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[Dale Carpenter (guest-blogging), November 4, 2005 at 5:48pm] Trackbacks
The Traditionalist Case -- Getting From Here to There:

The traditionalist reformer must not simply be satisfied that the reform is headed in the right direction, but must also be satisfied with the pace of that reform and with how the reform is brought about. The process considerations demand that any reform be based not simply on reasoned judgment, but on reasoned judgment informed by actual lived experience. Moreover, the reform must proceed slowly and incrementally to allow a consensus to develop in favor of the reform and to gauge what effects the effort is actually having.

This Burkean process of "a slow but well-sustained progress" is already very much in motion toward the ultimate destination of gay marriage.

1. The incremental path to gay marriage: the steps taken

Over the past 50 years or so a remarkable development has occurred in America: the increasing normalization and acceptance of gay life. This process has advanced incrementally and its vector has been toward the formation and growth of gay families. It is what makes gay marriage for the first time thinkable.

You can see this phenomenon in numerous legal and social changes. First, laws criminalizing gay sex were gradually either legislatively or judicially wiped away in almost every state until the Supreme Court invalidated the few remaining such laws in Lawrence v. Texas. At the same time gay communities were forming in neighborhoods in the large cities with a burgeoning culture of bars, organizations, and newspapers. Professional organizations like the APA removed homosexuality from the list of mental disorders and declared that efforts to "cure" or convert gays were unethical. Homosexuals began emerging from the closet in large numbers, helping to dispel myths about gays, moving out of urban centers and into the suburbs. And they began looking for more in life than fleeting and furtive sexual encounters. This was all a predicate for the flourishing of gay families.

Gay families, first just couples, began to spring up in the new climate. Adoption was available to gays in 49 states, foster parenting in all 50. Advances in reproductive science made it possible for gays to procreate their own biological children (outside of prior heterosexual marriages). So gays began raising children in increasing numbers, fueling what is today sometimes called a "gayby boom." A quasi-marriage culture was sprouting.

It was inevitable that law would take notice of these changes, and of new learning about sexual orientation, and adjust to accommodate the realities of family life. Changes in family law allowed gays to obtain custody of their children after divorce without having their sexual orientation considered an automatic disqualification. Many jurisdictions began recognizing second-parent adoptions that provided some measure of legal protection to the parents and children in gay families.

All of this bottom-up momentum toward the formation of families led to some recognition of the relationships of gay couples. It started primarily in the private sector, where companies began offering health and other benefits to the same-sex "domestic partners" of their employees. This practice spread until today most major companies in the country offer these benefits.

Then cities and counties began recognizing the domestic partnerships of their employees. Then states began to recognize gay relationships, first domestic partnerships offering only some benefits to certain gay couples. Now states are beginning to recognize civil unions, which give gay families all of the benefits of marriage yet save the word "marriage" for opposite-sex couples. The big barrier was broken in 2004, when one state began recognizing full-fledged gay marriages. Some of these state-level changes have been pushed judicially (civil unions in Vermont and gay marriages in Massachusetts). But, much more remarkable, they are now happening legislatively (civil unions in Connecticut and very broad domestic partnerships in California).

Abroad, the move to gay marriage in countries with legal and political heritages similar to our own has been dramatic. There's full gay marriage now in Belgium, the Netherlands, Spain, and most importantly for our purposes, in Canada. Within ten years, I am confident that all or nearly all of the European Union will recognize gay marriages. The dissonance will be increasingly difficult to maintain.

There has been a counter-trend, of course, represented by the recent passage of state constitutional amendments banning the recognition of gay marriages (and often much else). But these have passed mostly in states (like Mississippi) that were not headed toward recognition anyway. There is nothing inevitable about gay marriage. But the overall trend toward the formation of gay families and toward some recognition and protection of those families has been unmistakable.

Moreover the trend has been largely a Burkean one: incremental and based on real-world experience with gay people and families. This incrementalist experimentation has allowed us to begin to judge whether any of the harmful effects predicted by opponents of these reforms have materialized.

