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More on Sexual Orientation Discrimination and Other Forms of Discrimination:

The recent posts have led me to want to post some more about the relationship of sexual orientation discrimination to other forms of discrimination. I'll probably have a post directly focused on this next week. But in the meantime, I thought I'd float a related legal doctrinal argument that I've been thinking about for a while.

Federal antidiscrimination law, as we know, generally bans employment discriminate based on race, color, national origin, sex, and religion. (I say generally because there are some exceptions, but let's set them aside now.) It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's less than half the states.

The law does, however, go beyond simply banning religious discrimination — it also imposes on employers a duty of "religious accommodation." Even when the employer has a rule that is facially religious-neutral, and not designed in order to discriminate based on religion, it must give religious exemptions from that neutral rule to religious objectors, unless the exemptions would pose an "undue hardship." So, for instance, if an employer has a flat "no headgear" rule, designed with no desire to discriminate based on religion, it must exempt people who feel a religious obligation, or likely even a religious motivation, for wearing a yarmulke or a turban or some other religious headgear — again, unless the exemption would cause the employer undue hardship. (Where's the sexual orientation discrimination connection you ask? Hold on, we're getting there.)

This duty of religious accommodation applies even to job-related conduct (such as wearing religious headgear or religious jewelry, or in some cases — where no undue burden on the employer can be shown — to taking religious holidays off, not participating in performing abortions, and so on). It would even more clearly apply to off-the-job conduct: If an employer, for instance, disapproves of the killing of animals, and has a policy of firing employees who personally participate in the killing of animals even off the job, he must exempt those who are involved in religious sacrifices. (The "undue hardship" threshold is generally pretty low, but mere personal disapproval by the employer of the employee's behavior would not qualify.)

What's more, to qualify for the exemption (again, assuming no undue hardship can be shown by the employer), the employee must merely show that his religious belief is sincere. He needn't show that it's reasonable, that it's mandated by scriptural text, or that it's shared by all or even most of his coreligionists. It is also probably enough to show that the belief is religiously motivated, even if not religiously compelled. (Finally, though it's not necessary for my argument, note that many courts have held that deeply held secular conscientious beliefs are treated the same as religious beliefs.)

So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him (Warren believes that he was born homosexual, and thinks that this indicates what God wants him to do), and important as a means of strengthening the sacred marriage relationship. I am not sure of this, but I am told that some religions — such as orthodox Judaism — do treat sex within traditional marriage as having religious significance, and being an implementation of God's will. Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance.

Ed Employer has a general policy of firing or not hiring people who engage in homosexual behavior. That policy doesn't itself violate federal antidiscrimination law, and the state in which Ed's business is located doesn't ban such policies, either. But Warren, whom Ed is threatening to fire because Warren engages in homosexual behavior, claims a right to religious accommodation: Ed may not fire me for what is to me a religious practice — unless the practice imposes an undue hardship on him which it doesn't — just as he may not fire orthodox Jews for violating a no-headgear policy, Santerians for violating a no-killing-animals policy, Catholics for violating a no-drinking-alcohol-even-off-the-job policy, and so on.

Would Warren have a viable federal Civil Rights Act claim? I would think so, and if I'm right then the Civil Rights Act already prohibits discrimination based on employees' homosexual behavior, when the employees' behavior is religiously motivated (again, unless undue hardship on the employer is shown, which seems unlikely). The same would apply if the employee doesn't belong to an organized religious group, but can sincerely assert that his behavior is motivated by his understanding of God's will. And it would probably apply even if the employee says he's an atheist or an agnostic, but believes that sex with his life partner is part of his conscientious obligations.

Now this is well short of a flat ban on sexual orientation discrimination. Among other things, I suspect that many people can't claim a religious motivation for their sexual behavior, though some people can, especially if the behavior is part of a committed partnership (though the "committed partnership" limitation reflects just my guess of when people have such sincere beliefs that sex isn't only pleasant but religiously obligatory or at least religiously meaningful, and not any categorical legal distinction).

On the other hand, I suspect that this theory provides considerably more federal protection against discrimination based on people's homosexual behavior than most people would think exists. In particular, I suspect that many fans of religious accommodation law (including especially those who have urged that it be broadened, by lifting the "undue hardship" threshold above its rather low current level) would balk at this application of that law. Yet unless I'm mistaken, the legal argument here is quite sound. What do others think about it?

(One note: I'm using "sexual orientation discrimination" above interchangeably with "discrimination based on a person's sexual behavior," because that's what I suspect is usually involved in discrimination against homosexuals, and because that most crisply implicates the religious accommodation argument I describe above. If an employer is genuinely firing someone not because of his sexual behavior, but because of his orientation, in the sense of his sexual preference even in the absence of any behavior, the legal argument becomes somewhat more complex, since religious accommodation law protects religious behavior and not pure orientation. But the post is already long enough, so let me set aside that complexity for now, and deal with what I think is the more common scenario, and is at least a common scenario — an employer's firing an employee for the employee's sexual behavior, not just for the employee's preference that has never manifested itself into homosexual behavior.)

UPDATES: (1) Some commenters suggested that the claim I describe should be a loser because no religions actually endorse it. Let me stress again: Title VII has been interpreted as protecting (subject to the undue hardship constraint) religious conduct regardless of whether it's endorsed by an organized religious group. If someone has a sincere religious belief, it doesn't matter that the belief is shared by only a few (or even by no) other people. As a practical matter, I suspect that it's easier to persuade judges and jurors of the sincerity of a religious belief if the belief is familiar, and if you belong to an organized group that endorses this belief. But judges and jurors may be persuaded of your sincerity even if your belief is idiosyncratic (and in fact many people sincerely hold religious beliefs that differ from those of the religious denomination to which they ostensibly belong).

For an example of the kind of religious reasoning that some might engage in, see this item by Episcopalian minister Robert Warren Cromey:

I believe that same sex couples enter marriage and holy matrimony when they "enter into a life-long union, make their vows before God and the Church, and receive the grace and blessing of God to help them fulfill their vows." ...

Paul's words are that marriage is the sign of the mystical union between Christ and His church. The personal and sexual intimacy between the couples speaks of a deep connection, unity and bonding. That intimacy is a sign of our oneness with God and all creatures. The exhilaration of sexual and orgasmic union reflects the creative, intimate, and explosive character of divine energy available to all human beings. That intimacy happens to same sex couples as well as opposite sex couples. It is not dependent on procreation. It is dependent on robust sexual connection, trust, love and joy....

If someone sincerely believes this, and therefore concludes that God wants him to have sex with his same-sex life partner, and refusing to do that would be against God's will, then it seems to me that the religious accommodation argument I made above fully applies.

(2) Some commenters asked what would happen if the employer's own religious beliefs mandate discrimination against gays, but the employee's religious beliefs mandate engaging in gay sex with the employee's life partner. The answer turns out to be complex, since the rules for employees' religious accommodations from workplace rules don't mirror those for employers' (and others') religious exemptions from statutes, but let me just sketch the outline.

(a) Federal laws, including Title VII, are subject to the federal Religious Freedom Restoration Act (RFRA), which presumptively entitles people whose conduct is substantially burdened by a generally applicable federal statute to a religious exemption. If the law requires you to do something that your religion forbids, or forbids something that your religion requires, that's a substantial burden. But the presumption is rebuttable if there's a compelling government interest underlying the law, and if applying the law to the objector (notwithstanding his objection) is the least restrictive means of serving the interest. The question would then generally end up being whether requiring religious accommodations in such cases serves a compelling government interest (presumably one in protecting employees' ability to practice their religions); I suspect that most courts would say "yes," but it's not 100% guaranteed.

(b) Some states (about half) have similar state RFRAs that apply to state laws, or state religious freedom constitutional provisions that have been interpreted to presumptively mandate religious exemptions. If my hypothetical Warren Worker sues under a state employment discrimination law that requires religious accommodation, the analysis would then be the same as in (a).

(c) In other states, if neither a state RFRA nor a state constitutional accommodation requirement is available, the employer has no entitlement to a religious accommodation (unless he can somehow argue that the "undue hardship" requirement should be interpreted to cover substantial burdens on his religious practice). If the state's employment discrimination law requires religious accommodation, and Warren Worker sues under such a state law, then the employer has no religious accommodation claim vis-a-vis the law, but Warren has a claim vis-a-vis the employer.

(d0 Finally, all this applies only if the employer feels a religious motivation (or, depending on how the law is interpreted, a religious compulsion) to discriminate based on sexual orientation. For some employers, this may be present; for others, this may not be. (For instance, even some employers who think gay sex is wrong, and who therefore refuse to employ gays, may not be acting out of a sense of religious duty. They may think it would be religiously fine to ignore the employees' homosexuality, but might choose to discriminate against the employees nonetheless.)

(3) For some reason, I erroneously claimed that only about half the states currently ban sexual orientation discrimination; I meant to say less than half, and I have no idea why I misstated the matter. Thanks to commenter rmthunter for pointing out the error.

Randy R. (mail):
This is an intriguing theory, but I'm afraid it would take an 'activist judge' to buy it. Still, it's worth pursuing.
However, this really wouldn't protect most gay people. It wouldn't protect those who are NOT in a deeply commited relationship, or at least those who didn't go through a ceremony of some kind. It doens't protect those who are evicted from housing because they are gay. It doens't protect people like James Dale, who was removed as a scout master from the Boy Scouts because he is gay. It doesn't protect gays from harassment in the workplace.
So from a practical standpoint, we would still need a comprehensive law to really protect gay people.
6.17.2006 6:04pm
Randy R. (mail):
One more point: It would require the court looking into the gay relationship to determine whether it is indeed a sufficiently religious based one and so on. Do we want our courts to examine whether our religious beliefs are sincere enough? And what about the atheist gay couple -- outta luck, right?

Since I would like to have a society where religious beliefs do NOT trump everyone else's rights, I would find another way to protect gay people.
6.17.2006 6:06pm
Shangui (mail):
So let's say that Warren Worker is homosexual, and is involved in a relationship that the law doesn't treat as a marriage, but that his church (or his personal religious system) treats as a marriage. Let's also say that he believes that sex within that relationship is a sacrament, intended to implement God's will for him...Warren therefore sincerely asserts that he believes that having sex with his partner is his religious obligation, or is at least an act of deep religious significance.

Maybe I'm completely wrong here, but doesn't this scenario seem very unlikely? Is this an avenue that any gay rights groups have expressed any interest in exploring? Are there any religious groups that both consider sex sacred and recognize homosexual relationships as legitimate expressions of God's will? I guess my overall question is why is this particular take on the issue worth discussing?

On a side note, given that religious beliefs are, to some extent, a set of truth claims about the physical, moral, and psychological world, it has always seemed to me that they should be LESS protected than one's sexual orientation, which certainly seems to be beyond one's choosing. I realize the issue is complicated by religions like Judaism having strong cultural/ethnic associations as well. But in the present context it seems that practice/belief is the real issue at hand.
6.17.2006 6:09pm
Closet Libertarian (www):
Yes, but ...

Their is some limit on religious expression. For instance the religions that encourage pot smoking. Certaintly this could be grounds for dismissing an employee who drives or is in charge of sesitive data. No?

How about a coworker who finds contact with homosexuals to violate their religios beliefs? Seems like the same arguments would apply. When does one workers expression of religious freedom impede anothers'?
6.17.2006 6:10pm
Allen Asch (mail) (www):

And what about the atheist gay couple -- outta luck, right?

A recurring problem with religious accomodation is the unfair benefit it gives to the religious. Why should religious gay people be free from job discrimination, but, "the atheist gay couple [is] outta luck?"

There's usually a better way than religious accomodation. See, e.g., a more belief neutral law like the one described here: Section 96(k) of the California Labor Code
6.17.2006 6:23pm
SLS 1L:
Interesting argument, Professor. Does this mean it would be illegal to fire the some employees for having gay sex, but legal to fire the same employees for being gay?

In any case, I suspect most of these firings are orientation-based, not sexual-activity-based. For example, the employee is spotted at a gay bar, or announces that they're gay. I suspect there are exactly zero such firings in which the employee would not have been fired if the employer had learned the employee was sexually inactive.
6.17.2006 6:31pm
jimbino (mail):
It is a mystery to me that Jews and Muslims can get away with genital mutilation on the basis of their religion while a Mormon can't have two wives. If a person is a nudist living his naturist family life in a nudist colony, can he be fired by an employer who dislikes nudity? Can he be charged with child pornography when he takes family photos? Here in Austin, an art teacher is about to lose her job just because some semi-nude photos of her were published on the web.

Amerika is a strange place where everyone wants to preserve the fully clothed heterosexual christianist nuclear family while half are getting divorced and sharing children among families, especially in those most christianist states.
6.17.2006 6:37pm
AF:
The problem is that your hypothetical religion does not exist. There are many similar arguments one can make of the form "the Civil Rights Act already prohibits discrimination based on [x] when the employees' behavior [in doing x] is religiously motivated." But that's not so helpful if no existing religion practices x. And those who invent a religion in order to be allowed to do x usually fail the sincerity test.
6.17.2006 6:38pm
logicnazi (mail) (www):
Rather than showing some particular imposition or duty imposed by homosexuality or homosexual accepting religions on employers I think your argument just illustrates a general problem with the religious accommodation rule. There is no pivotal role that sexuality is playing in this discussion, if people started sincerely believing they were religiously required to sing 'It's a small world' every 15 minutes through the day there would be a similar issue.

I've always thought the accommodation rule was of questionable merit and perhaps even a violation of the first amendment. From both a policy and constitutional standpoint it is troublesome because it gives special privileges to religious people. If, as an atheist, I feel compelled to engage in a certain sort of activity and perhaps even feel morally obligated to do so I (as I understand the law) receive no protection. However, if I am religious and claim my behavior is religiously motivated I get extra protection.

As if this wasn't bad enough this sort of law puts the government in the dangerous position of sorting out subtle questions about what constitutes a religion and what constitutes sincere belief. These aren't just the standard interpretational difficulties with free exercise claims, here the government (or at least a judge) is forced to delve quite deeply into an individuals religious convictions and draw lines between different sorts of convictions.

Just for starters there is the obvious problem of deciding what counts as a religion. Do non-supernatural forms of Buddhism count as a religion? If so what about an atheist's moral philosophy? If I'm something like a (warped/misconstrued) Platonist and just believe the universe needs to be brought into alignment with some ideal is that a religion?

More problematically this law requires subtle distinctions about what counts as a religious belief. Many theists take moral claims to ultimately derive their force from god's will (things are good or bad because god approves/disapproves). So there is a very real sense in which every moral judgment or choice of behavior is a sincere exercise of religion. If they believe it is wrong to call an employer 'Sir' (say because it causes rich people to take themselves to seriously they are ultimately saying you shouldn't call an employer sir because god will disapprove. Of course this isn't a religious commandment in a certain sense but how do you differentiate it from someone whose religion (some kind of Buddhism) commands them to minimize/alleviate suffering and as a result has a sincere belief they shouldn't eat animals. In both cases the individual infers violation of a religious commandment by some action (eating meat/saying sir) because of some deductions about the world (killing animals for food causes more suffering than pleasure/saying sir causes some social harm) yet most people wouldn't want to treat the situations similarly under this law.

In short either this law amounts to saying if someone really really cares about something then they have to be given accommodation or it breaks down into a morass of subjective judgments about what counts as a religious motivation versus what counts as a non-religious motivation that ultimately rests on religiously motivated principles.

The government just shouldn't be in the business of deciding whether something is a religious belief or giving extra protection because someone justified their beliefs in some particular manner. This situation with homosexuals just illustrates this underlying problem with the law.
6.17.2006 6:39pm
logicnazi (mail) (www):
Ohh, I don't necessarily mean to accuse you (Prof. Volokh) of thinking that homosexuality is special in this regard. I think you might just be sketching out an interesting legal point and using sexuality because it has come up recently. However, I wanted to make sure the point was stressed that it isn't homosexuality that plays the critical role here but the fact that any group that believes some moral claim strongly enough will sincerly adopt that claim as part of their religion and then will recieve protection under these laws.
6.17.2006 6:44pm
SLS 1L:
AF, inventing your own religion wouldn't work, but it probably wouldn't be that hard for members of some very liberal and well-established denominations. There are surely at least some Quaker, Unitarian Universalist, or United Church of Christ congregations that take that view, or a similar one, and whose leaders would be willing to testify to it.
6.17.2006 6:49pm
Bruce Wilder (www):
". . .any group that believes some moral claim strongly enough will sincerly adopt that claim as part of their religion and then will receive protection under these laws . . ."

This interpretation of religious accomodation turns the fundamental principle of non-discrimination on its head, by creating a privilege for the religious.

Banning discrimination on the basis of sexual orientation or sexual behavior or race or gender creates no privilege, since everyone has a sexuality, a gender or race.

Religious accomodation ought to facilitate protecting everyone from religious discrimination, and nothing more. As soon as you have recast religious accomodation as a privilege, which is only available to those certified as religious, you've lost me.

I really do not see how religious accomodation even applies to worker behavior that takes place entirely apart from the workplace or work roles.
6.17.2006 7:01pm
noto:
very interesting post. this is what keeps me coming back to this blog.
6.17.2006 7:14pm
frankcross (mail):
Interesting, but I can't believe it will fly.
There was actually a pretty strong case made that sexual orientation discrimination was a form of gender discrimination, based on a line of cases saying that you couldn't be fired based on your associations (e.g, you couldn't fire a white for marrying a black).

