Ann Althouse responds to Charles Krauthammer's slippery slope argument:
If Krauthammer has been writing about this subject for 10 years, it boggles the mind that the obvious distinction has not yet dawned on him.
Legal marriage isn't just about love, it's an economic arrangement. Having the state authorize your union is not the same thing as having your friends and neighbors approve of you and your religious leaders bless you. It affects taxes and employee benefits — huge amounts of money. A gay person with a pension and a health insurance plan is incapable of extending those benefits to his (or her) partner. He (or she) can't file a joint tax return. That's not fair. A polygamous marriage, however, puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple. That doesn't appeal to our sense of fairness. . . .
[I]t's not all about love and who respects what. It's also about economics. And in that dimension, it's easy to distinguish polygamy.
I generally much like Prof. Althouse's work, but here I'm unpersuaded. She gives a good argument for not giving polygamous families more benefits than two-member families have. But it's easy to exepct what polygamous families would say in response:
We're not asking for benefits that would extend to all the spouses in the family. All we're asking for is what two-member families get. We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone. We want other no-cost or very low-cost benefits. And for the costly benefits, such as insurance and pensions, we'll be happy if the law just covers two members of our marriage; we'll take care of the other members on our own.
We don't want coverage for three, four, or five members. We just want coverage for two, just like the rest of you get. But it's unfair if you entirely reject our marriage, and give us coverage only for one.
I've argued in my Same-Sex Marriage and Slippery Slopes that polygamous marriages are indeed unlikely to be recognized in the U.S., even if same-sex marriages are recognized. If the same-sex-marriage-recognition movement wins, and especially if it wins by stressing certain kinds of arguments, those arguments may indeed be logically usable by polygamy-recognition forces. But, as I argued, "It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster. I doubt that there’ll be such a movement for polygamist rights, even with the potential slippery slope effects I describe."
Nonetheless, though I'm not terribly impressed by the slippery-slope-towards-recognizing-polygamy arguments, I don't think they can be dismissed as easily as Prof. Althouse suggests. It's not enough to come up with a plausible distinction between what one supports and the extreme version of what others support. One also has to deal with the more modest versions that the others will come up with in response to your distinction.
UPDATE: My disagreement with Prof. Althouse may be less than I thought; in an update to her post, she writes:
I'm not saying that the distinction is so obvious that everyone will accept it. I'm just refuting Krauthammer, who thinks there is no way to stop the slip down the slope from gay marriage to polygamy. I'm against the scare tactic that is being widely used: don't accept gay marriage or nothing will stave off polygamy. All I'm saying is that there is a principled basis for drawing a line between the two. Nothing compels us to choose that line, however. I freely admit that.On that, I agree; as I've stressed in all my writing on slippery slopes, it is very rarely the case that the first step will absolutely positively guarantee to lead to the future step (as in "nothing will stave off"). People who overstate the slippery slope argument by making it sound like the bottom of the slope is inevitable end up weakening their own position.
Nonetheless, it still seems to me that a distinction between recognizing same-sex marriage and recognizing polygamous marriage should -- to be practically useful and not just theoretically plausible -- do more than just explain why the most extreme version of recognizing polygamous marriage (recognize my marriage and put all eight of my wives on my insurance plan) is distinguishable from recognition of same-sex marriage. It should also explain why the likely alternatives that you'll be given in response (recognize my marriage and put one of my wives on my insurance plan) is distinguishable.
I’m not making any kind of slippery slope argument. I’m just telling you how I’d do it.
Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women. The only group expressly discriminated against by most marriage statues are first-degree relatives.
The argument of economic unfairness just don't hold up. Not every economic opportunity is seized by every individual for many possible reasons. Observant Muslims might choose not to have a home mortgage, so they cannot partake of the income tax deduction for such a loan. People who remain childless cannot take a tax deduction or income tax credit. If I live with my brother we cannot take economic advantage of employer benefits and federal tax situations.
The notion of fairness is about offering opportunity without unreasonable restriction or test. Not every person is capable or interested in taking advantage of every opportunity; but the opportunity for any person to marry under current law is there.
I'd say Andrew Sullivan is comparing apples and oranges. Heterosexuality and homosexuality are not "choices" but marriage (monogamous or otherwise) is. Implicit in Sullivan's point, I think, is a definition of marriage as an expression of sexuality. That's problematic to begin with, I think, and it doesn't prevent advocates of polygamy/polyamory from defining their own sexuality as a "deeper issue." I can imagine them trotting out not only postmodern arguments about the fluidity of sexual orientation, sexuality, etc., but also evolutionary arguments about the way that polygamy accords with men and women's "natural" inclinations, and even historical arguments about the tradition/religious underpinnings of polygamy.
I don't suspect the empirical evidence would bear Sullivan's proposition out ("Higgamus, hoggamus . . . "). So it's a less-than-obvious distinction.
Sexual orientation, and more generally, a person's underlying desires for emotional attachment, are certainly "a deeper issue," but here the more apt comparison may be between homosexuality and polyamory.
Look, for example, at things like tax and employee benefits. Employee benefits are meant to encourage employees to come work for a company. With a few exceptions, married couples get a benefit from the company because the company believes it is in its economic interest to offer that benefit. Nothing prevents companies from offering similar benefits to gay couples and many do.
Ditto for tax breaks associated with marriage. In theory, at least, these tax breaks are meant to further a governmental interest. Lots of studies indicated that married heterosexuals are, as a group, have higher incomes, are more healthy, etc. It is, therefore, reasonable social policy to use things like tax benefits to encourage and support marriage.
Is the same thing true of gay marriage/couples? I have no idea. I doubt anyone does. I've never seen a study even attempting to address it for gays. But that is the showing advocates for gay marriage ought to be trying to make.
Then there's the fairness issue. "This gay couple lived together for twenty years and then one of them died of AIDS after being nursed through the last years his life by his partner. The surviving partner was then thrown out of the couple's home by the dead partner's parents! If only they could have been married, the surviving partner would have gotten to keep their home!"
We've all heard variations on this story in support of gay marriage. I, however, draw a different moral -- the people in these stories are dumber than two bricks. Haven't these morons ever heard of a will?
The point is that many of the incidents of marriage can be aproximated relatively easily without actually being married by using wills, health care powers of attorney, etc. This is equally true for gay and polygamous relationships.