Consider, for example, the comments of Massachusetts state senator Brian P. Lees, a Republican who is the state senate minority leader and was a co-sponsor of a state constitutional amendment that would have banned gay marriage. After more than a year of gay marriage in his state he changed his mind and opposed the amendment he had previously sponsored. "Gay marriage has begun and life has not changed for the citizens of the commonwealth," he said, "with the exception of those who can now marry who could not before." "Massachusetts Rejects Bill to Eliminate Gay Marriage," New York Times A12 (Sept. 15, 2005). It's too early to draw any definitive conclusions about the Massachusetts example, but the preliminary returns are in and they offer no support to doomsday scenarios about gay marriage.

2. The incremental path to gay marriage: the steps ahead

Where do we go from here? I think a Burkean approach dictates two things. First, there should not be an immediate, nation-wide resolution of this issue either in favor of gay marriage or against it. That counsels strongly against either a decision from the Supreme Court forcing gay marriage on the country or the passage of a federal constitutional amendment banning gay marriage throughout the country. Either resolution of the issue would be profoundly un-Burkean because either, at this point, would necessarily be based on a priori reasoning rather than practical knowledge and experience. Fortunately, neither of these national, top-down resolutions of the issue seems likely to occur. Federalism, the historic design of American government, will be allowed to work its magic on this issue.

Second, the reform toward gay marriage should continue incrementally and with a strong preference that it move legislatively. That is, state legislatures should generally begin by taking moderate steps toward recognition that fall short of marriage. This could mean setting up a same-sex domestic partnership registry, and extending to registered partners some of the rights and obligations typical of marriage. Things like the right to visit a sick or dying partner in the hospital and the right to make important decisions for an incapacitated partner come immediately to mind. Perhaps allowing partners to transfer property to one another free of gift taxation. Second-parent adoptions, which even Maggie said she might support, should be allowed for registered partners. If things go well, the state could over time attach new rights and responsibilities to domestic partners.

It may be that in a few states, citizens who already have much experience with gay families can move more quickly. They could grant gay families all (or nearly all) of the rights and responsibilities of marriage and call the relationships "civil unions" or something else, but not marriage. Connecticut is an example of this. California is pretty close. New York and a few other states seem ripe to be next. I see no reason why such states could not move with dispatch toward full gay marriage, especially as the evidence from Massachusetts becomes clearer. There is already a consensus, a "general conciliation," in these states pretty close to gay marriage.

Once more evidence of the effects of protecting gay families is in, states can of course draw on the lessons learned in other states and move more confidently and quickly.

3. The incremental path to gay marriage: disadvantages

There are two disadvantages to this generally go-slow, state-by-state approach. One is that incrementalism necessarily means that states will be creating relationship statuses apart from marriage. Jon Rauch, who supports gay marriage, has argued forcefully that creating a menu of statuses may have the effect of knocking marriage off its perch as the "gold standard" for relationships. It's a real concern, but I think its force can be blunted. In creating alternative statuses states should be careful to limit participation to same-sex couples. Domestic partnerships and civil unions should not be available to opposite-sex couples, who already have marriage available to them. This can be done constitutionally and, I think, it's politically viable. Connecticut is a good example. That state legislatively created civil unions for gay couples but not for straight couples. California has (with a limited exception for elderly couples who lose certain important legal benefits if they marry) also limited its domestic partnerships to same-sex couples.

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples. Once marriage is allowed, gay couples should not retain an option unavailable to straight couples. I think this, too, may be politically viable since there's some evidence that private employers in Massachusetts have begun to eliminate their domestic partnership benefits. If the pre-marriage alternative status has been limited to gay couples, as I suggested above could be done, there's not going to be any politically sustainable argument why the alternative status should be available to them (and only to them) once they're eligible for marriage.

The second disadvantage of incrementalism is that, while we are waiting around, a lot of states will be cementing anti-gay-marriage policy into their state constitutions. Eighteen states have already done so and my home state of Texas is about to become the next (an especially pointless action, since there's no chance that Texas's extremely conservative and elected judiciary will force gay marriage on the state). It will be very hard to dislodge these amendments once they're in place. Long after the evidence is in that recognizing gay families is a good thing for the families and for their communities, these places will be stuck with the frightened prejudgments of an earlier generation that did not have the knowledge or experience the later generation will by then have. That will be terrible for gay families in those states, who will suffer needlessly for decades. I don't know what to say except that if the alternative to state-by-state incrementalism is a Supreme Court decision mandating gay marriage anytime in the near future, the price of that would be even higher. It would be a constitutional amendment banning gay marriage throughout the nation for the rest of our lives.