However, the courts found that sexual orientation was a separate category and took note of the past efforts to add orientation as a protected class and said that Congress affirmatively meant for this not to be protected.
6.17.2006 7:26pm
GreggJohns:
Okay, here is another example. See my link.
6.17.2006 8:13pm
GreggJohns:
Well, lets try again. www.saneworks.us - What Ever Happened to Religious Freedoms?
6.17.2006 8:18pm
A. Zarkov (mail):
I'm not sure how Warren Worker needs to be accommodated, since this is all about what he believes, and not what he actually does. Under the EV theory virtually any belief needs "accommodation." Suppose an employer has a rule, "what ever you believe, shut up about it since I need to run a business free of conflict among employees." Has he failed to accommodate? Or does he have to allow just enough behavior so Warren can express his beliefs on the job? When Warren is off the job, he still has to engage in some kind of behavior to express his belief. If this behavior is public then we again get the potential for conflict because another employee might observe Warren's expressive behavior. If Warren's behavior is purely private then the question is moot. We are still left with the problem where Warren accidentally reveals his belief. This makes everything more complicated because we would need a standard of how careful Warren must be to conceal the conduct that expresses his beliefs.

BTW I can't think of any traditional religion advocates sex completely divorced from procreation. Most religions want to continue to exist, so its adherents must reproduce. The Shakers did believe in strict celibacy, and what happened to them? They were down to twelve by 1920. Essentially all that's left of the Shakers is furniture.
6.17.2006 8:26pm
picpoule:
What if a homosexual thinks it's part of his or her sincerely held religious belief to engage in sex with a 15 year old, which is legal conduct in some states. What if the militant homosexual lobby succeeds in reducing the age of consent laws further to, say, 12 year-olds or 8 year olds. I don't think this would be accepted by the majority of American employers, even if it became law in some states. I know the hypo deals with federal law, but I think there are some employers who would draw the line somewhere below where the law might be. It would seem very heavy handed under the above scenariio to mandate that employers keep someone employed, even if their sexual conduct with youngsters was motivated by deeply held and sincere religious beliefs.
6.17.2006 9:04pm
NickM (mail) (www):
Americans with Disabilities Act protection could also apply to Warren Worker - all it takes for coverage within the scope of the act is being perceived to have a condition that substantially interferes with a major life function. Of course, a win under an ADA theor for Warren could make almost everyone else unhappy - those people wishing to be allowed to fire gays for being gay would likely be prohibited from doing so, and most gays don't want to be thought of as having a disability.

Nick
6.17.2006 9:24pm
Smitty18 (mail):
I think we should eliminate all anti-discrimination laws for the following reasons:

1 Our trade partners aren't subjected to the same laws or liabilities, with free trade we'll lose.

2 All of our anti discrimination laws are predicated on the assumption that personal bias will exceed greed, the effects of irrational discrimination would immediately result in a surplus of discriminated against workers, greed of non-discriminating employers would equalize any bias and deliver huge profits to a non-discriminating employer with "discounted discriminated against workers". One only has to look at the massive employment levels of illegal immigrants in the millions to prove my point, employers would rather employ criminal aliens over fellow citizens to save a buck, greed even exceeds nationalism.

3.Anti-discrimination laws should only be limited to government workers, government should be required to employ of the most effecient capable worker for the least amount of money without regard to "club membership" or political affiliation (unions) or race, they have a fiduciary duty to get the most for the people's money.
6.17.2006 10:45pm
Smitty18 (mail):
Oh I forgot the employer's private property rights too, if you want to discriminate with your business you should be allowed to without penalty of economic annihilation from the state.
6.17.2006 10:48pm
Smitty18 (mail):
I'd much rather live in a country where you can switch jobs from a hostile employer and find a new job than live in a country where there's only one employer whose not allowed to discriminate.
6.17.2006 10:53pm
A. Zarkov (mail):
Smitty18:

Steven Landsburg makes a nearly identical argument in his book "Price Theory." An employer needs a virtual monopoly to engage in invidious discrimination against a qualified group. Let's suppose a law firm does not want to hire Jews or it underpays the Jewish members of its staff. To sustain this policy the firm would need to be a member of a cartel that agrees to not employ, or under pay Jews. We know what happens to cartels: they break up when someone breaks ranks. Or a new firm could form and hire the unemployed Jewish lawyers at below market salaries and grab the other firm's clients by offering the same or better legal services at cheaper rates. The same applies to homosexuals who make just as good lawyers as anyone else. They don't need any legal protection at all. If you think some group needs anti-discrimination protection under the law, then you are implicitly saying that on average they are less qualified than the unprotected groups. This is a rather unpleasant truth that our pandering politicos are loath to admit.
6.17.2006 11:10pm
Medis:
A. Zarkov,

Of course, many notable (and successful) religions advocate celibacy for SOME people (eg, Catholicism). So while I agree that a religion which advocated that EVERYBODY should ONLY have nonreproductive sex would be unlikely to last for long, there is no reason why the same logic would apply to a religion which taught that only SOME people should have nonreproductive sex.

picpoule,

The problem in that scenario is not employment law. It is the state which decided to lower the age of consent to 8 (which, incidentally, is not going to happen, so I wouldn't lose any sleep over it).
6.17.2006 11:23pm
logicnazi (mail) (www):
picupole, There is no 'militant homosexual lobby' trying to get the age of consent lowered. Those of us who don't see any substantive/relevant difference between hetero and homosexual sex just think that the age of consent should be the same for both genders. Just as if they tried to say you had to be 18 to sleep with someone of another race but only 16 to sleep with someone of the same race people would be outraged by the implicit suggestion that interracial sex was worse/more dangerous people here are outraged by the suggestion that children need to be protected from homosexual sex more than from hetero sex. I mean hell, at least homosexual sex doesn't cause teen pregnancies.

Besides, the logic of your argument is totally flawed so it wouldn't be convincing even if your facts were right. What we are talking about is a law the fact that legislators could later pass other laws that together with this one create bad effects isn't problematic. They could just pass the laws with bad effects directly too. I mean this is like arguing laws against murder are bad because a later legislature could define deer to be people and thus make hunting a felony.

--

On another point I don't think the fact that religions created just to get special benefits won't count is really much help at all. This just means that people who don't really care alot about some issue can't get special privleges. If people care enough about some issue then it will eventually work it's way into their religious teachings and practices, at least for some of them.

Unless you want to start telling some buddhists their vegetarianism doesn't count as a religious belief because it is only a debatable consequence of their commitment not to cause suffering not a religious axiom then anything people feel strongly about and start talking about in church/spiritual meetings will end up being protected in this fashion.

Or to put it differently if you only count articles of faith as valid religious observances then many intuitively religious practices won't get protected. On the other hand if you allow things that are merely consequences of articles of faith combined with beliefs about how the world works (eating animals increases suffering) then you no longer have the ability to draw any principled distinction between religious practicies/observances and moral judgements as for most people moral judgements ultimately rest on religious principles. In effect the basic test collapses down to how convinced the person is they are right and how strongly do they feel on the subject (is it something up for debate or are they certain enough to die for it).
6.17.2006 11:33pm
Medis:
By the way, some quick googling led me to discover that several people have endorsed the idea that "coming out is a sacrament" for gay Christians. Also, people interested in this subject should check out the "Metropolitan Community Churches".
6.17.2006 11:50pm
byomtov (mail):
If you think some group needs anti-discrimination protection under the law, then you are implicitly saying that on average they are less qualified than the unprotected groups. This is a rather unpleasant truth that our pandering politicos are loath to admit.

Nonsense, Zarkov.

In a society that systematically discriminates against members of a minority this just doesn't hold. Consider a racist society, such as the Jim Crow South, where white law firms refuse to hire black lawyers. In such a society it doesn't matter how brilliant a black lawyer is, because clients don't want a black lawyer.

What about black clients? Sure, he will get black clients, but remember that they will generally be poor and uninfluential, and will lose lawsuits against whites regardless of the merits. Not exactly a recipe for big-time success.

This "discrimination can't exist" argument, so beloved of libertarians, is hogwash.
6.18.2006 12:03am
frankcross (mail):
Zarkov's point has some truth. This is evidenced by the Jim Crow laws, which had the effect of legally enforcing the cartel, perhaps out of fear that the private racism cartel might otherwise break up.

That said, it's overstated and byomtov's point also has some economic validity. A black fellow may be the best salesman, by market standards, but if the clientele is racist, he will fail in the market. I think it was Richard McAdams who wrote a good law review article demonstrating this effect.
6.18.2006 12:15am
Dave Hardy (mail) (www):
What is your sexual orientation is generally Eastward? I can't help it, it's how they designed the master bedroom.
6.18.2006 12:21am
A. Zarkov (mail):
byomtov:

"Consider a racist society, such as the Jim Crow South, where white law firms refuse to hire black lawyers."

You're trying to switch the subject. The laws of the Jim Crow South created the cartel. Of course the government can victimize a group. I'm talking about anti-discrimination laws that apply to the private sector, not the very system of laws that create apartheid.

"in such a society it doesn't matter how brilliant a black lawyer is, because clients don't want a black lawyer."

A white client would reject a brilliant black lawyer who charges $150 per hour, in favor of an average white lawyer at $400 per hour? Do you really believe that? Besides the big bucks are in business and corporate law and money talks. How long do you think it would take me with a firm full of brilliant black lawyers working for a fraction of the going rate to put my competition out of business? In the real world we have today.
6.18.2006 12:30am
Charles Iragui:
Practically and legally, aren't religions a social phenomenon, not a philosophy towards life? Until a sect emerges to which Warren Worker can adhere, it doesn't seem that he has a religion to protect.

Attempts to game income tax by creating "religions" have long existed. This would seem to be a first hurdle: could his "religion" (assuming a bunch of like-minded individuals founded a religious organization) achieve tax-exempt status?
6.18.2006 12:32am
A. Zarkov (mail):
logicnazi:

"Those of us who don't see any substantive/relevant difference between hetero and homosexual sex ..."

Unless I'm missing something there's a big difference: you can get children with heterosexual sex, and you can't with homosexual sex.

The community has an interest in seeing citizens reproduce: the survival of the community into the future. That's the basic reason we grant benefits and privileges to married couples. What's the benefit to the community from male homosexual marriage or male homosexual civil unions? Very little to none. I suppose one could argue it makes certain individuals happy, and a happy community is a good community, but lots of things make people happy and we don't feel obligated to support them with our tax dollars. A lesbian couple is a different story—they can produce children and raise them. While two men can adopt, they can only adopt someone else's child. Their relationship and sexual activity are necessarily sterile, at least in the technical sense.
6.18.2006 12:33am
byomtov (mail):
frankcross,

I don't think the Jim Crow laws were needed to enforce the cartel. I think they simply reflected the attitudes of the vast majority of white southerners, who were after all the only voters. Sure, the laws did stop white restaurateurs from serving blacks, for example, but very few were going to do that in any event, probably not enough to break the cartel.

It is important that even non-racist restaurant owners weren't going to serve blacks, because to do so would be economic (and possibly physical, but let that go) suicide. This is a critical point - racism was systematic, not idiosyncratic.

This means, among other things, that arguments like Zarkov's about employment fail because they do not recognize that the economic productivity of an employee is not merely a function of the employee's diligence and abilities, but may be limited by racist attitudes. To argue that "productive workers will always be hired" is to ignore the impact of racism on productivity.
6.18.2006 12:47am
Fishbane (mail):
Our trade partners aren't subjected to the same laws or liabilities, with free trade we'll lose.

Are you really asserting that it is a competitive disadvantage to not have the ability to discriminate on characteristics that don't have anything to do with job function? (Put aside cases where there is a definite negative effect on job performance, such as missing hands for a typist, a blackmail-able closet case for a security job, or a radical fundie for a pharmacist.)
6.18.2006 1:07am
A. Zarkov (mail):
byomtov:

"... the economic productivity of an employee is not merely a function of the employee's diligence and abilities, but may be limited by racist attitudes."

The brilliant black engineer will get patents, which make money for his employer. The brilliant black lawyer will win cases. The brilliant black author will sell books. The patent office doesn't grant patents on the basis of the race of the applicant, and the market does not reject an invention because the inventor was black. Don't you realize that the universal imperative of American society is making money? Does racism stop the public from shelling out big bucks to watch black boxers, basketball players and rock stars? And so on.

The problem is getting people to believe someone is brilliant in the absence of an objective scoring system like we have in professional sports. The affirmative action system also stigmatizes people. It's natural to ask, if you're so brilliant why do you need affirmative action?
6.18.2006 1:31am
Bob Van Burkleo (mail):
Wouldn't Lawrence with is privacy shield work both ways? That we can't peek in your bedroom but conversely you can't use what happens in that shielded bedroom to justify social abilities and benefits? I think this hypothesis is an interesting thought experiment, but not one that ultimately would be useful to many even if it worked.

As to Zarkov's opinons, of course the question of 'what good is it to the community?' is erroneous - the government exists to serve the individual first, not the community - a community is just a bunch of individuals and has no real existence other than a convenient concept placeholder. One of our government's most important qualities is its mandate to treat its individual citzens equally support their rights equally, and that they all have equal access to its features. Gay couples marry and the state licenses a contract in support of marriage, it would have to show why they shouldn't have access. Are gay citizens and their families better off married? Absolutely. Is society better off with them married? I think most would agree that's true too.

As to the 'breeding' aspect, there is no indication that breeding is inhibited by lack of state sanctioned marriage. Marriage is important to child rearing, which all married couples can do regardless if they are the child's genetic contributors or not. Making all married couples homes as best suited as possible for the possibility of child=rearing is a reason for marriage equality.

And the gay couples marriage would not be being supported by 'our' tax dollars, they are being supported by gay tax dollars. Please, don't say that gay people are required to subsidize straight married couples but can't their own. Since all indications show that the marriage rate for gays will be relatively lower than straight, the current situation is even more a systematic inequitable subsidizing of one population of citizens by another, a subsidization that only occurs because one group is denied reasonable access to a government feature licensed in support of a natural human right both groups have.
6.18.2006 1:43am
Ken Arromdee:
Or a new firm could form and hire the unemployed Jewish lawyers at below market salaries and grab the other firm's clients by offering the same or better legal services at cheaper rates.

The real problem with this idea is that you can't legislate what people find valuable. If an employer doesn't like blacks working for him, then black employees are less valuable to him. It's true that this reduction in value is an intangible and in no way affects the quality of the black person's labor, but it still isn't immune to market forces. People pay for intangibles all the time, and the market sets the price of these intangibles; the market can set the price for "labor by blacks" as less than "labor by whites" just fine, since the blacks can't unbundle the labor proper (which is equally valuable when done by blacks and whites) and the negative-value "pissing off racist employer" that white employees don't need to worry about.
6.18.2006 2:10am
zarevitz (mail) (www):
And what if the employer's conduct (i.e. firing gay employees) is based on his own religious beliefs? Wouldn't those antigay religious beliefs get some kind of protection and "accomodation"?
6.18.2006 7:35am
scepticalrepub:
I don't understand why you belabor the "committed relationship" aspect of the gay person's sexual proclivities. Suppose a hetersexual woman decides to join the Cult of Venus and engage in what most folks consider orgies and/or wife swapping. Doesn't her refusal of a committed relationship also demand accommodation? I believe this was an acual case a few years ago where a school teacher was arrested in a swinger's club in Broward County, Fl.
6.18.2006 9:38am
rmthunter (mail) (www):
Just a point of fact:

It doesn't on its face ban sexual orientation discrimination; some state laws do, but at this point it's only about half the states.

As it happens, Illinois was the fifteenth state to adopt a gay-inclusive civil rights law, as of last year. There may have been one more since, but if so it's dropped into my personal memory hole. Somewhat less than half, all told.
6.18.2006 9:40am
PersonFromPorlock:

And what if the employer's conduct (i.e. firing gay employees) is based on his own religious beliefs? Wouldn't those antigay religious beliefs get some kind of protection and "accomodation"?


Good point. To carry it a bit further, suppose the employer's religion requires him to fire workers he discovers are gay; wouldn't he be able to, even where there are laws protecting gay employment?

The problem is that the claim of 'religion' doesn't protect gay sex, it protects 'x'. Gay sex is one 'x' and anti-gay sex is another; and so is anything else we can imagine -- and its opposite. This is why it's both practically and Constitutionally necessary to avoid vague laws.
6.18.2006 9:52am
JGR (mail):
I think many of the commenters here have overestimated the "bizarre" factor in a religion that sanctions gay union. As SLS 1L notes above, there are ALREADY liberal christian churches that explicitly recognize gay union, and as a matter of fact, I don't think most of them were explicitly thinking of helping their gay congregants in future anti-discrimination lawsuits.
In 1990, the Special Committee on Human Sexuality of the Presbyterian church released a 200 page report that sanctioned homosexuality and led to a funny essay by Camille Paglia ("The Joy of Presbyterian Sex"). Wrote Paglia: "The report is so eager to argue away the inconvenient facts about Christian morality about sex that one has to ask the committee members, Why remain Christian at all?" Of course, this perfectly raises one problem in discussions like this - Many of the commenters here seem to be assuming that religion divides more or less smoothly into two groups - people (such as fundamentalists) who have so incorporated religion into their lives that it is obvious that they are religious, and everybody else. In fact, most religious people fall somewhere in the middle. They pick and choose what tenants to follow, how seriously to take this or that - But they STILL consider themselves religious. The gay Christian is in reality not that different from the Christian who knows that he is required to tithe 10 percent of his income to the church but decides he will forgo that one commandment, coming to his own terms with how seriously he will take everything in the bible. As most of the commenters have recognized, the accomodation laws are inherantly a nightmare and are always going to be somewhat arbitrary because no judge can know what is actually going on in someone's head.
6.18.2006 10:05am
Medis:
On the market forces eliminating discriminatory employment point:

A lot of this comes down to a pretty basic question: how much, cumulatively, are people (owners of capital and consumers) willing to pay in order to indulge in discriminatory practices? And note that when you are talking about discriminating against minorities, it doesn't take much willingness to pay-to-discriminate on a per person basis for any such cumulative effect to outweigh the other marginal economic advantages of hiring more qualified minorities. To put this point more intuitively, if you have a preference for an all-white workforce, then the marginal productivity benefits of adding a few exceptionally qualified black workers coudl be outweighed by this exclusivity preference. Similarly, if there are crucial leverage points where discriminatory practices can be magnified through to later points (eg, discrimination at entry-level hiring can have magnified effects during lateral hiring), then again just a little willingness to pay-to-discriminate can go a long way.