But that's not what the gay marriage debate is really about.
We want the symbolic value of having our marriages recognized as marriages, which doesn't impose economic costs on anyone.
Bingo. It's about public acceptance. As Eugene points out, you don't get this through the courts or even the Legislature. Public acceptance requires a shift in public attitude.
"It takes more than a plausible argument to win battles like this, either in the legislature or in court. It makes more than a plausible argument plus some slippery slope effects. It takes a broadly supported political and legal movement (whether of a majority or a committed substantial minority) of the sort that gay rights advocates have managed to muster.
The only thing I'd disagree with is whether gay rights advocates have managed to muster broad enough support. Look at the current backlash in so many states. I understand there is a vociferous debate going on the gay legal community about how and whether to challenge some of these new state laws. Many gay rights advocates are concerned that a premature legal push to the Supreme Court will result in a gay Plessy and take the larger issue of gay marriage off the table for the next 50 years.
After reading his essay I wrote Eugene an email in which I brought up the following point that was not addressed in the essay.
"If the Supreme Court (of the US) were to require recognition of same-sex marriage, then I forsee negative consequences beyond those you discuss. I think that would cause far-reaching political problems similar to the Roe v. Wade decision, which I feel has corrupted our political process and discourse. However, I do not see this as likely considering the current make-up of the Supreme Court."
Eugene responded that "it's an important point, but one that others had made, and that I thought I'd set aside."
I agree that this is an important point, so I am sharing it in this venue.
For the record, I am stongly in favor of same sex marriage and have spoken in a public forum in its support. My reasons for support are not "rights-based", but stem from my belief that same sex marriage will be good for society (essentially more emotional, financial, and sexual stability). For the life of me, I cannot see how gay people marrying can have any negative effect on my (heterosexual) marriage. Quite the opposite.
When we allow gay marriage but not polyamorous marriage, we're saying we're willing to discriminate on the basis of monogamy.
I fail to see how deciding that we don't want to discriminate on the basis of sexual orientation impels us to decide we musn't discriminate on the basis of monogamy if we want to be consistent.
I believe that such wills have been succesfully challenged and overturned by the deceased's family. I don't know how common that is.
Specifically, “marriage,” as a sanctioned institution, is what creates the slippery slope that requires us to determine as a natural extension what types of marriages are acceptable among consenting adults. To conclude that same-sex marriage is the actual "cause" of the slippery slope is the result of making a morale judgment before the logical argument begins.
Polygamy is the would-be consequence of different-sex marriage (or marriage in and of itself) and not same-sex marriage. History bears this out, as men with more than one “wife” have existed publicly from the beginning of time. It is only when one views same-sex marriage as deviant in some way that one puts it before different-sex marriage as the starting point for the slippery slope argument.
Sullivan's remarks above sound like a parody of Christian objections to homosexuality. "Polygamy is a choice, in other words; homosexuality isn't." Rewrite it is, "Homosexual sex is a choice; homosexual orientation isn't."
In the U.S., polygamous marriage cults have this same problem. Some of the polygamous operations in Arizona and Utah expell teenaged boys, nominally for "misbehavior," but actually because they represent a threat to the adult men who are marrying multiple wives.
Those of you are thinking, "well, the excess men can marry each other." Since homosexuals and bisexuals are only about 3-4.5% of men, there's still going to be a substantial surplus of unmarriageable men.
I say they "used to", because it seems to me that since gay marriage became such a hot topic, this issue has virtually disappeared. No one is asking the obvious question of how the love lifes of these people are supposed to be officially recognized and supported by the State.
Defining marriage as 'between one man and one woman' does not discriminate. It does not state between one straight man and one straight woman. There is no test of sexual orientation, race, religion or other qualification. It is equally available to gay men wishing to marry straight women, gay men and gay women, straight men and gay women. The only group expressly discriminated against by most marriage statues are first-degree relatives.
You could say the same thing about statutes prior to the 1950's which prohibited marrying someone of another race. Everyone was free to get married, they just had to pick someone of the same race. On your logic, such statutes would not be discriminatory.
Well, unfortunately, this is one of those issues where you've got to roll up your sleeves and cannot elide analogy by citation to distinctions that, as I've said, don't ordinarily make a whole lot of legal difference. What sort of psychological effect does polygamy versus same-sex marriage have on children? How much does each institution increase what some regard as undesirable sexual activity (that's not the same as same-sex sexual activity)? To what degree does it "corrode" some public interest in "collective morality?"
I certainly have my views about answers to these questions, but my point is that you've got to answer them with some empirical ideas about how these respective unions actually DO affect our society rather than with a quick logical rebuke whose succinctness might be a source of imprecision as well.
I agree with Althouse that practicality is an issue. It may sound silly, but allowing the entire football team to get married would raise a lot of legal issues. I think this is a much more complicated jump than simply allow people to choose the sex of their partner.
Moreover, I think there is a much stronger argument in favor of gay marriage (not just a weaker argument against it). For one, currently gays simply can't get married at all. The injustice of this is, I think, clearly greater than simply preventing another person from marrying a second or third time at once.
For another, I think that allowing people to marry multiple partners simply does not provide the same benefits as allowing someone to marry once. Monogamy, companionship, the ability to raise children, are all very related to a two-person couple. Extending the number has a much less clear benefit.
Finally, homosexuality, at least in the minds of many, is inate. As such, I think prohibiting gay marriage is much like a rule in baseball which would require everyone to pitch right-handed. It's one thing to say nobody is allowed to use steroids or cork their bat. It's another thing to make a rule that discriminates against an inate group.
In sum, I think there are most certainly many important differences between legalizing gay marriage and legalizing polygamy, and the case for the former is significantly stronger. We can argue about any one of the differences -- as in any situation -- but to pretend that there is not any argument for a distinction at all is simply wrong.
This is simply not true. The Ohio marriage amendment removes any "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Although this has not yet been tested, it is understood to make employee benefits, etc. unenforceable. Several other states have passed similar amendments, with varying degrees of severity.
I'm assuming the movement is making a prudent political decision about putting the B's marriage rights on hold while they resolve the L and the G. It's sort of hard to fight aggressively for recognition of homosexual marriages while you're pushing for "bisexual unions," whatever that would mean.