Finally, while I believe civil unions are a huge and often necessary step toward gay marriage, they should not be confused with the ultimate destination, which is marriage itself. I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations — assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they're a small minority of married folks.) That's because marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch. Whatever it is that caused my married friends to say no, that's exactly the thing that gay families with civil unions will be lacking.

Let me be clear: I favor full-fledged gay marriage. In a few states, very soon, it may be possible to recognize gay families in marriage. The traditionalist in me sees the strong arguments for it as the end result, and I have made those arguments this week. But the Burkean in me wants us to get there the right way, and that means doing it in many places slowly and by degree.

Next: last thoughts.

Roach (mail) (www):
The gay marriage trends of the last 50 years have not occurred in a bubble. Instead one taboo after another related to sex has broken down. Divorce, premarital sex, bastardy, sodomy, pornography, cohabitation, abortion, bisexuality, homosexuality, and the rest have burst from the purposeful movement away from traditional sexual morality in the mid-20th Century--itself occasioned from many sources, including changing economics, theories of social science and psychology, etc.

So to say that the change in attitues to gays has been Burkean and that future changes will simply be linear is disingenous. We've witnessed a revolution and the rapid change in attitudes, rights, visibilitiy, and shamelessness of gays and gay culture in the last 10 years has been remarkable. To say "more of the same" confuses the sexual revolution of the last 50 years as a slow change, only by focusing on one of its more extreme manifestions. Instead, so many mores and taboos have broken down with little to replace them in the way of guiding and limiting behavior, that we're now somewhat exhausted at the latest battle and have fewer cultural symbols to appeal to in defense of drawing a line in the sand. The slippery slope arguments are far more plausible when the history is viewed this way--that is, properly and accurately--rather than in your benign account of changing attitudes to gays.

(Also, I'd say, that attitudes have been up and down, and there was a Victorian style morality campaign post-WWII as documented by George Chauncey and others. Such campaigns should give real traditioanlists hope).
11.4.2005 7:01pm
Manuel Lopez (mail):
Apart from the point made by others, that Burke would have surely opposed such a radical change, the case against gay marriage is founded on something bigger than historical changes. Incremental change can be incremental change towards something good or something bad--there is such a thing as a slowly sinking ship. I assume there have been gradual historical movements, the rise of the Inquisition or of papal supremacy, or the spread of slavery, that Mr. Carpenter opposes. It is not surprising, given that the greatest political powers are founded on the principle of equality, that the greatest social movement should be to extend it as far as possible. But that's all the more reason to be suspicious of it--joining the bandwagon in politics can simply mean joining the latest enthusiasm or fanaticism. There are many reasons to be extremely cautious and slow to make even small changes to core institutions, let alone the radical one of redefining the meaning of marriage. The advocates of gay marriage do not address the feelings and prejudices in favor of marriage as it has always existed and what effect the removal of them will have on future generations, nor do they come to grips with the fact that history does not alter nature:
http://volokh.com/posts/1131065231.shtml#35025
and
http://volokh.com/posts/1131065231.shtml#35102
11.4.2005 7:12pm
Brett Bellmore (mail):
It's worth pointing out that the counter-trend towards constitutional prohibition of same sex marriage is a direct consequence of judicial imposition of it in some states, which convinced people not ready for that step that constitutional amendment was the only plausible defense against their own judiciary doing the same thing. It may have worked out ok (so far) in those few states, but the collateral damage was immense.
11.4.2005 7:20pm
Perseus:
1) Part of the reason for going slow is to gain further evidence about the effects of such a reform. It is not the least bit Burkean to conclude a priori that such reform will yield net positive benefits to American society (remember the importance of the distinct character of each society's customs, prejudices, etc.).