In any event, these are nontrivial empirical questions, and therefore I don't think we can reach any conclusion on an a priori basis.
6.18.2006 11:19am
Ciarand Denlane (mail):
The argument sounds like either a stretch -- or one limited to very special cases -- essentially for the reason identified by SLS 1L: The employer can say that he is firing the employee for being gay rather than for any conduct that raises a question of accommodation. To be sure, the employer's saying he is making that distinction could be challenged, but it's likely in most cases to be a more plausible, if less worthy, claim than most employees' claim that having sex is required by their religiion.
6.18.2006 11:42am
SLS 1L:
A note on the discrimination thread: I think there are several problematic assumptions underlying this thread, but I'd like to focus on one. The neoclassical analysis of racism people have mostly been relying on analyzes racism as a "taste" for discrimination. While not thinking this is incorrect, I think racism also takes the form of a cognitive bias, namely the tendency to systematically undervalue members of certain races. For example, racist white people will be more critical of the work of black employees and potential hires. If a black employee does something that everyone has to admit is good, their bias will lead them to give the credit to a white person. If they purchase a good or service from another company, they'll be more critical if they know the person providing the service is black.

Because this is a cognitive bias, people will tend not to realize this is what they're doing: as far as they (and everyone else, if the society is sufficiently racist) can tell, the black workers are just worse. If this is a correct analysis (and I think it is) then someone who wants to "break the cartel" by hiring lots of black people is going to have a very hard time. It will be hard to find capital because capital markets will undervalue the company. Suppliers will be less willing to do business with a "black" company that they will assume is not going to pay on time. Customers will undervalue the service provided.

To be clear, I don't take this as an exhaustive analysis, but I think it is a component.
6.18.2006 12:10pm
byomtov (mail):
Does racism stop the public from shelling out big bucks to watch black boxers, basketball players and rock stars? And so on.

Yes it does, or rather it did for many years. You've chosen a terrible example for your argument.

Major professional sports (except, to a limited degree, boxing) in this country were totally segregated until mid-20th century. Why were there no black players in major league baseball before Jackie Robinson? There were plenty of outstanding players, and they were easy to find. Just go across town and watch a Negro League game. They weren't brought into the majors precisely because the public was unwilling to shell out big bucks to watch them, other team members didn't want to associate with them, etc.

Engineers do not work in isolation. They have co-workers. If those co-workers are uncooperative the engineer isn't going to accomplish much. Besides, even if the occasional genius can break through what about the average individual? Racism will seriously hamper that person's ability to be productive.

And there is a secondary effect. You don't get to be a brilliant engineer or lawyer overnight. You have to put in years of study. If, because of your race, you face sharply restricted opportunities you might decide the effort is not worth it (even assuming you have access to the relevant education).

Medis points out that a "taste for racism" will often outweigh the marginal benefits of hiring a superior minority worker. True. But my claim is even stronger. It is that in some cases the effect of market forces is to encourage racist behavior rather than weaken it. A store owner may be quite willing to hire black salespeople, but if customers don't want to buy from them then the market pressures lead to employment discrimination.

The point to note is that, despite the wonderful textbook analyses, employment discrimination has a long and rich history. It is not a matter of isolated incidents. To argue that economic forces eliminate it flies in the face of the historical evidence.
6.18.2006 12:54pm
SacDavid (mail):
This is exactly the argument I thought should have been used nine years ago in the 11th Circuit case of Shahar v. Bowers. A Deputy Attorney General named Robin Shahar invited some people at her office to her Jewish committment ceremony, which was clearly a religious celebration of their partnership. The Attorney General (the same Bowers from Hardwick fame) fired her.

The case was argued, for reasons that were never entirely clear to me, based almost exclusively on the right to intimate association. While I think there is caselaw that would have supported, and still does support that theory (though it proved to be a loser), the very explicit religious nature of the event seemed to me to bring the question of religious discrimination into the foreground.

The case also raised the question of how some people focus on sexual activity within same-sex relationships to the exclusion of other equally important factors, such as intimacy, commitment, love, and the raising of children within a two-parent household. To the Georgia Attorney General, the only thing that mattered was that his deputy's committment ceremony meant that she would be engaging in sex with her partner, and because that was against the law in Georgia, nothing else mattered. As I recall, there was no such evidence on the record, but such evidence was deemed unnecessary, in a way that has few parallels for heterosexual couples.

While it is true that not all same-sex couples have religiously based commitment ceremonies, the ones who do certainly should be entitled to argue that any discrimination based on that would, at a minimum, be at least in part be a violation of their religious freedom. As some people have argued above, though, this does raise the problem of how gay atheists who have a non-religious philosophical basis for their belief that their relationship is proper or moral should be treated without violating the establishment clause.
6.18.2006 1:05pm
Ken Arromdee:
Customers will undervalue the service provided.

I'm not convinced of this because I'm not convinced that's a good definition of "value". It seems to me that if a customer is willing to pay less for something, it by definition has less value to that customer.
6.18.2006 1:42pm
Ken Arromdee:
To the Georgia Attorney General, the only thing that mattered was that his deputy's committment ceremony meant that she would be engaging in sex with her partner, and because that was against the law in Georgia, nothing else mattered.

The problem here is the law which makes it a crime, not the idea of picking and choosing minor aspects of the ceremony to be offended by. If a religion had a "filching ceremony" where a member praises pickpocketing and where it was generally understood that participants in the ceremony would be picking pockets, it would be fair to fire someone who participates. It wouldn't matter that the ceremony may involve a lot of other things and commitment to the illegal activity is only a portion of what it's about.
6.18.2006 1:47pm
Hamilton Lovecraft (mail):
{Male homosexuals can't have children} ... A lesbian couple is a different story—they can produce children and raise them. While two men can adopt, they can only adopt someone else's child. Their relationship and sexual activity are necessarily sterile, at least in the technical sense.

Those statements are ridiculous; male homosexuals frequently go through a period of denial where they marry women, have unenjoyable sex, and produce children before coming out. Homosexual men can also inseminate women volunteers with their sperm in order to have a child biologically related to them, in exact analogy to the way in which a woman who engages in exclusively lesbian behavior can be inseminated.
6.18.2006 1:52pm
Hamilton Lovecraft (mail):
The community has an interest in seeing citizens reproduce: the survival of the community into the future. That's the basic reason we grant benefits and privileges to married couples.

Yet when a male-female couple comes to the courthouse to get their marriage license, we do not require, nor even inquire, that they intend to have children; we do not require that they intend to engage in uncontracepted sex, we do not require that they intend to engage in sex of any kind, we do not require that they love or even like one another.

Moreover, we do not inquire about their sexual orientation, and if they specifically told the clerk they were gay and lesbian, the clerk would not be able to refuse them a license.

If Arthur, Barbara, and Charlie come to the courthouse together, tell the clerk nothing about themselves, and ask for a license for Arthur and Charlie, they are refused; if they ask for a license for Arthur and Barbara, they are permitted. The clerk and the state know nothing of these three people except their genders. Has anyone attempted to litigate this as pure gender discrimination?
6.18.2006 1:57pm
A. Zarkov (mail):
"Yet when a male-female couple comes to the courthouse to get their marriage license, we do not require, nor even inquire, that they intend to have children ..."

So what? We don't have to, and it would be too much trouble to do so. At one time (if not still) at least 90% of women married and bore children. It other words, there was sufficient voluntary compliance with the basic reasons for marriage to make such inquiries unnecessary. You cannot get away from it. The core reason for the institution of marriage is the production and rearing of children. Look at how the law treats the marital relationship. You can annul a marriage if the other party represents himself as fertile when in fact he knows he is sterile. There are very few frauds that qualify as the grounds for annulment. For example if one party misrepresents his income, the other party cannot use that fraud as the basis for an annulment. In some jurisdictions the mere refusal to have children is grounds for annulment.
6.18.2006 4:06pm
A. Zarkov (mail):
"Those statements are ridiculous; male homosexuals frequently go through a period of denial where they marry women, have unenjoyable sex, and produce children before coming out."

You have truncated the context here, and I never made the statement within the brackets.
The original statement to which I responded to was:

"Those of us who don't see any substantive/relevant difference between hetero and homosexual sex ..."

I said, "you can get children with heterosexual sex, and you can't with homosexual sex." The reference is to the act not the person.

"Homosexual men can also inseminate women volunteers with their sperm in order to have a child biologically related to them, ... "

The male homosexual union does not produce any children; the parties have to go outside the relationship to get a child. The individual men can produce children, but the union itself does not add to the net reproductive capacity of the community. With lesbians the situation is a little cloudier. You could argue that a lesbian marriage would encourage at least one of the women to bear children. So the lesbian union adds to the reproductive capacity of the community. The community really has no interest in promoting male homosexual unions from the standpoint of sustaining the population. It comes down to basic demography. The number of fertile women who live to childbearing age and choose to have children determines the increase or decrease in the population. Why do you think demographers base their models on female children per woman?

Today much of the western world is shrinking, because the number of children per fertile woman is below replacement. The figure of 2.1 children per woman as the bare replacement level is the average over all women married and fertile or not. For fertile women the average is 2.36. These numbers are from 1967 data and carry the unverified assumption that 10% of women are either physically infertile or choose not to have children. See Applied Mathematical Demography by Nathan Keyfitz. I don't know what current realistic numbers are, but we are certainly in danger of entering an era of decreasing population.
6.18.2006 4:57pm
Charles Iragui:
Should a judge really be put in the position of deciding when a person's vision of existence qualifies as a religion susceptible to protection against discrimination? By saying that an organized religion is unnecessary, this seems to be the case.

At times the gay movement does seem like a religion, but is this so in a way materially different from, say, Communism? The free exercise clause was not a protection of adherence to political or other groups (and ideas), only to religions.

I think the intent here is to distinguish gay political activism and Warren Worker's perception of the world, including a transcendental need to have a gay relationship. Without a sacramental context (eg one of the liberal churchs mentioned), on what judicial standard could these claims be assessed?

From this perspective, this question seems very much a part of the broader question of the judicial power. The joint opinion in Casey comes to mind.
6.18.2006 5:30pm
Bob Van Burkleo (mail):
You cannot get away from it. The core reason for the institution of marriage is the production and rearing of children.

No the core reason for marriage is our vasopressin/oxytocin mammalian pair-bonding response. If humans weren't potentially monogamous by nature we wouldn't have an 'institution' of marriage. And since we let the knowingly sterile license the contract, and in some states require some contract signers to be infertile, it would be unethical, immoral, and probably illegal to say that some infertile couples can marry and some can not. 14% of the current contract holders never pass on their genes for one reason or another - it would be pretty hard to say that it was more important that not increase by a percent or 2 at most than allow all citizens equal access to government in America.

Making all marriages better environments for raising children is a reason for marriage equality, not restricting it - 33% of lesbian households are raising children, 22% of gay households.
6.18.2006 5:59pm
Medis:
We have gone through all this before, and I once again suggest that people check out Dale Carpenter's work on how marriage benefits society even when children are not created by the couple.

Also, for anyone truly worried about replacement rates: you are wasting your time worrying about gay marriage. You need to focus on the factors which are actually causing a lower birth rate, including most notably urbanization and a fall in teen pregnancies.
6.18.2006 6:11pm
SacDavid (mail):
Ken Arromdee

Your point only reinforces how things are now quite different. The crime in Shahar v. Bowers was sodomy, which applied to both heterosexuals and homosexuals in Georgia at the time. It was act-specific, not gender specific.

That is no longer the case. If gays can no longer engage in criminal sex if their relationship is adult and voluntary, the focus of a case like that (which is what Eugene is looking at) becomes more specific -- the sexual behavior is not a crime, so does the religious fact of the ceremony weight a bit more heavily in the discrimination claim? I can't see how it wouldn't.
6.18.2006 6:46pm
Eugene Volokh (www):
Folks, you can criticize fundamentalists -- or Catholics or Muslims or whate have you -- on substantive grounds all you want on this site, but please avoid terms such as "fundie," just as you'd avoid "Papist" (yes, I know that's a little archaic) or "raghead." There may be subtle differences in just how pejorative each term is; but my sense is that all are pejoratives, and argument by pejorative isn't terribly productive of substantive discussion.
6.18.2006 7:08pm
jb:
Homosexuals should be careful what they ask for. The USA has a truly shameful history of open bigotry against and discrimiatory behavior toward Jews, Italians, Irish, Chinese, Germans, and people from multiple other originating countries. Ditto for Americans of African descent and Native Americans. All those people except the last two have overcome these handicaps and have assimilated into and excelled in American society. What do blacks and Indians have in common? Active Federal government programs to "help" them. I'm very grateful there was no affirmative action for Jews. Do the homosexuals really want help from the government?
6.18.2006 8:02pm
Randy R. (mail):
No, we don't. We don't ask for reparations. We don't ask for welfare benefits. We don't want to be placed on reservations. We don't want quotas. We don't want any sort of preferential treatment. We don't want to force every religion to bless our unions or even accept us.

All we are asking for is the exact same rights that everyone else has -- no more, no less. You got the right to marry? We want that. You got the right to have a job or live in an apartment? We want that. you got the right to have sex? We want that (and now finally we do!). You got the right to tell your peoples' stories in schools? We want that right.

And don't forget -- when you say 'the homosexuals', just remember that you might have a cousin, a child, or an uncle who is gay. Most likely someone in your extended family is, or will be. So be careful what you say about homos -- you might be refering to someone you know and love.
6.19.2006 12:35am
Randy R. (mail):
Although no gay group or person I have ever heard has asked for affirmative action, bear in mind that all the groups you listed -- the jews, irish, chinese and so on -- benefit from our laws which prevent a person from being fired or denied housing based upon race, and in the instance of jews, creed.

Again, we gays ask for nothing more than what those groups, whom you refer to admiringly as having assimilated, currently have.
6.19.2006 12:37am
Duncan Frissell (mail):
It is a mystery to me that Jews and Muslims can get away with genital mutilation on the basis of their religion...

Only of males. The Feds recently banned female genital mutilation.
6.19.2006 10:10am
anonymousss (mail):
"It is a mystery to me that Jews and Muslims can get away with genital mutilation on the basis of their religion...

"Only of males. The Feds recently banned female genital mutilation."

but note that male circumcision is not really analogous to female genital mutilation. female genital mutilation, which mutilates the clitoris directly, is more like cutting off the whole last inch or so of a boy's penis. i dont like male circumcision either, but it's not nearly as bad as female genital mutilation.
6.19.2006 10:39am
JosephSlater (mail):
To get back to the point Ilya was raising, it really has more to do with the oddities of the religious accomodation clause of Title VII than it does with gay and lesbian issues. Because you could substituate "Employee claims that X act that's legal but might upset an employer is a sacrement to him" for "gay sex is a sacrement" and get the same theoretical problem.

It's true that few if any folks have claimed that gay sex is a sacrement in an actual court case, and it's also true that courts won't look very hard into whether religious beliefs really are "religious." But this would be just as much of an issue for an employer that didn't like, say, cigarette smokers (and wanted to fire workers who smoked) if said smokers tried to make their habit into a religious ritual.

The way that Title VII law has traditionally dealt with this is to make the "undue hardship" test Ilya references into a de minimus test. Basically, if the religious practice puts any burden on the employer beyond the pretty trivial, the employer doesn't have to accomodate it. Does employee Y's relgion say he shouldn't work on the Sabbath? The employer doesn't have to make any other employee work Y's place in no other employee wants to, and the employer certainly doesn't have to pay anybody extra to work on that day in Y's place.

In Ilya's hypo, I would guess a court might look a little harder than it otherwise might into whether gay sex really was a religious practice, but even if it found that it was, would then shift into the "is accomodation more than a de minimus burden for the employer. Which could be pretty interesting.

On another topic, Byomtov is right about the history of private sector discrimination against blacks, Jews, women, and others. It's the biggest failing of right-wing libertarian thought in the U.S. that not only can't it adequately explain the pervasive and incredibily damaging history of private sector discrimination, but further it makes incredibly weak attempts to wish it away or try to blame it all on the government.
6.19.2006 11:46am
JGR (mail):
Randy R said:
"We don't want to force every religion to bless our unions or even accept us."

First, I'm uncomfortable using your terminology as far as "we homosexuals" because I regard gay people as individuals and not a collectivist group-think hive. But if by "we homosexuals" you mean the gay people who have set themselves up as spokespeople for gays, and the majority of gays that have direct influence in politics and the media, then this statement simply isn't true.
I recently worked for a fortune 500 company. There was a conservative Christian who was morally opposed to homosexuality but never preached about the subject at work (like most fundamentalists that I know). He regarded work as a neutral place where people of diverse backgrounds have to gather and get along. There was a very outspoken gay activist who worked there also who would advocate gay marriage and other social issues. The Christian told him - nicely and politely - that he was morally opposed to homosexuality, but would prefer not to have a discussion about it at work. The homosexual regarded this simple statement as a personal attack, and egged on the fundamentalist with statements like "You think I'm a sinner?", "You think I'm going to hell?". It eventually went to HR, and while no one on either side was fired, the gist of the company policy is this: A simple statement that someone is morally opposed to homosexuality is regarded as bigotry, like racism. If someone is morally opposed to homosexuality, they have to keep that belief to themselves, whereas the homosexual is under no such restraints - they can praise their lifestyle until the cows come home. There are similar speech codes on most college campuses, and there is a movement to enact this framework into law, and classify Christian belief into a hate crime. This is already the case in most European countries and in Canada. Recently in Canada a Christian was arrested for quoting the bible in opposition to homosexuality (I think Volokh had a post about it).
Most homosexual spokespeople support these laws, so it is flatly wrong to say that they don't want to force religous people to accept them. Putting people in jail for not accepting you would constitute force in most people's opinions.

Randy R said:
"You got the right to tell your peoples' stories in schools? We want that right."

