periods in history, same sex activity has been tolerated, accepted, or championed. But social encouragement of stable, monogamous, committed, same sex relationships is a rarity. And a concensus has certainly not been built.

There does seem to be a near concensus for tolerance, and there are very few vocal advocates for criminal prosecutions. This leaves conservatives in a confused position. Should we tolerate promiscuity without encouraging commitment and fidelity.

If find it very hard to say that a change in the definition of marriage would not be a radical change. But if the current situation is highly unstable and intolerable (from a conservative point of view), a radical change may be necessary.
11.4.2005 10:38am
Medis:
Joel B.,

I think you are suggesting that something like removing anti-miscegenation laws, varying the incest rules (eg, with respect to degrees of cousins), varying medical tests, and so on (I assume there have been different age rules, and more), are not particularly dramatic changes in entrance rules, whereas in your view there is something fundamentally different about changing the entrance rules with respect to gender. But holding aside the perceived magnitude of the change, do you know of any case in which a change in these entrance rules actually harmed marriage?
11.4.2005 10:45am
Hoosier:
Interesting debate, but I find it highly inlikely that Burke would be in favor of same-sex marriage, if we could dig him up and bring him back. The tendency to identify him as a Rockingham Whig, and thus primarilly a reformer, comes and goes with scholarly trends. In the end we are left with a thinker who reveres precedent and the process by which it has been established. The statement above that this trend toward same-sex marriage has been growing abroad would be of no relevance to Burke, if I read him correctly: A society's practices and prejudices--in the very positive sense in which he uses "prejudice--belong to that society, as a result of the organic process of development in its culture. I don't read Burke as saying that the Anglo world can profit from adopting customs that have worked on the Continent, but which are foreign to us.

Burke is niether a liberal nor a democrat ("Liberal" in the classical sense; small "d"). This makes him a tough fit in a country where conservatives have been strongly influenced by Jefferson. I am a conservative of sorts, and this is why I don't have a picture of the gentleman of Beaconsfield hanging in my office. I am a liberal and a democrat, too.

But I do wonder what Michael Oakeshott would have made of this debate. He clearly has Burkean leanings. But his epistemological conservatism leads him to conclusions which can be reconciled with liberal democracy, unlike Burke.

I do wonder what Michael Oakeshott
11.4.2005 11:19am
HC:
Now that's what makes for a satisfying, and persuasive, debate.

My understanding of the European evidence on this particular change is that it is unclear, and that there is no other good example of altering an entrance rule to marriage.

Anyone have more on either point?
11.4.2005 11:21am
Jimbino (mail):
Though I am philosophically very gay-friendly, I am vehemently against extending marriage to gays for very good political reasons: As a single, I wish to eliminate any and all of the hundreds of privileges the state grants to married folks, and extending marriage rights to gays only increases the numbers of folks that gain from the oppression of singles, whose numbers would be diminished at the same time.

It seems to me that your argument in favor of extending the franchise to gays in the interests of fairness and benefit to society is woefully incomplete unless you consider the third alternative: granting gays marriage rights equal to those of heteros by eliminating state recognition of marriage altogether.
11.4.2005 11:34am
Al Maviva (mail):
Burke would be fine with court imposed gay marriage - and that's what we're talking about - just as soon as he and John Locke could find a nice timeshare on Fire Island where they could stay with their adopted love child Coleridge.

For Burke, God's word and the natural way of things, natural law, were important. He saw God as the source of order and the basis of the prescription necessary for ordering men's lives. Burke would likely look askance upon gay marriage. Sure, it's arguably an evolution of a social institution. But so were Soviet school systems aimed at shaping young minds into an instrument of the totalitarian state. The first question for Burke would be whether the institution is in accord with God's laws and God's laws as evinced in the natural world, natural law. In Burke's world, man's laws have to be more or less in accord with God's, in order to produce a decently governed society. Thus he would probably be unable to get past the traditional Christian and western view of homosexuality, which despite a few historical anomalies, had a moral standing ranging from grudging tolerance plus mild disapproval, to strong disapproval and complete intolerance.

It's a clever attempt to co-opt Burke here, but I don't think it works very well. First off, most of these efforts are court imposed, usually over the strong preference of the public, so that would get Burke a little exercised. Second, It's not minor government tinkering with marriage, it's a fundamental re-ordering of it, and because it is being court imposed, and a lot of activists are seeking a federal Supreme Court solution, it is likely to be a top-down restructuring, rather than a bottom up evolution. Thus, if Burke was to express anything other than complete disapproval, it would likely be to grudgingly say, "well, if you are going to force gay marriage on us then we should take steps to mitigate the harm to traditional marriage." Civil unions could arguably be viewed as a damage mitigating arrangement.
11.4.2005 11:39am
Gabriel Malor:
Jimbino,

You miss the point. SSM advocates are seeking the benefits of marriage -- not its destruction. While eliminating state recognition of marriage would technically put long-term same-sex couples in the same position as long-term opposite-sex couples, such elimination is not the "equality" sought.
11.4.2005 11:40am
Antonin:
I think Dale has missed an important point vitally relevant to the Burkean argument. Marriage as it exists today isn't a "traditional" institution in the Burkean sense.

I'm not just talking about no-fault divorce or love marriage. I'm talking about the fact that marriage, over the last two hundred years, has been wholly transformed from a relation between a man and his property to a relation between two equals. When the Republic was founded, a man could legally order his wife around and beat her at will. He owned her property. A man's murder of his wife, while illegal, was so rarely prosecuted in many jurisdictions as to be de facto legal. Spousal rape was not merely a legal impossibility but a conceptual one. Social expectations only reinforced these principles, making a man's adultery a trivial offense and a woman's adultery cause for total ostracism.

Compared to those changes, admitting a fairly number of same-sex couples is a trivial modification.
11.4.2005 11:41am
Eh Nonymous (mail) (www):
Jimbino: a fascinating position.

Unfortunately for Singles' Rights, the marriage bonus (and all its associates rights and privileges) _are_ so firmly rooted in American society that I cannot imagine the time when there will not be near-universal support for their continuation. Therefore, the abolition of all marriage is a political nonstarter. It's just not something that can be viable. Therefore, to discuss it as a meaningful alternative, as opposed to a hypothetical possibility in an alternate universe, is probably not the best use of an advocate's time and energy if they want to discuss gay marriage itself.

Your suggestion reminds me of the response of discriminating municipal pools to desegregation: close the pools. Or of highly sexist school systems confronted with federal equality laws on their sports teams. Better to end football entirely, than to let girls play if they want. I don't ascribe such motives to you, of course.

Oppression of singles? Interesting theory. I think singles are discriminated against on an individual basis ("So, when are you getting married..."), and there may be some systematic disapproval. But there have to be some good reasons, right? What, after all, does a single add to society other than a less-efficient consumer? Can't cook for more than one (unless you do), can't use the carpool lane, can't buy the family-sized products. It's wasteful. Wasteful!

Maybe we should outlaw singlitude? :)

If we outlaw being single, only outlaws will be solitary.
11.4.2005 11:46am
Joshua (mail):
It's been claimed before that the case against SSM is just window-dressing for bigotry and/or religious conviction (neither of which are subject to counterpersuasion, nor is either one likely to gain much traction on their own in public discourse over SSM). I believe these motivations, especially the religious one, have more to do with resistance to change than does the Burkean philosophy.