2) Nor is it the least bit Burkean to insist on abstract equality by eliminating the differences between domestic partnerships/civil unions and marriage. Only if one regards same-sex unions as partnerships directed toward "every [familial] virtue and in all perfection" would one wish to confer on them the title of marriage.
11.4.2005 8:20pm
Tom952 (mail):
In order for Gay marriage to become widespread and accepted, straight American adults will have to become comfortable and secure with Gays, their values, and their lifestyle. Until the Gay community addresses the issue of pedophilia, and loudly rejects its legitimacy, mainstream acceptance will not be achieved. This unpopular issue will not go away merely because the outspoken Gay community ignores and denys it.
11.4.2005 8:28pm
Julian Morrison (mail):

Also, once a state moves to full gay marriage, it should say good-bye to any alternative status it created for gay couples.

I'm curious how you'd do that. Upgrade them automatically? Allow them the option of a quick upgrade? Or just close the door to any new entrants?
11.4.2005 8:30pm
Paul N (mail):
I think Dale broke the Zywicki's "Wine Wars" record for the longest series of VC posts.
11.4.2005 8:39pm
Oh my word:
Oregon is certainly a "blue" state, and yet voters ratified a ban on SSM by a big margin there, also. It's not just Texas and Alabama.

Issues either not addressed or barely addressed this week:

1. Impact of state-sanctioned gay marriage on increasing prevalence of homosexuality. Bald assertion that homosexuality is solely hard-wired does not do much--there is way too much evidence against that.

2. Impact of SSM on bisexual or gay-curious men who want to get out of marriages as their wives age to find new sexually interesting outlets, thus increasing the number of children of practicing homosexuals.

3. Whether fostering lesbian parenthood, in which a father is generally absent, is a good thing for the state to encourage.

4. Why private marriages plus contracts cannot achieve the same private benefits of marriage without the potential harms.

5. Increasing the sexual confusion that today's culture and society already send to teens and young adults.

These, in my view, are the biggest problems with SSM, and they have gone largely unaddressed or given short shrift. Again, I think the weaker arguments against SSM are the ones Dale has concentrated on.
11.4.2005 8:39pm
magoo (mail):
"I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no, even though civil union would make no difference in their legal rights and relations -- assuming federal recognition. (I am sure there are some couples who would have said yes, but I suspect they're a small minority of married folks.)"

We must travel in different circles. Many married couples I know couldn't care less whether the govt calls their relationship a marriage or a civil union. For them, marriage is not primarily a cultural or social institution, but a religious institution. The recognition they want comes from solemnly pledging a life-long monogamous bond before God in the community of their fellow worshipers. The govt-issued marriage license is no more significant than a driver's license.
11.4.2005 9:19pm
Kendall:
Oh My Word -

"1. Impact of state-sanctioned gay marriage on increasing prevalence of homosexuality. Bald assertion that homosexuality is solely hard-wired does not do much--there is way too much evidence against that."

Mind citing these studies that suggest homosexuality increases with gay marriage? we have countries such as the Netherlands and Denmark afterall which DO have gay marriage. Do they have abnormal rates of homosexuality? Lets see some evidence saying that it IS happening before you say it wasnt' refuted.

"2. Impact of SSM on bisexual or gay-curious men who want to get out of marriages as their wives age to find new sexually interesting outlets, thus increasing the number of children of practicing homosexuals."

How is this different from today? why would it matter if more gays were raising children, gays already raise children.

"3. Whether fostering lesbian parenthood, in which a father is generally absent, is a good thing for the state to encourage."

It already encourages it by allowing gays to adopt in the first place.

"4. Why private marriages plus contracts cannot achieve the same private benefits of marriage without the potential harms."

Because there are unique benefits, such as the right to jointly file taxes as one example that the government controls

"5. Increasing the sexual confusion that today's culture and society already send to teens and young adults."