Again with the homosexuals as collectivist group-think. I'm not even sure what this means, but one thing that separates homosexuals from other "official" victim groups is that whereas blacks and women are admittedly under-represented in the Western canon because of historical discrimination, the Canon is chock-full of gays from Plato to Proust. The problem that gay activists have is that they are there for their intellectual achievement, not because they are talking about their gay lifestyle. This is appropriate. Particularly if we are talking about primary and secondary schools, school shouldn't be celebrating any sexual philosophy or orientation - It may be appropriate to teach about recent events such as Stonewall in a neutral historical setting - the gay movement is a valid point of historical interest. But at most, this would be a small part of the education process, one of hundreds of historical events worth noting. I get the impression that you want something more, but you should understand that the gay movement is one of only hundreds of groups that would like to use school as their private teaching ground. Every religion, every philosophy, every political movement would love to have their spokespeople given a week or a month to "teach" a captive audience their viewpoint. Public schools can only exist in some degree of peace when they stick to the basics and try to avoid such confrontations. A Christian teacher shouldn't teach a gay student that homosexuality is wrong; a homosexual teacher shouldn't teach a Christian student that homosexuality is good. The subject should be left for the child's home and parents.
6.19.2006 12:16pm
Medis:
JGR,

How does it make any more sense to see "homosexual spokespeople" as a "collectivist group-think hive"?
6.19.2006 12:52pm
Bob Van Burkleo (mail):
A simple statement that someone is morally opposed to homosexuality is regarded as bigotry, like racism.

Which obviously it is. What if he had said he was 'morally' opposed to interracial marriages, or equality for blacks, etc. You'd consider that bigotry wouldn't you?

If you are 'morally' opposed to something then that means YOU shouldn't do it, be it, etc. I'm 'morally' opposed to to most of the superstitions that people hold but I would support your right to hold them or tell you I thought it was wrong for you to hold them in a work environment.

And how much of a game of 'telegraph' can we have with the Canadian guy? He put a reference to the biblical verse about putting homosexuals to death next to an icon representing two gay men with a red 'not' circle on it. It was considered 'hate speech' because it was a clear call to kill gay men. All his subsequent problems were because he wouldn't admit that such hard-hearted hate speech was illegal (in Canada) and immoral (as I understand the tenets of Christian ethics). He subsequently posted a similar ad without the call to kill that was printed without a problem.

A Christian teacher shouldn't teach a gay student that homosexuality is wrong; a homosexual teacher shouldn't teach a Christian student that homosexuality is good.

But both should teach American students that here everyone gets to choose how they feel on this subject, that there are gay citizens, that all citizens, even gay ones, have equal rights as everyone else and no American has to practice any particular religion or go out of their way to please those that do.

These should be universal facts suitable to both teachers.
6.19.2006 2:18pm
JGR (mail):
Medis,

I didn't make such an assertion, although it is in fact true that most homosexual spokespeople make that implicit assumption - which has nothing to do with their homosexuality, but has to do with the inherant nature of identity politics. If someone makes an assertion that they speak for all members of their race or gender or sexual orientation when they express their own political and social views, the implicit assumption is that the individuals in that group don't have indivual opinions but are part of a "group mind". As an empirical matter, this is of course false. The majority of blacks oppose quota systems although most black leaders claim that they are speaking in their name when they support quotas. More than half of all women oppose abortion on demand, although feminists claim they are speaking as their spokespeople when they support it.

Randy R. made a series of statements that implied that homosexuals as a group hold the same opinions ("we homosexuals"). He then assigned several opinions to that group which in fact directly contradicted the opinions of most of the people which have set themselves up as spokespeople for gays. In and of itself, that is enough to disprove the assertion that homosexuals as a group hold those opinions.

The question of what actual percentage of gays hold such an opinion is something that I don't know the answer to. Of course, even in cases where the spokespeople of a group differ radically in their beliefs than the majority of members of that group, it may be appropriate to concentrate on the spokespeople's views since they are the ones who most influence political action. And one aspect of that is to point out if and when their views DO differ from the group that they are (falsely) claiming to speak for.
6.19.2006 2:30pm
Randy R. (mail):
JGR: Thanks for the response. As I noted earlier, there are jerks everywhere. What I am talking about is legislation. I don't agree with they way the gay person acted in your company, and your company seemed to handle the issue properly.

My point, however, is that with every piece of legislation I have seen (and I review a lot of them!) is that there is a specific exemption for religions. So, no religion is forced to recognize gays, no religion would be forced to perform a gay wedding, and so on.

As far as praising our lifestyle, I'm not sure exactly what you mean. What I mean, though, is that you if you can have a photo of your wife on your desk, I should be able to have a photo of my partner on mine. If you talk about the vacation you and your wife took, I should be able to talk about the vacation I took with my partner. If you hold hands in public with your wife, and kiss her, I should be able to hold hands in public with my partner, and kiss him. Some people find this offensive -- I say, too bad. I want the same rights as you.

As for the Christians quoting the Bible about homosexuality -- Well, it is indeed a hate crime. You will notice that the passage that is often quoted from Leviticus speficially calls for those men who lie with men to be stoned to death.

Now, if I were to quote passages from the Homosexual Agenda, (I'm kidding here, but for a point) that state that Christian beliefs are a crime, and anyone practicing such should be stoned to death, would you say that protected speech? Most people would say no. Advocating my death just for being a gay person is not really 'Christian', to say the least!

Regarding schools: If it is not the purpose of schools to celebrate any sexual philosophy or orientation, then why do school often mention that historical figures were married? Surely THAT'S a celebration of the heterosexual orientation. All I'm saying, as most gay groups agree, is that when talking about Plato and Proust, you simply mention that they are gay men. To not do so implies that they are straight, which would be incorrect.

But most important -- so many people and groups paint gay people as spawn of Satan (literally, in the latest of LaHaye's Left Behind series), that we deliberatly overlook the contributions gay people have made to our culture. Furthermore, we do a disservice to education when we fail to point out that not all cultures are homophobic, but some have indeed been very gay friendly.

And sometimes it's quite essential. You simply can't fully understand Whitman's poetry, one of America's most important poets, without knowing that he was gay.
6.19.2006 2:43pm
Randy R. (mail):
Again to clarify -- when I speak of 'we homosexuals' I am specifically referring to actual legislation proposed or enacted. All sorts of people can talk about whatever. But talk is cheap. I could easily talk about all the Christians that want to kill us and do all sorts of things, but so far they haven't enacted any legislation to do any of this, so I remain silent about this for the purposes of these posts. Perhaps some gays do want quotas --but it simply hasn't gained any traction in an legislative body that I have seen, and so it's pointless to talk about that.
6.19.2006 2:48pm
JGR (mail):
Bob Van Burkleo,

My only point was that Ronald R. was wrong. He said that homosexuals didn't want to force other people to accept their lifestyle, and I pointed out that in fact many homosexuals did. If you tell someone that they are allowed to hold an opinion but never to voice it, that is equivalent to forbidding them from holding it. What if I said that liberals are allowed to believe in socialism, but are never allowed to write an article expressing their belief, or state their belief to a friend? Am I still "allowing" your belief?

You wrote:
"If you are 'morally' opposed to something then that means YOU shouldn't do it, be it, etc. I'm 'morally' opposed to to most of the superstitions that people hold but I would support your right to hold them or tell you I thought it was wrong for you to hold them in a work environment."

The whole point was that although the Christian was not allowed to hold them in a work environment - even when he was as polite and nice as he could be, the homosexual was not forbidden to hold his view, which was actually expressed quite nastily.

It actually isn't clear that you disagree with anything I wrote. Whereas Ronald R. was denying that he wanted to priviledge one viewpoint over another, you seem (if I interpret you correctly) to be more honest - You believe that the Christian belief is more irrational or whatever and should have less immunity than the homosexual's. Whatever one may think of this opinion, it is at least intellectually honest. But it isn't neutral. Would you or would you not support the right of the Christian to say the same thing you say: "I respect your right to hold your opinion that homosexuality is good, but not in a workplace which should be a neutral environment for both Christians and homosexuals"?

And please bear in mind that the workplace scenario is the least worrisome of all the speech-code aspects. Universities hold the right to police a person's thought not for the time when they are in the classroom (the equivalent of a workplace) but for every single second that the person is on the campus, which for a dorm-room inhabitant means essentially 24 hours a day. Actual laws allow the government to control speech 365 days a year. If you think this is a good thing, I disagree with you. But it is simply dishonest to deny that you are not trying to force someone to agree with you if you want to initiate sanctions against him for disagreeing with you.
6.19.2006 3:09pm
JGR (mail):
Randy R,

I appreciate your civil response. I agree that gay and straight people should have the same rights. For the record, there are both Christians and homosexuals who want to deny each other the same rights they want to enjoy themselves. The primary thing I was writing about was speech codes.
6.19.2006 3:16pm
Medis:
JGR,

But you extended your original post to "the majority of gays that have direct influence in politics and the media." Are you claiming that all of these people claim to speak for all gay people? Isn't that the same fallacy you are criticizing?

In other words, I think it is right to point out that gay people have diverse views on almost every relevant issue, but I think many outspoken gay people acknowledge that fact and do not claim otherwise.
6.19.2006 3:51pm
A. Zarkov (mail):
I'm afraid that we really face a permanent impasse here because we don't have a universal set of shared principles. You could say homosexuals have the same rights as heterosexuals; after all, any unmarried man can marry any other unmarried woman. All men have the same right. It's just homosexuals want more-- they want any unmarried adult to be able to marry any other unmarried adult. They want the law changed to suit to their personal preferences. You could also say that limiting marriage to the opposite sex is analogous to laws that forbid people to marry outside their race even though that limitation applies equally to all races. Since can't get people to agree on the basics, most of the arguments advanced are simply preaching to one's own choir.

So who gets to decide if the law changes or remains the same? Those who support homosexual marriage want the courts to decide because they believe (correctly) that their chances for success are greater. The other side wants state legislatures to decide for the same reason. What do we do when the courts among the 50 differ? This will make family law very complicated when one state recognizes a marriage and another doesn't. What do you do when one party moves out of state and the other wants a divorce with support and property division? Ultimately this matter will end up in SCOTUS. But like abortion unless we have general agreement among those who oppose homosexual marriage, like abortion this issue will fever and lather the country for decades.

My personal advice to anyone of whatever sexual orientation contemplating or desiring marriage: are you really sure you want this? At least take the time to find out what you are getting into. Read something like the Nutshell summary of family law, or better yet a work that focuses on family law in the state you live. If you live in California, you're lucky because many good secondary sources are available. Go to a law library and read through The Rutter Group Practice Guide to Family Law. A long time ago the California legislature passed a bill to provide a simple pamphlet to people applying for a marriage license that explained their obligations under the state-imposed marriage contract. As he vetoed the bill, Governor Deukmejian remarked, "If they see this, they'll never get married!"
6.19.2006 4:09pm
Medis:
A. Zarkov,

You say: "Those who support homosexual marriage want the courts to decide."

I think this statement is untrue of many people who support gay marriage. And once again, the AEI roundup contains some help information. In a 2005 Boston Globe/UNH survey, 37% of the respondents approved of gay marriage, but only 29% thought that the courts should decide the legality of gay marriage (and note that people in the latter category could include some of those who were neutral or opposed to gay marriage).
6.19.2006 4:25pm
JGR (mail):
Medis,

I'm not sure what the failure of communication here is. Whether the majority of a group support a position is an empirical question, not a philosophical opinion on whether their position is right or wrong. It is of course true that for every large grouping of people - by race, gender, or sexual orientation - there are many or even most members of that group who recognize that they do not speak for every other member of their group. But it is also true that almost every member of that group who ALSO sets themselves up as the spokesperson of that group DOES claim to speak for every member of that group because to do otherwise would contradict their reason-for-being spokesperson. Have you ever heard Jesse Jackson say in a speech, "Now many blacks disagree with me about what I'm about to say..." No, Jesse Jackson pretends that HE is expressing the "black viewpoint", even when the majority of blacks disagree with him!!

Now for whatever reason - call it liberal bias or blind chance or whatever - for several decades the majority of members of the standard minority groups (racial,sexual orientation etc.) who become very influential in politics and the media tend to support the official liberal narrative for designated minorities and "official" black positions, "official" gay positions etc. (This is changing slightly every year for the better) This is a sociological and statistical statement, not a philosophical position on whether it is right or wrong (it isn't). And the important fact is that these spokespeople are out of touch with their own identity group, so making a statement about what most self-identified black leaders believe has nothing to do with making a statement about what most blacks believe - the same with homosexuals, Mutatis Mutandis.

"I think it is right to point out that gay people have diverse views on almost every relevant issue, but I think many outspoken gay people acknowledge that fact and do not claim otherwise."

Indeed, this is true, which is why none of them become the leaders of Act-up, or (mutatis mutandis) the NAACP, or the NOW, which requires, for all practical purposes, that they NOT acknowledge that fact. The most outspoken and independent of each group are frequently the ones most bristling with contempt for such leaders. (For example, Camille Paglia, Ward Connerly, and hundreds of other independent voices)
6.19.2006 5:12pm
A. Zarkov (mail):
"In a 2005 Boston Globe/UNH survey, 37% of the respondents approved of gay marriage, but only 29% thought that the courts should decide the legality of gay marriage ..."

How were those results enumerated? Was it 29% of the people who responded or 29% of the 37%? Having worked in survey sampling and even designed surveys, I can tell you from direct experience, it's not easy. As we all know, a lot depends on the wording of the questions, sampling frame, rate of non-response, etc. A lot of surveys use auxiliary variable, to get a small sample size, which brings in models and assumptions. But you're basically right in your criticism of my statement as I am going more on personal experience than hard data. But nevertheless I still remain skeptical.
6.19.2006 5:45pm
Medis:
JGR,

I think one of the problems is that you are shifting claims. As I noted before, you originally extended your argument to "the majority of gays that have direct influence in politics and the media." Now you seem to be shifting your attention to the leaders of particular organizations. These are not coextensive groups, as you seem to acknowledge.

In general, the problem is that you seem to be shifting back and forth between some sort of strict definition of a "spokesperson" (as someone who actually claims to speak on behalf of every member of a unanimous group) and a looser class of actual people in the world (any influential public speaker), and are merely asserting that most people in the looser actual class fit your strict definition. I would again suggest that these efforts to lump together "gays that have direct influence in politics and the media" with such broad assumptions about their common characteristics is a violation of your own stated principles.

As an aside, in an apparent attempt to make an a priori argument to support your assertions, you say: "But it is also true that almost every member of that group who ALSO sets themselves up as the spokesperson of that group DOES claim to speak for every member of that group because to do otherwise would contradict their reason-for-being spokesperson."

I think this is wrong. One does not necessarily need to claim unanimity exists in a group before a member of a group can claim to speak for both him- or herself and other members of the group. Instead, one could claim to speak for a majority or most of a group, or one could claim to be advocating in the interests of a majority or most of a group, or so on.

So, if in particular instances you catch gay "spokespeople" (or other influential public figures) actually claiming unanimity among gay people where it does not exist, I agree that such a thing can be worth pointing that out. But I don't think that there is some a priori requirement that people attempting to speak on behalf of both themselves and other gay people claim that such unanimity exists.
6.19.2006 6:03pm
non_Lawyer:

...we really face a permanent impasse here because we don't have a universal set of shared principles.


You could say homosexuals have the same rights as heterosexuals; after all, any unmarried man can marry any other unmarried woman. All men have the same right. It's just homosexuals want more-- they want any unmarried adult to be able to marry any other unmarried adult. They want the law changed to suit to their personal preferences.


Zarkov hit the nail on the head with these two sentences.

The fundamental disagreement (as it applies to homosexual discrimination policy, including marriage) rests with those who believe homosexuality is a choice and those who believe it is not a choice. (Just for expediencey, and a bit of fun, let's abbreviate these camps as "pro-choice" and "anti-choice" -- hope that's not too confusing.)

I fall into the former category (not that it matters). Incidentally, I fall into that category for reasons that include, but are not limited to, my constitutionally-protected religious beliefs. But, it is for that reason that I find the second Zarkov sentence above to be perfectly valid, while others (of the latter category) will find it an affront. What's the answer to that impasse? I have no idea. There will always be a disagreement as to whether homosexuality is a choice or not.

And those who are pro-choice will no doubt face a barrage of unkind criticism (to coin a massive understatement) from the anti-choice lobby who believe it deserves civil rights protections. You hear lots of complaints about "hate speech" (ie. unkind criticism) leveled at the pro-choice people by the anti-choice crowd, but when the tables are turned, that's just "rational debate" and "speaking truth to power." Talk about a double-standard.
6.19.2006 6:23pm
Medis:
non_Lawyer,

I don't think it actually matters that much whether homosexuality is a "choice" or not. Again, the obvious comparison is religion: religion is a matter of choice, but we still condemn discrimination based on religion. In other words, even if being gay is a choice, you would still have to justify discrimination on the basis of a person's choice to be gay.

So, the real divide is not between "choice" or "not-choice". Rather, the real divide is between something like "being gay is not acceptable for other people" and "being gay is acceptable for other people". And I would suggest even that difference is actually derived from the difference "gayness is something to fear" and "who cares if someone else is gay?".
6.19.2006 6:52pm
non_Lawyer:
Medis,

I believe the issue of choice is paramount to the discussion. If not, all of our choices would deserve government protection.

If the issue is not choice, then the issue surely must be: "Where do you draw the line? What choices deserve government protection?"

I don't think a person deserves taxpayer-funded government protection and a slew of laws and changed definitions of societal norms to accomodate their choice of vanilla over chocolate, dogs over cats, chicken over cheeseburgers, plaid over polka-dot, Ford over Chevy, blonde over brunette, missionary-position over doggie-style, or gay over straight.

Certainly the line must be drawn somewhere.
6.19.2006 6:59pm
Bob Van Burkleo (mail):
Certainly the line must be drawn somewhere.

Yes, and when it relates to a natural human right of biological basis that is universally considered to be at least a penultimate need of the human condition, it should error on the side of accommodation of the citizen's needs.

We have a biological mechanism that drives us as humans to 'couple up' and mate with our sex partners. We are happier, healthier, and better society members when we do and this is regardless of the couple's gender combination.