Today we see outright same-sex marriage in Canada and same-sex marriage in all but name in the UK, but with no groundswell of support for polygamy. The slippery slope argument just hasn't worked.
Part of the problem with polygamy as compared to same sex marriage is virtually every legal aspect of the marital relationship assumes a binary relationship. When one spouse dies, the other gets the property. When one spouse dies, the other has custody of the kids. When one spouse gets sick the other has the power to make decisions on behalf of the sick spouse. A spouse with a pension gets to designate the other spouse as the recipient of a survivor benefit. All of that works equally well for a same sex couple as for an opposite sex couple but none of it works for a marriage of more than two persons. What right would the non-biological parent in a 3 person marriage have over a child of the other two? What happens if the 3 of them disagree over childcare decisions? Decide by majority vote? In a marriage between a man and two women do the women count as married to each other? If not are they complete strangers as far as the law is concerned? In theory it would be possible to design some system that accommodates polygamous marriages in a way that provides for dispute resolution and deters free riders (like getting spousal health care coverage for 4 wives instead of one) but that would be a monumental task.
Of course all of these considerations would matter less if we didn't have a government determined to intrude itself into the marital relationship to such a great extent.
I think its pretty fair to use the same argument you'd use today. I like brunettes, I like blonds, I like red heads, I like people with all types of hair color in fact. Does that mean I HAVE to marry a person with a rainbow of haircolors? Why won't the state let me marry one person with EACH color of hair? Currently every marriage recognized by the state is recognized as 1 unit, a couple. Its not "discriminating" against bisexuals to say they can marry someone they fall in love with, its just saying that a bisexual can't marry multiple people they fall in love with. Same with any other person.
It appears that the argument against polygamy (or polyandry) is a market-manipulation one. Take away free choice for consumers so that otherwise unacceptable products (men) must be purchased (married) by those who would otherwise choose better merchandise.
Does this come under the Commerce Clause?
BTW, why is the discussion only about polygamy and not polyandry? This appears to be a relic of patriarchal cultures. If we introduce polyandry into the mix, the spouse-distribution problem is somewhat ameleorated. And lest anyone introduce the genetic issue, DNA testing works wonders should someone actually need to determine which child goes with which father.
it's the same reason we often use the pronoun "he" because the gender-neutral "it" is not appropriate.
of course its a relic of "the patriarchy," but I don't think anybody seriously believes that if you allowed polygamy that you could logically forbid polyandry. much the same way perfectly non-patriarchal people don't take the trouble to write "he or she" in every place they need an animate third person singular pronoun, people don't write "polygamy or polyandry" when they're trying to discuss this issue. I'd say that leaving polyandry off is even less "patriarchal" than leaving off the "she" because at least people know what "she" means, wheras including "polyandry" each time you refer to polygamy would significantly impair much of the audience's understanding of the logical relationships being explored in the debate.
Don't worry, copyright does not grant exclusionary rights over information, only expression. Certainly not your DNA.
Next, I'm not sure I understand exactly what point you're making.
I don't think you're quite with me here. This is a matter of contract, not legislation or public policy.
Company A has a board meeting and decides that the labor market is tight and it wants to recruit both homosexuals and unmarried heterosexuals that are living with a partner. It, therefore, creates a program extending its health and life insurance benefits to unmarried people with partners.
The only way the state could stop it would be to pass a law making it illegal to extended benefits to unmarried partners.
But that's not what I think defenders of marriage are talking about. They're talking about an inevitable logical progression resulting from arguments made in defense of the prior linked thing. Hence, "slippery slope" has nothing to do with social approval, and everything to do with whether something can be logically concluded, and hence, imposed by an unelected, elitist, amoral judiciary.
Hence, "slippery slope" has nothing to do with social approval, and everything to do with whether something can be logically concluded, and hence, imposed by an unelected, elitist, amoral judiciary.
Setting your inflammatory (and frankly, cliched) rhetoric to the side, if a court acknowledges some sort of right to same-sex unions, it is likely going to be under either equal protection, or substantive due process, or both. In both of those cases, any rule restricting that right will have to be balanced against the state interest. The state interest will in turn be defined by all the interests I defined above. So even though I was not talking about a "social" slippery slope, the actual degree to which these institutions (homosexual marriage and polygamy) actually cause the societal harms that people say they do will be subject to fact-based scrutiny by a court.
There's also the claim that there is no way to eveluate the economic consequences of polygamy. But there is much evidence that the polygamous family structure within Muslim and African societies is a large contributing factor to their economic stagnation.
While some may not see a logical connection between changing the definition of marriage to include same sex couples and changing it in the West to include polygamy, it's clear that many do see it as a way to infiltrate the West with non-Western forms. The problems with this seem obvious to me.
I'm sorry, but there is simply no reason to believe that any court that hears such a case will engage in fact-based scrutiny. The fact that they're hearing the case at all is evidence that no such thing would be done. It is not a judicial question for them to decide. The only judges who are impartial enough to engage in such an analysis would inherently realize that the issue is not theirs to decide.
Oh, by the way, I have a bridge in Brooklyn to sell you.
They don't all live together. The men move back and forth between the homes they share with their husbands and their wives' homes. The woman couples share two homes and when the men come into town one of the women moves out to the home she keeps just for male/female week. A family tree has a chain of husband1--husband2--wife2--wife3--husband3--husband4--wife4 ... with the husband/wife pairs having children. I suppose the chains must either be circular or broken by semibachelorhood or widowhood.
-dk
Big "Duh" Here. Whoever that was that thinks the "B" is getting dropped in GLBT doesn't understand what it means to be bisexual (and the same goes for whoever that was that riffed off the term "bisexual union").
Bisexuals are people that are attracted to more than one gender. Thats a sexuality that has nothing to do with a desire to marry multiple people.
That seems to be the standard (and plausible) argument against most equal protection analysis. But I'm not sure it's right. Certainly the fact that an individual CAN do something that is entirely anathema to his identity doesn't mean equal protection hasn't been violated. A law could be passed against the practice of the Jewish religion and the anti-equal protection argument would stand because that individual could still practice SOME religion.
Moreover, I don't understand why Loving v Virginia doesn't end this debate at least in terms of precedent. How are laws against inter-reacial couple marrying any less unconstitutional than laws against SSM? I'm not applying this to the slippery-slope argument, but it does seem to settle the SSM issue.