From what I gather, it is an article of faith among Christians across many (not all) denominations that the institution of marriage was invented by God Himself, and that He intended it to consist of a union between one man and one woman. Needless to say, an article of faith such as this is not subject to Burkean (or any other type of) reform. But, since arguing on openly religious grounds won't get you very far, SSM opponents going from those convictions must adopt the more generic argument that "change is bad, stability is good," thus creating the illusion that Burkean principles might apply.

(It also goes without saying that religious conviction is likely the real, unspoken reason behind the notion that gay marriage isn't really marriage at all, regardless of how the state defines it.)
11.4.2005 11:47am
Jimbino (mail):
Gabriel,

That's exactly my point: in SSM, gays are not seeking either equality or fairness, but privilege. It's analogous to the situation in old South Africa, where granting white privileges to "coloreds" was not a move that served to end the unfairness of apartheid.
11.4.2005 11:49am
Tom (www):
Nice try, Dale, but appealing to Burke is a non-starter. From the premise that conservatives can accept some changes in society the conclusion does not remotely follow that conservatives could, should, or would accept a re-definition of marriage such as you're proposing. Yes, Burke might reconcile himself to the idea of English colonies gaining political independence, but that homosexuals should be allowed to redefine marriage? Those types of changes are poles apart. Burke, and true conservatives, would no more accept a homosexual redefinition of marriage than they would accept that abortion on demand is a desirable social policy. Why? Because both cases involve not just practical, prudential considerations of policy, but rather, both are issues involving deeply ingrained moral principles.

So yes, certainly, you have demonstrated that conservatives do not accept ossification as their lot. But that does not advance you even one yard towards the goal line you've set.

Some principles are immutable. The fundamental nature of marriage is one of them.
11.4.2005 12:01pm
Joel B.:
Medis,

Let me suggest that changing the "exit rules" of marriage was actually a change in the "entrance rules." Prior to the change in the "exit rules," the entrance rule was married for life, except for basically adultery or abandonment. The change in the exit rule, changed the entrance rule to married for life, or until I'm unhappy with you, than you have to move on. So, the dichotomy of "exit" vs "entrance" rules, is a false one.
11.4.2005 12:02pm
Gabriel Malor:
Jimbino,

In SSM, gay couples are seeking a privilege widely granted to straight couples. You are correct to point out that it is privilege that they want. It is incorrect (or at least not as transparently correct as you seem to make it) to say that granting equal priviges is not "equality or fairness."
11.4.2005 12:04pm
JGUNS (mail):
To the person that said that conservatism was not based on logic but morality: you are a good example of a talking points liberal.

Here are some questions that I have: The "logic" in this argument extends beyond principle and traditionalism. It has always been rooted in the biological. The physical distinction and biological differences between men and women are factual. Thus, I still don't understand why the debate is always framed in terms of "rights" and "companionship" as marriage has only been supported by government due to the biological result of a male and female union. Ultimately, government endorsed marriage recognizes the children as a result of the physical male/female union and seeks to offer benefits that will ultimately support this family unit. This takes it very much out of the realm of "rights." Since biological distinction has nothing to to with "rights."

Secondly, the conservative movement would also tend to favor the traditionalist stance because it recognizes the very real differences between a man and a woman and the importance of both roles in a child's development. There is plenty of scientific data that not only recognizes the physical and congitive differences between men and women, and also the impact of both roles on bringing up children.

The liberal movement does not recognize any difference between men and women and does not frame the debate in terms of child rearing. In their minds a single sex household is just as good as a male/female household.

Thus, I could make the same case another poster did (albeit stronger) that a liberal approach to SSM is based more on their definition of morality then it is on science or any real data.
11.4.2005 12:06pm
Joshua (mail):
Eh Nonymous and Jimbino: I concur that we won't see a movement to scrap state-sanctioned marriage altogether any time soon. However, I can envision the institution withering away over time, even to the point of functional meaninglessness, especially if it is further weakened by changes in laws and social norms. (Since I would welcome either development, I am not moved by arguments that SSM would weaken marriage as a whole.)
11.4.2005 12:07pm
Gabriel Malor:
Regarding the discussion about whether an argument for SSM is based on morality or logic, why can the arguments for or against be based on both?

You each seem to be trying to characterize the arguments pro or con as "mostly based on a definition of morality" as if that makes an argument less persuasive. It also ignores the possibility that arguments based on morality are logical for people who live in that morality.
11.4.2005 12:11pm
Gabriel Malor:
Joshua:

However, I can envision the institution withering away over time, even to the point of functional meaninglessness, especially if it is further weakened by changes in laws and social norms.


I don't see this. How is the withering away going to happen? Is society going to decide that spouses no longer inherit? Is government going to decide that a wife no longer can make medical decisions for her incapacitated husband? Insurance companies are going to stop making insurance plans that include coverage for the spouse?

I'm sure you can imagine that the list goes on. The only way that those changes would happen is if people wanted them to happen. I have a hard time imagining wanting to do away with those benefits of marriage.
11.4.2005 12:20pm
John H (mail) (www):
What did the other changes in entrance rules actually allow those people to do? When they allowed interracial marriage in Virginia, or when they allowed cousins to marry somewhere, or when some other state changed the age of consent so that 13 year olds could no longer marry, what was actually being allowed or not allowed? Those changes were not about whether it is OK for a 13 year old to make medical decisions, or a black woman to visit a white man in the hospital, or for cousins to be allowed to pass on an inheritance automatically, they were all changes in whether it is OK for these relationships to procreate together. That was what was at issue with each change in entry requirements. And that is what is at issue today, though people are being incredibly dense about recognizing it. It is of course much more significant if we allow same-sex couples to procreate together than whether the age should be 14 or 16, or should cousins be allowed to or not. The difference between the ethics of cousin procreation or interracial procreation and same-sex procreation is off the charts, for we aren't just talking about limiting natural procreation, we are talking about OK'ing crossing the line between natural conception and artificial, lab-required, impossible in nature conception. And this would pretty much re-instate the attempt at supremacy that said that blacks can only marry blacks and whites can only marry whites, by saying, effectively, that "gays" can only marry "gays", and only "gays" can marry "gays", and "straights" must marry each other. And we know that gays feel pretty superior, staging frightening rallies and denigrating irresponsible heterosexuals every chance they get...
11.4.2005 12:36pm
Jimbino (mail):

I concur that we won't see a movement to scrap state-sanctioned marriage altogether any time soon.


I understand that most of Europe already sanctions a form of SSM and that the Scandinavian countries have an accord recognizing all such unions among them. I envision a day in the near future when the 400 million-strong EU refuses to recognize any American marriage until the US recognizes all of their unions. This external force may well spell an end to marriage-as-we-know-it in America, once all married Americans find themselves second-class citizens abroad.

As far as singles being second-class citizens, it has been brought to my attention that law and custom in Europe do not discriminate against singles to the degree they do in the USA, and I would be eager to see a survey that indicated the single-friendliest countries of Europe.
11.4.2005 12:38pm
Joshua (mail):
Gabriel: We have no idea how civilization will evolve over the course of the next century, much less beyond that. For all we know, changing times and attitudes, not to mention advances in reproductive technology that are so often brought up in these SSM threads, may render many or all the benefits of legally recognized marriage either unfeasible or moot, one by one. As this happens, if it happens, marriage can't help but slowly lose its significance. In other words, to wither away.
11.4.2005 12:41pm
Roach (mail) (www):
Burke favored reform and practicality in matters of government. These things are created for human wants, and must by necessity vary with circumstances and the requirements of justice.