Define sexual confusion, its a term that could mean anything.
11.4.2005 9:52pm
kipp (mail):
To Oh My Word:

Carpenter did not address most of the issues you site because they derive from moral disapporval of homosexuality which will not respond to debate. It is obvious from your post that you assume an increase in homosexuality is a bad thing by itself. You also apparently feel that children should not be exposed to "practicing" homosexuals and that teenagers shouldn't be "confused" by societal acceptance of homosexuality. These unaddressed issues all derive from your own moral disapproval of homosexuality and Carpenter didn't set out to change moral sentiments. Your unaddressed issues are only "big" (or even issues at all) if everyone agrees that homosexuality is a moral problem and not everyone does. Those of us that don't disapprove of homosexuality expect an answer to all the "weaker" arguments like Carpenter's concerning the rights and needs of homosexual couples and families. And as Maggie Gallagher illustrated, anti-gay marriage advocates tend to have no answers to those questions - apparently because they can't get past all the multi-faceted implications of their moral disapproval of homosexuality.
11.4.2005 9:59pm
juris imprudent (mail):
Because there are unique benefits, such as the right to jointly file taxes as one example that the government controls

Didn't this used to be referred to as the marriage tax? That it was actually disadvantageous for a two-earner, no children household to file married-joint? When did it morph into a benefit?
11.4.2005 10:05pm
Bob Van Burkleo (mail):
Tom952,

Tom, most pedophiles are heterosexual, most same gender pedophilia is by those who do not consider themselves part of the 'gay community' and one of the real highest risks for incestuous pedophilia is parents who practice a religion with strict sexual morals.

To say that the gay community must denounce pedophilia when few self-declared gay people are and not ask the same of the evangelical community is a bit disingenuous isn't it?
11.4.2005 10:32pm
Stephen C. Carlson (www):
<i>Because there are unique benefits, such as the right to jointly file taxes as one example that the government controls.</i>

I wonder how much income tax revenue would the federal government stand to gain by recognizing same-sex marriages?

I suppose it would increase the number of DINKs subject to the marriage penalty.
11.4.2005 11:48pm
Kendall:
Juris Imprudent and Stephen - You're right, what I SHOULD have done is simply post this link. While I realize the source of the link is biased (it comes from Lambda Legal, a gay legal organization) the material presented is of course precise, accurate, and makes THAT point far more accurately than I could, which, as a refresher was in response to: "4. Why private marriages plus contracts cannot achieve the same private benefits of marriage without the potential harms."
11.5.2005 12:52am
Stan Pietrewicz (mail):
The issue is not gay marriage vs no gay marriage. The issue is promiscuity versus fidelity. I find myself not at all confounded by simultaneous opposition to alternatives to heterosexuality as well as wishes to promote stable relationships for members of alternate sexual views.

Promiscuity leads to uncaring. It also leads to propogation of disease. Fidelity in social relationships much better for society. With but one possible exception.

That exception is the effect on the next generation and the kids raised in such situations. I submit that here is little reliable scientific evidence that such children will be "better off" one way or the other. I submit however that today's generation is not alone and unique. Human society has many generations of cumulative, experimental and empirical evidence that these relationships are probably not beneficial for the next generation, else there would be more societies accepting them long ago; instead there are virtually none,but that is not proof.

How to reconcile the desire for beneficial aspects like social stability, fidelity, capital accumulation and preservation, against the defects of promiscuity, uncaring, self-centeredness and disease is an intensely conservative undertaking.

Somehow I maintain that here are plenty of legal but not encouraged actions that the state as a metaphor for society can undertake. The state tries to discourage smoking, while still allowing it. Limiting non-heterosexual relationships to a lesser "civil union" status is one means. Such accomadation in a conservative view should be undertaken until the social experiment of the effect on the next generation is clear. Although I would encourage civil unions, I would oppose that which is currently allowed the adoption of kids into such environments until such are no longer "guinea pigs" in a grand social experiment.

Too bad we did not undertake a formal conservative restraint on "easy" divorce until the walking wounded of the next generation are all too obviously wandering amongst us.

Ther is a profound difference between tolerance and affirmation.
11.5.2005 10:50am
hinglemar (mail):
"I have asked many married couples I know whether they would, if given the option, trade in their marriages for a civil union. Every one of them said no,..."

While they were passing SSM up here there was story about civil unions in France. About 20% of heterosexual couples opt for a civil union because "marriage is old fashioned." I think they view marriage as a church thing and civil unions as it's secular equivalent. My cousin would have choosen a civil union if it was available.
11.5.2005 11:43am
Gilbert L. Brahms (mail):
"marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch."