For the record, I'm all for consenting adults marrying whomever and however many they consentually choose. Let's slip!
Here's a better idea: as we burn the Constitution, let's all play the fiddle. That way, as society careens towards Hell, we can say we were just following precedent from Nero.
Second of all, if you happen to be in the "gay sex is icky" crowd, then I'm not sure there's a discussion to be had here. If you can't see gay sex as a natural thing but as a choice six year olds all across the country make as six year in order to get beat up as teenagers, then yes, gay sex and gay marriage are "choices". If not, then denying gay sex and denying gay marriage to these people is the equivalent of denying sex and denying marriage to these people, which is the starting point postulates of proponents of gay marriage, and I submit that they're the only reasonable positions to take - whether one believes in gay marriage or not, to believe that "gay sex is icky" is immoral, antihuman, unChristian bigotry. And to not believe that "gay sex is icky" but still oppose gay marriage is either statism or logical fallacy. ::Gauntlet thrown:: ::wait, it's st patrick day:: ::leaves to go get drunk::
I don't know what your Brooklyn Bridge comment means, so I'll ignore it. But you do seem to be misunderstanding of the "fact based scrutiny" I'm talking about.
The court first determines whether substantive due process or equal protection is implicated. That is a legal determination that courts are much more competent than any other institution to make.
The court next determines what level of scrutiny to apply - strict, intermediate, or rational basis. That is also a legal determination that courts are most institutionally competent to make.
Then, if a court makes the legal determination that some heightened scrutiny applies (lets assume strict for explanatory simplicity), it's got to make two more inquiries. Is that interest "compelling" enough, and is the rule "narrowly tailored." Both of those inquiries must involved some auditing of the litigants' (the state's) facts.
You also fail to distinguish between (or deliberately confuse) whether you think a court "will" engage in fact-based scrutiny (a descriptive question) and whether a court "should" do that (a normative one).
The question of whether or not they "will" is beyond debate. This is hornbook constitutional law, and if you are going to speak this aggressively about how the court is dumb, you should at least be conversant in it.
If you think that they "should not" do it, then its unclear how a court could ever enforce any of its that have a compelling interest/narrow tailoring component, which would pretty much obliterate the enforcement of all of due process, equal protection, fourth amendment, commerical speech, free exercise, establishment clause, expressive association, privileges and immunities, commerce clause, and voting rights doctrine. That, you may notice, constitutes most of the individual liberties delineated in our constitution. So, maybe you should rethink your idea that the courts should never look at any facts of a case before it.
Gay marriage doesn't enjoy very much political support either, yet it is on the verge of being legalized. Last year a proposed amendment to the Texas State Constitution prohibiting gay marriage passed with 76% of the vote. And lest you think that it is only the neanderthals in Texas who oppose gay marriage, in 2004 eleven states voted against gay marriage in a variety of referendums. Even California passed a referendum (Proposition 22 in 2000) outlawing gay marriage. It passed with 61% of the vote.
Right or wrong, gay marriage doesn't have anything close to popular support. That is why this battle is being played out in the judicial arena as opposed to the legislative one. The only states to have legalized gay marriage or civil unions have done so by judicial fiat not by popular vote. In fact, Massachussetts has already begun the onerous process of amending its constitution to prohibit gay marriage and I have heard it is likely to pass.
The relevant question regarding gay marriage vis a vis polygamy etc. is not whether it will lead to a slippery slope in the legislative arena because it most probably won't. However, it most certainly will lead to a slippery slope in terms of Constitutional law. How can anyone seriously argue that the right to privacy protects sodomy but not polygamy? How can you make the argument that the equal protection clause confers the right of legal recognition of gay marriage but not polygamy?
The argument that legal polygamy would confer greater advantages on its practitioners is irrelevant because the argument could be made that anyone can enter into a polygamous relationship if they deem it to be advantageous. Conferring the legal benefits of marriage on polygamists is no more unfair to monogamists or singles than the current benefits of marriage discriminate against singles.
Oh really? And where, other than Massachusetts is it "on the verge of being legalized?"
How can anyone seriously argue that a right to privacy protects unmarried heterosexual fornication but not polygamy? Answer, SEX does not equal marriage.
You heard wrong.
The relevant question regarding gay marriage vis a vis polygamy etc. is not whether it will lead to a slippery slope in the legislative arena because it most probably won't. However, it most certainly will lead to a slippery slope in terms of Constitutional law. How can anyone seriously argue that the right to privacy protects sodomy but not polygamy? How can you make the argument that the equal protection clause confers the right of legal recognition of gay marriage but not polygamy?
There won't be any slippery slope under privacy because I doubt the court will go that route rather than equal protection. This isn't a sodomy statute.
Instead the (a) court would likely to decide this issue under equal protection. The posture in which each of these issues would be raised is as an equal protection challenge to a law that restricts marriage in the specified manner.
There are therefore two obstacles to a "legal" slippery slope. As I've said above, any court will first decide what level of scrutiny to apply in its equal protection analysis. While homosexuals may sometimes trigger heightened equal protection scrutiny, polygamists have no legal chance based on the the tests courts usually favor for making that designation (footnote 4 of caroline products). So the first legal obstacle to the slippery slope is that courts are unlikely to find a constitutionally protected right to marry under the EP clause for homosexuals and to apply the same level of scrutiny for considering that right as it applies to polygamists.
The second obstacle assumes arguendo that the same level of scrutiny does apply. Even if it does, then any law restricting marriage rights of either group will have to be justified by reference to the "compellingness" of the interest and the "fit" of the rule addressing it. Both of those will require evidentiary scrutiny where the evidence favoring homosexuals will doubtlessly be much stronger than the evidence favoring polygamists. That is the second obstacle to a legal slippery slope.
So I don't really find Krauthammer's point persuasive on legal or factual grounds.
It is no more of “choice” than the one I have about being attracted to women. How many (non-gay) men on this board could choose to be attracted to a man (assuming your life depended on it)? Really, please think about it. Could you be attracted to a man?
If the answer is no, then (why) do you hold someone who is gay to a different standard, or presume that unlike you he or she is capable of making such a choice? Why is it so easy to presume it is choice that someone makes even if it means that he or she will be treated as a second-class citizen or disowned by his or her parents? I know that it is not a possibility for me, because I am genetically programmed to be attracted to women. I simply cannot choose one way or the other. Not all men are programmed the same, but they are programmed nonetheless.