But he was not for reform in moral matters. He thought moral matters were largely settled and self-evident. "We know that we have made not discoveries, and we know there are none to be made . . ." He also vigorously defended the European ideal of chivalry, which is founded on a stylized attempt to channel sex differences in a positive way. Gay marriage, sexual license, easy divorce, and the rest all undermine both chivalry and traditional sex roles. Indeed, they were explicitly intended to do so by those that inaugerated the sexual revolution,e.g., Freud, Kinsey, Masters and Johnson. Is it conservative to put the final nails in the coffin because this is the general direction of things. Burke's to-the-end defense of the ancien regime does not suggest so.

Burke above all believed in traditional morality. "All other people have laid the foundations of civil freedom in severer manners and a system of a more austere and *masculine* morality. France, when she let loose the reins of regal authority, doubled the license of a ferocious dissoluteness in manners and of an insolent irreligion in opinions and practice, and has extended through all ranks of life, as if she were communicating some privilege or laying open some secluded benefit, all the unhappy corruptions that usually were the disease of wealth and power. This is one of the new principles of equality in France." In other words, the revolution took the sexual license of the aristocracy and made it widespread, and this was a bad thing, not progress.

The biggest problem with your argument and that of others is that its a camoflauge for the real argument: the absence of gay marriage is unfair because it allows unequal treatment of citizens and this makes them feel bad. But Burke didn't believe in rationalistic equality. "In this partnership all men have equal rights, but not to equal things." There is something inscribed in nature that defines what marriage is and should be, and that is, above all, the partnership of man and woman.

Burke said, moral and other truths "were understood long before we were born, altogether as well as they will be after the grace has heaped its mold upon our presumption and the silent tomb shall have imposed its law on our pert loquacity. In England we have not yet been completely embowelled of our natural entrails; we still feel within us, and we cherish and cultivate, those inbred sentiments which are the faithful guardians, the active monitors of our duty, the true supporters of all liberal and manly morals. We have not been drawn and trussed, in order that we may be filled, like stuffed birds in a museum, with chaff and rags and paltry blurred shreds of paper about the rights of men. We preserve the whole of our feelings still native and entire, unsophisticated by pedantry and infidelity. We have real hearts of flesh and blood beating in our bosoms. We fear God; we look up with awe to kings, with affection to parliaments, with duty to magistrates, with reverence to priests, and with respect to nobility. Why? Because when such ideas are brought before our minds, it is natural to be so affected; because all other feelings are false and spurious and tend to corrupt our minds, to vitiate our primary morals, to render us unfit for rational liberty, and, by teaching us a servile, licentious, and abandoned insolence, to be our low sport for a few holidays, to make us perfectly fit for, and justly deserving of, slavery through the whole course of our lives."

Along these lines, real Americans still know that a homoesexual lifestyle is a perversion of the sexual gift, a formula for an unhappy life, and an exercise in self-indulgence and license that cannot be approved and renders men unmanly, degraded, and unfirt for "manly, moral, regulated liberty."
11.4.2005 12:55pm
Gabriel Malor:
Joshua:

We have no idea how civilization will evolve over the course of the next century, much less beyond that.


It seems to me that you could hardly make an argument that state recognition of marriage would be scrapped in the future, "since we have no idea how civilization will evolve..."


John H:

[W]e are talking about OK'ing crossing the line between natural conception and artificial, lab-required, impossible in nature conception. And this would pretty much re-instate the attempt at supremacy that said that blacks can only marry blacks and whites can only marry whites, by saying, effectively, that "gays" can only marry "gays", and only "gays" can marry "gays", and "straights" must marry each other.


Huh?
11.4.2005 12:55pm
Public_Defender:
Yes, Joshua, in the end we all die. But that doesn't mean we should avoid dealing with today's problem.

And today's problem is whether we are going to limit government-sanctioned marriage to heterosexuals or whether we're going to let gays and lesbians have the same benefits and responsibilities as straight people.

While I think the ideas you present could be interesting, here, you are just avoiding the question.
11.4.2005 12:59pm
HC:
Jimbino - assuming Europe refused to recognize American marriages, I don't see how married Americans would be second-class citizens abroad. What prevents an expatriate American couple getting (re)married in Europe? The EU doesn't consider them married, after all. I suppose tourists wouldn't bother, but then they'd feel less the lack of recognition, being in country for a much shorter time.

Joel B. - the argument that no-fault divorce altered the nuptial calculus is sound, though it did not affect peoples' eligibility for marriage as such and so was not an entrance rule in the sense Dale wrote of.

Even if it were, I don't see how that undermines Dale's position: no-fault divorce changed everyone's entrance calculation. The question is whether changing someone else's entrance rule will affect marriages more generally, presumably by altering the definition of marriage.
11.4.2005 12:59pm
Gabriel Malor:
John H, forgive me for making light of the conversation, but the portion of your comment I quoted above made me think of this quote from Ghostbusters:

"Human sacrifice, dogs and cats, living together....MASS HYSTERIA!!!"
11.4.2005 1:01pm
Robert F. Patterson (mail):
When Maggie asked me to join this discussion on marriage, I thought that I might take a different tack to simple argument. Let me start this way:
What is marriage? It is a contract between two people, an agreement, a giving of self to eachother. THese two people love each other, and want to be with each other permanently and exclusively. THey want to give up their individuality and to become one with each other. THey want to be so close to each other that they want to join themselves intimately to each other, to the extent that one can penetrate the other in the most intimate and loving embrace known to humans; the man will give the very seed of life to the woman, who will receive it and nurture it in her own body until it grows enough to survive outside her body. THis fruit is the product of their love, constituted from their own bodies and spiritual love equally, so that their child shares equally from both of them, and will be loved and cared for and protected and educated by both of them, each giving their love-child all that each brings to the union from what they possess, man and woman. THis is the origin of the human race and this is how that human race perpetuates. THis is marriage.
It should come as no surprise to readers that no priest, no justice of the peace, no state, no law, marries two people. THey marry each other. No state can create a new form of marriage. Marriage is an integral part of human nature. THe presence of a minister at a wedding, or a representative of the state, is NOT TO MARRY the couple, but to be a witness to the fact that this man and woman give themseves to each other. Even what Christians call the Sacrament of Marriage is part of a supernatural life, not a natural action, added by CHrist to empower these two people and their child to grow in the supernatural life of God. Marriage is an act of two people, a man and a woman, by which their own lives and loves become one and from which can come--but not necessarily will come--the fruit of their love, namely a child. That is what the Creator of nature created and intends. So, ultimately, as I said in a previous comment a few days ago, marriage cannot be separated from nature, nature's god, morality and belief.
THere is an old Jamaican joke--ethnic, albeit. A priest asked a Chinese gentleman why he was eating meat on a Friday after he had become a Catholic. THe man said, I am not eating meat. My name was Chin and you baptized me and called me John. I took this piece of chicken and baptized it fish, so I am eating fish.
Qui potest capere, capiat.
11.4.2005 1:07pm
eddie (mail):
Homosexual unions and heterosexual unions may have similarities but I do not see how they can or should be considered equivalent unions.

All homosexuals may marry under current marriage laws. They choose not to marry under current marriage laws.

If we are to be honest in participating in this discussion, I think we should recognize the bottom line for proponents and opponents is whether or not homosexual unions are worthy of the same respect as heterosexual unions.
11.4.2005 1:18pm
On Lawn (mail) (www):
Dale,

If the benefits seem to outweigh the harms, as they do, let's go for it.