A government that doesn't acknowledge and support the citizen's biological imperatives that are actually beneficial to the them and society would be a mental tool that needs some retooling.
6.19.2006 7:17pm
non_Lawyer:
I do not desire to prevent couples of various "gender combinations" from coupling. I just don't think that those who choose to couple homosexually have earned by virtue of that choice to be eligible for the benefits of marriage.

"...penultimate need of the human condition."

Could you elaborate? I don't understand what this means. "Penultimate" means "next-to-last."

With regard to "erring on the side of the citizen's needs," do we also do so with regard to allowing members of NAMBLA to "marry" little boys? What about beastiality? What about polygamy? Why should we accomodate every personal taste and afford it all the same rights and privileges?

Choices have consequences -- but people seem to be ever trying to avoid the consequences of their choices. If you choose to couple homosexually, the consequence is that you can't marry your partner. That is a perfectly valid consequence.
6.19.2006 7:36pm
JGR (mail):
Medis,

I'm really having a hard time understanding how you can't understand what I'm saying. The statement about influential gays in the media and politics was essentially an aside to my main point, but you made a super-big deal that it was "shifting claims" - which is what asides always are and are only intellectually dubious if it is done to avoid debating the main issue, which I obviously wasn't.

So then I went to all the trouble to explain in excruciating detail what I meant by that, and you seem to have misunderstood everything I said. I went out of my way to say I was making a statistical point, and you bizarrely interpret that as an a priori argument. I think the main confusion lies in your sentence here:

"But I don't think that there is some a priori requirement that people attempting to speak on behalf of both themselves and other gay people claim that such unanimity exists."

Of course this is true. In the event that you really don't understand what I'm saying, let me try one more time - Definitions by example are frequently the best way to convey understanding, although they are sadly the best way for someone to twist the logic and say you said something you didn't (intentionally or unintentionally).

Let's say that 60% or 70% of a group support position X. Now let's say that - for whatever reason - the people who are generally represented on tv shows and in politics as self-identified spokespersons for group X actually support position non-x. This is the actual reality that exists on at least some political and social issues for all the main advocates of identity politics groups (blacks, gays, women). This isn't an a priori statement, there might be a parallel universe where this isn't true.

The reason that I switched rather freely between the leaders of official groups with household acronyms such as NOW, NAACP, and ACT-UP (okay,not an acronym but nevermind) and other influential members of the media is simply because they tend to share the same beliefs. This is why we call it the liberal media. It is because liberals tend to share the same beliefs on core issues. Hence, almost every member of the congressional black caucus has the same position as the leader of the NAACP on quotas - they give speeches stating that this is "the black position" although most blacks actually disagree with them. Every gay person that I personally know is opposed to speech codes, yet almost every homosexual talking head that I see on tv supporting speech codes claims to be speaking as a spokesperson for gay people and claims that opposition to their belief is "anti-gay".

Can I ask you to step back from formal logic at this point, and just agree that this is obviously wrong. You know it's wrong because even if you accept that it is possible for a person to speak on behalf a group, here the numbers just don't add up.

Now let's deal with your point that it is, obviously, permissible for someone to claim to speak on behalf of the interests of a group even when there is not unanimity (which is always the case). But remember that this whole conversation started because another commenter made the statement "we homosexuals" precisely implying that there was unanimity. AND THIS IMPLIED UNANIMITY IS PRECISELY WHAT MANY PEOPLE WANT TO CONVEY. If Randy R had originally said "Many of us homosexuals.." then we wouldn't even be having this conversation. He said "we homosexuals.."

Now let's deal with a harder case - You have a situation where there is a group where 90% of the people of the group do share the same position on all major issues, so people who claim to be speaking on that group's behalf are in fact speaking for 90% of that group. (This doesn't apply to our real-world examples, but let's deal with it as a hypothetical. And note that this whole discussion now is partly moving into new territory, so please don't accuse me of trying to shift gears I'm just being thorough).

I would say here that in addressing whether it's appropriate to sanction this example of identity politics, it is neccessary to address the specific circumstances. Presumably, if the individuals are rational and intelligent, they have thought about the issue and 90% have decided that issues A,B, and C are the best positions. So there is nothing wrong with someone saying "90% of my group supports these positions and I am speaking for them". The problem with identity politics - not neccessarily in theory but in practice - is that it goes further. The practictioners say that these positions are the set-in-stone positions of this group, and therefore to argue against them is to be anti- this group (Anti-gay for gays, racist for blacks, anti-women for women). Now what's wrong with that? Notice that rational thought is now irrelevant. It's impossible to argue rationally against this position because it's already decided. A good portion of American history consists of the American people changing their minds and leading to progress, but this was only possible because the guiding principles have been rational discourse and the principle that all questions are open to rational debate, not that they are assigned to particular groups on the basis of skin color, gender, or sexual orientation.

I have many other things to do, so I am officially ended now with this discussion.
6.19.2006 8:37pm
Bob Van Burkleo (mail):
...earned by virtue of that choice to be eligible for the benefits of marriage.

Can't stop that, they have a natural right to marry and already do - or are you saying they need special permission to license the totally secular civil contract? Exactly what attribute does the citizen that is married to someone of the opposite gender always have that the citizen who is married to someone of the same gender does not to justify this barring of access to government?

Could you elaborate? I don't understand what this means. "Penultimate" means "next-to-last."

yes in a list from least to most important its would be the second. Just didn't want to put sex as the ultimate - I figure there are a few things more important than sex. ;)

With regard to "erring on the side of the citizen's needs," do we also do so with regard to allowing members of NAMBLA to "marry" little boys? What about beastiality? What about polygamy? Why should we accomodate every personal taste and afford it all the same rights and privileges?

Too easy. Look at your list - having sex with little children, animals, multiple spouses, all are considered wrong no matter what citizen does them - equal treatment. Conversely it is considered ok for a citizen to have sex with an adult man or a woman, the only complaint some have is with the gender of the citizen doing it - unequal treatment of citizens based on their gender.

If you choose to couple homosexually, the consequence is that you can't marry your partner.

Not true, marriage is a natural right of each individual, marriage is biological, it exists above and outside government. This isn't about the 'right to marry' you can't stop that - this is about naturally married couples having equal access to the totally secular civil contract licensed by the state in support of marriages. You can't exclude married couples from any reasonable opportunity to licensing the contract without a very good reason, one that no one has been able to present convincingly to any court so far.
6.19.2006 10:41pm
Randy R. (mail):
Geez -- I THOUGHT that I made it clear that when I said "we homosexuals" I was talking about actual legislation, NOT what every single gay person thinks. Of course there is diversity of opinion on every issue.

Geez again, JGR! I actuall agreed with you regarding the situation in your particular corporation. The Christian has every right to say homosexuality is immoral, and it was not okay for the gay activist to try to force his opinion to change. What more do you want?

I do, however, resent, your implication that my argument wasn't honest. What exactly wasn't honest about it? I have never argued on these boards that there should be speech codes. The only I stated was that you can't publically argue for stoning me to death. Is that really such a burden upon people? I hardly think so.

I have never argued for sanctions for someone who merely disagrees with me.
Furthermore, I know of no legislation anywhere in the US that provides sanctions merely for disagreement. Perhaps some universities have codes of speech -- but that is NOT legislation, and is something altogether different. I'm not if favor of that either -- I believe in the marketplace of ideas.

Non-Lawyer: You may also have the constitutionally protected ability to believe that the world is flat. That doesn't make it so. Sexual orientation is not a choice. Is it innate? Science doesn't have the exact answer -- what it can say conclusively, is that sexual orientation is set by at least the age of 7, and it doesn't change. There is no scientifically reveiwed papers that argue otherwise. The religious right has been trying very hard to say that it's a choice, and that we can change. However, even the most dedicated groups to this philosophy such as Exodus admit that only a small percentage of gay men can change their orientation, and then only long hard work over a period of years, and that it works only for the most highly motivated of gay men. So at best, a few men might be able to change their orientation after years of prayer and abstinence. The rest of us? We are gay, and we will stay gay. Don't like it? Tough. And by the way, we CAN get married -- in Massachusetts, in Canada, in Belgium, and soon in Spain.

And I go back to my original point -- we will ask for and demand the exact same rights that you have, no more, no less. And we will keep up the fight until we get them.
6.19.2006 11:32pm
non_Lawyer:
Bob,

The problem with with our discourse is that we have different definitions of marriage. Your points cannot be refuted if one accepts your definition of marriage (which apparently includes same-sex couples). It would be fair to say likewise that my points are sound, given my definition of marriage (a definition which, by the way, has been accepted by billions of people for millenia). The problem is, I do not, and will never, accept your definition of marriage. To me, such a definition is as flawed and nonsensical as saying that you must allow me to slap license plates on my couch and cruise it down the road, simply because I insist that it is a car. Worse, it is like saying that simply because I percieve my couch as an automobile, that I am entitled to all the rights and privileges of car ownership and road use. My misguided belief does not make it so, nor does it entitle me to try to change reality and redefine established phenomena and the associated societal rules.
If a homosexual couple wants to play house, and pretend to be married, that's their prerogative. But it is not a "natural right" for them to be married. Just like my automotive analogy, a driver's license is not a natural right. One must meet certain conditions to be eligible to drive: one cannot be blind, for instance. One must also pass a test. For marriage, part of the test is that you must choose a partner of the opposite sex. Do you think that it is discriminatory to bar blind people from driving? What about those who cannot pass the test -- are their "rights" being violated? Is it not logical that certain institutions require certain prerequisites to be entered into? It strikes me as tautological nonsense to proclaim that all people have a "natural right" to marry anyone of any gender, at least when marriage is defined as it always has been (not the way homosexuals would like it to be defined).
No Bob, no one has been able to present convincingly to me that marriage should be redefined. And I've heard a lot of clever arguments.
6.19.2006 11:59pm
non_Lawyer:
Randy,

You say:

we will ask for and demand the exact same rights that you have, no more, no less

In response, I refer you to Zarkov's statement from earlier:

You could say homosexuals have the same rights as heterosexuals; after all, any unmarried man can marry any other unmarried woman. All men have the same right. It's just homosexuals want more-- they want any unmarried adult to be able to marry any other unmarried adult. They want the law changed to suit to their personal preferences.

With regard to the subject of homosexuality as a choice, I would appeal to a religious argument regarding this, but in a forum such as this, unfortunately, such an appeal would fall on deaf ears, be ridiculed, labeled, mischaracterized, and given zero credibility. I think that's a sad state of affairs, but thus it is. It is impossible to attempt such a discourse when we have no common ground regarding eternal truths.

But, I know what I know, beyond any doubt. I am capable of a friendly agreement to disagree, knowing that neither of us will be moved from our positions.

And I wish you well.
6.20.2006 12:26am
Bob Van Burkleo (mail):
It strikes me as tautological nonsense to proclaim that all people have a "natural right" to marry anyone of any gender, at least when marriage is defined as it always has been (not the way homosexuals would like it to be defined).

Because we view the origins of marriage differently. I view it as a natural right deriving from our real world existing vasopressin/oxytocin mediated mammalian pair-bonding response, which can be between sexually attracted humans of either gender combination ( Romeo &Juliet, Brokeback Mountain). As such marriage has a real world basis to me, and it is an innate human right that each individual has no matter what the gender the person pair-bonded with, whether government or society exists or not marriage would. Our intellectual constructs called 'marriage' exist in response to this natural right of marriage, but have no real existence in its absence. If our intellectual constructs are found to be flawed and don't reflect the real world nature of our 'right', then we fix them, we don't try and pretend that these other people don't marry.

You on the other hand seem to think it is first and foremost an intellectual construct that can basically be defined as anything conceivable and has no real world basis. I am sure I find this position as nonsensical as you seem to find mine. Government and law are made up conceptual tools that exist to reflect the real world - when they stop doing so, when they become irrelevant to the real world sources of our rights, they are broken tools that need fixing or replacement.

People marry people of the opposite and same genders. They do so via the same biological mechanism, they do so for the same reasons, they feel the same way in the relationship, they get the same things out the relationship, and so does society. Heck one study shows they even bicker about the same things with their spouses.

That traditionally we have ignored or rationalized away these facts to justify legal discrimination is irrelevant. We know the truth now and need to act accordingly to be consistent with our founding ideals of equal treatment under the law for all citizens.

Oh and as an aside: the 'natural marriage' argument is how Judge Downing reached is marriage equality decision in King County, Washington state. A qualitative difference in the CITIZEN and their impulse to marry would have to be shown to justify treating the two relationships legally different. What would that difference be? Can't be procreation, we allow infertile citizens and combinations to license the contract, in some states first cousins can't license the contract unless they are infertile in combination! Since that excludes procreation what other identifiable quality does a same gender marriage lack that an opposite gender one has sufficient in nature to justify unequal treatment under the law? I can't think of one and neither has anyone else convincingly either.

I do see your point of view but deciding rights based on a definition is not very convincing nor clever to me. As Humpty Dumpty before me, I am the master of of mere words and definitions, not the other way around.
6.20.2006 12:35am
non_Lawyer:
Bob,

I appreciate your argument. I disagree with several of the points, but I will not address those here, because I know a stalemate when I see one. :)

However, I do want to say that I am of the belief that certain truths, certain definitions, are immutable and eternal. They are not to be changed simply because the whims of man ("the reality on the ground") changes. In fact, even if man desires to, they cannot be changed. I am an absolutist. That does not mean that I am closed-minded. It means that I hold certain things sacrosanct for very personal and profound reasons. I believe that Truth is not subject to popularity.

Thanks for a stimulating debate, and goodnight!
6.20.2006 12:53am
non_Lawyer:
Bob,

P.S. I forgot -- there is one thing I cannot leave unaddressed:

You said:

You on the other hand seem to think it is first and foremost an intellectual construct that can basically be defined as anything conceivable and has no real world basis.

Your assumption is incorrect. I do not believe marriage is an intellectual construct that can be defined as anything conceivable and with no real world basis. I believe marriage was created, defined and instituted by God. It therefore has the most real basis possible, and therefore CANNOT be defined any way you want -- it is immutable and eternal. It is certain people today who wish to "define it as anything conceivable" -- including the coupling of two persons who were not created for such a coupling.

Thanks.
6.20.2006 1:00am
Bob Van Burkleo (mail):
I believe marriage was created, defined and instituted by God. It therefore has the most real basis possible, and therefore CANNOT be defined any way you want -- it is immutable and eternal. It is certain people today who wish to "define it as anything conceivable" -- including the coupling of two persons who were not created for such a coupling.

Yes, a 'revealed' religious based definition cannot be logically refuted though from my point of view they are are man-made definition attributed to a divine source to preemptively squash all counter arguments.

Fortunately I live in a secular nation with secular laws which is why the religious arguments generally fail in court. But I do understand your point of view if I did start from the same base assumptions. And there are Christian churches marrying same gender couples already - your definition won't stop those marriages regardless of any legal decision.

But this is only about a contract - an ecumenical think tank in Britain just suggested that the government change its contract name to 'civil union' just so the religious can define marriage the way they want without the hoops needed to equal treatment under the law for all citizens in secular 'natural marriages' the government needs to support equally.

But don't think that's a change Americans would consider - we can't even get our minds wrapped around metric. ;)
6.20.2006 1:17am
non_Lawyer:
Bob,

I didn't want to play the "God card" -- but for me, that's where everything eventually points, because that "revealed truth" is the source of my reality. (I didn't bring it up to "squash all argument," just to say where I am coming from.)

And for me, the Christian churches that are marrying same-sex couples are wrong to do so (duh -- of course I'd say that!)

But, from my point of view, these decisions of men are irrelevant to the reality that I espouse.

I don't hope to convince you in an internet forum of spiritual things that I believe as surely as I believe anything, and that's fine.

Oh, that "metric" thing: funny! See ya.
6.20.2006 1:27am
Randy R. (mail):
Well, that figures. God says that gays are unnatural, so they don't deserves any rights. Certainly not the right to marry. End of discussion.

Good thing God changed his mind about slavery!
(women, like gays, will have to wait a few more centuries, though....)
6.20.2006 9:24am
non_Lawyer:

I would appeal to a religious argument regarding this, but in a forum such as this, unfortunately, such an appeal would fall on deaf ears, be ridiculed, labeled, mischaracterized, and given zero credibility.

Can I call it, or what? (Of course, it doesn't take a prophet to foresee the kind of sarcastic response a religious viewpoint would receive.)
Oh well. :) Best of luck!
6.20.2006 10:18am
grapenuts (mail):
First, let's address the non-sense that religious speech and acts are somehow granted greater protection than non-relgious speech and acts. We could treat religious speech exactly as all other speech and have exactly the same protections. A person is no less and no more entitled to have religious beliefs than a believer in any other belief. Further, there is no particular accomodation. If a worker wants to wear a hat that says "Democratic national committee" emblazened on it, then they have a free speech right to do so. Further, if they want to have a Young Democrats club at the local Jr. Hugh, they can do so on the same terms as any religious club.

It is true that religions are granted charitable or tax exempt status. However, since religious organizations contribute far more than any other type of charitable organization, that exemption is not something we want to attack.

What you are missing is that gays are asking for the State to act to affirmatively protect their relationship by giving it the force of marriage. Marriage is an affirmative act of the State to protect particular relationships. The question must be asked: is a gay relationship one that the State has an interest to protect? Frankly, that discussion is by-passed by the non-sense of suggesting that there is a right to engage in sexual conduct with anyone — or anything — and that right ought to be protected.

Well, we don't protect all relationships. We don't want cousins marrying and we don't want to encourage them to have sex. So the burden ought to be on the gay community to justify the assertion that gay relationships are such that the State has an interest in protecting their relationship. Perhaps that burden can be carried — but so far, no one has even attempted because they have rushed to make their cause one of civil rights.