To state that a man cannot fall in love (just because he is genetically programmed to be attracted to other men) is inhumane. To state that SSM is inappropriate is no different from discriminating against someone for a genetic characteristic that is out of his or her control. It is no different from discriminating against someone for the color of his or her skin. It is a form of bigotry and I am confident that this will be proven over time – but maybe not in my lifetime.
I do understand why male gay “acts” might give straight men the heebie-jeebies. But honestly, as physical acts go, I have seen frat boys do things that the average straight man would consider more shocking. Therefore, the heebie-jeebies is most likely the result of genetics and not any moral mandate.
With freedom extending "beyond spatial bounds" it would seem pretty clear to the casual observer, that's me, that the odds are pretty high that the Supreme Court has sufficent precedent to oil the slope. After all, adding a dimension or two to marriage would seem to fit in very nicely with Justice Kennedy's waxing elegance.
And where to from there? Certainly same sex marriage can not be reserved to homosexuals. That would seem to violate equal protection even as the current state of marriage law does not. Economic benefits? How about Aunt Irene marries her niece so that the niece has access to survivors benefits from the SSA?
So bisexuality just means one has more dating possibilities, before finding that ONE special someone to settle down with. And it is merely my imagination (and apparently Kovarsky's) that the very subject has virtually disappeared from LGBTQ activism in recent years.
As for other policy reasons, Clayton Cramer may be a little nuts on some other topics, but on this one his comments are spot on.
The same homosexual marriage-polygamy comparison could be made between homosexual marriage and incestuous marriage. The latter is objectionable for both biological and social reasons independent of society's preferences.
Your logic was rejected in Loving v. Virginia quite some time ago.
Look above in the thread to see the various answers to your polygamy v. polyandry point.
L
yes. What did you THINK it meant?
I don't see the relevance of this comment. True, Kovarsky seemed to be implying that bisexuals have a different agenda than homosexuals or transgendereds, but that does not mean he is correct. I think a bisexual individual wants the right to marry the adult person theyfall in love with, regardless of their gender. As the law stands now it doesn't matter who they fall in love with, there's a decent chance they'll be excluded on the basis of gender.
As Randy Barnett so eloquently details in his 2003 article, this case (to me) indirectly provides another way to examine this issue (i.e., liberties versus licenses -- and the potential application of the Equal Protection Clause).
Please note that Professor Barnett also coauthored an amicus brief to the Supreme Court in Lawrence. To me this brief frames a very important question. Specifically, what liberties, which are not specifically mentioned in its text, are covered by the Constitution? As the founding fathers recognized, and as referenced in Madison’s famous dialogue in his draft writing of the Bill of Rights, not all of the people’s liberties are (or could be) spelled out in the Bill of Rights.
Marriage might fall more on the "license" side of things (and not be proteced), but it is still an interesting way of looking at this issue.
Questions:
Does the Constitution protect my liberty to eat more than 3000 calories in any given day. I think in answering this absurd question do we further define what "liberty" really means and what it covers.
Could Congress make it illegal for me to eat after 9 p.m.? Certainly I don't have a fundamental right (or liberty) in the Constitution to eat after 9 p.m., but nonetheless such a law would seem invasive to my ability to live my life as I generally see fit.
Do I have a Constitutionally protected liberty to drive? Or is this a license? Could driving be outlawed altogether? Driving certainly impacts others (and has the potential to kill) when it is not performed with basic skills.
It has always been my contention that if the Constitutional analysis is done correctly one should examine the “liberty” that is sought to be protected (and not the specific “act” -- such as sodomy). Assuming this is done, the specific “act” should only be controlled through legislation if it directly conflicts or infringes on an underlying liberty of the public -- with special attention given to "commercial" transactions, or licenses.
For example, the right to use drugs in one’s home could be argued to infringe on the public’s right to tranquility in the home (or on the public streets) because of the resulting criminal behavior or physical damage or harm that such drug use will cause in enough cases. This argument could also apply to prostitution. Moreover, the “customer” relationship in such transactions creates a unique situation in which one is vulnerable and could be harmed -- not to mention the issue of true "consent."
http://adiarytomydaughterisabella.blogspot.com/
Well, we know that some polyamorists argue that what they have is an "orientation" -- and they will continue to do so if that's the ticket to marriage right by judicial fiat.
The reason judicial forcing of gay marriage is not the same as judicial forcing of inter-racial marriage is not because race is a less real concept than gender (although that is true). It is because the 14th Amendment's "equal protection" guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. (Also note that the ERA failed to pass, though its backers ridiculed the notion that even with it we would have gay marriage.)
In addition to the social problems which will likely result from most being 1 man, multiple women (mentioned above) polygamy is likely to lead to the death of marriage itself. For example, when 10 mob members can all marry each other, we will all lose the right not to have to testify against our spouses. When 10 people can marry one person with a state job and health insurance, all of our spousal health insurance will be at risk. When one or more spouses wants to divorce another, but not from the rest of the group, we will have truly contested divorces again; can we prevent a "slippery slope" to monogamous unions once judges are used to deciding who gets to have a divorce?
Also requiring the establishment of explicit (and difficult) rules: When 2 spouses disagree on a course of treatment for the third (ill) spouse, some outsider will have to make the decision (delays, lack of autonomy, etc., will follow). When only one spouse is at the hospital, will that spouse be able to make the decision, or will a quorum be needed? How will one prove that one is the only spouse? Will everyone even know whether he is the only spouse? Now one has legal methods to punish a bigamous spouse; will bigamy be illegal or subject to civil penalty if undertaken without the first spouse's approval?
Only if you eat a hot dog in New York and deposit it in a pay toilet in Hoboken. In that case the infamous commerce clause obtains.
Again, as it has not been scientifically proven to a certainty, I think we must determine or ask if one is born gay. This should be the firts question, as it changes the logical flow of many positions.
Another question(s):
Could Congress make it illegal for left-handed people to get married? How about someone that is color blind? How about someone that has an IQ off less than 80?
True, Kovarsky seemed to be implying that bisexuals have a different agenda than homosexuals or transgendereds, but that does not mean he is correct.