They do? Weren't you going to provide that argument? Its friday lets hope you get to that soon. Seems a pity that you rely on a conclusion that you haven't provided the evidence for yet. I wouldn't build on that as if it were fact if I were you. Or perhaps you are still working on that part and it will be forthcoming.
11.4.2005 1:18pm
Public_Defender:

All homosexuals may marry under current marriage laws. They choose not to marry under current marriage laws.

This is one of the arguments that bigots used to defend bars on interracial marriage. Blacks could marry. Whites could marry. Everything was equal. Why should anyone complain?
11.4.2005 1:23pm
Roach (mail) (www):
AS for cost benefits, the Burkean view is that there is a hidden logic in tradition and prejudice and hidden, unintended consequences in change.

"Old establishments are tried by their effects. If the people are happy, united, wealthy, and powerful, we presume the rest. We conclude that to be good from whence good is derived. In old establishments various correctives have been found for their aberrations from theory. Indeed, they are the results of various necessities and expediencies. They are not often constructed after any theory; theories are rather drawn from them. In them we often see the end best obtained where the means seem not perfectly reconcilable to what we may fancy was the original scheme. The means taught by experience may be better suited to political ends than those contrived in the original project."

Burke noted how, "the evils of inconstancy and versatility [are] ten thousand times worse than those of obstinacy and the blindest prejudice."

This approach of "innovation" you advocate Dale is anything but Burkean.
11.4.2005 1:25pm
Daniel San:
The anti-miscegenation laws cannot be referred to as a traditional restriction on marriage. They were an innovation that struck a blow at one primary purpose of marriage, which was wide family alliances.
11.4.2005 1:26pm
Gabriel Malor:
On Lawn,

Dr. Carpenter was summarizing the liberal position on gay marriage, not presenting his own argument when he said "If the benefits seem to outweigh the harms, as they do, let's go for it."

Carpenter, all along, has noted that he is not approaching the SSM debate with a liberal argument so it confuses me why you would demand that argument from him now.
11.4.2005 1:30pm
eddie (mail):
Miscegenation laws were applied to equivalent unions. Advocates of state recognition of homosexual unions want that recognition even though they seek the recognition for a type of union that is not equivalent to the union currently receiving recogition.
11.4.2005 1:41pm
SacSays (mail):

All homosexuals may marry under current marriage laws. They choose not to marry under current marriage laws.


I'm a gay man. Does Eddie have a daughter I could exercise my right to marry with?
11.4.2005 1:42pm
Daniel Chapman (mail):
That was really good, roach. Too bad you weren't writing instead of Maggie Gallagher.
11.4.2005 1:43pm
eddie (mail):
I am a single man. I do not feel any need to disclose my sexual orientation as do so many others. If you have a need to know my sexual orientation, presuming you have a valid reason for knowing it, I will provide it.
11.4.2005 1:45pm
Public_Defender:

Miscegenation laws were applied to equivalent unions. Advocates of state recognition of homosexual unions want that recognition even though they seek the recognition for a type of union that is not equivalent to the union currently receiving recogition.
Many (most?) white Americans used to think that black-white "marriages" were not equivilent to white-white or black-black marriages.

Just saying, "they're not equivalent" is conclusory. It is the answer you get to after the debate. To say that gay marriage is "a type of union that is not equivalent to the union currently receiving recogition" adds absolutely nothing worthwhile to the debate.

The most helpful posts have explained why same sex marriages are or are not equivalent to opposite sex marriages.
11.4.2005 1:48pm
eddie (mail):
If I did have a daughter, I would leave the decision as to who she might marry up to her. Not that I would not have opinions on her choice and would air those opinions with her, but I would respect her choice.
11.4.2005 1:48pm
eddie (mail):
They are not equivalent for so many reasons I did not think it necessary to list them, and I do not intend to list them. However, I will list several. First, the continuation of the species is dependent upon the heterosexual union. The continuation of the species is not dependent on homosexual unions. Second, the heterosexual union involves complementary human organs. The homosexual union does not involve complementary organs. Third, the heterosexual union has received societal recognition from pre-history to the present. The homosexual union does not that history of societal recognition.
11.4.2005 1:52pm
AF -- other one:
I still feel that one strong argument against same sex marriage has not been countered, which stems from the fact that sex between people of the opposite sex can very easily result in the creation of a child. The government has a strong interest to encourage that sex to occur within a stable unit that can raise the child, if one is created. The government does not have an interest in ensuring that sex that cannot result in the creation of a child will occur only in such a stable unit. And to the extent the government has an interest in allowing the formation of two-person units designed to provide security "in sickness" for one of the members, there is no government interest in either limiting those units to two people; limiting them to people who are unrelated; or connecting that security to units that engage in sexual activity. Additionally, the interest in and reasons for producing stable two-person units are distinct enough from the child-rearing interest that it would seem a different instution would be called for -- something different from marriage.
11.4.2005 1:52pm
On Lawn (mail) (www):
Dale,

That's why gay-marriage advocates have the burden of proof. But it is not an impossible burden.

Agreed.

Well mostly agreed. Theoretically it isn't an impossible burden but so far we've not seen it met. The theory of trickle-down benefits suffered from the beginning because it failed two basic questions:

1) Why does it have to be marriage? After all you are arguing for same-sex "marriage" not civil unions or reciprocal beneficiaries.

2) Why does it have to be extended to gay/lesbian couples and not others? You make a case for benefit driven demands, but do not accept other situations. Polygamy was the only one you explicitely rejected, though your grounds for dismissal were spurrious. Other arrangements (especially non-romantic arrangements) where there is dependancy, and even dependants.
11.4.2005 1:56pm
eddie (mail):
It is a waste of time to discuss partial equivalency. I think partial equivalency is an oxymoron.
11.4.2005 1:57pm
On Lawn (mail) (www):
Gabriel Malor,

Dr. Carpenter was summarizing the liberal position on gay marriage, not presenting his own argument

Howso?

As noted by Dale in this article, he spent two days outlinining his trickle-down theory of benefits in order to make his case.
11.4.2005 1:58pm
Jon Rowe (mail) (www):

Burke would be fine with court imposed gay marriage - and that's what we're talking about - just as soon as he and John Locke could find a nice timeshare on Fire Island where they could stay with their adopted love child Coleridge.


Keep in mind that we should be focusing on Burkean principles, not trying to get into the mind of Burke himself. Burke, if we could transport him via a time machine, his mind would be so riddled with 18th Century prejudices that it would make no sense to ask him, "hey Eddie, what do you of gay marriage?" (Reminds me of some of those classic episodes of Bewitched).

Anyway, see these posts of mine on Founders and Historical Context.
11.4.2005 2:01pm
Designbot:
THis is the origin of the human race and this is how that human race perpetuates. THis is marriage.
It should come as no surprise to readers that no priest, no justice of the peace, no state, no law, marries two people. THey marry each other. No state can create a new form of marriage.


Very pretty story. But, basically, you're saying that having kids = being married, and the state &the church are irrelevant. What would you call a couple who live together &have a baby but don't get married? Why should you care if the state wants to grant legal privileges to a class of people and call it a marriage, if what the state says is irrelevant?
11.4.2005 2:04pm
Gabriel Malor:
Dr. Carpenter says:

This week I will sketch the traditionalist case for gay marriage...