Further, gay marriage and the "equal rights" demanded by gays assume that gay relationships are entitled to protection as a basic right. Yet engaging in sex of any orientation is not a basic right. So the comparison mixes apples and oranges. Neither can we base such rights easily on orientation without sexual conduct. If gays are allowed basic rights on the same basis as race, such a view ignores the fact that sexual orientation is not an all or nothing equation. Some persons may well be gay but the latest evidence suggests that there is a continuum of orientation ranging from fully hetero to those who can be attracted by either sex to fully gay. The issue is more complex biologically than the simple comparison with protected categories suggests. So to whom would we extend this right without just saying everyone has a basic civil right to be in relationship with anyone they want? In so doing, we emasculate civil rights.

Further, why should we compare sexual orientation with protected categories like race, religion and gender? Do we protect the relationships of those who want to have sex with little boys? Do we protect those who want to marry their cousins? How about a protected category for those who a-sexually love their horses and want to have special benefits to protect that relationship?

There is however a very sound reason to protect religious beliefs. It is on par with free speech. It is essential to an ordered liberty that respects freedom and requires a justification for the State to interfere with relgious beliefs and those acts that can be accomodated without interfering with essential job functions. Heavy equipment operators cannot smoke peyote while operating that equipment even if they otherwise have a religious belief that smoking peyote is sacred. There are rational limits to religious expression — but where are the limits on gay sexual acitivity? So do we promote gay relationships by conferring upon them the State seal of approval thru marriage? Certainly no one needs a license from the State to approve their relationship as a legal precondition to sex. So the comparison is banal.

There is a further question: How are gays rights infringed if we don't extend to them protection of a civil right to be and act on their gay proclivities? There really is no burden on gay relationships that the State must step in to protect. What right are gays seeking that they cannot presently realize thru contracts and wills? I submit — none. So extending civil rights protection is not necessary to realize the benefits sought by gays. Further, granting such rights would grant the same rights to all room-mates since we certainly don't want police nosing into a relationship to make sure that sex is really a part of the relationship. So extending such rights inevitably results in trivializing them by protecting room-mate relationships on the same basis as basic civil rights. That is a pretty high price to pay.
6.20.2006 11:32am
Medis:
JGR,

I don't know if you will read this, so I will keep it quite short. I agree in general about the impropriety of overstating unanimity. I just think that you should consider applying those same considerations to your own discourse, including phrases like "the liberal media".

non-Lawyer,

I also don't know if you will read this, so I will again keep it short. There are many things government can do: provide protection, provide subsidies, provide punishment, and so on. My basic claim is that no matter whether an attribute is natural, nurtural, cultural, a pure matter of taste, or so on, the government should not use an attribute as a basis for differential treatment, of any kind, unless that attribute is actually relevant.

So, with driving, it is relevant whether the driver is blind or not. It is not relevant whether the driver is a Christian or not. Accordingly, even though being a Christian is a matter of choice, I would say the government cannot refuse to give driver's licenses to Christians.

Similarly, with respect to civil marriage, I would suggest that the most important question is not whether being gay is natural, or a choice, or (as I think is likely the case), the product of some complicated combination of factors. The most important question is whether the couple being straight or gay is actually relevant to civil marriage. Because if it turns out it isn't relevant, then choice or not, the government would have no grounds for treating gay couples differently when it comes to marriage.
6.20.2006 1:14pm
JGR (mail):
Randy R,

I have had to keep returning to your original statement because I kept getting drug back in by other commenters. I still have a problem with gays who imply certain legislation (or campus policy) is either "pro-gay" or "anti-gay" because a lot of these deal with things like speech codes and first amendments rights, and many gay people stringently oppose such "anti-gay" policy. But after re-reading my posts, I see you are right that I inadvertantly implied that you were intellectually dishonest and I apologize. Since you oppose speech codes yourself, hopefully you can see better where I'm coming from since many gay activists would accuse you of being "anti-gay". (See, for example, the thousands slings and arrows that Camille Paglia has suffered on just this issue).
6.20.2006 1:25pm
Bob Van Burkleo (mail):
Can I call it, or what? (Of course, it doesn't take a prophet to foresee the kind of sarcastic response a religious viewpoint would receive.)
Oh well. :) Best of luck!


Well you see it as sarcasm, others see it as hypocrisy or at least back-stepping on the first amendment armistice: you get to practice your religion, I get to practice my religion, neither of us has to practice the other's religion. By saying that a citizen's access to a totally secular civil contract is limited by YOUR religion's opinion isn't 'fair'. You are limiting practitioner's of another religion access to government because of the rules of yours. As an American does that seem right to you?
6.20.2006 2:50pm
A. Zarkov (mail):
So far (unless I missed it) no one has given me a utilitarian reason the state should license same-sex marriages. Let's assume for the sake of argument that 97% of the population is heterosexual. What is the benefit to them of licensing same-sex marriage? One reason I get is it will make some (unknown) fraction of that 3% happier, let's say it's half, and thus the 98.5% will somehow benefit from the 1.5% being happier. That doesn't seem like a compelling reason to me. Another alleged benefit is that the 1.5% will have stable relationships and somehow that benefits the 98.5%. But it's not clear that the 1.5% wouldn't be stable anyway by cohabitating. Moreover, let's face it; in today's America marriage is no guarantee of a lasting relationship. No-fault divorce put an end to that, and we all know the divorce rate is huge. Marriages fail at a rate of about 50%. Adultery is no longer illegal, or for the most part not stigmatized making extra-marital affairs also common. Now we are down to something less than 0.75% unless same-sex marriages turn out to be more stable with less cheating. So while this whole issue is a big deal for that tiny fraction of the population that wants to marry someone of the same sex, it's not a big deal for the rest of us. There are bigger fish to fry.
6.20.2006 3:35pm
Bob Van Burkleo (mail):
grapenut, I would say your argument, though well thought out and stated, is flawed in a number of areas.

First you seem to see 'gay relationships as 1) somehow a different kind of relationship than others, and 2) about demanding to have sex with anyone or anything.

Second you seem to be confusing the right to marry with the current request to license the civil contract of the same name. Marriage comes from above and beyond government, people would marry if there was no government at all. The whole point of 'common law' marriages is the state identifying already married couples not somehow magically marrying them. No citizen needs the states permission to marry, this is only about married couples having reasonable equal access to the totally secular civil contract licensed by the state in support of marriages.

Third allowing all citizens equal reasonable access to the civil contract does not mean that anyone will be able to marry anyone or anything. For all of the nonsensical things like dogs, children, etc, all citizens are proscribed from doing these things - equal treatment. We do allow citizens to license the contract with adult men and women though and the only point of contention is not who they are in the contract with but the gender of the citizen requesting the contract. Very different situations, the latter is asking for equal access allowed another citizen, and complaining that their access effectively allowed no pool of potential colicensers while other citizens have a virtually unlimited pool. The government can easily regulate basic rights, but can not totally proscribe expression of this right by some citizens and not others without strong justification.

I digress to also point out that only a minority of states don't allow cousins to license the civil contract, and some only allow them to do so if they are infertile in combination, i.e. they can't procreate. The US is actually unusual in even this as most places in the world have no restriction on cousins marrying.

Lastly, you seem to think the state can treats its citizens differently merely because 'it wants' to regarding basic rights, which marriage is an acknowledged one. If that is even going to be attempted it is up to the state to show why they want to treat one citizen different than the other. So the citizens in 'gay relationships' need prove nothing, it is the state that must explain its rationale for excluding them from licensing the totally secular civil contract licensed in support of a citizen's right to marry. And it is in this requirement they fail and probably always will.

There is no quality of a same gender marriage that isn't present in opposite gender ones that are currently allowed license. Not unassisted procreation - the infertile are allowed to license all the time, and as I pointed out in 4 states first cousins are required to be infertile before allowed license. So what else is there, what makes a citizen in an opposite gender marriage more important to the state than a citizen in a same gender marriage? Raising children - at any moment in time 22% of gay households are doing so, 33% of lesbians, 40% of lesbian households licensing the marriage contract in Massachusetts in its first year. In comparison 44% of opposite gendered licensed marriages are raising children. From there the benefits become more personal but even more obviously equal between the two configurations of marriages.

What is the rationale to treat these citizens differently? I can't see a single one that is legal and constitutional all a that the same time.

Oh an sundries, sexual orientation should be protected because it is a quality all people that can not be changed in the vast majority and attempts at repression of people based on their sexual orientation can cause massive problems for them and society. (oh and I do think that there is far more justification for protection of sexual orientation over the chosen largely mentally destructive behavior of religion, but that's just me. ;)

And we don't require sex in a marriage now, why would it suddenly be an issue after allowing a citizen to license the contract with someone of the same gender? Point of fact opposite gender couples already do license with 'roommates' - in the military there are always 'get out of the barrack' marriages, but if they get caught they are annulled because they didn't intend to build a life together.

The catch-phrase of 'defining' what is a marriage for legal purposes from the federal level on down has been two people 'building a life together'. The contract the states license is a two person mutually exclusive contract that merges many aspects of the couple to be viewed as a single legal entity. Doing it with a 'roommate' would be masochistic, you limit your options to license the contract with someone you really do want to build a life with down the road, and you have just exclusively tied yourself to someone who isn't the most important person in your life. Abuse just doesn't happen that often and probably would occur less often with same gender marriages than it already does with opposite gender ones.

Recap:

Marriage doesn't come from the state, it is a natural right.
The state can not support a right for one law abiding citizen and not another without strong justification.
There is no qualitative difference in the citizen's married to people of the same gender over those to the opposite gender that could rationalize blanket exclusion from licensing a totally secular civil contract.
6.20.2006 3:45pm
Bob Van Burkleo (mail):
So while this whole issue is a big deal for that tiny fraction of the population that wants to marry someone of the same sex, it's not a big deal for the rest of us. There are bigger fish to fry.

Oh please, that's the argument for allowing it - its a minimal change that will effect a minimal number of people. Since the government exists to treat the citizens equally the damage caused by being untrue to its base rationale is far greater than any allowing equal access to the contract could possibly cause.
6.20.2006 3:49pm
A. Zarkov (mail):
"Oh please, that's the argument for allowing it -- its (sic) a minimal change that will effect a minimal number of people."

You still haven't given me a utilitarian reason, only ideological reasons, and contestable ones at that. You want to make a change to an existing and very old institution. It seems to me that you have the burden of proof as to why the rest of us would benefit so much, we should make such a radical change.

Let's revisit the happiness question. I'm assuming about half the homosexuals in America want to marry. That's making about 1.5% of the population happier. But surely an even a larger fraction of the population would be made less happy; otherwise we wouldn't have a controversy. Surely at least 6% of the population strongly opposes gay marriage, and would be made significantly unhappier. The actual number is way higher but 6% is enough. Now you might think they have no good reason to be less happy, but their unhappiness is still a fact. Therefore gay marriage would produce a net decrease in American happiness. When this situation changes, when that 6% falls below 1.5%, the legislatures will change the marriage laws.
6.20.2006 5:02pm
Bob Van Burkleo (mail):
If our government existed to merely serve the majority you might have a point. It doesn't, it exists to 'serve the people' and part of that service is equal rights and support for rights equally for all citizens. That some people are made unhappy by the happiness of others is a rationale for every kind of discrimination by the majority to a minority conceivable. Being tolerant of intolerance is not a requirement for tolerance.

And the red herring of 'changing the institution' is just that - gay people already marry; naturally, religiously, and in Massachusetts and other countries, license the contract in its support. No change from that current status is being asked, only access to the contract in other states that Massachusetts.
6.20.2006 5:32pm
Randy R. (mail):
Thanks JGR: I was a little crabby that day, after having to defend myself to everyon.

Zarkov: The institution of marriage has changed more than you can imagine within the last 200 years or so. Up until the late 18th century, virtually no one in western society married for love. Indeed, that would be the most foolish of reasons to do so. You married strictly for utilitarian reasons. This was true for all classes. For the middle or lower classes, it was a matter of simple survival. Divorce was rare or nonexistent for a number of reasons; First it was outlawed, making it impossible. Second, if you didn't marry for love, why would you divorce just because you don't love the person? Third, if the marriage was truly horrible, just wait -- most people died before they had a chance to be divorced (with the average lifespan of about 40 years, you didn't have to wait too long). And 4th, women especially simply couldn't survive without a husband. Men also needed women to do a whole host of chores. Unless one was of the upper classes, you simply could not afford to divorce.

Things began to change beginning in the late 18th C., and picked up steam in the 19th. Nonetheless, few people would marry solely for love. AT this point, it was a nice consideration if you could do it. It wasn't actually until the 1920s, the first generation to throw off Victorian attitudes, that determined that they can and should marry only for love. And they did so. The Depression put a damper on anyone hoping for a divorce because of the economic hardships. That's why it wasn't until the late 40s and 50s when divorce rates spiked. And they dropped a bit, then spiked again in the 70s and have remained high ever since.

So marriage has already gone through a tremendous upheaval, especially in the last 100 years. Divorce is much easier, and more importantly, people can live adequate single lives without a spouse. Today, it is virtually unimaginable to marry for anything other than love!

So with that shift that YOU heterosexual people have made, not us gays, that marriage should be first and foremost about love, you have changed the rules of the game, and the price is higher divorce rate. At this point, if marriage is primarily about love between two people, there simply is no justification for excluding gay people. We should all be able to marry the person we love. It's why not a single person wants the interracial bans reinstituted.

Now people opposing gay marriage are twisting themselves into knots to come up with reasons why marriage is NOT about love, but about child rearing and so on. BS, in my book. It's all about two people falling in love and wanting to spend the rest of their lives together. If it produces children, great, but if not, no one would deny the marriage.
6.20.2006 5:36pm
Medis:
A. Zarkov,

You are doing some very bad utilitarian calculus.

In general, as Bob implied, the question is not the magnitude of the benefits. The question is the magnitude of the benefits relative to the costs. In other words, if the costs associated with gay marriage are small enough relative to the benefits, it is still good policy. And for the most part, you are simply asserting that the costs could be high ("radical change") without any supporting evidence.

Along those lines, however, you argue: "I'm assuming about half the homosexuals in America want to marry. That's making about 1.5% of the population happier. But surely an even a larger fraction of the population would be made less happy; otherwise we wouldn't have a controversy. Surely at least 6% of the population strongly opposes gay marriage, and would be made significantly unhappier."

First, to do this right, you have to look at not just the number of people affected, but also the magnitude of the effects on the people in question. So, it is entirely possible that something which makes 1.5% of the population MUCH happier, and 6% of the population only SOMEWHAT unhappier, is worth doing once you complete the necessary utilitarian calculus. And this can hold true for many more people.

Second, you are apparently not counting the people who might actually like the fact that gay marriages receive civil recognition, even if they are also nonparticipants. Although those people would also be subject to the magnitude discounting that I just discussed, they would still have to be offset against the disapproving third parties. And incidentally, the magnitude might be higher for such approving third parties even though they were nonparticipants (eg, if they were family members of gay people getting married). So, absolute percentages again won't tell you the net effect on the utilitarian calculus.

Third, you cannot assume that simply because people ANTICIPATE bad results to gay marriage, there actually WILL be bad results to gay marriage. In other words, people may oppose civil recognition of gay marriages because they sincerely believe that such recognition will lead to the fall of Western Civilization, but if they are wrong, a utilitarian need not give any credence to their unjustified fears.

Fourth, there is pretty strong evidence arising from the places where civil recognition of gay marriages has been tried that many people quickly stop caring about gay marriage once it is in place. So, it does indeed seem--as often is the case--that many people who anticipated that civil recognition of gay marriage would be bad have been pleasantly surprised that their fears were unwarranted.

In general, insofar as we typically see civil recognition of marriage as beneficial, I would suggest that the burden of proof is actually on those who are trying to limit the civil recognition of marriage. In other words, in the absence of evidence that would rebut our presumptions about the benefits of civil recognition of marriage, we have no grounds to deny gay marriages civil recognition.

This, of course, would be true of any similar case. If someone argued that civil recognition should not be extended to marriages between two left-handed people, we would not require lefty-couples to prove that the small percentage of such marriages were beneficial. Rather, we would require this person to justify excluding such marriages from our normal presumptions. And in the absence of such a justification, we would go ahead and recognize lefty-marriages.
6.20.2006 5:39pm
Randy R. (mail):
Non-lawyer:

Anyone who actually states that they have their "own" reality that deviates from actual reality is pretty much by definition a mentally ill person.

If you don't want to shut down debate by pulling out the God card, then don't pull out the God card. Every religion has it's own beliefs, but they are generally limited to issues of morality, how to live a life, belief in what is unknown. To deny science, as creationists attempt to do so, or to discriminate against gay people, as many religionists attempt to do so, on the basis of a belief system is, to me at least, very strange. We don't believe the world is flat anymore, because we science has proved it, not religion.

You say that you "Know" that being gay is choice based on nothing but belief, and you ignore clear evidence. In fact, you don't even want to know about it. That's fine, and perhaps that works in certain religious circles. All I can say is that God science and real truth have nothing to do with religion.
6.20.2006 5:45pm
Chimaxx (mail):
Randy R:
The reason that I switched rather freely between the leaders of official groups with household acronyms such as NOW, NAACP, and ACT-UP (okay,not an acronym but nevermind) and other influential members of the media is simply because they tend to share the same beliefs. This is why we call it the liberal media. It is because liberals tend to share the same beliefs on core issues. Hence, almost every member of the congressional black caucus has the same position as the leader of the NAACP on quotas - they give speeches stating that this is "the black position" although most blacks actually disagree with them. Every gay person that I personally know is opposed to speech codes, yet almost every homosexual talking head that I see on tv supporting speech codes claims to be speaking as a spokesperson for gay people and claims that opposition to their belief is "anti-gay".


First, the trivially unimportant: ACT-UP is indeed an acronym, or at least was at its inception (AIDS Coalition to Unleash Power).

More important: I simply don't believe the so-called evidence on which you base your point. I don't think the leaders of NOW, NAACP and ACT-Up share that much of a political or legislative agenda, any more than Steve Forbes and Pat Robertson would share a political or legislative agenda. The first three can be lumped together as liberal because they believe that they are more likely to get most of the important aspects of their agenda enacted by a Democrat-dominated government, just as the latter two can be lumped together as liberals for believing the Republicans will be more likely to advance most of the issues they care about most. But their legislative goals and interests have little overlap within each grouping.