Huh? All I said is that given that whatever marital preference a bisexual might have, that preference is fairly subsumed either by (1) the status quo (heterosexual marriage) or (2) the desired change (allowance of same-sex marriage).
My point was merely an observation about strategy. Namely that if bisexual marriage rights mean something other than to marry a man or to marry a woman, then those are understandably being put on the backburner for the moment, for political reasons.
I'm not sure what created the misunderstanding, but I most certainly was not implying that the two have different interests in securing the right to same-sex marriage.
Neither half of your equation is so clear. The question of what is a "choice" is one for the philosopher as much as the scientist. Certainly "sex addicts" say they have no such choice, and many polyamorists say their "orientation" is innate, no doubt because they know that is the likely route to their empowerment.
On that note, in the 1970s many gays believed that being gay was a choice, while in the 1950s most gays believed their orientation was primarily due to their early experiences.
There is a bit more "science" to the current unassailable (PC) position that homosexuality is innate from early childhood; twin studies suggest something like a 50% genetic cause, which leaves a fair amount of room for free will. There is of course "no science" against a similar level of genetic cause for polyamory.
"what's wrong with polygamy again?"
In addition to the social problems which will likely result from most being 1 man, multiple women (mentioned above) polygamy is likely to lead to the death of marriage itself. For example, when 10 mob members can all marry each other, we will all lose the right not to have to testify against our spouses.
O yes, the fatal "dilution of the spousal testimonial privilege argument."
This remands me of another remark I've seen recently, but I can't remember who said it: Tonight I ask you to pass legislation to prohibit the most egregious abuses of medical research ... creating human-animal hybrids.
What's your point? People have already gotten married to avoid testifying against each other. At least we can only lose 1 witness that way now, and then only if of the opposite sex. Do you really think that a married criminal organisation is as unlikely as human-animal hybrids? Remember that they can get married after arrest or indictment.
I coined the phrase "bisexual unions," but I've been sort of unfairly taken to task for it (and unintentionally had it coopted!) if you look at the context:
It's sort of hard to fight aggressively for recognition of homosexual marriages while you're pushing for "bisexual unions," whatever that would mean.
By "whatever that means" I meant to convey precisely what you did. I didn't see how the bisexual interest in securing same sex marriage splintered from the homosexual interest (goodness, I hope you appreciate how much I hate these labels) in doing so. The only way they could diverge, I reasoned, was if "bisexual union" had some coherent meaning and, as I suggest in the derisive passage above, I don't think think it does.
I'm not just responding to you - several people have remarked about how stupid the term is, apparently not realizing that I coined it precisely to show how logically unintelligible the idea behind it is.
There is a clear difference as I know of no one that is born a sex addict or a drug addict (except for babies of users) -- even if science tells us that some people are more vulnerable to the reaction in the frontal lobe that such behavior creates.
Question: I am assuming you are not gay. Is this a choice of yours? Could you choose to have a gay relationship? To say such is a philosophy ignores science. Moreover, unless you tell me that you could choose to have a gay relationship, is an excuse.
So could you have a gay relationship? Your answer must be yes for your statements to be consistent.
How many gay friends do you have? Sometimes reading about what gays think is less valuable than actually talking about the issues in person. I know zero gay men that think it is a choice. I do know a few gay women that were sexually abused as children and are not certain how that impacted their "gayness." Otherwise, none of my gay friends consider it a choice.
You do not know if anyone was born a sex addict (whatever that means) or polyamorous, just as you do not know if anyone was born gay or lesbian. If sex addicts (or the polyamorous) are effectively told that the route to forgiveness of adultery, or plural marriage or other rights, comes from collectively claiming their "orientation" to be inherent "from birth" (whatever that means), then that is the claim they will make, and with no more or less credibility than gays and lesbians, whose beliefs about their fetal predispositions are no more subjectively real, or even historically fixed.
Well, my point is that - no matter what you think about the merits of this issue - if someone asks you to make a list of what is bad about polygamy, i might start with a reason other than the dilution of the spousal testimonial privilege.
Much like if someone we're asking me about what were the most problematic modern abuses of medical science, I might start with something other than the Centaur.
You are correct, and the degree to which our jurisprudence is focused on whether someone is "born with the trait" is going to have to shift to acknowledge 19th+ centuries' discoveries in psychology, biology, physiology, and cognitive science.
While same sex marriage does not necessarily lead to polygamy, many of the arguements used for same sex marriage can be used for polygamy and other marriages involving more then two people. The fact that many same sex marriage advocates can't stand many person marriages is that it shows that they don't really care about people having the freedom to live their lives with whom they want, but of imposing their morality on society while prohibiting others (who oppose same sex marriage) from doing the same.
As for the "social interest" of making sure that one man does not monopolize too many women, many person marriages are not necissarily limited to one man/many women. You could have one woman and many men or simply many people of one or both sexes. After all, if the government can't limit marriage to different sex couples because it is deemed that that is best for society, then why can it do so for many person marriages?
Please respond . . .
I am assuming you are not gay. Is this a choice of yours?
Could you choose to have a gay relationship? The answer must be yes if you are not gay because of a choice. So please confirm that you could have a gay relationship. And what time you get off work . . . just joking . . .
Also, yes I know plenty of people that were not born addicted to drugs. This is an easy one to show scientifically. Moreover, I know zero MD /PhDs that think people are born sex addicts. There is some debate about how different people have different frontal lobe reactions.
Also, please excuse the typos as I am typing with one hand. My baby is asleep on my chest.
Why stop at incestuous marriages? After all, shouldn't consenting adults be able to live their lives together? Wouldn't such prohibitions be "genetic discrimination"? After all, if the government can't limit marriage to different sex couples because it is deemed that that is best for society, then why can it limit marriages to between people whose relative genetic make-up is acceptable to the government.
The only other argument that can be made is that the government has an interest in preventing children from such couplings from being born, even though such incestuous romances can happen regardless of marriage status. Do we really want to argue that discrimination to prevent genetically inferior human beings from being born is okay?
I do not know or particularly care to what extent my heterosexuality was due to choices earlier in life. I do not know if one can turn a teenage boy gay, for example, by offering him gay sex, which he may or may not choose to try, and may or may not enjoy depending in part on the skill of the lover; or if some minority of boys have a plastic sexuality that can be so formed, what that minority percentage is.