Days later, presenting a counterargument he says :

For many liberals, gay marriage is nowadays an easy case...If the benefits seem to outweigh the harms, as they do, let's go for it. And the sooner the better...For a principled conservative, embracing gay marriage is not nearly so easy.

On Lawn seems to think that he is entitled to a presentation on the liberal case for SSM, despite the fact that Dr. Carpenter has indicated throughout his guest-blogging that he is presenting a "traditionalist" case for marriage.

If you are interested in liberal arguments or rights-based arguments for SSM then start with Andrew Sullivan. There are also many law review articles on rights and same-sex marriage. If you're lucky enough to have access to LexisNexis, start there. If not, Findlaw (which is free) has some that are also informative.
11.4.2005 2:16pm
Bob Van Burkleo (mail):
Jimbino

If you consider the legal contract of marriage a 'privilege' then yes there are some citizens seeking 'equality of privilege'. But your position seems to indicate there is no real need or reason for the legal contract and I'd have to disagree. By allowing two individuals to merge many of their qualities it allows for the asymettrical distribution of familial responsibilities between the individuals while each maintaining personal security.

Simple example - in the state of Washington if a spouse dies the remaining will inherit their commerical crabbing license from the state. Might seem silly but this simple understanding allows one parent to run a crabbing business and the other to be a homemaker yet if the one dies the other can still run the business that has been keeping the family financed. In a world without marriage, each parent must work and maintain all of their own financial, health insurance, and other security options in anticipation of the loss of their spouse otherwise the family is negatively impacted.

Might security be acheived through some legal process? Perhaps , and I would guess each family having to have a lawyer to safely maintain itself might be an appealing concept on a legal blog, it really shouldn't be necessary, should it? Since the security of the familiies can be acheived through a generic civil contract, isn't that really the best way to go since hopefully we can agree that the stability and welfare of families IS a state interest?
11.4.2005 2:30pm
On Lawn (mail) (www):
Gabriel,

On Lawn seems to think

Save us the onerous display of psychic powers here. If you want to know what I'm thinking, ask me instead of pretending.

Dr. Carpenter has indicated throughout his guest-blogging that he is presenting a "traditionalist" case for marriage.

As Prof Volkoh pointed out the liberal case that Dale is not making is one of equality.

To take the most obvious example, if someone is arguing — as Dale Carpenter is not, but as some do — that consenting adults have an inherent right to have their marriages be legally recognized, then it's entirely fair (and in my view persuasive on this point) to point out that this argument would legitimize incestuous marriages as well as same-sex marriages.


Dale says his case is about benefits...

I have already laid out the ways in which uniting gay families in marriage will produce some measure of individualistic benefits to individuals, couples, and children. Individuals in gay marriages should be healthier, wealthier, and happier, on average, than if they were single or simply cohabiting. They may also lead more traditionally moral lives. Their children should do better in school, commit fewer crimes, and be less likely to use and abuse drugs, among many other advantages, than if their gay parents live alone or cohabit.

The whole community benefits to the extent that each of these individualistic benefits obtain. The community is better off when the individuals that comprise it are better off. More couples united in marriage should mean more stability, less promiscuity, more people connected by a web of familial relationships, more parents invested in the health of schools, and so on. More children raised in marriage should mean less crime. Healthier, wealthier, and happier people are better citizens, more involved generally in maintaining the life of the community, less atomistic. Less "bowling alone."


After making such arguments he then declares...

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


The traditionalist case was outlined from the beginning to be...

This week I will sketch the traditionalist case for gay marriage, by which I mean briefly this: (1) Marriage will help support and stabilize gay families, including the many such families raising children; (2) it will help channel these families into traditional patterns of living, providing them and their communities some measure of the private and public goods we expect from marriage; (3) it will, over time, tend to traditionalize gay individuals by elevating respect within gay culture for values like commitment to others and monogamy at the expense of hedonism and promiscuity; (4) it will make available the most moral life (in a traditionalist sense) possible for a sexually active homosexual; (5) and it will do all of this without hurting traditional families or marriage, (6) perhaps even helping to a limited extent with the revival of marriage.


So Gabriel, you could be right. I've noted already that Dale's been abandoning some of his arguments. Perhaps he is continuing that trend? Or perhaps you are wrong. Or perhaps something more egregious is afoot.
11.4.2005 2:38pm
Perseus:
Just to add to Al Maviva and Roach's criticisms. Burke said that society is "a partnership in every virtue and in all perfection. ...Each contract of each particular state is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according to a fixed compact sanctioned by the inviolable oath which holds all physical and moral natures, each in their appointed place." So the question would be whether Burke would regard such a union as consistent with perfecting human nature. I think it unlikely given Burke's Christian/Thomistic moral horizon, which holds (as Burke put it) "self-denial" as the "second of the Pillars of Morality. This is the most austere part of our Duty &the most difficult." By contrast, it is the "liberal" or soft virtue of "humanity" that tends to cause people to think that it is "cruel" to deny gay couples--or old straight couples (to use an example offered by Carpenter)--the freedom to marry.
11.4.2005 2:58pm
Bob Van Burkleo (mail):
"t should come as no surprise to readers that no priest, no justice of the peace, no state, no law, marries two people. THey marry each other."

That is the argument for marriage equality in a society based on the rights of the individual. Homogendered couples have been marrying forever, its just now they are obviously so and they are identifying themselves as married.

There is no 'gay marriage' there is only 'marriage' and all citizens have a natural right to it that superscedes any blanket proscription declared by the purely made up state or legal mental construct.
11.4.2005 3:03pm
APL (mail):
I think it is worth noting that we should not be engaged in a "What would Burke do?" analysis, but the rather more rational and philosophical (or ideological) question of how the principles of Burkean traditionalist conservatism should be applied in the same-sex marriage debate.

After all, to properly do the former, one cannot take Burke in his own time and apply temporally bound wisdom to a situation in a different and evolved sociopolitical paradigm. The proper, albeit impossible, way to use a WWBD analysis would require one to know how Burke's own thinking may have evolved in a Burkean taditionalist way in the ensuing two and a quarter centuries.
11.4.2005 3:15pm
Perseus:
APL's approach to wisdom is historicist, but the Christian/Thomistic moral horizon to which Burke subscribed (and many conservatives today still subscribe) is not, so there's nothing proper in viewing such a horizon as "temporally bound."

The most I think that Burkean principles could offer would be "civil unions" (with fewer rights) as the lesser of two evils. And being a fervent opponent of abstract equality, Burke would have no qualms with the "second class status" that is allegedly implied by such unions. Indeed, I suspect that he would want to maintain such a distinction.
11.4.2005 3:53pm
Joshua (mail):
Gabriel wrote:

It seems to me that you could hardly make an argument that state recognition of marriage would be scrapped in the future, "since we have no idea how civilization will evolve..."


You obviously didn't read my previous post very carefully. I specifically said I didn't think state recognition of marriage would be scrapped outright. I put forth that I could imagine it fading away into irrelevancy and anachronism (at which point I suppose it could indeed be formally scrapped as well), but that's an entirely different scenario from simply ripping marriage out of the law books today.

Public_Defender wrote:

Yes, Joshua, in the end we all die. But that doesn't mean we should avoid dealing with today's problem.

And today's problem is whether we are going to limit government-sanctioned marriage to heterosexuals or whether we're going to let gays and lesbians have the same benefits and responsibilities as straight people.