I also doubt that most people of X type that you know (or most people of X type that I know) make up any sort of representative sample. Merely by virtue of being in your or my social circle, they are likely to be more economically and politically (and geographically!) homogeneous than the population at large.

Most importnat, I don't believe your vague anecdotal assertions about the things most leaders of various types say. Last I heard, the NAACP and Black Caucus were, both officially and by and large, against quotas but for affirmative action, yet you claim they are for quotas. (One can argue whether that hair can truly be split, but one can't argue that many many people try to split it.) One of the most read and most frequently quoted gay writers around--Andrew Sullivan--frequently and explicitly opposes both speech codes and hate crimes legislation. Who are some of the members of these lockstep hordes of spokesmen that you refer to?
6.20.2006 6:12pm
Chimaxx (mail):
Sorry: The quote and argument in the above was to JGR, nor Randy R. I got the repondents confused at the end when I added the attribution, for which I apologize.
6.20.2006 6:16pm
A. Zarkov (mail):
Randy R.

The one thing about marriage that hasn't changed over the last 200 years: it must be between (putting aside polygamy) people of the opposite sex with a low degree of consanguinity. That's the issue on the table. I also think you have idealized notions about marriage. I afraid it brings a lot less happiness than some homosexuals (and heterosexuals) think. Now that it's not illegal, and almost socially acceptable, more and more heterosexual couples choose cohabitation over marriage. Surely they know something. You don't need a marriage license to form a personal partnership; you can do it with a contract. In fact lots of heterosexuals draw up "living together contracts." See NOLO Press books on the subject. Since I don't see a compelling need even for heterosexuals to get married, I don't see it for homosexuals. A long time ago a friend of mine asked his lawyer father should he get married to avoid the draft? You could do that in those days. His father told him that he had lots of clients who would gladly spend two years in the army to get rid of their wives. Be very careful what you ask for.
.
6.20.2006 6:27pm
A. Zarkov (mail):
Medis:

You're right—in principle. We should be maximizing the change in expected utility. But who knows what the utility function for homosexuals and gay marriage opponents is? One would have to study this subject carefully to see what the net change in expected utility would be both in the short run and the long run. If the advocates of gay marriage want to spend their money doing that study and they do it properly I could very well change my mind. We could ask people questions like how much would you pay to change the law or keep it the way it is? If the opponents wouldn't pay more than a dollar on average and the advocates were willing to pay $1,000, I might be convinced. The problem of course is we have to know how much monetary utility the respondent is actually giving up for his position. That at least would require we know the incomes of all the respondents. After all a rich gay guy might be willing to part with $10,000 while a poor straight guy might only be willing to fork over $10 because he can't afford more.
6.20.2006 6:42pm
non_Lawyer:
Randy,

Anyone who actually states that they have their "own" reality that deviates from actual reality is pretty much by definition a mentally ill person.

I obviously did not express myself clearly. All I was trying to say was that "things as they really are" -- a perception shared by millions of my faith -- are quite different from the way things are perceived by those such as yourself. Even that is not an adequate description, but it helps to delineate why we are talking past each other. I never said my reality differs from "actual reality," and to refer to me as "mentally ill" is just the kind of denigration I foresaw would come by introducing religion -- the basis for my worldview -- into the debate. Sadly, the religious worldview, blamed so harshly for so much by the non-religious, gets little respect from the non-religious.

If you don't want to shut down debate by pulling out the God card, then don't pull out the God card.

Sorry, but my religion is central to my worldview, not something I can conveniently set aside to please those who don't see things my way. I am not just a casual believer—I actually live my religion. I just realize that a total impasse occurs as soon as "the God card" is played (a term which, by the way, I am regretting having coined, because it belittles and devalues my own worldview!). But I also realize that I am handicapped in a discussion such as this when I cannot without impunity utilize the tenets that are central to my worldview. That would be like asking you to have this conversation (or any number of other such conversations), but to tell you that the conditions of the discourse are that you not make any mention of philosophy, science, history, civics, law, or anything your mommy and daddy ever taught you. Try it sometime--you couldn't get very far that way, could you?

Every religion has it's own beliefs, but they are generally limited to issues of morality, how to live a life, belief in what is unknown.

Gee, there's an understated encapsulation of it. You failed to mention the purpose of life and the very nature of our existence -- who we are, where we came from, where we are going. What you consider "unknown," I consider "known" by revelation, by faith stronger than the five senses, by a witness more powerful than any so-called empirical evidence. Who are you to devalue that?

To deny science, as creationists attempt to do so, or to discriminate against gay people, as many religionists attempt to do so, on the basis of a belief system is, to me at least, very strange.

This is why we are talking past each other. It is not strange to me at all to "deny science." What was scientific "truth" yesterday is revised and updated and completely changed today. How can you put your faith in something so changeable? Would you stake your life on your belief in something so transient? I would stake my life in my religion -- eternal truth does not change. Of course, whereas someone committed to their scientific beliefs is a stalwart and a noble person, someone committed to their religion is a "freak" or a "zealot" or a "religious fanatic," -- or "mentally ill", right? *eyeroll*

We don't believe the world is flat anymore, because we science has proved it, not religion.

Actually, science only verified what some prophets already knew about celestial orbits at least 1,500 years before Copernicus even dreamed of it. Science (or the full understanding of it) is always a step (or so) behind revealed truth, and always will be.

You say that you "Know" that being gay is choice based on nothing but belief, and you ignore clear evidence.

Again, I do not trust in the so-called evidence of man, when I already know the truth from a much higher source.

All I can say is that God science and real truth have nothing to do with religion.

Not sure what "God science" is (scientology?), but for me, (and I am far from alone) "real truth" has everything to do with true religion -- indeed, it is the only reliable source of "real truth." And regardless of what you believe, that does not lessen the validity of my point of view.

As I said, I am content to agree to disagree, because we are not even speaking the same language. You think I am "mentally ill" and I am convinced that you are greatly deceived. The way I see it, you just don't get it (and you would say the same of me). It's alright though, I find this debate intellectually stimulating and sometimes entertaining, so it's all good. But, it has also reached what seems to be a dead end (what with me being "mentally ill" and everything, you'd be insane to continue debating me, eh?) Have a great day. :)
6.20.2006 9:35pm
non_Lawyer:
Randy,

Anyone who actually states that they have their "own" reality that deviates from actual reality is pretty much by definition a mentally ill person.

I obviously did not express myself clearly. All I was trying to say was that "things as they really are" -- a perception shared by millions of my faith -- are quite different from the way things are perceived by those such as yourself. Even that is not an adequate description, but it helps to delineate why we are talking past each other. I never said my reality differs from "actual reality," and to refer to me as "mentally ill" is just the kind of denigration I foresaw would come by introducing religion -- the basis for my worldview -- into the debate. Sadly, the religious worldview, blamed so harshly for so much by the non-religious, gets little respect from the non-religious.

If you don't want to shut down debate by pulling out the God card, then don't pull out the God card.

Sorry, but my religion is central to my worldview, not something I can conveniently set aside to please those who don't see things my way. I am not just a casual believer—I actually live my religion. I just realize that a total impasse occurs as soon as "the God card" is played (a term which, by the way, I am regretting having coined, because it belittles and devalues my own worldview!). But I also realize that I am handicapped in a discussion such as this when I cannot without impunity utilize the tenets that are central to my worldview. That would be like asking you to have this conversation (or any number of other such conversations), but to tell you that the conditions of the discourse are that you not make any mention of philosophy, science, history, civics, law, or anything your mommy and daddy ever taught you. Try it sometime--you couldn't get very far that way, could you?

Every religion has it's own beliefs, but they are generally limited to issues of morality, how to live a life, belief in what is unknown.

Gee, there's an understated encapsulation of it. You failed to mention the purpose of life and the very nature of our existence -- who we are, where we came from, where we are going. What you consider "unknown," I consider "known" by revelation, by faith stronger than the five senses, by a witness more powerful than any so-called empirical evidence. Who are you to devalue that?

To deny science, as creationists attempt to do so, or to discriminate against gay people, as many religionists attempt to do so, on the basis of a belief system is, to me at least, very strange.

This is why we are talking past each other. It is not strange to me at all to "deny science." What was scientific "truth" yesterday is revised and updated and completely changed today. How can you put your faith in something so changeable? Would you stake your life on your belief in something so transient? I would stake my life in my religion -- eternal truth does not change. Of course, whereas someone committed to their scientific beliefs is a stalwart and a noble person, someone committed to their religion is a "freak" or a "zealot" or a "religious fanatic," -- or "mentally ill", right? *eyeroll*

We don't believe the world is flat anymore, because we science has proved it, not religion.

Actually, science only verified what some prophets already knew about celestial orbits at least 1,500 years before Copernicus even dreamed of it. Science (or the full understanding of it) is always a step (or so) behind revealed truth, and always will be.

You say that you "Know" that being gay is choice based on nothing but belief, and you ignore clear evidence.

Again, I do not trust in the so-called evidence of man, when I already know the truth from a much higher source.

All I can say is that God science and real truth have nothing to do with religion.

Not sure what "God science" is (scientology?), but for me, (and I am far from alone) "real truth" has everything to do with true religion -- indeed, it is the only reliable source of "real truth." And regardless of what you believe, that does not lessen the validity of my point of view.

As I said, I am content to agree to disagree, because we are not even speaking the same language. You think I am "mentally ill" and I am convinced that you are greatly deceived. The way I see it, you just don't get it (and you would say the same of me). It's alright though, I find this debate intellectually stimulating and sometimes entertaining, so it's all good. But, it has also reached what seems to be a dead end (what with me being "mentally ill" and everything, you'd be insane to continue debating me, eh?) Have a great day. :)
6.20.2006 9:35pm
non_Lawyer:
Randy,

Anyone who actually states that they have their "own" reality that deviates from actual reality is pretty much by definition a mentally ill person.

I obviously did not express myself clearly. All I was trying to say was that "things as they really are" -- a perception shared by millions of my faith -- are quite different from the way things are perceived by those such as yourself. Even that is not an adequate description, but it helps to delineate why we are talking past each other. I never said my reality differs from "actual reality," and to refer to me as "mentally ill" is just the kind of denigration I foresaw would come by introducing religion -- the basis for my worldview -- into the debate. Sadly, the religious worldview, blamed so harshly for so much by the non-religious, gets little respect from the non-religious.

If you don't want to shut down debate by pulling out the God card, then don't pull out the God card.

Sorry, but my religion is central to my worldview, not something I can conveniently set aside to please those who don't see things my way. I am not just a casual believer—I actually live my religion. I just realize that a total impasse occurs as soon as "the God card" is played (a term which, by the way, I am regretting having coined, because it belittles and devalues my own worldview!). But I also realize that I am handicapped in a discussion such as this when I cannot without impunity utilize the tenets that are central to my worldview. That would be like asking you to have this conversation (or any number of other such conversations), but to tell you that the conditions of the discourse are that you not make any mention of philosophy, science, history, civics, law, or anything your mommy and daddy ever taught you. Try it sometime--you couldn't get very far that way, could you?

Every religion has it's own beliefs, but they are generally limited to issues of morality, how to live a life, belief in what is unknown.

Gee, there's an understated encapsulation of it. You failed to mention the purpose of life and the very nature of our existence -- who we are, where we came from, where we are going. What you consider "unknown," I consider "known" by revelation, by faith stronger than the five senses, by a witness more powerful than any so-called empirical evidence. Who are you to devalue that?

To deny science, as creationists attempt to do so, or to discriminate against gay people, as many religionists attempt to do so, on the basis of a belief system is, to me at least, very strange.

This is why we are talking past each other. It is not strange to me at all to "deny science." What was scientific "truth" yesterday is revised and updated and completely changed today. How can you put your faith in something so changeable? Would you stake your life on your belief in something so transient? I would stake my life in my religion -- eternal truth does not change. Of course, whereas someone committed to their scientific beliefs is a stalwart and a noble person, someone committed to their religion is a "freak" or a "zealot" or a "religious fanatic," -- or "mentally ill", right? *eyeroll*

We don't believe the world is flat anymore, because we science has proved it, not religion.

Actually, science only verified what some prophets already knew about celestial orbits at least 1,500 years before Copernicus even dreamed of it. Science (or the full understanding of it) is always a step (or so) behind revealed truth, and always will be.

You say that you "Know" that being gay is choice based on nothing but belief, and you ignore clear evidence.

Again, I do not trust in the so-called evidence of man, when I already know the truth from a much higher source.

All I can say is that God science and real truth have nothing to do with religion.

Not sure what "God science" is (scientology?), but for me, (and I am far from alone) "real truth" has everything to do with true religion -- indeed, it is the only reliable source of "real truth." And regardless of what you believe, that does not lessen the validity of my point of view.

As I said, I am content to agree to disagree, because we are not even speaking the same language. You think I am "mentally ill" and I am convinced that you are greatly deceived. The way I see it, you just don't get it (and you would say the same of me). It's alright though, I find this debate intellectually stimulating and sometimes entertaining, so it's all good. But, it has also reached what seems to be a dead end (what with me being "mentally ill" and everything, you'd be insane to continue debating me, eh?) Have a great day. :)
6.20.2006 9:36pm
non_Lawyer:
Randy,

Anyone who actually states that they have their "own" reality that deviates from actual reality is pretty much by definition a mentally ill person.

I obviously did not express myself clearly. All I was trying to say was that "things as they really are" -- a perception shared by millions of my faith -- are quite different from the way things are perceived by those such as yourself. Even that is not an adequate description, but it helps to delineate why we are talking past each other. I never said my reality differs from "actual reality," and to refer to me as "mentally ill" is just the kind of denigration I foresaw would come by introducing religion -- the basis for my worldview -- into the debate. Sadly, the religious worldview, blamed so harshly for so much by the non-religious, gets little respect from the non-religious.

If you don't want to shut down debate by pulling out the God card, then don't pull out the God card.

Sorry, but my religion is central to my worldview, not something I can conveniently set aside to please those who don't see things my way. I am not just a casual believer—I actually live my religion. I just realize that a total impasse occurs as soon as "the God card" is played (a term which, by the way, I am regretting having coined, because it belittles and devalues my own worldview!). But I also realize that I am handicapped in a discussion such as this when I cannot without impunity utilize the tenets that are central to my worldview. That would be like asking you to have this conversation (or any number of other such conversations), but to tell you that the conditions of the discourse are that you not make any mention of philosophy, science, history, civics, law, or anything your mommy and daddy ever taught you. Try it sometime--you couldn't get very far that way, could you?

Every religion has it's own beliefs, but they are generally limited to issues of morality, how to live a life, belief in what is unknown.

Gee, there's an understated encapsulation of it. You failed to mention the purpose of life and the very nature of our existence -- who we are, where we came from, where we are going. What you consider "unknown," I consider "known" by revelation, by faith stronger than the five senses, by a witness more powerful than any so-called empirical evidence. Who are you to devalue that?

To deny science, as creationists attempt to do so, or to discriminate against gay people, as many religionists attempt to do so, on the basis of a belief system is, to me at least, very strange.

This is why we are talking past each other. It is not strange to me at all to "deny science." What was scientific "truth" yesterday is revised and updated and completely changed today. How can you put your faith in something so changeable? Would you stake your life on your belief in something so transient? I would stake my life in my religion -- eternal truth does not change. Of course, whereas someone committed to their scientific beliefs is a stalwart and a noble person, someone committed to their religion is a "freak" or a "zealot" or a "religious fanatic," -- or "mentally ill", right? *eyeroll*

We don't believe the world is flat anymore, because we science has proved it, not religion.

Actually, science only verified what some prophets already knew about celestial orbits at least 1,500 years before Copernicus even dreamed of it. Science (or the full understanding of it) is always a step (or so) behind revealed truth, and always will be.

You say that you "Know" that being gay is choice based on nothing but belief, and you ignore clear evidence.

Again, I do not trust in the so-called evidence of man, when I already know the truth from a much higher source.

All I can say is that God science and real truth have nothing to do with religion.

Not sure what "God science" is (scientology?), but for me, (and I am far from alone) "real truth" has everything to do with true religion -- indeed, it is the only reliable source of "real truth." And regardless of what you believe, that does not lessen the validity of my point of view.

As I said, I am content to agree to disagree, because we are not even speaking the same language. You think I am "mentally ill" and I am convinced that you are greatly deceived. The way I see it, you just don't get it (and you would say the same of me). It's alright though, I find this debate intellectually stimulating and sometimes entertaining, so it's all good. But, it has also reached what seems to be a dead end (what with me being "mentally ill" and everything, you'd be insane to continue debating me, eh?) Have a great day. :)
6.20.2006 9:36pm
non_Lawyer:
Oops. Sorry for the quadruple post -- my browser was acting up!
6.20.2006 9:43pm
non_Lawyer:
Bob,

you get to practice your religion, I get to practice my religion, neither of us has to practice the other's religion. By saying that a citizen's access to a totally secular civil contract is limited by YOUR religion's opinion isn't 'fair'. You are limiting practitioner's of another religion access to government because of the rules of yours. As an American does that seem right to you?

You make a very good point there, Bob. However, I think that the "rules" of my religion (ie. marriage is only marriage when it is a man and a woman) reach beyond my own religion to society at large. In order to form laws, we must agree upon key definitions. For instance, your religion may consider killing a cow to be murder, but society at large agrees that murder is the premeditated killing of another human being. Someone else's religion may not view human sacrifice as murder, but again, Americans in general agree that it is. Thanks to the democratic form of our government, we can all come to a consensus on certain definitions of concepts (not just the words that describe them) that are used when forming our governing principles. I hasten to emphasize the "concept" and not just the word. That is why calling a "gay marriage" a "civil union" but defining it (for all intents and purposes) the same as a heterosexual marriage is nothing more than word play, and is not fooling anyone. Contrary to what we see in The Princess Bride, you can't be "mostly dead," and likewise you cannot be "mostly married" or "sort-of married." This is so straightforward.