This is precisely why, while civil unions may become acceptable to a Burkean, homosexual "marriage" cannot. In the cultural realm, definitions do convey authority. The public, and therefore by implication, normative presence of homosexual unions not differentiated from marriages will, among other drastic results, only intensify the mental confusion almost all small children, prompted both by culture and biology, will experience when confronted with "families" that claim to substitute two moms or two dads for a mom and a dad. The difficulty traditional parents (who, until children are decocted from tanks, will remain the vast majority) will have in trying to explain the situation to their toddlers will be great enough when they must try to explain domestic unions, but at least they would be able to avoid a total perversion of concepts.

And, our Burkean will ask, from a legal point of view, why shouldn't homosexuals settle for civil unions? Most of what they want is legal equality. If they want more, if they want complete social and conceptual nondiscrimination, they want something that lives beyond the providence of the law in a free society.
11.5.2005 12:27pm
juris imprudent (mail):
Kendall,

Here is the link for the actual GAO report cited as the source in your link. There is a very important statement that is almost always overlooked by people touting this as a list of marriage benefits or rights:


Finally, no conclusions can be drawn, from our identification of a law as one in which marital status is a factor, concerning the effect of the law on married people versus single people. A particular law may create either advantages or disadvantages for those who are married, or may apply to both married and single people. For example, those who are unmarried fare better than their married counterparts under the so-called marriage penalty provisions of the tax laws, while married couples enjoy estate tax benefits not available to the unmarried.


I find it to be borderline dishonest to misrepresent this report. Yet this is very common amongst supporters of SSM.
11.5.2005 12:56pm
Bob Van Burkleo (mail):
"I find it to be borderline dishonest to misrepresent this report. Yet this is very common amongst supporters of SSM."

Actually its the other way around - it is the anti-marriage equality crowd that likes to represent the drive for equality as some sort of 'money grab' when everyone knows there are both benefits and costs that go along with being married with most of the sacrifices having nothing to do with any civil contract or its attributes. Yet homogendered couples are marrying around the country any way inspite of these costs.

If someone has to be explicitly told there are sacrifices that must be made when marrying someone maybe they don't really understand what marriage is about themselves?
11.5.2005 1:42pm
Bob Van Burkleo (mail):
"And, our Burkean will ask, from a legal point of view, why shouldn't homosexuals settle for civil unions?"

Why shouldn't heterogendered couples for that matter? Marriage comes from beyond government - married homogendered couples are everywhere and barring a change in the first amendment that's not going to change. This is only about the civil contract titled 'marriage' and if couples were all just given access to it under a different name that would be wonderful.

But to have both a marriage and 'civil union' contract? Won't work for the same reason that having an exclusionary civil contract entitield marriage isn't working - there would be no way you could ethically limit access to just a particular group of citizens. Seattle opened up domestic partner registration for city employees - over 70% of them are heterogendered couples.

So we are in the situation where you can just give equal access to the existing contract to all citizens causing a couple percentage change in its licensing statistics, or you can create a new contract that will instantly start lawsuits asking for access by citizens denied it.

So what's the solution - respect the rights of all citizens equally or encode a class distinction into every state constitution in the nation?
11.5.2005 1:50pm
juris imprudent (mail):
Bob V-

Actually its the other way around


To the best of my knowledge, no opponent of SSM cites that report, but many advocates do (and typically in the context of all of the 'rights' or 'benefits' they are being denied).

As to civil unions, that is in effect what my wife and I did - courtesy of Las Vegas. I think Gilbert's point is well taken, as is your own about civil unions. For one thing there is no reason to limit them to SS couples (which would alleviate any stigma) and they would resolve all of the legal issues that are currently not available to SS couples thru marriage itself. That would leave only the social/cultural aspect to marriage, for conservatives to cherish and everyone else to ignore. Conservatives could then push for restrictions on divorce (say only applicable to marriage proper) and we should all be happy.