While I think the ideas you present could be interesting, here, you are just avoiding the question.


To which of my observations are you referring, the one I continued upon with Gabriel above, or the one I posted before that (that conservative opposition to gay marriage flows from religious conviction that's beyond the scope of Burkean reform)? I'm not quite sure what everyone dying has to do with either one.

Either way, if you don't already know where I stand on state-sanctioned gay marriage, apparently you haven't read very many of my posts in these threads either. (Hint: Individual rights trump societal ones in a free society in any event, so claims of societal harm don't carry much weight with me.)
11.4.2005 4:15pm
Defending the Indefensible:
Robert F. Patterson writes:

It should come as no surprise to readers that no priest, no justice of the peace, no state, no law, marries two people. THey marry each other. No state can create a new form of marriage.



Designbot replies:

Very pretty story. But, basically, you're saying that having kids = being married, and the state &the church are irrelevant. What would you call a couple who live together &have a baby but don't get married?


It depends on what they call themselves. If they live together and say they are married, they are married, and this is even recognized in common law. Even if they do not explicitly declare their marriage then they are presumed to be married if they maintain common domicile for a period of years.

Designbot:

Why should you care if the state wants to grant legal privileges to a class of people and call it a marriage, if what the state says is irrelevant?


The state ought not to be in the business of licensing marriage, let's start there. Licensure converts rights into privileges, and marriage is not a privilege. Once we've allowed ourselves to descend this slippery slope, the question becomes whether and why such privileges ought to be given in some circumstances and denied in others. That is not a question we should ever have been asking.

There is a legitimate debate over the definition of marriage, whether gay marriage has meaning, etc., but this is fundamentally a religious, spiritual or philosophical argument, it should not be a political question.
11.4.2005 4:24pm
shell (mail) (www):
Joel B says:
If you want slow change, then...I think even most SSM opponents would say fine, lets move forward on stronger domestic partnership laws and civil unions...


Unfortunately, SSM opponents don't say fine. The problem with the suggestion that gays should be happy with civil unions is that civil unions aren't being offered in many places. Virginia already has a law on the books that bans gay marriage as well as any legal attempt to simulate marriage. Now the state is trying to write that into the constitution.
11.4.2005 4:28pm
Simplicio:
I agree. Tradition tells us that the earth is at the center of the universe. And if "experimental" knowledge tells us otherwise we should only change our view incrementally: move one planet at a time into the sun's orbit, leaving the earth for last.

(There is never a bad time for a good idea :)
11.4.2005 4:44pm
Gabriel Malor:
Joshua,

My mistake. Allow me to amend my previous remark:

It seems to me that you could hardly make an argument that marriage would wither away, "since we have no idea how civilization will evolve..."

Now, I recognize that you have used the softer phrase "I could imagine." You will understand, I hope, if we don't decide public policy based on your (or anyone's) imagination.
11.4.2005 4:56pm
Jimbino (mail):
HC --


Assuming Europe refused to recognize American marriages, I don't see how married Americans would be second-class citizens abroad. What prevents an expatriate American couple getting (re)married in Europe? The EU doesn't consider them married, after all. I suppose tourists wouldn't bother, but then they'd feel less the lack of recognition, being in country for a much shorter time.


Here's the scenario, HC: The EU could adopt the tit-for-tat policy that Brazil, for example, has adopted to retaliate uniquely against Americans for the USA policy of charging $100 for a visa, etc. In order to do a SSM in Holland under current Dutch law, one of you has to be Dutch. Logically, the Dutch should feel the way about OSMs between any two foreigners. The result is this: if a hetero couple travels in Holland, she doesn't get medical proxy rights for her spouse in the hospital, not even the right to dispose of his dead body, etc. He may have NO rights to visit their children that she has kidnaped from Kansas to Amsterdam!

If you settled in Holland, you would have to at least become a permanent resident (under their current law) to be able to marry, whether straight or, pari passu, gay.

Granted, the penalties for being single in Holland are minimal, compared with here, especially in the areas of health insurance, pensions, social security and taxes.

We will probably see this tested here first when SSM citizens of Massachusetts assert their marital rights in Kansas.

And to answer Van Burkleo:

In the state of Washington if a spouse dies the remaining will inherit their commerical crabbing license from the state


What keeps two people, married or otherwise, in Washington from forming an LLC or partnership to keep a commercial crabbing license?
11.4.2005 5:11pm
Roach (mail) (www):
A few people have suggested Burke's own views don't matter very much. What hogwash. Burke is the founder of conservative philosophy, itself a response to the fracturing of European Christendom in the Enlightenment and French Revolution. His critique, his reasoning, and his prejudices are as viable then as now. His specific critcism of rationalism, egalitarianism, abstract human rights theories, licentiousness, and the rest is as salient today. It's certainly notable that those who want to free Burkeanism from Burke haven't cited him very much today, in contrast to Dale's opponents. Perhaps they've never read him?

In any case, his words, his sentiments, and his overall tone suggest he'd not be on the pro-gay marriage side. As someone who wrote a few lengthy papers on Burke--in specific, his traditionalist defense of liberal English institutions--I think ther'es no good reason to think he'd support the radical change of gay "marriage." In other words, I don't think he'd be crusading to allow the characteristic negation of masculinity and heterosexuality, that is, gay sodomy, to be institutionalized with official societal aproval.
11.4.2005 5:28pm
Joshua (mail):
Gabriel wrote:
Now, I recognize that you have used the softer phrase "I could imagine." You will understand, I hope, if we don't decide public policy based on your (or anyone's) imagination.


Whoever said I expected anyone to? My point (which I admittedly made in a roundabout manner) was that legal SSM combined with other factors could cause legal marriage to wither away as many SSM opponents claim, but since we don't know what society will be like by the time the withering runs its course, it is not self-evident that the disappearance of marriage in this manner would even be a bad outcome.
11.4.2005 5:28pm
Antonin:
Unless I missed something, no one has yet tried to refute my argument that marriage can't be considered a "traditional" institution and therefore Burke doesn't apply. As I said above, the relationship between a man and his property is of a wholly different kind from the relationship between two equals. Even thirty years or so ago spousal rape was a legal impossibility - that's right, a woman had no legal right to refuse sex with her husband for any reason.
11.4.2005 5:29pm
Shawn (mail):
Out of the abstract and into real life:

Let us not forget that "Civil Unions" where they have 100% of state-granted rights by default have "fewer rights" because they a) aren't recognized by the Federal Government where most of the meaty rights come from and b) aren't portable.

Another thing thing to note, as I did once before during Maggie's time at the wheel, is that SSM opponents have taken "Civil Unions" off the table in nearly every state where anti-gay-marriage laws have passed. Even if SSM proponents were willing to accept a lesser legal status (and many are), the anti-civil-union clauses in the new laws are making it an all or nothing fight.
11.4.2005 5:38pm
Elliot123 (mail):
I see much talk about the purpose of marriage. I suggest marriage has no purpose. It is a means by which various people implement their purposes.

If one's purpose is to increase monogamy, then marriage might be the means.

If one's purpose is to provide stable homes for kids, then marriage might be the means.

If one's purpose is to increase mutually supportive relationships, then marriage might be the means.

What we see in these discussions is that many people have different purposes, and each wants to use marriage as the means to foster their favorite purpose. And this is exactly what we see in reality. Different people get married for different purposes. They are using marriage as a means to achieve their particular, and by no means universal, purpose.