But even if I were to concede that all homo- and hetero-sexuality were purely genetic, that would not mandate gay marriage under the Constitution, because the 14th Amendment's equal protection guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. And if it were stretched to include such status, it would be no more of a stretch for it to include polygamous marriage, given the claims of the polyamorous.
I also do not see why hetero-only marriage is any more unconstitutional than single-sex prisons. Gay people get to have meaningful romantic and sexual relationships with their prison cellmates; why can't I? Isn't sexuality an even more private and protected thing than marriage?
Polyandry is not the opposite-sex situation from polygamy. Polyandry (1 wife, multiple husbands) is the opposite of polygyny (1 husband, multiple wives). Polygamy can go either way, or include group marriage, but most people think that in any society that allows all 3 types, most such will be polygynous; that is, at any rate, the evidence from history (ancient and recent) and anthropology.
You mightn't necessarily agree with her overall argument presented today, but there is no denying that she stimulates deep thought and discussion among her readers, who, like I said, seem to represent such a broad swath of Americans. I think it is so healthy that you, another law professor, are able to civilly critique the arguments and challenge us to think on other aspects, linking to your own scholarly work on this same issue.
Again, that seems to be Althouse's gift: bringing together and keeping such a wide range of views, and challenging everyone to re-think their views, either making them more confident in their strenghts, or building up their weak points.
I'm glad she stayed "independent" as a blogger, and I'm glad to see that all of you out there are not so polite as to automatically focus on your agreements, and gloss over any dissenting views. Too bad we can't elect a "Court" out of our favorite legal bloggers. I would put a lot of my faves together, and see if you could work together to whip this country back into shape. cheers.
The fact that many same sex marriage advocates can't stand many person marriages is that it shows that they don't really care about people having the freedom to live their lives with whom they want, but of imposing their morality on society while prohibiting others (who oppose same sex marriage) from doing the same.
That sounds Orwellian. When you are talking about things that are exercises of what may or may not be an individual right, you are not "imposing your morality" by exercising it; the state is "imposing morality" by interfering with it.
Moreover, the fact that many same-sex marriage advocates get off the bus when it comes to polygamy (pun intended) does not prove that they're being aprincipled. If you believe all these points made on the post - that polygamy imposes legal costs and social costs that same sex marriages do not - then you've got a perfectly principled reason to distinguish between the two.
I take you to be saying that advocates of same-sex marriage locate the moral authority for their position in the idea that "you can marry who you want." Well, that's not precisely the moral argument same-sex marriage advocates are making; many are making the argument that if society is willing to acknowledge biparticipant marriages, there is no moral reason why same-sex marriage should be excluded from that blessing. It is not a free floating argument of multi-marital entitlement, as you seem to think. There is therefore no, as you imply, moral opportunism going on.
I can't help but get the feeling that at base people feel that approving of same sex marriages delimits entirely the types of sexual and romantic behavior the government can regulate. Next polygamy, then incest, the argument goes. The point that these people always seem to miss is that - aside from an objection that homosexuality is "inherently deviant," a claim with which there is just no arguing - there are lots of easy dimensions, such as consent, institutional costs of rearranging rules, that prevent an acknowledgement of same-sex marraiges from being, ipso fact, a delimitation of all state regulation of sexual behavior.
From a policy point of view (i.e., as a voter in referendum) it is of course relevant to me that gay people presumably have no more desire to have a straight marriage than I do a gay one. I would in fact vote to legalize gay marriage. I just don't want judges making up specious Constitutional rights arguments to fit such value judgements. Both because the same argument might be used to advance things I am opposed to (i.e., polygamy) and because the pattern of making such stuff up is a recipe for oligarchy. (Call me crazy, but to me, a 9-person unelected life-tenured oligarchy would be even less desirable than an elected, unicameral legislature without a judiciary or constitution; i.e., some parliamentary systems.)
But even if I were to concede that all homo- and hetero-sexuality were purely genetic, that would not mandate gay marriage under the Constitution, because the 14th Amendment's equal protection guarantee, while vaguely written, was universally understood to be about race or ethnicity, and not sex, let alone LGBT status. And if it were stretched to include such status, it would be no more of a stretch for it to include polygamous marriage, given the claims of the polyamorous.
No. No. No. No. Even if you think the EP clause has to bend to accept sexual orientation, under what logic is it "not a stretch" to include polygamists? Just because you say so? As I've noted above, there are perfectly good constitutional (different levels of scrutinty, different assessment of fit), policy (institutional adjustment to same-sex biparticipant unions versus institutional adjustment to polyparticipant unions), and philosophical (polygamy, whatever its technical meaning, really promotes multiple women per man) reasons for distinguishing between the two groups. You just keep coming back and asserting there isn't, without offering one iota of explaining why. If you are going to continue to post aggressively on this subject, please do everybody the courtesy of explaining yourself.
I also do not see why hetero-only marriage is any more unconstitutional than single-sex prisons. Gay people get to have meaningful romantic and sexual relationships with their prison cellmates; why can't I? Isn't sexuality an even more private and protected thing than marriage?
Women get raped when they're incarcerated with men, you klingon.
Many people that I know who are gay, and people I know who are strait but support same sex marriage consider polygamy and incest to be immoral, socially bad and just plain "wrong." So why is their opinion valid when those of people who oppose same sex marraiges are "just bigoted" and thus invalid?
So, if the government decides that same sex marriage do impose such a cost, then prohibiting it would be morally acceptable?
If society is willing to acknowledge marriage reagardless of a person sex, then why draw the line when it comes to numbers. If peolple who oppose same sex marriage are "heteronormitive" then would those who oppose polygamy be "dualnormitive."
In all seriousness, virtually no moral argument against polygamy can be made that can not also be used by those who argue against same sex marriage.
I submit that such an approach would also cause significant sorrow and legal difficulties, and have in the past. I have no idea if one would significantly outweigh the other.
If bisexuals exist, that would put polygamy (or polygyny) on the same footing, and with the same justification as homosexual marriage.
On the other hand, does a unfaithful nature of some people create a justification for a legal "unfaithful marriage" relationship?
I don't have a problem with alternative contractual relationships, but must these innovations coopt and corrupt the existing "trademark"? Can't the creative polygamous, homosexuals, bisexuals, and unfaithful come up with a new name? Is their creativity used up in their family relationships, so they have to slavishly copy the faithful heterosexuals?