If you aren't happy with a civil union, then my gut tells me you aren't just after the legal 'benefits' of marriage.
11.5.2005 5:07pm
logicblackbelt (mail) (www):

Actually its the other way around - it is the anti-marriage equality crowd that likes to represent the drive for equality as some sort of 'money grab' when everyone knows there are both benefits and costs that go along with being married with most of the sacrifices having nothing to do with any civil contract or its attributes.


Please show me where Maggie Gallagher makes any such claim. Or anyone here. It's the ssm crowd that presents marriage as some sort of bundle of goods that isn't getting shared out equally. It's right there in what you said -- "equality." SSM proponents say nonsense like, same-sex couples are real families; why shouldn't they get an equal share? Well, I respond, "single parent families are real families -- does that mean we should pretend they are married?" No one ever answers.

Marriage is not a grab bag; it's a description and a purpose. Set aside the goodies (which aren't really much, and that we'd be glad to put into ssus), and the only reason to demand ssm (as opposed to ssus) is to destroy the idea, description, and purpose of real marriage.



So what's the solution - respect the rights of all citizens equally or encode a class distinction into every state constitution in the nation?


The solution is,

1. Respect the rights of all INDIVIDUAL citizens,
2. Reject the unconstitutional demands of those who demand for "equal" treatment by CLASS or by group,
3. Encode the real definition into the FEDERAL CONSTITUTION, and
4. Encode the real definition of marriage into international treaties with European, African, Asian, and Latinamerican countries who still remember what marriage is, and wish to covenant to remember it.
11.5.2005 6:41pm
Jesurgislac (mail) (www):
logicblackbelt: Please show me where Maggie Gallagher makes any such claim.

Maggie Gallagher's main claim was that marriage is only and solely for the purpose of getting couples together to conceive children: she makes no claim that marriage has any other purpose. I assume, since she comes across as pretty bright, she realises she has to avoid any claim that marriage has any other purpose besides conceiving children, since if she were to admit that marriage is good for child-rearing, or is about love and committment, she wouldn't be able to argue that same-sex couples aren't allowed to get married because they cannot have anything to do with the (her claim) sole purpose of marriage.

You're right: Maggie doesn't regard marriage as a grab-bag. She hasn't even got a check-list of functions. For Maggie, marriage is about procreation, and if you can't at least look like someday you might procreate, you shouldn't be allowed to marry.

For me, this single-minded focus on the one aspect of marriage that is neither legally nor practically tied to marriage, conceiving children, is itself an attack on the idea, description, and purpose of real marriage. Maggie Gallager is anti-marriage.
11.6.2005 9:26am
Zargon (mail):
Well, I respond, "single parent families are real families -- does that mean we should pretend they are married?" No one ever answers.

I'll respond, as soon as you identify the entities referenced by your use of the word "they". I can't imagine you're attempting to say the parents in single parent families would be married to each other, but I have trouble unpacking that any other way. The question doesn't seem to make sense.

That might be one reason why nobody answers.... Is this a variation of the Chewbacca defense?
11.6.2005 1:30pm
Gilbert L. Brahms (mail):
"'And, our Burkean will ask, from a legal point of view, why shouldn't homosexuals settle for civil unions?'

Why shouldn't heterogendered couples for that matter? Marriage comes from beyond government"

The Burkean answer is, because of "prejudice," the experience of humanity over vast expanses of time and place; because, to reiterate Mr. Carpenter's own observation,

"marriage is much more than the sum of its legal attributes. It has a cultural, social, and historical significance no other status can touch."

And it has always meant the biological union of man and woman--the only possible biological union that could engender the next generation of humans--regularized by cultural norms. There has been never any reason to think otherwise.

But cultures are always law-informed, even though now and then various experiments such as purely contractual heterosexual arrangements have arisen; in Rome, for example, but in a degenerated Rome that had imperiously strayed far from its republican traditions.

Perhaps we are more supple now and can better tolerate experiments, but what Burkean would not caution us against again courting disaster? A Burkean will not, absent overwhelming evidence to the contrary, dismiss the inveterate belief that marriage was institutued by divine* authority for man and woman alone. And even if he should observe that in some cultures there exist polyandry or polygamy, as well as divorce and domestic abuse, the man-woman connection remains at the core, in every union that (regardless of what the legal system may allow) is sanctined by ceremony.