There is no quality of a same gender marriage that isn't present in opposite gender ones that are currently allowed license.

This is the biggest bunch of hogwash I have ever heard. You cannot be serious. If the differences between a homosexual relationship and a heterosexual relationship were not substantive and meaningful and important, there would be no debate.
6.20.2006 10:14pm
non_Lawyer:
Bob,

One more thing:

Marriage comes from above and beyond government

My point exactly. The definition of marriage is eternal and immutable, and comes from beyond mere mortals. Therefore, even if "gay marriage" were authorized by a government, as in your quote here:

gay people already marry; naturally, religiously, and in Massachusetts and other countries

it would still not actually be marriage. Saying that homosexual people get married in Massachusetts makes as much sense as saying "Purple smells like Beethoven's Fifth Symphony in Norway." If man radically changes the definition of concepts and words, he can say anything he wants. But it would not make sense to the majority, who define those things differently. And the Truth would still be the Truth.
6.20.2006 10:57pm
Bob Van Burkleo (mail):
My point exactly. The definition of marriage is eternal and immutable, and comes from beyond mere mortals.

Correct, it comes from our very DNA, our drive to 'couple up' the real world manifestation of our mammalian pair-bonding response.

t would still not actually be marriage.

Sure it would - same biological origin no matter what ever the gender combination. I know you have a magical source of your definition but again, this is the USA - it is a secular government by design - I'm not superstitious and take great umbrage when someone tries to force a superstitious rationale for things on the secular government. You get to believe what you want, I get to believe what I want, the government exists to serve both our needs regardless, not just yours.

And as to you saying you can define marriage for other religions, sorry you can't have your cake and eat it too. If another religion says that two people of the same gender can marry then they can - freedom of religion. And as I've pointed out the biological source of marriage is the same no matter what the gender combination of the pair-bonding. Our rights derive from our real world natures, - the government doesn't create them it merely recognizes them.

This is the biggest bunch of hogwash I have ever heard. You cannot be serious. If the differences between a homosexual relationship and a heterosexual relationship were not substantive and meaningful and important, there would be no debate.

Sure there would if one side was wrong and using superstitious mythology to justify their position. The stage is yours - explain the non-superstiious differences between the two that would legally justify one citizen having access to the totally secular government contract and one not.

You can say there are differences but no one has been able to identify them yet - maybe you'll be the first.
6.20.2006 11:37pm
non_Lawyer:
Bob,

Your argument continues to degenerate into specious name calling.

I know you have a magical source of your definition

I do NOT believe in magic, and have never said that I do. To compare my religious beliefs to magic is a cheap attack.

I'm not superstitious and take great umbrage when someone tries to force a superstitious rationale for things on the secular government.

I am NOT superstitious, and have never said that I am. To compare my religious beliefs to superstition is yet another cheap ad hominem attack.

Sure there would if one side was wrong and using superstitious mythology to justify their position.

I do NOT believe in mythology, and have never said that I do. To compare my religious beliefs to mythology is -- you guessed it -- another cheap attack designed to belittle religious belief and disrespect a perfectly valid point of view.

Correct, it comes from our very DNA

Marriage does not come from DNA. It was instituted by a sentient, logical, omnipotent being. That's like saying the Constitution or baptism or citizenship or the priesthood or driver's licenses or blogs came from our DNA. Makes no sense. Sounds like mythology to me.

tries to force a superstitious [sic] rationale for things on the secular government.

So, by what rationale do you propose we govern ourselves? Shall we appeal to the all-powerful DNA to define our institutions and guide our governing principles? Again, that makes as much sense as believing in magic. The correct answer is that, like it or not, we construct our laws based on morality (e.g. it is not morally justifiable to murder an innocent person, thus it is illegal). Like it or not, commonly accepted morality takes its cues largely from religion. That doesn't mean the government is religious, but to try to say that religious values cannot and should not influence the governing of the land is to promote anarchy. The government is made up of people. Most of those people gained their moral judgment not from their DNA, but from religious influences.

Sure there would if one side was wrong and using superstitious mythology to justify their position.

Oh. So there's only a debate because people like me are wrong. Well, that settles it then! What was I thinking? Talk about shutting down your opponent. ;)

explain the non-superstitious differences between the two

By non-superstitous, I assume you mean you want me to not refer to religion in my explanation. Again, that would be like me asking you to abandon your entire worldview when you present your argument. Sure, let's have a duel, but you're the only one armed. Real fair.
Like I said before, although I am sure that there are many things upon which we can find common ground, ultimately, our worldviews, those parts of us that define the terms in these kinds of political/religious/values debates, are so mutually exclusive that it is a stalemate.

You can say there are differences but no one has been able to identify them yet - maybe you'll be the first.


No one has identified them to your satisfaction, because you do not accept that religious values have any place in the debate. From my perspective, this debate is meaningless without the religious component. But the fact is, the differences are simple to identify, but impossible if you ban my insultingly so-called "superstitous" beliefs from being presented. So, I guess you win. My point of view is invalid from the get-go.
We could have saved ourselves a lot of time if I'd only realized from the start that because I am religious, I have no right to an opinion.
Better let the other 85% of the country know that their opinion doesn't count, either.
I gotta get to bed. Have a great evening.
6.21.2006 1:38am
Randy R. (mail):
Actually, many of those 85% who are religious have no problems with gays or gay marriage. The reformed and conservative jews support gay marriage, as do many of the episcople churches. The methodist church down the street from me performs gay marriages. Let's not forget the Unitarians and Universalists, either. Don't their religious views count? Or is it only yours that counts? And how do we order a civilized society that allows for all their different eternal truths? The Taliban fixed that problem quite easily -- they just declared all other religions false, such as yours. So how does that make YOUR religion any different from the Talibans, other than to claim, well, WE are right, everyone else is wrong? (Which is exactly the claim of the Taliban)

Furthermore, the whole debate started when I said that gays cannot change their sexual orientation, and you said that they can, based upon your eternal truths revealed by God. You also stated that you do not believe the evidence Man. (Again, these beliefs are strikingly similar to all the harshest religions on the planet -- the fundamentalist view of Islam, for instance)

And yet... When I have read the Bible (the word of God, right?) I see nothing there that describes or even talks about sexual orientation. There is certainly nothing there that states its origins, causes or conditions, and nothing at all about whether it can change. Funny isn't it? God didn't say anything at all about that stuff.

Then who did? Well, actually the evidence of Man did, the very thing that you distrust so much! In other words, someone, some where, just made it up. Out of nothing.

Wasn't it slavery that was supported by religion for so long? In fact, the Bible often talks approvingly of it (only recent editions have changed it to 'servants' a bowdlerization of the originals). Guess those eternal truths weren't so eternal -- unless you support slavery?

As for the mentally ill -- if you go to a home for psychotic people, you might someone who believes he is Napolean. No amount of proof will convince him otherwise. You can show him history books, science books, his own birth certificate -- it will have no effect upon him. Denial of such clear evidence is pretty much the definition of mental illness.

Guess you can't use the computer -- it's not based on an eternal truth, but the science of physics, electricity, light, and so on. But you don't believe in any of that. Or do you just pick stuff that you like and disregard stuff you don't?
6.21.2006 2:23am
Medis:
A. Zarkov,

Again, though, we ordinarily presume that the civil recognition of marriage is beneficial, and we do not require each married couple seeking such recognition to provide proof that their particular marriage will also be beneficial. So, I would suggest that the burden is actually on those who want to deny civil recognition to gay marriages to rebut that presumption of benefit, and hence they are the ones who should have to provide convincing evidence to support their view.

This, incidentally, is a well-recognized pattern in utilitarianism. It would be an extremely bad idea to require a full utilitarian analysis for every decision that we make, because that would consume an enormous amount of resources and be largely redundant. Moreover, deliberate inaction is itself a kind of action, and therefore the decision not to do something while studying the issue is itself a decision that would require a utilitarian justification, making it impossible to consistently apply a rule requiring full utilitarian analysis before acting.

Hence, utilitarians recognize the utilitarian value of heuristics (AKA rules of thumb), which assign positive or negative values to certain classes of activity in the absence of extraordinary circumstances. An "extraordinary circumstance" is a factor which justifies switching the valence of our rule. These heuristics, or rules of thumb, allow us to act without going through a full utilitarian analysis, in the absence of extraordinary circumstances.

To give a brief example, we have a homicide rule of thumb which assigns a negative value to killing another human being. Accordingly, each time we seek to condemn someone for killing another human being, we do not need to go through a full utilitarian analysis. But we have also recognized an extraordinary circumstance for self-defense, which switches the value of killing another human being from negative to positive. Accordingly, we will not condemn someone for killing another human being if it was in self-defense.

So, to put my point another way, we have adopted a utilitarian rule of thumb which says that civil recognition of marriage is generally beneficial absent extraordinary circumstances. In other words, when a married couple seeks civil recognition, we do not go through a full utilitarian analysis before providing such recognition. Rather, we immediately grant such recognition unless there is some extraordinary circumstance.

Accordingly, those who support denying civil recognition to gay marriages have the burden of showing that the gayness of the marriage represents an extraordinary circumstance which should switch the valence of our rule from positive to negative. In the absence of such a showing, we should simply apply our general rule of thumb for marriages and provide civil recognition to gay marriages.

Incidentally, I think this way of approaching the problem helps summarize various arguments and replies. For example, a common argument against providing civil recognition to gay marriages is that gay couples are incapable of reproducing naturally. Treating this as an argument to the effect that the inability to reproduce naturally is an extraordinary circumstance which should switch the valence of our marital rule of thumb, we can then note that we do not in fact generally treat this attribute as such an extraordinary circumstance (eg, we do not switch the valence of our marital rule of thumb when considering straight marriages that are incapable of reproducing naturally). Accordingly, the mere observation that gay couples are incapable of reproducing naturally can be dismissed as a sufficient reason to deny civil recognition to gay marriages, because that attribute alone does not count as an extraordinary circumstance for the purposes of our marital rule of thumb.
6.21.2006 7:53am
anonymousss (mail):
it would still not actually be marriage. Saying that homosexual people get married in Massachusetts makes as much sense as saying "Purple smells like Beethoven's Fifth Symphony in Norway." If man radically changes the definition of concepts and words, he can say anything he wants.

if "gay marriage" were literally incoherent or meaningless, like your sentence or chomsky's famous "colorless green ideas sleep furiously" we wouldnt be having this debate, because nobody would be able to make any sense of it. everybody knows what gay marriage is, and that's exactly why people care so much about the issue.

but basically you seem to be arguing from definitions. what about civil unions? your argument from definition doesnt apply to them. in any case, i dont think this is a radical change.
6.21.2006 10:30am
JGR (mail):
Chimaxx,

More important: I simply don't believe the so-called evidence on which you base your point. I don't think the leaders of NOW, NAACP and ACT-Up share that much of a political or legislative agenda, any more than Steve Forbes and Pat Robertson would share a political or legislative agenda. The first three can be lumped together as liberal because they believe that they are more likely to get most of the important aspects of their agenda enacted by a Democrat-dominated government, just as the latter two can be lumped together as liberals for believing the Republicans will be more likely to advance most of the issues they care about most. But their legislative goals and interests have little overlap within each grouping.

Oh puh-leeze!

The opening paragraph of Thomas Sowell's classic 'The Visison of the Anointed' reads as follows:

"The views of political commentators or writers on social issues range across a wide spectrum, but their positions on these issues are seldom random. If they are liberal, conservative, or radical on foreign policy, they are likely to be the same on crime, abortion, or education. There is usually a coherence to their beliefs, based on a particular set of underlying assumptions about the world - a certain vision of reality."

This is even truer of modern liberals than conservatives because conservative has to some degree become a catch-all phrase for "non-liberal".
It is, of course, true that identity politics groups differ with one another when their direct constituencies come into conflict. During the OJ trial, the NOW and the feminist establishment vigorously supported the victim's family, whereas many self-identified black leaders vigorously supported OJ Simpson. While these types of conflicts are not uncommon to the point of being negligible, these groups agree on many more issues than they disagree on. Most importantly, they agree with one another on the legitimacy of identity politics itself and rally together against every non-collectivist writer or politician. Hence Jesse Jackson's famous "rainbow coalition" where he praises every identity politics group under the sun - blacks, gays, hispanics - everyone except the people who see themselves as individual Americans, or people who see themselves as part of a group that doesn't line up in traditional liberal politics - the family, Christian evangelicals etc.

Last I heard, the NAACP and Black Caucus were, both officially and by and large, against quotas but for affirmative action, yet you claim they are for quotas. (One can argue whether that hair can truly be split, but one can't argue that many many people try to split it.)

Again, puh-leeze.

It is indeed possible to support voluntary affirmative action without supporting quotas. Almost everyone who does so is a conservative. What most liberals call "affirmative action" is a system of government coercion that is a code name for quotas. This isn't my interpretation. This is the official position of the EEOC, the governing body that enforces "affirmative action". The 1964 Civil Rights Act explicitly banned quotas, but almost immediately the EEOC announced it was ignoring the law. Clifford Alexander, EEOC chairman, announced in 1968: "We... here at EEOC believe in numbers". They began prosecuting businesses that didn't have exactly the right percentage of minorities. If it were true that liberals who say they support affirmative action but oppose quotas actually do so, then presumably they would protest quotas and try to stop the illegal practices of the EEOC. The fact that they dissemble in speeches and deny they support quotas while implicitly supporting them tells you nothing except that they dissemble in speeches.

It is true that, other things being equal, a person's statement about their beliefs should be given a good deal of weight. But it is simply false that a person's statement about their beliefs should be given more weight than objective evidence that directly contradicts it. That is why a person can be sent to prison for a crime even if he says he's innocent.
6.21.2006 11:47am
non_Lawyer:
Let's see...argumentum ad hominem, argumentum ad ignorantiam and argumentum ad logicam from Bob, backed up by Randy's strong reductio ad Hitlerum mixed in with a little argumentum ad populum.

Very poor tactics, gentlemen.

(And, by the way, if you really have read the scriptures, you did not understand them.)

Debate is fun, but futile contention is wearisome. I am bowing out.
6.21.2006 12:19pm
Bob Van Burkleo (mail):
I'm sorry if you thought my using the terms 'superstition', 'magic', and 'mythology' were an attack or an 'ad hominem' but they were responsive to your totally repugnant suggestion that our secular American government should deny rights to its citizens based upon what you admit is a totally religious belief.
I don't think you realize just how offensive that is, and so I responded in kind - you hold out your religion as a reason for discrimination, I get to describe your religion as it looks from my eyes.

It amazes me in a totally negative way that an American would even suggest that the government should use a religious definition for deciding the rights of fellow citizens citizens. And the complaints of argumentum ad ignorantiam - really how can we have a discussion about the validity of beliefs without each side pointing out which ones they think are wrong - you said my biological origins of rights was wrong, I said the basis for your point of view was wrong. So save the ruffled feathers - you gave as good as you got.

And where you dug up 'ad logicam' - I never said you might not be right, but you will have to use a secular reason to prove it if you want it to define government qualities - our government isn't allowed to use 'religion' for its justifications, but then that did turn out to be the core of our disagreement didn't it - you think it can.

But you are right if your only reason for denying citizens their equal rights is due to your purely religious beliefs and you can not argue without referring to them then this discussion is at an end (which you actually realized a long time ago.)

We have no common ground - I think I live in a secular nation where each citizen is free of the religion of the other particularly related to government, you think you live in a theocracy where you can have the common government define fellow citizens by the definitions of your religion.

Let the games begin.
6.21.2006 2:48pm
Randy R. (mail):
Yup -- very poor tactics, indeed, because I asked inconvenient questions that non-lawyer simply refuses to answer.
6.21.2006 6:06pm
Bob Van Burkleo (mail):
I'm sure non-laywer realizes the dilemma, just can't admit to it.

What if they were told they were permanently proscribed from a government feature because they weren't 'the anointed of Zeus ' or that Captain Picard won't want it that way, I'm sure their reaction would be similar.

Non-lawyer's rationale makes me take the Christian Dominion theology more seriously, which advocates a deliberate effort to make this sect of Christianity the law of the land, the US as a theocracy.

The only avenue I see is alerting people to the movement and getting them to consider is this huge backstep in governmental style really what's best for the American people?
6.21.2006 7:13pm
Chimaxx (mail):
JGR: Do you really think through the things you write? The fact that Jesse Jackson had to propose and advocate a "Rainbow Coalition" of various identity groups is because the groups did not, at their core, see themselves as pursuing the same goals--gays and lesbian groups having no interest in bilingual education, black voting groups ambivalent about the ERA and gay rights, NOW and other women's groups ignoring the way in which drug sentencing laws unequally impacted the black community (including black women).

No one who has watched the internecine battles between various gay rights groups (pick up any three issues of a semi-serious gay paper and there'll be at least one article in which one organization slams another) can claim with a straight face that the groups form some sort of hive mind. Put the leaders of Gay and Lesbian Advocates and Defenders (GLAD), Gay and Lesbian Alliance Against Defamation (GLAAD), Gay Liberation Front (GLF), GenderPAC (GPAC), Human Rights Campaign (HRC), Lambda Legal, Lesbian Avengers, Log Cabin Republicans (LCR), National Gay and Lesbian Task Force (NGLTF) and Queer Nation in a room and they'll all agree that "we" deserve equality under the law, but they won't even be able to agree who "we" are (gay men and lesbians? Not inclusive enough. gay, lesbian, bi, transgendered, and the differently sexed? No. Queer? No), much less what equality means or how to get there. An attempt to repeat the 1993 March on Washington in 2000 as the Millennium March fizzled to nothing because the various groups organizing the march couldn't agree what or even who we were supposed to be marching for (story)>

Put Patrick Guerriero, Barney Frank, Andrew Sullivan, Dan Savage, Joe Solmonese and Mary Bonuato on a panel and watch the fur fly if you ask them anything more specific than "should the lot of people who are sexual minorities be improved?".
6.22.2006 1:52pm