You seem to be saying, and correct me if I'm wrong, that homosexual marriage should it arrive at that august body in DC deserves heightened scrutiny while polygamy would be subject to rational basis. Why?
Do your gay buddies consider stealing wrong? illegal drug use? rape? murder? are they "hypocritically" imposing their moral outlook when they treat these things as wrong, but argue for same sex marriage? In order to establish a claim that the state is acting "coercively" (the equivalent to "imposing morality" in your parlance), you've got to show that it is using its monopoly on the use of legitimate power to constrain the exercise of a personal right. So a law protecting same-sex marriage does not "coerce" or "impose morality" on anybody unless you can articulate some third party interest that is diminished because of that law. Go ahead, explain what third party is having its rights constrained, and why.
You say:
If society is willing to acknowledge marriage reagardless of a person sex, then why draw the line when it comes to numbers. If peolple who oppose same sex marriage are "heteronormitive" then would those who oppose polygamy be "dualnormitive."
I swear, people think if they say this enough times, it is just true. Wow. Magic. No. The possible economic, political, legal, and moral distinctions are explained at length above, and you don't just get to rebut them by just reasserting the conclusory proposition to which they were designed as a response.
Lovely. "Black people always had equal rights. They were allowed to sit in front of the bus if they became white."
Yes, and when miscegnation laws were in effect it was said that blacks were always able to get married, to other blacks. Your point does not advance the discussion particularly.
"If bisexuals exist, that would put polygamy (or polygyny) on the same footing, and with the same justification as homosexual marriage."
I also don't understand this. I find many people attractive, in fact, I'm attracted to people with many different hair colors for example. I'm attracted to blonds, brunettes, redheads, etc. Just because I have multiple attractions isn't a basis for changing the the scope of marriage, is it? Bisexuality doesn't equate to polygamy, it equates to an attraction or the ability to be attracted to people of both gendersm, not necessarily a simultaneous relationship with both genders.
Say a male male relationship was called a biage. Then the various duties and benefits associated with a biad would have to be rigorously defined and passed by the legislature. It could be informed by marriage, but each characteristic would be separately debated, and separately voted.
Then a female female relationship was called a diage. Then the various duties and benefits associated with a diad would have to be rigorously defined, and passed by the legislature. Again, it could be informed by biage and diage, but could also be different, based on different characteristics and risks. For example, unfaithful biage may not be grounds for ending the legal relationship, but unfaithfulness in diage could be, or vice versa.
By conflating the very different nature of biage, diage and marriage, the proponents of biage get to coopt the years of common law associated with marriage, applying law developed for one situation (children related biologically to both parents) to another different situation (no children, or children related to one and only one parent, or children related to neither parent)
The conflation is the argument. Few seriously suggests that homosexuals should not have any relationship. Few accept homosexual legal relationships will be exactly equivalent to heterosexual legal relationships, by their nature. The issue is framed dishonestly, specifically to bypass the will of the people as expressed in their legislature.
You ask, I think earnestly:
Kovarsky,
You seem to be saying, and correct me if I'm wrong, that homosexual marriage should it arrive at that august body in DC deserves heightened scrutiny while polygamy would be subject to rational basis. Why?
Sorry if I was unclear, that's not at all what I'm saying. I'm saying that whatever level of scrutiny the court treats the samesex marriage issue under, it is more likely to be a more stringent scrutiny than the court would treat polygamy under (for a variety of reasons - including the neater fit with the attributes outlined in caroline products FN 4, which guides a lot of this stuff).
I further noted that even if they were treated under the same standard, the state's evidentiary showing under the strength of interest and goodness of fit components of scrutiny would be much weaker for same sex marriage than it would be for polygamy (remember, this gets to the court because someone claims a restriction on same sex marriage/polygamy is unconstitutional under the EP clause).
Also, for the record, no matter how much I wish it did, I don't think the EP clause protects same-sex unions. I'll vote to protect it under an amendment and at the federal and state ballot box but, unfortunately, I don't think the EP amendment gets us there.
What I do believe, however, is that same-sex unions are a lot closer to protection under the EP clause than is polygamy.
Does that clarify?
Should the legislature be allowed to pass and maintain laws that the courts find, in their role as interpreters of the federal or their own state's constitution, unconstitutional?
For that matter, the Massachusetts legislature last year voted against a proposal to ban gay marriage in their state. Doesn't that suggest that the Massachusetts legislature has given the nod affirming the SJC's ruling?
For example, Professor Althouse states that "A polygamous marriage . . . puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple." While this is probably true in the simple arithmetic sense that ten people claiming Medicare benefits will probably get more benefits as a group than two people claiming Medicare benefits would, I wonder if it is also true in some non-trivial, non-tautological sense. Would six people claiming marriage benefits as members of two three-person unions necessarily be entitled to more benefits than six people claiming marriage benefits as members of three two-person unions? I'm not a family law expert, so maybe they would be, but it certainly doesn't seem obvious that this would be the case, or at least not in any way that couldn't be adequately addressed statutorily.
(Obviously, if surviving spouses were each entitled to some lump-sum payment from the government (rather than from the decedent's estate) upon a spouse's death, the two surviving spouses in a triad would get twice as much as the one survivor in a two-person marriage, but this (a) could probably be fairly readily addressed statutorily and (b) doesn't seem enormously, or perhaps at all, unfair even if left unremedied -- I wouldn't consider it a grievous injustice if the lump sum were payable to orphans and a set of four orphaned siblings got four times the amount paid to an orphaned only child.)
I apologize if someone else has made these points and I missed it.
For example, Professor Althouse states that "A polygamous marriage . . . puts a group of persons in a position to claim more economic benefits than the traditional heterosexual couple." While this is probably true in the simple arithmetic sense that ten people claiming Medicare benefits will probably get more benefits as a group than two people claiming Medicare benefits would, I wonder if it is also true in some non-trivial, non-tautological sense. Would six people claiming marriage benefits as members of two three-person unions necessarily be entitled to more benefits than six people claiming marriage benefits as members of three two-person unions? I'm not a family law expert, so maybe they would be, but it certainly doesn't seem obvious that this would be the case, or at least not in any way that