If such caution and conceptual discipline should comprise "prejudice," then let us venerate it and never speak blithely to its detriment.

---
* or, "transcendent," if the notion of a personal God making decisions about what is good for humanity rankles you. The Burkean point is that the foundation of marriage between man and woman stands prior to any arbitrary willfulness among men and women.
11.6.2005 3:44pm
Shawn (mail):
Anti-SSM: You can use existing contract law to get all the legal aspects of marriage without taking the name.

Pro-SSM: You cannot. Here is a list of all the items that accrue to marriage only. (insert your list here.)

Anti-SSM: Ha! The "Marriage Tax" isn't a benefit. Why would anyone in their right mind want that?

This is a common refrain in the whole "goody bag" argument. If you read up through the posts, you'll see it played out here as well.

The bottom line is there are quite a few items available to married couples that are not available to "single" couples or even "civil unioned" couples. Aside from the potential to pay more in federal income taxes, which is arguably a bad thing, there are other items like immigration law (you can marry a non-US citizen and gain residency for them), estate tax law, health insurance (unmarried couples and civil unioned couples must pay federal taxes on any health coverage provided to the spouse), etc.

In order for Civil Unions to be equal to marriage in rights and benefits, they must be recognized by the Federal government and they must be portable between states.
11.7.2005 9:14am
BobNelson (mail):
juris imprudent:


To the best of my knowledge, no opponent of SSM cites that report, but many advocates do (and typically in the context of all of the 'rights' or 'benefits' they are being denied).


Uh... shouldn't that fact alone cause a lightbulb to go off in one's head?

As an aside, most same-sex advocates I know refer to the 1000+ "rights and responsibilities" when discussing the GAO report. I guess a lot of people cringe at "responsibilities" -- oddly enough many of them on the right -- as though being responsible for a life partner is an unwanted burden. Personally, I see that co-dependency, that reciprocal duty to be a central good of marriage. But what do I know? I'm a gay liberal...
11.7.2005 12:48pm
Kent (mail):
Since so many of you are talking about the "marriage penalty" here's a link that explains what it really is: http://marriage.about.com/od/finances/a/marriagepenalty.htm

Throughout most of the history of the income tax in America, there was usually a "marriage bonus." Tax code changes in recent years resulted in some, but only some, married couples paying more income tax than if they filed as single taxpayers. The "marriage penalty" actually was eliminated for the 2004 tax year. Congress has been reluctant to kill it permanently since it would have to offset the revenue losses elsewhere in the budget.
11.7.2005 10:08pm
juris imprudent (mail):
Bob N-


As an aside, most same-sex advocates I know refer to the 1000+ "rights and responsibilities" when discussing the GAO report.


Yes. And if you follow back up, it is precisely THAT characterization that I take issue with. The report itself does NOT represent the mentions of 'marriage' as conveying anything specific - not rights and responsibilities, nor any other definitive categorization, pro or con. In fact it says that you cannot draw the very conclusion you allude to. However, advocates of SSM consistently do as you just did.
11.7.2005 11:17pm
just stopping by (mail):
Bob Van Burkleo,

That most pedophiles are heterosexual is certainly true, but this is because most of the population is heterosexual.
The *rate* of pedophilia, however, is substantially higher among homosexuals. Some people therefore consider them to be related.
11.7.2005 11:52pm
unestoppable:
"Here is the link for the actual GAO report cited as the source in your link. There is a very important statement that is almost always overlooked by people touting this as a list of marriage benefits or rights:"

'Finally, no conclusions can be drawn, from our identification of a law as one in which marital status is a factor, concerning the effect of the law on married people versus single people...'

"I find it to be borderline dishonest to misrepresent this report. Yet this is very common amongst supporters of SSM."

Frankly, the fact that some of these laws in which marital status is only a factor does not negate the fact that some of these laws confer benefits or responsibilities upon only married persons. Until it can be shown that there are no marriage benefits/responsibilities that cannot be privately contracted into, the SSM proponents have a valid point.

Moreover, privately contracting into these benefits and responsibilities is prohibitively expensive.
11.9.2005 11:26am