Likewise, many will oppose the purposes of others and will try to prevent them from using any means, including marriage, to achieve them.
11.4.2005 6:05pm
Chairm (mail):
Unfortuantely, the term, civil union, has become synonymous with the Vermont-style merger of SSM with marriage. Civil union need not be joined to the hip of marriage in any jurisdiction. Domestic partnerships, registered partnerships, and so forth are registered with the state as distinctly different from marriages. Civil union is treated the same except in name, by the local jurisdiction.

Hawaii got it right back in the 1990s. Affirm marriage as the union of a man and a woman, let the legislator decide on the parcel of benefits to be included in alternative statuses -- such as Reciprocal Beneficiaries -- and get back to the business of strengthening the social institution of marriage.

* * *

I agree with a previous commentator who explained that Mr. Carpenter offers a false dichotomy of entrance and exit regulations. In fact, his pointing to no-fault divorce demonstrates tha very well.

* * *


Our substantive understanding of marriage has certainly changed in an evolutionary way. Gradually, over hundreds of years, we have developed what is sometimes called a "love marriage", rooted in the choice of two people made for their own reasons. That evolutionary process should satisfy Burke.

Replacing state preference for the conjugal relationship (mating of man and woman, sex integration, contingency for procreation) with establishment of state preference for the nonconjugal relationship is at stake. That is a radical change. No deep flaw has been identified in the man-woman criterion of marital status that would force the state's hand in this way.

Less than that, Mr Carpenter has not made his case for establishing a preferential status of the unisexed relationship. What is it that moves the state's big hand? Romance, adult consent, a public interest in the private relations of people sexually attracted to their same sex?

It comes down to the argument, if that is what it actually is, of the Promise-maker.

SSMers have been saying that unisexed couples have been loving and living together for decades; that gay marriage is here and has been for a generation or so; and that there is no problem so far. Well, maybe, maybe not. But the promises being made by Mr. Carpenter should have at least some evidence of bearing fruit by now, surely.

* * *


There are 250,000 children being raised by 600,000 gay couples, at a minimum. There are 1-2 million children overall being raised among the estimated 9 million gay Americans.


Mr. Carpenter offers an estimate that sits in a range in which the high end is 200% of the low end. That statistic is a wild ass guess, not a credible estimate.

But even if we take these numbers as given, it still shows that 89% of the gay population does not reside in same-sex households -- with or without children.

The Census Bureau has estimated that there are 160,000 same-sex households with children; that would be 320,000 individual adults; and the Bureau estimates, through sampling, about 416,000 children reside in same-sex households.

There are about 600,000 same-sex households with 1.2 million individual adults. The HRC's analysis of the Census was that of the adult population (210 million) aboug 5% was openly gay and lesbian -- that's 10.5 million adults.

This means that of the adult gay and lesbian population, 90% do not reside in same-sex households and 97% do not reside in such households with children. Less than one-half of one percent of adult homosexuals live in same-sex households with children not acquired through alternative methods such as ART/IVF or adoption or foster parenting.

This is the inverse of the married population. A license will not turn that upside down. The SSM project needs to stand on its own two feet and stop riding the back of the social institution of marriage. Civil union is just another example of piggybacking and would achieve what enactment of SSM would but civil union would do it through a sentimental appeal to the impulse to compromise. No such compromises is needed to enact Reciprocal Beneficiaries (RB) for nonmarriagable combinations.

As a previous commentator has pointed out, the traditionalist argument, and the one that is in accord with Burke's principles, is establishment of a new alternative for which the marriageable combinations would be ineligible. It would be taylored to fit the alternative scenario, rather than just the newly emerging template of SSM. That tayloring would begin with lawmaking duly processed via the elected representatives, in consultation with the electorate, and then properly adjudicated with due deference to the will of the people and the legislative branch.

If the RB experiment is taken slowly and incremental changes are available, as per legislative reforms and corrections, then, society will be served without discarding the man-woman criterion of marriage and without substituting the non-conjugal relationship for the conjugal relationship that has been long-elevated and long-preferred through our traditions, customs, and laws.

Mr Carpenters posts have presented ideas and material that amount to the argument for this type of change, rather than enactment of SSM.
11.4.2005 6:24pm
Chairm (mail):
Correction: Less than one-half of one percent of adult homosexuals live in same-sex households with children not acquired through alternative methods such as ART/IVF or adoption or foster parenting.
11.4.2005 6:34pm
Bob Van Burkleo (mail):
?What keeps two people, married or otherwise, in Washington from forming an LLC or partnership to keep a commercial crabbing license??

Wasting money on a lawyer and basically turning the non-crabbing spouse into a corporate officer of a crabbing company, illustrating my point - having unreasonable legal hurdles for the family to function and inhibiting the asymmetrical assumption of familial duties.

We need to make it EASIER for families to function and stay stable, not make it harder.
11.4.2005 8:15pm
Bob Van Burkleo (mail):
Mr. Carpenter offers an estimate that sits in a range in which the high end is 200% of the low end. That statistic is a wild ass guess, not a credible estimate.

But even if we take these numbers as given, it still shows that 89% of the gay population does not reside in same-sex households -- with or without children.

The Census Bureau has estimated that there are 160,000 same-sex households with children; that would be 320,000 individual adults; and the Bureau estimates, through sampling, about 416,000 children reside in same-sex households.

There are about 600,000 same-sex households with 1.2 million individual adults. The HRC's analysis of the Census was that of the adult population (210 million) aboug 5% was openly gay and lesbian -- that's 10.5 million adults.

Well if you are going to be using the HRC statistics then you should also use their estimate of a 62% underreporting of same gender households indicating 3.1 million gay &lesbian citizens are living in same resident committed relationships So about 30% of adult gay and lesbians have already established households without the benefits of the civil contract of marriage. Pretty damn good if ask me and obviously incomparable to a population that has had virtually unrestricted access to the civil contract.

Add in the many single gay parents raising children and those in relationships but with seperate residences and we see a large number of citizens disposed towards homogendered marriages would benefit from license of the current civil contract.

And never lose sight of the fact that marriage is an individual right - doesn't matter what relative percentage would take advantage of access to the civil contract since their right to access is their's alone regardless of what other citizens may or may not do.
11.4.2005 8:45pm
Chairm (mail):
No, that supposed undercount is not very credible given the prominent and effective campaign to get same-sex couples to report their households in the Census.

Also, as evidenced in other jurisdictions where SSM has been enacted, few of these same-sex households would convert to SSM.

Meanwhile the vast majority, by far, of the children in these households come from dissolved families where an adult chose to abandon marriage in favor of the unisexed alternative.
11.4.2005 9:37pm
Bob Van Burkleo (mail):
"No, that supposed undercount is not very credible given the prominent and effective campaign to get same-sex couples to report their households in the Census. "

Ahhh but their estimate of the number of gay people in the US is credible even though their calculation methods are tied. Interesting and conveneint view on 'credibility'.

"Also, as evidenced in other jurisdictions where SSM has been enacted, few of these same-sex households would convert to SSM. "

You mean THE other jurisdiction, Massachussetts? In the first 8 months of marriage equality 20% of all licenses issued by the state were to homogendered couples. That is more than 1/3rd of the same gender coupled households identified in the 2000 US Census.

I guess we use the word 'few' in different ways.
11.4.2005 10:46pm
Chairm (mail):

Ahhh but their estimate of the number of gay people in the US is credible even though their calculation methods are tied. Interesting and conveneint view on 'credibility'.



Among gay advocates there are lower estimates of an undercount of same-sex housemates: 16-19%. There are indications of an overcount in some segments of the small sample of these self-reported households. But rather than err on the low end, or on a middling estimate, assume the high end of the range: a 62% undercount of same-sex households.

The HRC did not produce the estimate of the gay and lesbian population; they referred to surveys that showed a range from 2 to 10 percent and settled on 5%. Instead of a convenient middling estimate, assume the high-end of the range: 10% of adults are homosexual.

The adult population in 2000 was 210 million; the gay and lesbian population would thus be 21 million.

With these more generous adjustments, a new analysis of the Census data would indicate that 14% of the adult homosexual population resides in same-sex households; while 86% do not live in same-sex households.


You mean THE other jurisdiction, Massachussetts? In the first 8 months of marriage equality 20% of all licenses issued by the state were to homogendered couples. That is more than 1/3rd of the same gender coupled households identified in the 2000 US Census.



I guess we use the word 'few' in different ways.

Right, and referring to the first 8 months is not convenient? And disregarding the out-of-state couples, that is also not convenient. Pointing to Europe and Canada to say that SSM is a reality but not pointing to those jurisdictions on this topic, that is also not convenient.

Don't over-rely on the supposed undercount in the Census. The headcount in the USA is pretty close to the relative headcount in a FEW other places like Canada and SSM-friendly jurisdictions.
11.5.2005 4:01am
Bob Van Burkleo (mail):
"he HRC did not produce the estimate of the gay and lesbian population; they referred to surveys that showed a range from 2 to 10 percent and settled on 5%. Instead of a convenient middling estimate, assume the high-end of the range: 10% of adults are homosexual."

Convenient quoting - its an art I guess. "In the last three elections the Voter News Service exit poll registered the gay vote between 4% and 5%"... "for the purposes of this study, estimated the ga and lesbian population at 5 per of the total population over 18 years of age." "A recent study of gay and lesbian voting habits conducted by Harris Intreactve determined that 30 percent of gay and lesbian people are living in a committed relationshp at the same residence."

Hmm seems that their reasoning wasn't based on simple averaging at all, was it?

"Right, and referring to the first 8 months is not convenient? "

Actually was very much so - first data that picked up on a google search. You have ANY data that points to the contrary?

"And disregarding the out-of-state couples, that is also not convenient. "

No that's convenient for us - Massachusetts doesn't allow out-of-state homogendered couples to marry and the number of out-of-state resident heterogendered couples licensing the contract in Massachusetts was accounted for. That's what makes it such a good data point - those are in-state residents.

"Pointing to Europe and Canada to say that SSM is a reality but not pointing to those jurisdictions on this topic, that is also not convenient. "

Considering your complaints about 8 months in Massacussetts would be odd for you to want me to point to Canada that only this summer approved marriage equality. Likewise to point to countries where socialism and other factors has been skewing the nature of heterogendered licensing of the civil contract for decades into patterns not seen in the US, let along try and draw any conclusions about the nature of the effect of homogendered participants. Pointing to something as qualitiative evidence but not thinking it is useful as quantitative data isn't 'convenient' its just being honest.
11.5.2005 2:16pm
Chairm:
Yes, you are correct about out-of-staters and Massachusetts.

Still, by your analysis just 30% of same-sex households bothered to convert to SSM. And that is with the temporary surge of SSMs in early days. Meanwhile the vast majority of homosexual adults do not convert their relationships (co-resident or not) into this new template of SSM. But it still doesn't go to the low portion of homosexual adults living as housemates with or without children.

Look to the other jurisdictions to see how census counts are very similar to our own in this country. Some places, like the Netherlands, don't use surveys and questionaires and go for a direct count.

* * *

Let's compare your apples with other apples.

The HRC use an estimate of the partnership rate of gays and lesbians that was derived from just 1.9% of a small sample of respondents to GSS/NHSLS surveys who were identified as homosexual. For the sake of illustration, assume that both the 1.9% share and the partnership rate produced from that analysis are sufficient for our purposes here.

In 1990: 1.9% of the adult population (185 million) is comprised of 3.6 million homosexual adults; a partnership rate of 30% would mean 1.2 million same-sex housemates; but Census 1990 reported 290 thousand same-sex house-mates, for an alleged undercount of 76%.

The Census Bureau successfully implemented vast improvements its enumeration methods; this is reflected in data collected from all segments of the population.

In 2000: 1.9% of the adult population (209 million) is 4 million homosexual adults; a partnership rate of 30% would mean 1.4 million same-sex housemates. Taking into account the growth in the adult population from 1990 to 2000, the number of same-sex housemates increased by 73% (874 thousand). That would cover most of the supposed undercount of 1990.

However, using the same formula, there would be an alleged undercount of 13% since the previous assumptions would mean 1.4 million same-sex housemates, or 200 thousand more indivdiuals in same-sex households than was reported to the Census. (Further analysis reveals that an overcount occured in some segments).

This is much closer to the 16%-19% undercount derived from Badgett's analysis of a survey of Millenum marchers and from a Harris online survey of internet users. It also demonstrates the effectiveness of the big promotional and political campaign that urged gays and lesbians to report their twosomes to the Census Bureau.

However, the 30% partnership rate is suspect, in my view, as is the use of the middling 5% guesstimate of the adult homosexual population.

For political purposes the HRC has mixed in some oranges with their Census analysis. The exit polls that were mentioned used a small sample of voters; voters are not necessarily the best proxy for any demographic group in random surveys. The results were skewed in two different, but not conflicting, directions. Voters tend to be older and more established than the general population; and people with children tend to vote at higher rates than childless people. Thus the partnership rate would be inflated as would the rate at which children would be present in the homes of respondents.

Analysis of GSS and NHLS data shows that about 30-45% of gays and lesbians have been married, or are currently married. That is significant in explaining to some extent the discrepancy between the 1.9% of adults identified as exclusively homosexual (engaging in sex relations with same-sex partners ony, during past several months), and the wider range of 5-10% identified as having had some homosexual experiences or tendencies. It also helps to shed light on the 90% of children in same-sex households who have migrated with parents from previously procreative relationships.

Again, Black's comparison of data from the Census and from these other social surveys illustrates that only a small portion of gays and lesbians have children at home: 95% and 78% respectively.
11.5.2005 10:48pm
Chairm:
By the way, Black produced a comparative analysis of Census and social survey data, in which he cautioned:

There are thousands of studies on the gay and lesbian population. Because of the difficulty of sampling this population, most studies have used "convenience samples" for analysis.
11.5.2005 10:59pm
Chairm (mail) (www):
Sorry for the obvious typo:


Black's comparison of data from the Census and from these other social surveys illustrates that the vast majority of gays and lesbians do NOT have children at home: 95% and 78% respectively.
11.6.2005 1:41pm
Chairm (mail):

That [number of SSMs in Massachusetts first year of SSM] is more than 1/3rd of the same gender coupled households identified in the 2000 US Census.

But you'd rely on a very large undercount (62%), which would diminish the 30% conversion rate to about 11% of your adjusted count of same-sex households.

If that applied to HRC's guesstimate of the number of gay and lesbian individuals in the population, then, only 7% of the homosexual adult population would change their legal status and go for SSM. The rest, some 93%, would not. Since the number per year drops drastically after the initial surge, that share would not grow much in subsequent years.
11.6.2005 11:27pm